Senators, we submit that the final regulations, as currently written, redefine Indian tribes, Indian sovereignty, and Indian policy. In our review, the problems inherent in the final regulations represent a major Indian policy change successfully conducted through the regulatory process.

Chairman McCain and Members of the Committee, from the many letters our tribes have written each of you, you are all well aware of the serious issues we have raised surrounding the regulatory process. We maintain that tribes were not represented, had little opportunity for input, and the issues we did manage to raise were ignored. The law, through regulatory language, has been gutted of its protection to tribes. More than that, major Indian policy changes have successfully been manipulated through the regulatory process. We are gravely concerned, and we are outraged that nothing was done about our concerns when changes to the regulations could have been made through a second publication and comment period that we have been seeking for nearly two years. When our requests for an Oversight Hearing were finally honored, however, the regulations were "hustled" into the final stage, thus ensuring that once again, Indian people will have to live with a law that does not protect our interests, does not do what Congress promised it would do for us, and forces us to the courts to protect our rights and that of our deceased ancestors. Chairman McCain and Members of the Committee, we want you to see what it is tribes will have to live with, now that reinterpretations of the law have been finalized in the regulations.

* The regulatory definition of tribal lands strips tribes of their right to exert jurisdiction over any and all persons and lands within their exterior boundaries. This reinterpretation will create serious problems for those tribes who have fee patent lands within their boundaries and is in direct violation of current Indian policy and the Act itself. Again, we refer you to President Clinton's Executive Proclamation on Indian Affairs to see for yourselves where Secretary Babbit, in finalizing this version of regulations, failed to extend good faith and insure the federal government's trust responsibilities to tribes.

*

The regulatory definitions of "possession" and "control" reinterpret
language which was meant to act as a protective device for insuring that
the temporary possession of items by museums did not result in an illegal
transfer, but they have now been changed to mean "have a legal interest
in". This reinterpretation of the Act will have far reaching, negative
effects for tribes, because we must now, in addition to proving that we
are related to our dead relatives, also prove that the museum has no
"legal interest" in them. Who, besides their descendants, could be said
to have a "legal interest" in our dead? In our view, this unethical
reinterpretation establishes the concept of 'ownership" of our dead,
their personal belongings, and our sacred property. We submit that this
is something Congress did not intend when NAGPRA was passed. Because no
one listened to us, however, we tribes will have to live with this "theft
by regulation" until we can produce the uncertainties for tribes. We
further submit that we did not support and work hard for the passage of
NAGPRA so that we could bring home our dead relatives and sacred property
by way of courts, we worked hard for this law because we were told it
would keep us out of court.

Statutory language is silent regarding the repatriation of human remains incorporated into other cultural items, such as a war shirt decorated with human scalps. The law has not been interpreted liberally in favor of the tribes nor as we would have understood it, as accepted Indian policy requires. The final rule ignores our values about our own property, which should inform all decisions about repatriation, and as a result, the regulations prevent the repatriation of human remains incorporated into other items. This is an excellent example of how many decisions were made without the input of tribal leaders, who would have prevented this misinterpretation of the law and provided protection for our interests, given the opportunity.

* Several key determinations, such as whether or not an item is sacred or whether or not human remains are affiliated with a particular group, have been left to the museum and science industries, our most vocal opponents in repatriation. In the event that tribes disagree with a museum's decision, their only recourse after informal negotiations is to go to court. Once again, we submit that we did not participate in the passage of this law only to find ourselves in court, year after year, in order to bring our relatives and sacred property home. Moreover, had the tribes been granted more access to the regulatory process itself, we could have offered our expertise and guidance on matters that are more property within our purview than that of museums': we are the experts on our relatives and sacred property, not the museums, yet our knowledge and expertise have been effectively excluded from the realm of decision making - we are only allowed a consultation after museums have made their decision. Finally, federal agencies and museums have seemingly endless resources to support a legal defense in the event a tribe disputes their decision, however, that is not the case with impoverished tribal governments who are having trouble funding life-and-death initiatives back home, such as preventing elders from freezing to death by providing the minimum standard of housing. This places the tribes at a unfair advantage, Senators, when all museums have to do is say "No", and tribes have to decide between bringing a lawsuit or watching tribal members join the ranks of the homeless.

*

Discussions at the Oversight Hearing of December 6,1995 included proposed amendments to the Act. In addition, there are several sections of the Act for which proposed regulations were placed in Reserved status, and announcements have been made that these proposed regulations will soon be published in the Federal Register. Developing amendents to the Act and proposed regulations for the Reserved Sections are two important opportunities available to the Senate Committee to insure improved tribal participation and protection of our rights. Chairman McCain and Members of the Committee, the Dakota Territory Chairmans Council hereby officially requests that you direct Secretary Babbitt to include coalitions of regional, tribal NAGPRA representatives in all deliberations regarding amendments to the Act and proposed regulatory language for the Reserved Sections. Had such an attempt been made with the Final Regulations before us today, we would not have to be writing to you to complain about the serious problems in those regulations. A directive from your committee, we feel, will be highly effective in assuring that tribes are not again left out of the loop in these important deliberations, and will also insure that discussions are carried out for the purpose of creating consensus, and not protecting the interest of the science and museum industries, which will in turn enable this most important Act to do what it was intended to do.

*

The problems with the regulatory process to implement the NAGPRA are not new the near-total lack of tribal input, representation and ability to protect our sovereign rights is a struggle we have lived with for over five hundred years. Therefore, the Dakota Tribal Chairman's Council hereby officially requests that the Senate Committee on Indian Affairs begin negotiations with ours and other intertribal councils to develope legislation to create a new method whereby consensus and meaningful representation of tribes can be included in all proposed regulatory language written to implement laws affecting Indian tribes. Our problems will change only when the system changes, and not before.

Chairman McCain and members of the Committee, we are grateful to you for the opportunity to present our views and problems for your consideration and action. Please accept this testimony in the spirit in which it was given we only want the law to do what it was intended to do, and that is to bring home all of our relatives, all of their personal burial belongings, and all of our sacred and cultural property. You can see that we are not asking for anything unreasonable. All we want is to revitalize our nations and our communities, to bring life back to our people. By helping us, you will have enabled us to do this wonderful thing for our relatives and for the countless generations yet unborn. We look forward to your response to this important testimony and to the requests we have made therein.

Panell Dingean

Darrell Drapeau, Chairman

Sincerely,

Диво

Dakota Tribal Chairman's Council and
Chairman, Yankton Sioux Tribe

Greg Bourland, Secretary

Dakota Tribal Chairman's Council and
Chairman, Cheyenne River Sioux Tribe

WRITTEN TESTIMONY OF NAVAJO NATION REGARDING THE IMPLEMENTATION OF
THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT
SUBMITTED TO THE SENATE COMMITTEE ON INDIAN AFFAIRS BY ALAN DOWNER,
DIRECTOR, NAVAJO NATION HISTORIC PRESERVATION DEPARTMENT

The Navajo Nation would like to begin by expressing its appreciation to the Committee for the opportunity to comment on the implementation of the Native American Graves Protection and Repatriation Act (Act). The Navajo Nation was a strong and active supporter of the Act throughout its labored development and enactment. As the Navajo Nation's lead agency for matters that are subject to the Act, the Historic Preservation Department has been active both in the development of the Act and in its implementation from the outset.

The Navajo Nation has had generally favorable experiences with the implementation of the Act. It is the Historic Preservation Department's impression that the museums and federal agencies with which it has dealt have been pursuing the mandates of the Act in good faith, attempting as best they can to comply with both the letter and the spirit of the law. The Historic Preservation Department has had dealings, in one form of another, with over 280 museums so far. We have yet to find a single instance where we felt that the museum was stalling or attempting to some how or other avoid compliance with the Act.

While the Navajo Nation's overall experience has been generally positive, we do believe that there are several issues of which the Committee should be aware.

1.

It is clear that the deadlines contained in the Act are totally unrealistic, especially in light of the Administration's and Congress' apparent reluctance to provide ample funding for the grants program created by the Act. Neither the Tribes nor (we suspect) the Museums have the requisite fiscal resources to deal properly with repatriation.

The preparation of inventories is time consuming and costly. Review of the inventories is equally time consuming, especially when the Historic Preservation Department must deal with over half of the museums which have filled inventories. The inventories are based largely on existing accession records, which may or may not accurately reflect what the collectors and/or curators thought they

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NAVAJO NATION TESTIMONY

ON THE IMPLEMENTATION OF THE
NATIVE AMERICAN GRAVES PROTECTION

AND REPATRIATION ACT

December 18, 1995

had collected. It is clear from the Historic Preservation Department's experience that the collectors/curators may or may not have really known what they had. Accordingly, the Historic Preservation Department has made it a practice to examine collections in person rather than to rely on the inventory description as a basis for beginning repatriation activities. The inventories simply alert the Historic Preservation Department to the fact that a museum has Navajo material in its collections. The Historic Preservation Department must then begin to make a determination of whether or not the collection contains any Navajo materials that should be repatriated.

This entails sending staff to museums, sometimes for extended periods to examine collections and determine, what if any material constitutes Navajo sacred or ceremonial items and cultural patrimony. This can be very costly. But we have no other option if the Navajo Nation is to obtain return of those items which really should be returned to the Nation and put back in use in traditional ceremonies or otherwise appropriately treated.

The Navajo Nation believes that a minimum of $10 million must be appropriated to fund grants to Tribes. Anything less than that amount is simply totally inadequate to meet the minimum Tribal needs to expeditiously complete the processes established by the Act and its implementing regulations.

2. It appears to the Navajo Nation that the definition of Indian Tribe in the Act may be too restrictive. The Navajo Nation supported the Act both because it sought to have Navajo items of cultural patrimony returned to the Navajo Nation. But the Navajo Nation did not view this issue in the narrow light of Navajo interests alone. Instead, the Navajo Nation recognized that this is a matter deeply affecting all Native Americans and the Navajo Nation's involvement with these issues has always conducted recognizing this larger context.

The purpose of the Act is to ensure that Tribes can obtain the return of human remains and items of cultural patrimony which are inappropriately in the possession of museums and federal agencies. The Navajo Nation has always understood that the principal purpose of the Act was to promote rapid repatriation of such materials to the proper Tribe. It appears that there may be Tribes which are excluded from this process because they do not have federal recognition. While we believe it may be premature to seek amendments to the law at this time, we do think that the Committee