Executive Communications

This letter presents the views of the Department of Justice on two related bills: H.R. 5237, the "Native American Grave Protection and Repatriation Act," and H.R. 1646, the "Native American Grave and Burial Protection Act." H.R. 5237 and H.R. 1646 are similar in substance. Both would protect and provide for repatriation of Native American human remains, objects associated with those remains, and other sacred objects. H.R. 5237 would also protect and provide for repatriation of a fourth category of objects"inalienable communal property"defined to include items "having historical, traditional, or cultural importance central to the Native American group or culture . . . ." H.R. 5237, 2(6).1

On the policy goals and efficacy of these bills, we defer to the federal agencies responsible for administration of Native American programs, particularly the Department of the Interior. As to the legal issues involved, however, we believe that both bills would raise concerns under the Takings Clause of the Constitution. U.S. Const., Amend. V (". . . nor shall private property be taken for public use, without just compensation"). We first discuss a Takings Clause issue common to the repatriation provisions in both H.R. 5237 and H.R. 1646. We then discuss three further matters unique to one or the other bill.

1. Repatriation. Both H.R. 5237 and H.R. 1646 would call upon private museums to return protected objects upon request from a Native third bill H.R. 1381, the "Native American Burial Site Preservation Act of 1989" would prohibit excavation of a Native American burial site. H.R. 1381, 3. The Department of Justice has no comments on this legislation.

American tribal body affiliated with the particular object. H.R. 5237, 6(a)(1) and (b)(1); H.R. 1646, 6.2 The precise procedures for repatriation differ between the two bills. Under H.R. 5237, requests addressed to private museums would turn upon the results of an inventory of Native American objects that the museum itself would be required to complete. H.R. 5237, 6(a)(1). Only if a private museum establishes the origin of a particular protected object as part of the required inventory may a request for repatriation of that object be made. Id. By contrast, H.R. 1646 would not require private museums to conduct inventories, see H.R. 1646, 5 (only federal agencies and instrumentalities must conduct inventories), nor would it make requests for repatriation to any type of museum dependent upon the results of any inventories.

The two bills also differ concerning the grounds upon which a private museum may refuse a request for repatriation. Under H.R. 5237, a private museum would need to show "by a preponderance of the evidence that [it] has right of possession to [the requested] remains or objects." H.R. 5237, 6(c)(1). H.R. 5237 would define "right of possession" to mean "possession obtained with the voluntary consent of an individual or group that had authority of alienation." H.R. 5237, 6(d). Under H.R. 1646, a private museum need not grant a request for repatriation if the object sought was "acquired with the consent of the tribe or the Native American owners of such items" or, in the case of skeletal remains, is "indispensable for the completion of a scientific study, the outcome of which would be of major benefit to the United States." H.R. 1646, 6(1) and (2).3

Under either bill, any museum that fails to comply with the relevant repatriation provisions would be ineligible to receive federal funding during the period of non-compliance. H.R. 5237, 6(f); H.R. 1646 6. Th Supreme Court has recognized that Congressas part of its spending powerhas broad authority to place conditions upon the receipt of

2. The term "museum," as used in either bill, would clearly encompass private museums. See H.R. 5237, 2(9) ("museum" means "any person, State, or local government agency . . . that receives Federal funds and has possession of, or control over" protected objects); H.R. 1646, 3(7) ("museum" means "any museum, university, government agency, or other institution receiving Federal funds which possesses or has control over any Native skeletal remains or ceremonial objects"). Both bills would also permit requests for repatriation to be made to federal agencies and federal museums. H.R. 5237, 6(b); H.R. 1646, 6. This aspect of the two bills does not implicate the Takings Clause, as the property in question is that of the United States and, hence, may be repatriated by Congress. U.S. Const., Art. IV, 3, cl. 2 (power of Congress to dispose of "Property belonging to the United States").

3. By contrast, H.R. 5237 would permit only federal agencies and federal museums to refuse a request on scientific grounds. See H.R. 5237, 6(b). federal funds. See South Dakota v. Dole, 107 S. Ct. 2793, 2796 (1987). In so doing, Congress may seek to accomplish objectives not otherwise within its Article I powers. Id. (upholding the withholding of federal highway funds to induce States to adopt uniform drinking ages, "even if Congress may not regulate drinking ages directly"). Without extensive elaboration, however, the Court has noted that such conditions may not be used to induce "activities that would themnselves be unconstitutional." Id. at 2798 (citing authorities). This limitation upon the power of Congress to condition the receipt of federal funds would arguably be implicated by H.R. 5237 and H.R. 1646. Although we have identified no authorities that speak directly to the relationship between the spending power and the Takings Clause, we believe that a strong argument could be made that Congress may not exercise the spending power to accomplish an uncompensated taking of private property, as such action would contravene the Constitution. Cf. Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (state commission may not, absent just compensation, condition a permit to rebuild house upon transfer of easement to the public across owner's property). By its terms, the Takings Clause provides that "private property" shall not be taken for "public use" absent the payment of "just compensation." U.S. Const., Amend. V. We discuss first the "private property" requirement.

Both H.R. 5237 and H.R. 1646 recognize that a private museum need not return a protected object acquired with the consent of a person or tribe with authority to transfer that particular object. H.R. 5237, 6(d); H.R. 1646, 6(1). There may, however, be other means by which a private museum might have acquired a property interest in a protected object.

For example, the Antiquities Act of 1906 provides that a permit shall be required for "excavation of archaeological sites" on federal lands. 16 U.S.C. 432. As a condition for receipt of a permit, the applicant must provide for "permanent preservation [of excavated objects] in public museums." Id. A privatre museum open to the public would have a strong argument that protected objects duly obtained in the past pursuant to such federal permits constitute museum property. Apart from laws concerning federal lands, property interests may be recognized by state law as well. For example, a private museum might have purchased protected objects that were accidentally discovered in the course of construction work or other excavation upon private land. As currently drafted, however, H.R. 5237 and H.R. 1646 do not appear to exclude from repatriation objects acquired other than through the consent of the relevant Native Americans. Section 6 of H.R. 1646 states that only "the tribe or the Native American owners oif [protected] items" may consent to their acquisition. The equivalent provision of H.R. 5237 refers more broadly to "consent of an individual or group that had authority of alienation," but the examples that follow this statement are restricted to consent involving Native Americans. H.R. 5237 6(d). The language of both bills would appear to exclude consent by a governmental or private landowner that leadsby design or by accidentto the discovery of Native American artifacts that are later transferred to a private museum. In short, consent by the United States to excavation on federal lands (or, alternatively consent by a private landowner to excavation on his property) may confer a property interest in the objects discovered but would not appear to protect a private museum from the repatriation requirement. The bills thus may affect private property and thereby call into play the Takings Clause. This problem could be resolved by an amendment to exclude private museums and, hence, private property from repatriation. Alternatively, the provisions under which a private museum may decline repatriation might be broadened to exempt all objects in which the museum has a property interest cognizable under federal or state law. Similar legislation introduced in the Senate, for example, would permit a museum to refuse repatriation if it has "legal title" to the requested object. See S. 1980, 5(c)(1). Either revision, however, would reduce perhaps significantlythe number of protected objects that would be returned to Native Americans. Absent such revisions, further issues would arise under the "public use" and "just compensation" requirements of the Takings Clause. The courts generally will defer to Congress' detremination of what constitutes a "public use" of private property. See Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984). The Government "does not itself have to use property to legitimate the taking," id. at 224; transfers of property from one private party to another have been upheld when designed by the legislature to further a public purpose, see, e.g., id. Here, however, Congress has inserted no findings in either H.R. 5237 or H.R. 1646 to explain how the transfer of protected objects from private museums to Native American tribes will advance the public good. Should Congress wish to reach private property through these bills, it would be advisable that such findings be included. Finally, the Takings Clause requires that "just compensation" be paid for the taking of private property. The absence of a compensation procedure in either H.R. 5237 or H.R. 1646 would not prevent a private museum from obtaining compensation in the event that a taking is effected by either bill. Under the Tucker Act, a private museum may seek such compensation in the Claims Court. 28 U.S.C. 1491(a) (jurisdiction to resolve claims against the United States based upon the Constitution). The payment of compensation to private museums would increase the cost of repatriation legislation. Absent such payments, however, the conditioning of federal funding upon consent to an uncompensated takingas we have explainedmay well be an unconstitutional exercise of the spending power.

2. Ownership Provision of H.R. 1646.As currently drafted, section 4(c) of H.R. 1646 would implicate the Takings Clause. That section would declare that "[a]ny grave goods or sacred ceremonial objects found on public or tribal land shall be deemed to be owned by the tribe" associated with those objects. To avoid the implication that this section would transfer ownership of objects found in the past such that compensation would be due to the previous owners, we recommend amendment of this section to apply only to objects "found after the date this Act becomes law." Such an amendment would clarify that section 4(c), like the protections for Native American artifacts elsewhere in section 4, will have only a prospective application.

3. Appointment of Review Committee in H.R. 5237.Under section 7 of H.R. 5237, the Secretary of the Interior would be required to establish a "review committee" that "shall be composed of 7 members, 4 of whom shall be appointed by the Secretary from nominations submitted by Indian tribes, Native Hawaiian organizations, and traditional Native American religious leaders." H.R. 5237 7(b)(1). The committee shall, inter alia, "review[] upon the request of any affected party any finding relating to" the identification of a protected object or the return of such an object. H.R. 5237, 7(c)(2) As drafted, the bill would not accord binding legal force to the committee's review. Should Congress intend otherwise, section 7(b)(1) of the bill would need to be amended to conform the procedures for appointment of the review committee to the Constitution's Appointments Clause. See U.S. Const., Art. II, 2, cl. 2; Buckley v. Valeo, 424 U.S. 1, 126, 141 (1976) (officials exercising "significant authority pursuant to the laws of the United States" must be appointed pursuant to the Appointments Clause). While the Appointments Clause permits Congress to vest the appointment of "inferior Officers" in the President alone, we do not believe that it sanctions limitations upon the power of appointment by reference to a fixed list of nominees, because such a requirement would permit the creator of the listhere, Native American organizationsto share in the appointment power.

4. Access Requirement of H.R. 5237. Section 7(e) of H.R. 5237 also concerns the review committee. This section would require the Secretary of the Interior to "ensure" that the committee will have "full and free access" to any protected objects necessary for their review. In its current form, the language of section 7(e) might implicate the Takings Clause in particular situations. A court will ask whether the particular intrusion "unreasonably impair[s]" the economic value of private property. PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980). In this "ad hoc inquiry," the court will regard several factors as "particularly significantthe economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432 (1982). Here, a requirement of "full and free" access might be read broadly to authorize the sequestration of protected objects that would otherwise be part of a major exhibition in a private museum. Although the result would turn largely upon the particular facts, a private museum would have a substantial argument that such an intrusion constitutes a taking and, thus, must be accompanied by the payment of just compensation. To avoid such a situation, we recommend amendment of section 7(e) to provide merely for "reasonable access" to protected items by the review committee.

Sincerely,

BRUCE C. NAVARRO,

Deputy Assistant Attorney General.

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