Executive Communications

This is to provide you with our views on H.R. 5237, the "Native American Grave Protection and Repatriation Act". We support the goal of H.R. 5237, but would oppose it unless amended as we suggest below. In addition, we oppose provisions in the bill that would authorize open-ended and unlimited grants to tribes and museums involved in the repatriation process. H.R. 5237 also raises serious constitutional problems that must be satisfactorily addressed prior to enactment. We defer to the Department of Justice for an analysis of the legal issues associated with this bill, which has been previously provided to the Committee.

H.R. 5237 would establish criminal penalties for anyone selling or transporting Native American skeletal remains without the consent of the heirs of the deceased or the tribe which is culturally affiliated with the remains. The bill would also establish ownership of grave goods found on pubic or tribal lands. It would require Federal agencies having possession of Native American skeletal remains or ceremonial objects (1) within five years to inventory them and determine tribal origin; and (2) within six months to notify each tribe of the items in the agency's possession or control. Tribes would be provided an opportunity to decide if they wished the items returned, and Federal agencies would be required to return them unless they are obtained with the consent of the tribal entity, or are indispensable for study. Similar requirements for return of such items would be levied on any museum which receives Federal funds. A review committee would be established to monitor and review the implementation of the inventory and identification process required by this bill.

In March of this year, Secretary Lujan directed the National Park Service to develop a new policy and revise an existing guideline on the treatment of human remains and funerary objects. The National Park Service already has been informally reviewing the current policy and guidelines at the staff level for over a year. This informal review has included meetings with representatives of Indian groups, as well as with archaeological and museum groups. The specifics of the Interior policy and guidelines remain to be defined following more detailed consultation with Indian, archaeological, museum, and other interested groups. However, we have identified certain basic principles that we would need to see incorporated in any legislation which we would support.

Secretary Lujan wants a more sensitive treatment of archaeological human remains, funerary objects, sacred objects, and objects of Native American cultural patrimony by managers on Interior lands. He wants other Federal, State and local agencies that look to the Secretary of the Interior for guidance to adopt similar sensitive approaches. However, the Secretary has indicated that he wants to affirm the right of each tribe to determine the treatment that is afforded human remains and associated objects that are affiliated clearly with that Tribe.

This right is central to the purpose of H.R.. 5237. Although the Federal government legally owns human remains, it is our position that the government should have only stewardship responsibilities for human remains and other cultural items which should be held in trust for culturally affiliated groups who can establish rights to their ownership and for the scientific and educational benefits derived from some of these cultural items.

We recognize the legitimate interests of contemporary Native Americans, tribes and tribal components, including extended family groups, in making a claim. Therefore, in cases where human remains and associated funerary objects can be linked to contemporary Native Americans and a claim is made and substantiated, the culturally affiliated group should determine ultimate disposition. We further believe that in cases where human remains and associated funerary objects can be linked to contemporary Native Americans, justifiable scientific and humanistic studies may be undertaken with the permission of the acknowledged kin group or tribal representatives who will decide about the appropriate conditions of study and final disposition of the human remains and associated funerary objects. Under present policy, in cases where human remains and associated funerary objects cannot be linked to contemporary Native Americans or when a claim is not made, the Federal government would maintain its stewardship role, providing the opportunity for future evaluation whenever additional evidence of cultural affiliation is forthcoming and claims are made. In this area, however, the outcome of Secretary Lujan's policy review is not yet certain. We support the effort to stem the removal of these cultural items from their resting places by looting and inadvertent modern disturbances and to halt the trafficking in these items. We believe that H.R. 5237 would largely incorporate these basic principles. However, the following amendments would be necessary in order for us to support this bill.

In cases where human remains and associated funerary objects cannot be linked to contemporary Native Americans, or where a claim has not been made, we believe it is appropriate for the Federal government to maintain its stewardship role over these remains, but provide the opportunity for future evaluation of cultural affiliation if future claims are made. Therefore, we recommend section 3(a)(2)(B) be changed to read, "in the Indian tribe or Native Hawaiian organization which is affiliated with such objects or remains and which, upon notice, states a claim for such objects or remains."

We believe it would not be proper to use aboriginal occupation as the sole criteria for establishing affinity where no affinity to contemporary groups can be established. In some cases this criterion will be reasonable, in other cases it will not. Therefore, we recommend section 3(a)(2)(C) be deleted.

We agree that the Secretary of the Interior should develop regulations for the treatment and disposition of items that are determined to be unaffiliated with any modern Native American entity. The stewardship role over these items can result in a wide variety of treatments, ranging from museum curation of remains and objects to reburial. If the regulations contemplated in section 3(b) of the bill (providing procedures to be followed in determining proper treatment for unclaimed items) are intended to provide such broad authority, report language establishing this intent is necessary.

In order for repatriation or continued government stewardship of cultural items to operate effectively, inventories of present collections in Interior and other Federal agencies are needed. In order to ensure that cultural items are returned to the appropriate Native American entity, it will sometimes be necessary to gather evidence of relatedness, which would include appropriate combinations of forensic, ethnographic, archaeological, and archival information. Therefore, we recommend that section 5(b)(2), dealing with inventory requirements, be amended to allow for additional studies where necessary to ensure a correct determination of affinity. We want to ensure, to the best of our ability, that remains and objects are returned to the correct contemporary groups and those that stay under Federal stewardship are identified properly.

The time and costs for Federal agencies and curation facilities could be substantial. Federal agencies will need to begin evaluating collections for which they have responsibility in order to develop plans and cost estimates. The new regulations on curation of Federal archaeological collections (36 CFR 79), which will become effective on October 12, 1990, will be helpful for agencies beginning to organize their efforts. Scheduling for the repatriation of human remains and associated funerary objects must be realistic. Therefore, we recommend that Federal agencies have available the same provisions for extension of the time requirements for completing their inventories as museums are provided in section 5(c).

Although we believe that many human remains and funerary objects will be identified with affiliated groups through the inventory required by the bill, we are not confident that the broader categories of "scared objects" and "objects of cultural patrimony" could be treated along these same lines. These terms and the concepts they represent are too broad and unformulated to include within this legislation.

We have had experiences with legislation where the definitions embodied concepts that were too broad to be dealth with effectively by the agencies that had to implement the law. During the mid-1960s the concepts of adaptive use and rehabilitation of historic structures were similarly broad, and only by working on the concepts and learning the necessary limits of use and rehabilitation through trial and error during the 1960s and 1970s were we able to produce the standards and guidelines that direct much of this work today. A similar period of development concerning the identification, treatment, and use of Native American sacred objects and cultural patrimony would provide the same grounds for developing useful and widely accepted standards and guidelines.

Tribal preservation programs working in consensus and consultation with Federal agencies and national preservation programs, would resolve issues of ownership, control, or possession of sacred objects and cultural patrimony. We expect the appropriate concepts, relationships, and procedures concerning sacred objects and cultural patrimony will emerge during the next few years as Tribes, agencies, and other interested organizations work within the existing framework on these issues. We urge that decisions about stronger legislation concerning sacred objects and cultural patrimony be postponed until this process has occurred.

We would support the creation of a review committee as contemplated by this bill. However, this committee should be purely advisory in nature. Therefore, the review committee should be limited to providing oversight and facilitation of the repatriation process. Accordingly, at a minimum, we recommend deletion of section 7(c)(4), which would require the review committee to complies an inventory of identifiable human remains that are under the control of each Federal agency or museum.

In conclusion, the Department of the Interior is very concerned that archaeological human remains, funerary objects, sacred objects, and objects of Native American cultural patrimony are treated with the respect and sensitivity which they deserve. However, we would oppose H.R. 5237 unless amended as we described above including serious constitutional problems and new, open-ended, unlimited grant programs.

We look forward to working with the Congress and the affected groups to ensure that we indeed live up to our responsibilities in this area. The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's programs.

Sincerely,

SCOTT SEWELL,

Deputy Assistant Secretary.

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