Additional material submitted for the record: Page Letters: Bourland, Greg, chairman, Cheyenne River Sioux Tribe 231 240 Fois, Andrew, Assistant Attorney General, Department of Justice 241 244 Kibby, Larry, program director, Western Shoshone Historic Preservation 286 *NOTE other material submitted for the record retained in committee files. IMPLEMENTATION OF THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT, [PUBLIC LAW 101-601] WEDNESDAY, DECEMBER 6, 1995 U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. The committee met, pursuant to notice, at 10 a.m. in room 485, Russell Senate Office Building, Hon. Daniel K. Inouye (vice chairman of the subcommittee) presiding. Present: Senators Inouye, Dorgan, and Campbell. STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS Senator INOUYE. Good morning. I am pleased to welcome all of you to this hearing this morning on the implementation of the Native American Graves Protection and Repatriation Act. The chairman of the committee, Mr. McCain, had planned to be here to chair this meeting, but was advised late yesterday that he would be needed to address matters of national security in Bosnia at another committee. Enacted into law at the end of the 101st session of the Congress, this act provides the authority and mechanism for the repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. Final regulations of the implementation of the act were published in the "Federal Register" on Monday of this week. Since its enactment, more than 2,700 Native American human remains, nearly 123,000 associated funerary objects, 16 objects of cultural patrimony, and 212 sacred objects have been repatriated. In the 101st session of the Congress, the committee held an oversight hearing on the initial activities associated with the implementation of the act, and this morning the committee meets to receive an update on the implementation of the act. In one of the first legal actions to be brought under the act, a Native Hawaiian organization, Hui Malama I Na Kupuna O Hawai'i Nei, sued the Secretary of the Navy and the Bernice Pauahi Hawaii Bishop Museum, asserting that, first, the Secretary had violated the act by failing to expeditiously return Native Hawaiian human remains that had been disinterred from the Mokapu Peninsula and, second, in conducting additional scientific research on the remains, the Secretary further violated the act. (1) This litigation has raised several interesting questions, some of which I believe we did not anticipate at the time the Congress was considering the act. Following their testimony, I wouldd like to call upon the witnesses to share with us any views they may have on some of the issues raised by this litigation. One of the issues of first impression is whether Native American human remains have standing under the law in their own right to assert an injury based upon the violation or desecration of those remains. In this action, Hui Malama asserted that, according to Hawaiian custom, human remains are spiritual beings which possess all of the traits of a living person. The Federal district court in Hawaii concluded that there was no such standing under the act because the act classifies human remains as cultural items and fails to list human remains as legallyrecognized persons or as an entity with legally-protected interests under the statute. The court went on to find that there would be no standing under common law, either, because the human remains could not demonstrate that they had suffered an injury, in fact, even though the court notes other non-human entities such as animals and natural habitats and other inanimate objects such as ships and corporations have been accorded standing. The court concludes that Hui Malama has not shown that a comparable identifiable benefit to living members of society would result from affording standing for human remains. The court also discussed the notion of an action being brought by a person or entity in a guardianship capacity for human remains, but finds no authority for guardian-initiated action in this act. This finding poses the interesting legal question of who may assert the right to protection on behalf of human remains if there is no readily-identifiable descendent or relative. The second concern that Hui Malama sought to have the court address was whether information derived from additional scientific research conducted on the remains could be protected from public disclosure by one of the exceptions to the Freedom of Information Act. The court finds that the inventory of the Mokapu remains is subject to the Freedom of Information Act and finds that the Native American Graves Protection and Repatriation Act is not a "withholding statute" for purposes of the Freedom of Information Act because the act does not indicate that any inventory results are to be confidential or privileged in any respect. In addition, the court finds that the Freedom of Information Act exemption that protects individuals from invasions of privacy-an exception that aims to protect individuals from public scrutiny regarding personal affairs-does not apply because it is intended to protect information regarding particular living persons. Finally, the court concludes that the exercise of this power of equity to protect information about remains would be inappropriate on the basis of its findings that there are no extreme or exceptional circumstances and that the plain language of the statute does not exempt inventory information from public disclosure. Further, the court finds that the Native American Graves Protection and Repatriation Act does not prevent museums or Federal agencies from conducting additional scientific studies or research on human remains except after completion of the initial inventory. I've taken time to raise these matters because they impress me as important considerations that Native people may want to have the Congress address, particularly given the fact that this ruling will not be appealed. So, as of this moment, it is the law of the land. Again, I want to urge any of the witnesses who may wish to do so to address these issues as they present testimony to the committee today, and we will keep the record open, if such is necessary, so that witnesses and other interested parties may submit additional testimony. [Text of Public Law 101-601 follows:] |