In the definition of "cultural affiliation", the requirement that a tribe show a "shared group identity which can be reasonably traced historically or prehistorically" is intended to ensure that the claimant has a reasonable connection with the materials. Where human remains and associated funerary objects are concerned, the committee is aware that it may be extremely difficult, in many instances, for claimants to trace an item from modern Indian tribes to prehistoric remains without some reasonable gaps in the historic or prehistoric record. In such instances, a finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of some gaps in the record.
The definition of "sacred objects" is intended to include both objects needed for ceremonies currently practiced by traditional Native American religious practitioners and objects needed to renew ceremonies that are part of traditional religions. the operative part of the definition is that there must be "present day adherents" in either instance. In addition to ongoing ceremonies, the Committee recognizes that the practice of some ceremonies has been interrupted because of governmental coercion, adverse societal conditions or the loss of certain objects through means beyond the control of the tribe at the time. It is the intent of the Committee to permit traditional Native American religious leaders to obtain such objects as are needed for the renewal of ceremonies that are part of their religions.
The definition of "Federal agency" includes the Smithsonian Institution "except as may be inconsistent with the provisions of Public Law 100-185". Public Law 100-185 refers to the Act authorizing the addition of the Museum of the American Indian to the Smithsonian Institution. The Committee does not wish to change the agreements reached under the Museum of the American Indian Act with respect to the inventory and repatriation of native American human remains and funerary objects, but does intend that the Smithsonian fulfill the obligations stipulated in H.R. 5237 regarding sacred objects and objects of cultural patrimony. The Committee further intends for the Smithsonian Institution to comply with obligations stipulated in H.R. 5237 with respect to unassociated funerary objects insofar as such obligations do not weaken those stipulated in Public Law 100-185.
The definition of "right of possession" in section 2(13) of the bill was amended to include language providing that nothing in the paragraph is intended to affect the application of relevant State law to the right of ownership of unassociated funerary objects, sacred objects or objects of cultural patrimony. The language was adopted to meet the concerns of the Justice Department about the possibility of a 5th amendment taking of the private property of museums through the application of the terms of the Act. While the Committee did not feel that implementation of the Act would give rise to such a taking, the language was accepted to make clear its intention. The language is not jurisdictional in nature. It does not confer or detract from the existing jurisdiction to determine ownership of an item covered by this Act. Depending upon the circumstances involved, the law which would be applicable by the court of competent jurisdiction could be Federal, State, or tribal. The definition of the right of possession will supplement any existing law in that respect.
The term "tribal land", as defined in section 2(15), is for purposes of this Act only and may be inapplicable in other circumstances. The Committee does not intend that the definition will be determinative of the status of land owned by Native Corporations pursuant to the Alaska Native Claims Settlement Act for any other purposes than for this Act.
OWNERSHIP. Section 3(d) refers to the inadvertent discovery of Native American remains and objects by persons engaged in an otherwise unrelated activity. Section 3(d)(1) states that, after there has been compliance with the other requirements of the subsection, "The activity may resume after a reasonable amount of time". Although a specific time limit was not added here, the Committee does intend to protect the remains and objects found and does not intend to weaken any provisions of other laws, such as Archeological Resources Protection Act, regarding similar situations.
INVENTORY. Section 5(d) refers to notification of Indian tribes and Native Hawaiian organizations no later than 6 months after completion of the inventory requirements. The Committee intends that tribes and organizations be notified as soon as possible after an inventory is completed. The allowance of 6 months to make the notification was added to assist small museums with very limited staffs.
SUMMARY. Due to the possible high number of unassociated funerary objects, sacred objects, and objects of cultural patrimony, this section is intended to make it easier for the Federal agencies, museums, and institutions of higher education to compile and survey the objects they have in their possession or under their control. It is also intended that there be a shorter time frame for completion of the summary (3 years) than for the item-by-item inventory to permit earlier contact with the appropriate tribe so open discussions can begin.
REPATRIATION. Section 7(b) refers to scientific studies the outcome of which would be of major benefit to the United States. The Committee recognizes the importance of scientific studies and urges the scientific community to enter into mutually agreeable situations with culturally affiliated tribes in such matters.
SHARING OF INFORMATION. Section 7(d) refers to the sharing of information following the preparation of the initial inventory or summary. Any tribe which may have a cultural affiliation with certain items may request any additional available information needed to pursue a claim under the Act.
All tribes which receive notice pursuant to the inventory process or those that should have received notice because of a potential cultural affiliation (regardless of whether the showing of such affiliation would be based upon museum records or non-museum sources) would have standing to request such information.
REVIEW COMMITTEE. One of the responsibilities of the Review Committee is to compile an inventory of culturally unidentifiable human remains and develop a process for their disposition. There is general disagreement on the proper disposition of such unidentifiable remains. Some believe that they should be left solely to science while others contend that, since they are not identifiable, they would be of little use to science and should be buried and laid to rest. The Committee looks forward to the Review Committees recommendations in this area. The Committee concurs with the Justice Department comments that section 7 does not accord binding legal force to the Review Committee's actions. As such, the bill did not have to be amended to conform the appointments procedures for the committee to the Constitution's appointments clause.
PENALTY. The penalty provision of section 9 is not meant to be an exclusive remedy for any disputes which may arise from the implementation or interpretation of the terms of the Act nor to preclude resort of any of the parties to remedies which may be available under other existing law.
SAVINGS PROVISIONS. Section 11(1)(B) preserves the right of all parties to enter into other mutually agreeable arrangements than those provided for in this Act. The Committee encourages all sides to negotiate in good faith and attempt to come to agreements, where possible, which would keep certain items available to all those with legitimate interests.
CONSULTATION. The term "consultation", wherever it appears in the bill, means a process involving the open discussion and joint deliberations with respect to potential issues, changes, or actions by all interested parties.