Page 3 NAVAJO NATION TESTIMONY ON THE IMPLEMENTATION OF THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT December 18, 1995 should continue to monitor this issue and consider seeking to amend the Act, if it becomes clear that this issue is a serious problem. 3. Our experience indicates that there are a number of portions of the Act, which were drafted very carefully to resolve a very specific problem which have been found to have unintended or otherwise negative consequences. For example, Congress has created a property right in human remains and vested that right in Tribes and/or individual Native Americans according to a carefully specified priority listing. Creating a property right and vesting it Native Americans was probably essential to eliminating the museums' erroneous claims of ownership rights to those remains they possessed. Unfortunately, creation of this right has lead to increased tensions between some Tribes, which result from conflicting claims of ownership. Exacerbating such tensions is the fact that archaeological evidence (of which human osteological data can sometimes be a part) can figure heavily in litigation pertaining to land and resources claims of Tribes. In some instances several Tribes have conflicting claims to land and resources, and a federal agency's determination of who is the rightful owner of human remains has the potential to provide evidence to one side or the other in such a dispute. At this point the Navajo Nation does not believe that an amendment to the law is called for. However, we do believe that this is an issue that should be tracked closely. It may well be the case that in the future problems arising from these unintended consequences, may need to be resolved by amending the Act. 4. A federal District Court in Hawaii has ruled that human remains do not have standing under the Act. In reading the Court's opinion, it is apparent that in some striking ways Navajo beliefs are very similar to the Native Hawaiian belief that the spirits of the dead continue to live, albeit on another plan of existence. There is communication between the spirit world and the everyday world of the living. Spirit beings can affect the living and the living can affect the dead. In Navajo tradition, disturbance of the dead (of any ancestry) can lead to very serious adverse consequences for individuals, families, communities or even the entire Nation. The Navajo Nation, however, agrees with the Court that the practical difficulties arising from who would "speak" for the remains would make it all but impossible to apply such standing Page 4 NAVAJO NATION TESTIMONY ON THE IMPLEMENTATION OF THE AND REPATRIATION ACT December 18, 1995 as a practical matter in a federal Court. As a practical matter, the Navajo Nation believes that the disturbance of the spirits of the dead can only be dealt with in the appropriate traditional settings of the people descended from the remains. Furthermore, the Navajo Nation believes that allowing such standing could well lead to the sorts of unintended consequences just discussed. The Congress should not consider amending the Act in this area unless further experience indicates that this is the only way to redress abuses of the intent of the Act. 5. The Navajo Nation notes with some interest the suggestion made that the Act be amended to provide for some form of "guardianship." Such a concept has some appeal because it would provide for a definitive resolution of a number of problems. However, the Navajo Nation's reading of the Act suggests that in essence (if not in express language) such a concept is inherent in the Act today. The Act establishes a clear delineation of ownership of remains according to an explicit priority listing of ownership. Clearly, the owners should be regarded as the "guardians." Where a Tribe declines to assume its rightful role in this regard, the Navajo Nation does not see that any good can come from arbitrarily assigning such a role to another party or from trying to impose guardianship on a reluctant Tribe. The Navajo Nation is well aware that some Tribes believe that the damage caused by disinterment in the first place can not be remedied. In addition, a number of Tribes believe that the consequences of attempting to undo the damage already done by exhumation and "curation" is too dire to even contemplate. Accordingly, while the Navajo Nation is sympathetic to the concept, it can not support arbitrary assignment some form of guardianship to a Tribe or tribal organization beyond the concepts already embodied in the Act. 6. The Act recognizes that there may be instances when more than one Tribe makes a claim for repatriation of human remains and/or items of cultural patrimony. On the surface, the Act provides for dispute resolution by the agency, the agency must examine the evidence and make a decision. However, the Navajo Nation finds the Act ambiguous on this point. On the one hand, agencies are directed to make a decision based on the preponderance of the Page 5 NAVAJO NATION TESTIMONY ON THE IMPLEMENTATION OF THE December 18, 1995 evidence. On the other hand, agencies are prohibited from repatriating items while a dispute exists. Finally, federal Courts appear to have decision making authority, but it appears to the Navajo Nation that, since the Act provides no real basis for an agency to make a decision, there is no real way for a claimant to exhaust the administrative process and then appeal to the Courts for resolution. The Navajo Nation recommends that the Committee examine the language pertaining to agency decision making when disputes arise and consider amending the Act to provide agencies with clearly delineated authority to reach an administrative decision. 7. Questions regarding the confidentiality of data in the museum inventories and with respect to any research conducted during their preparation have arisen as a result of the federal district Court's ruling in Na Iwi O Na Kupuna O Mokapu, et al. vs John Dalton, et al. The Navajo Nation believes that the Court has correctly read the Act and the Freedom of Information Act (together with relevant case law). Furthermore, the Court has given balanced consideration of the issues surrounding the public benefits of disclosure and the need to protect general information in the inventory and any associated research from disclosure. As a general matter, the Navajo Nation sees no need to amend the Act in this regard. However, the Navajo Nation does believe that there is a compelling need to protect locational information from disclosure. Native American grave sites (both original locations and reinterment locations) are vulnerable to looters. It is this status looters' targets that led Congress to prohibit unpermitted excavation and trafficking in Native American human remains. Accordingly, the Navajo Nation believes that an amendment to the Act be enacted which expressly exempts locational information from public disclosure under the Freedom of Information Act. as an In closing, the Navajo Nation would like to reemphasize that it appreciates the efforts of Congress, and more particularly this Committee, to ensure the prompt repatriation of Native American human remains and items of cultural patrimony. This is important and highly sensitive area, the complexities and nuances of which the Act deals with, for the most part, with great success. The Navajo Nation urges the Committee to continue to oversee implementation and to consider carefully limited amendments if and Page 6 NAVAJO NATION TESTIMONY ON THE IMPLEMENTATION OF THE December 18, 1995 when serious implementation problems arise. The Navajo Nation urges the Committee to carefully consider potential unintended consequences of the Act and any amendments. The Navajo Nation believes that implementation of the Act so far has revealed several such unintended consequences, which may prove serious in the long run. The Navajo Nation thanks the Committee for this opportunity to provide testimony. If the Committee has any questions, wishes to discuss any of this testimony, or if the Committee feels that the Navajo Nation can provide any further assistance in furthering the aim of the Act, please feel to contact Dr. Downer directly. Statement by David C. Holt (Ti' Ped Ki’uun) Nez Perce on implementing of the Native American Graves Protection and Repatriation Act, (P.L. 101-601) In the beginning, Grandfather Creator and Mother Earth blessed we Nez Perce or Nee Mee Poo. All other Indigenous people were also blessed. The Creator and Mother Earth provided for all of our relations. I am one of your relations, we all are related, everything is connected according to Earth Law. Grandfather Creator placed us in our homelands. We the Red Nations along with the buffalo, the fish, the birds, the medicines, and all our other relations on this continent are the Indigenous people. We have always been here on this continent. The people who have immigrated from other parts of our Mother Earth now make the laws with their Senate and Congressional Representatives. They now are the majority, still knowing little about Red Nations and so, still violating their human rights. Laws made for mainstream society, have made indigenous people suffer worldwide. Since the first foot-steps of non-Indians on our country Indian Nations have suffered as people. We are still denied our Religious Freedom from the very immigrants who came to our lands seeking Religious Freedom. They still come... Grandfather Creator knows they have amnesia when it comes to socalled "Law of the Land," or treaties made with Indian Nations. The treaties and lives of Indigenous people have been broken. We now are victims to the immigrant's, policies, laws and regulations. We are victims to their Religious dictates, their attitudes, ignorance and arrogance. The immigrants hold dearly to their archaeological evidence and theory of the Aleutian Islands as a land bridge from which the Indians supposedly came. If this were so, immigrants who now occupy our lands, oppress our people with their laws, would be rid their guilt for inhumanities inflicted during genocide against Indian Nations and exploitation of all our relations. Our ancestors remains, their tools, and beliefs are studied and used against we descendants. Desecration continues in the use of archaeological evidence studied while immigrants try to rid their guilt, Obviously the evidence is our ancestor's remains, sadly many are human remains. Meanwhile our lands are flooded with more immigrants who study our ancestors, their remains and pay to see them in Federal, state and private museums and parks, or private and public collections. Now we must comment on new rules and regulations which deal with remains of our ancestors. This within government policy dealing with lineal criteria established by descendants of the immigrants. There have been NonIndian and Native champions though. They have helped to provide the Native American Graves and Protection and Repatriation Act or NAGPRA. A lack of good faith and a continuation of human right violations existed in preparation and implementation of the rules and regulations of Monday |