PREPARED STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH DAKOTA Mr. Chairman, I am pleased that the committee has decided to hold this most important hearing on the implementation of the Native American Graves Protection and Repatriation Act, Public Law 101-601. I am grateful to the chairman for extending an invitation to testify to Jesse Taken Alive, chairman of the Standing Rock Sioux Tribe, who is accompanied by Tim Mentz, the NAGPRA representative of the Standing Rock Sioux. I look forward to hearing their testimony and the testimony of the other distinguished witnesses here today. I would like to take this opportunity to briefly mention that I have a long standing interest in the issues we are discussing today. As a member of the House, I secured passage of H.R. 1124 on November 13, 1989. This bill, which was designed to expedite the repatriation of Indian remains and grave goods by requiring Federal agencies to inventory and return Indian remains to tribes for reburial, was enacted into law on November 28, 1989, as part of the National Museum of American Indians Act. Implementing NAGPRA is far more than an exercise in administrative rulemaking. Indeed, it involves the very essence of Indian culture. For that reason, the Federal Government has a clear and compelling obligation to consult with the Indian people about this matter. Unfortunately, I have received information from tribal officials in North Dakota which indicates exactly the opposite. They tell me that the proposed final regulations have been developed without meaningful consultation and without taking into account both the letter and the spirit of Public Law 101-601. I would like to take this opportunity to outline some of their serious concerns, which I hope will be addressed fully during the course of this hearing. I have contacted the Park Service and the BIA about these issues. Specifically, I have been told by Chairman Taken Alive, who will testify today, and by Chairperson Twila Martin Kekahbah, of the Turtle Mountain Band of Chippewa that: Three drafts of regulatory language were compiled by Federal employees, without any tribal input, before members of the NAGPRA Review Committee were appointed, which means that the Review Committee began promulgating regulations after three drafts were produced without any guidance from the Indian community. In addition, the Bureau of Indian Affairs attended just one meeting with the other Federal employees who developed those initial three drafts. Obviously, the tone of the draft regulations had already been established by that time. Due to the lack of consultation, tribal officials find the entire definitions section problematic, most notably in the definitions of Indian lands and unassociated funerary objects. These two definitions very well could impact issues as fundamental as tribal sovereignty and the ability to fully implement NAGPRA according to Congressional intent, which was to provide for the return of certain ancestral remains, burial belongings and other sacred and cultural property to the Indian people. The final proposed regulations have grown from approximately 15 pages to more than 140 pages. Despite this major increase in the length, and most assuredly the scope, of the regulations, the National Park Service decided through an internal administrative decision to not release the document for tribal review. Assistant Secretary Deer, correctly in my view, has refused to sign off on the proposed final regulations until they are published in the Federal Register with a 90-day public comment period so that tribes may voice their concerns. However, I am very disturbed by the Park Service's unwillingness to open up the regulatory process to the tribes. As all members of this Committee are well aware, we have a special trust responsibility to Native Americans. I fear that this responsibility has not been met during the process by which the final proposed NAGPRA regulations were developed. hope that today's hearing with bring such issues to light, and will result in the correction of any behavior which has resulted in the omission of tribal views from the development of a regulation to implement a law of such major importance to the Native American people. Executive Committee President gaiashkibos Chippen First Vice President Susan Masten Yurak Recording Secretary S. Diane Kelley Treasurer Mary Ann Antone Area Vice Presidents Anadarko Area Billings Area John Sunchild, Sr. Juneau Area Minneapolis Area Muskogee Area Northeast Area Oneida Phoenix Area Portland Area Sacramento Area Southeast Area National Prepared Statement of W. Ron Allen, President I. Introduction 6 December 1995 Good morning Chairman McCain, Vice-Chairman Inouye and distinguished members of the Indian Affairs Committee. For those that do not know me, I am Ron Allen, President of the National Congress of American Indians (NCAI) and Chairman of the Jamestown S'Klallam Tribe. NCAI is the oldest, largest, and most representative American Indian / Alaska Native advocacy organization in the nation, comprised of nearly 200 member nations, dedicated to ensuring the sovereignty of native governments and the survival and viability of native culture. I respectfully submit this statement on behalf of our member tribes concerning the implementation of the Native American Graves Protection and Repatriation Act of 1990 (hereafter "NAGPRA"). Following the passage of NAGPRA Native Americans rejoiced at the prospect that our lost ancestors and sacred objects would be returned after decades of separation. Congress' intent in enacting NAGPRA was to ensure that Native American remains and funerary objects retained by the federal government, universities, and the museum community are returned to the appropriate tribes and tribal organizations. In providing a legal basis for the return of grave goods and human remains, NAGPRA is "remedial" legislation. However, NAGPRA cannot remedy the problem it was intended to unless and until adequate funds are appropriated so that tribes and museums can complete the repatriation process. II. NAGPRA Grants to Tribes Though Indian tribes are currently facing difficult times and an ever-changing legislative landscape in the 104th Congress, repatriation remains a major priority for Native people. We see the return of our ancestors as a return of our cultural and spiritual foundations; the very heart of our nations. To bring our people home to their rightful resting places, and to fulfill the mandates of NAGPRA we need the necessary funding. As the NAGPRA process continues to move forward, Native communities are being asked to assume a more prominent role in implementing NAGPRA. Following the statutory deadline for museum inventories in November 2010 Massachusetts Ave., NW 1995, repatriation activity will intensify and will continue to do so as we move Executive Director JoAnn K Chase Mandan Hidatsa Second Floor Washington, DC 20036 202 466.7767 202.466.7797 facsimile 2 further along in implementing the Act. If the goals of NAGPRA are to be accomplished, Tribal access to funding is mandatory to assist them in working with the university and museum communities to identify and repatriate sacred objects and remains. Our member tribes responded to an informal survey in 1993 taken to determine tribal needs in complying with the Act. The responses to the survey reveal that actual tribal need far exceeds both the National Park Service estimates of financial need and the grant funds appropriated for FY94 and FY95. As you know, the university and museum communities have begun to present their inventories to the tribes. These inventories list literally millions of sacred objects and ancestral remains and as they are received, Indian tribes must respond to them under the mandates of NAGPRA. Tribal response requires funding for technical expertise (historical, anthropological, ethnological, and archaeological) as well as appropriate legal assistance, especially in disputed repatriation claims. Under the provisions of NAGPRA, a dispute over a repatriation is heard by the NAGPRA Review Committee. However, it is still necessary for tribes to hire independent experts to make their case. These experts can be extremely expensive and most tribes simply do not have the funding available to hire them.' Section 10 of NAGPRA authorizes the Secretary of the Interior to make grants to the Tribes for the purpose of "assisting such tribes and organizations in the repatriation of Native American cultural items." Furthermore, the United States has a trust responsibility to Indian tribes and their members concerning the potentially repatriated goods and remains. This responsibility carries with it the highest of fiduciary standards guiding the conduct of federal agencies, here the National Park Service and the Department of the Interior, in their treatment of tribes in the area, of repatriation. Given recent appropriations experience, it is unlikely the federal obligation to tribes will be fulfilled in the realm of repatriation. Despite a joint tribal - museum community request of some $10 million for FY94 through FY96, Congress has again appropriated a fraction of that amount ($2.3 million) for NAGPRA -related grants. This funding level is far below the projected funding level needed to comply with the provisions of the Act and well below the $10 million level. Mr. Chairman, I think you can understand that tribes must be provided with sufficient funding to be equal partners in the NAGPRA process or it simply will not succeed. Museums and universities already have much of the resources and qualified staff persons available to implement the process, while tribes must take on the task of hiring new staff and developing a whole new implementation program to comply with the mandates of the Act. It is imperative, Mr. Chairman, that any review of the progress made in implementing NAGPRA over the past four years factor in the relative scarcity of federal funding to ensure its ultimate success. 1 In the Larson Bay case of 1991 the Smithsonian Institution contested the right of the Larson Bay Tribal Council to all of the remains unearthed at the Larson Bay burial site. Because of this dispute, the Native American Rights Fund, who represented the Larson Bay Tribal Council, was required to retain experts in anthropology to help with their case. The Smithsonian hired their own experts and there was considerable debate before it was eventually determined that sufficient evidence existed to warrant the return of the remains. III. Conclusion Mr. Chairman, today I have only touched on the most critical of obstacles hindering the full and complete implementation of the NAGPRA basic funding for Indian tribes. To properly and faithfully carry out Congressional intent and in order to facilitate the NAGPRA process, tribes must have access to NAGPRA funding. Enclosed are copies of Resolutions NV93-202 and NV-93-170, adopted by our member tribes regarding grant levels made available to Tribes under the Act. As you can see, our tribes have expressed the need for funding sufficient to "meaningfully implement" the Act; and have also urged that tribes receive "the full amount of the appropriations authorized under the NAGPRA allocation." (See attached resolutions). While acknowledging the difficulties of the current budget situation, it is imperative that sufficient funding is made available to tribes now. In the alternative, the level of funds necessary to ensure compliance with the Act in the years ahead will be even greater. Mr. Chairman, I again wish to thank you for the opportunity to submit this statement, and I look forward to appearing before you very soon to discuss the many problems facing Indian tribes and Alaska Native villages. <> National Congress of American Indians Est. 1944 EXECUTIVE COMMITTEE President Gaiashkibos Chippewa First Vice President Joseph T. Goombi Recording Secretary S. Diane Kelley Cherokee Treasurer W. Ron Allen Jamestown S'Klallam AREA VICE PRESIDENTS Aberdeen Area Terry Fiddler Cheyenne River Sioux Albuquerque Area Raymond D. Apodaca Anadarko Area Mamie Bohay Kiowa Billings Area Earl Old Person Blackfoot Juneau Area Edward K. Thomas Tlingit-Haida Minneapolis Area James Crawford Forest County Potawatomi Muskogee Area Donald E. Giles Northeastern Area J.C. Seneca Seneca Phoenix Ares Mary Ann Antone Portland Area Sacramento Area Susan Masten Southeastern Area A Bruce Jones EXECUTIVE DIRECTOR (Interim) Rachel A. Joseph Shoshone Paiute Mone RESOLUTION NO. NV-93-170 RESOLUTION ΤΟ SUPPORT FULL PROTECTION OF WHEREAS, we, the members of the National Congress of American Indians of the United States, invoking the divine blessing of the Creator upon our efforts and purposes, in order to preserve for ourselves and our descendants rights secured under Indian cultural values, and otherwise promote the welfare of the Indian people, do hereby establish and submit the following resolution: WHEREAS, the National Congress of American Indians (NCAI) is the oldest and largest national organization established in 1944 and comprised of representatives of and advocates for national, regional, and local Tribal concerns; and WHEREAS the health, safety, welfare, education, economic and employment opportunity, and preservation of cultural and natural resources are primary goals and objectives of NCAI; and WHEREAS, the desecration of funerary remains and objects is still rampant throughout all geographic areas in the United States; and WHEREAS, the Native American Graves Protection and Repatriation Act (NAGPRA) does not wholly address these hundreds of desecrations within state and private lands that are perpetrated by graverobbers who are motivated by greed, except for the state of Hawaii; NOW THEREFORE BE IT RESOLVED, that the NCAI does hereby support amendatory language to the NAGPRA to extend protection of funerary remains and objects on all lands within the exterior boundaries of the U.S. wheresoever they may be situated. BE IT FURTHER RESOLVED, that the tribes receive the full amount of the appropriations authorized uner the NAGPRA allocation. 900 Pennsylvania Avenue S.E. • Washington, D.C. 20003 • (202) 546-9404 • Fax (202) 546-3741 |