allowing the remains to sue on their own behalf. Moreover, the district court concluded that Hui Malama does not have standing to sue as guardians on behalf of the ancestral native Hawaiian remains because: 1) NAGPRA does not confer guardian status on Hui Malama, and 2) tradition and custom under Hawaiian law did not dictate that Hui Malama become the sole guardian of the remains. The district court erred in its analysis. Tradition and custom dictated that a Hawaiian individual or organization protect their ancestors from being robbed of their spiritual mana, or power during the inventory process. Hui Malama was not seeking status as a legal guardian, but simply as a "spiritual" guardian or advocate on behalf of the remains. The Federal defendants could not disprove, nor were there any Hawaiian individual organizations who came forward to object to, Hui Malama's claim to advocate as "guardian" on their behalf. Recognizing the importance of Native American and Hawaiian beliefs that remains are simply not "cultural items", but rather as living persons capable of suffering injury to their dignity, reputation, etc. Accordingly, NAGPRA should be amended to allow native American tribes and native Hawaiian organizations the right to represent their ancestors in court. Supplemental Testimony Submitted to Senate Committee an Indian Affairs Concerning Oversight Hearing on Implementation of P.L. 101-601, December 6, 1995 Native American Graves Protection and Repatriation Act by Robert M. Peregoy SUPPLEMENTAL TESTIMONY SUBMITTED TO THE SENATE COMMITTEE ON INDIAN AFFAIRS OVERSIGHT HEARING, DECEMBER 6, 1995 NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT The Native American Rights Fund (NARF) is a public interest, nonprofit law firm dedicated to serving the legal needs of Indian tribes and Native Americans. As a nationally-oriented law firm, NARF has represented several Indian tribes and one tribal official in state and federal repatriation matters over the course of the last decade. NARF submits the following supplemental testimony in conjunction with two clients, the Pawnee Tribe of Oklahoma and Judi Morgan, former repatriation officer of the Ponca Tribe of Nebraska. This supplemental testimony is submitted in response to the request of the Honorable John McCain, chairman of the Senate Indian Affairs Committee. Scope of Final NAGPRA Regulations We endorse and adopt the distinguished testimony of the American Indian Ritual Object Repatriation Foundation (AIRORF) regarding the development and scope of the final regulations implementing NAGPRA. NAGPRA Inventory Process and Further Scientific Studies Congress needs to amend NAGPRA to unequivocally and expressly prohibit any further scientific studies of human remains and associated funerary objects, at a minimum where cultural affiliation is known or can be determined based upon a preponderance of existing information. In most cases, museums have retained the dead bodies and funerary objects of Native ancestors for decades. They therefore have had ample time to conduct whatever studies they felt were necessary. However, it still seems to escape certain museums and social scientists that their "scientific specimens" are the remains of human beings, some who were buried during the late nineteenth century--the recent past considering that such are the remains of grandparents of some Native people living today. To many Indian tribes and Native peoples, the dead are sacred. Any disturbance of the dead (or their funerary objects) is a sacrilege. This includes "further scientific studies." Such sacrilegious mistreatment is deeply offensive and inflicts real pain on Native peoples, communities and tribes. Congress has a responsibility to see that this does not happen. A Moreover, "further scientific studies" where cultural affiliation is known has caused needless, acrimonious controversy between Indian tribes and museums, which can culminate in unnecessary, costly legal expenses and litigation. prime example is the current conflict involving the Ponca Tribe of Nebraska, the Ponca Tribe of Oklahoma and the University of Nebraska. Briefly stated, the University of Nebraska, under the auspices of Professor Karl Reinhard, conducted destructive analyses on Ponca remains--when there was never any question about cultural affiliation. The Ponca Tribes protested this outrageous conduct. The Ponca Tribe of Oklahoma threatened to sue the University for performing the unauthorized destructive analyses. See Exhibits 1 and 2. Although the University of Nebraska ultimately placed a moratorium on destructive testing, the damage to the remains and the living Ponca descendants and tribes had been done. Judi Morgan, the repatriation director of the Ponca Tribe of Nebraska, described her opinion of Reinhard's work as "insensitive," "distasteful," "dehumanizing" and "disrespectful." She further suggested that Reinhard's destructive analyses may constitute possible violations of NAGPRA. Reinhard's attorney wrote an intimidating letter threatening to sue Morgan for libel and slander, for merely voicing her opinion about Reinhard's mistreatment of the remains of her ancestors. See Exhibit 3. In turn, Morgan was forced to enlist the assistance of the Native American Rights Fund to defend against Reinhard's ultimately hollow, yet intimidating threat of suit. See Exhibit 4. Reinhard quickly backed off, but the situation between the tribes and the University appears to remain unresolved at this time. This is merely one example of controversies triggered by "further scientific studies" when cultural affiliation of human remains is known. Congress can and should prevent these unfortunate, costly and ultimately unnecessary conflicts by amending NAGPRA to expressly prohibit further studies of human remains and funerary objects when cultural affiliation is known, absent express written consent of the governing bodies of affected tribes, individuals or entities. NARF, the Pawnee Tribe of Oklahoma and Judi Morgan are deeply appreciative of the Committee's continuing concern and interest to assure that NAGPRA is properly and fully implemented. |