cannot be allowed to by-pass or ignore Native input in a determination of NAGPRA applicability. Without compliance prior to any sale of objects or artifacts, there is no way of assessing the validity of Washington College's claims under the NAGPRA regulations. Again, Section 10.8 (a) provides that: (E)ach museum that has possession or control over collections which may contain unassociated funerary objects, sacred objects, or objects of cultural patrimony must complete a summary of these collections based upon available information held by the museum. Federal agencies are responsible for ensuring that these requirements are met for all collections from their lands or generated by their actions whether the collections are held by the Federal agency or by a non-Federal institution. Washington College's non-compliance and sale of its collection, without notice to identified interested parties, effectively prevents any fair and open determination of what may or may not satisfy the NAGPRA categorical requirements. The position of Washington College only satisfies its own self-interest and financial gain. The prospect of an institution evading its legal duty and financially profiting from the sale of human remains or sacred objects or objects of cultural patrimony is reprehensible and unlawful. The collection remained in the possession of Washington College throughout most of the century. The placard in the College's display case provides all the basic information needed to complete a summary under 10.8(c). This is not a case of lack of information or lack of adequate funding necessary to complete the required summary. Further, Washington College can not and does not claim ignorance of the existence of the Native American Graves Protection and Repatriation Act, or of its the requirements, amendments or regulations. Consequently, Washington College cannot be allowed, in its own self-interest, to claim a presumed exemption from its responsibility to comply with those requirements and regulations of the Native American Graves Protection and Repatriation Act. CONCLUSION AND RECOMMENDATIONS The past and present position of Washington College essentially stands for the following proposition: That any institution, which acknowledges receipt of federal funds, and which has Native American objects and artifacts in its possession, may unilaterally choose whether it wishes to comply with or opt out of the Page-9 summary or inventory requirements of the Native American Graves Protection and Repatriation Act, based upon its particular self-interest, privately obtained expert advice, undisclosed legal opinions, or other financial determinations made at the sole discretion of that institution's board of directors. It is precisely this prospect - that is, leaving the question of whether an institution has a duty to comply with federal law up to that institution's own self-interested discretion that we find setting a most troubling precedent. Allowed to stand, this precedent will effectively pre-empt tribal participation and foreclose federal regulation under the act. In closing, we have sought the assistance of the NAGPRA Review Committee in moving the Secretary of the Department of the Interior and the National Park Service to make a determination regarding Washington College's admitted non-compliance with the procedural provisions of NAGPRA. Further, we have asked that the Secretary and the National Park Service to assess appropriate civil penalties against Washington College for its failure to complete a summary and/or inventory by November 16, 1995, and prior to its sale of the Albee Collection, on May 21, 1996 and for the subsequent sale. Now, we do not to bring this matter before you for resolution of these issues on the merits of the case. We are willing to proceed through appropriate administrative and judicial channels. We seek only effective compliance with, and diligent enforcement of, the federal protections provided under the law. We bring this matter to the attention of this oversight committee at this time in the hope of alerting you to this problem of threshold compliance. Perhaps a suggested remedy might include a technical amendment to require that no sale of any objects or artifacts which may be subject to the provisions of NAGPRA can occur without a written certification of compliance with the summary and inventory provisions of NAGPRA from the applicable federal agency. This would provide notice and assurance to the various auction houses and other venues trafficking in Native American objects and artifacts that their participation in the sale of such items would not aid, abet or promote willful non-compliance with the Native American Graves Protection and Repatriation Act. To date, there have been no enforcement actions taken under the civil penalty provisions of the act, but this should not be taken as an indication that there are no problems with institutional compliance. Lack of enforcement in such cases as this means that institutions holding objects and artifacts of significant cultural import can effectively evade the balanced legal protections provided for all parties under NAGPRA. It may be that the National Park Service is ill-equipped or ill-disposed to properly carry out the enforcement functions under the Native American Graves Protection and Repatriation Act. The failure of the National Park Service to adequately Page-10 respond in accordance with the express provisions of the act further compounds the evasion and denigration of this all too necessary federal legislation. On behalf of the Estate of Tasunke Witko and the Rosebud Sioux Tribe NAGPRA Committee, I thank you for your time and consideration of this matter. Respectfully submitted this 20th day of April, 1999. Artulge Robert P. Gough, Esq Attorney for the Estate of Tasunke Witko P.O. 25 Rosebud, SD 57570 (605) 856-2173 and P.O. 453 River Falls, WI 54022 (715) 426-1415 Rpwgough@aol.com Page-11 May 17, 1999 The Honorable Senator Ben Nighthorse Campbell RE: NAGPRA and Unidentified Human Remains Dear Senator Nighthorse Campbell and Senator Inouye: First, may I thank you again on behalf of the Estate of Tasunke Witko and its administrator, Mr. Seth H. Big Crow, Sr., and of the Rosebud Sioux Tribe NAGPRA Committee for the privilege of providing testimony and comment at the April 20 Senate Indian Affairs Committee Oversight Hearing on NAGPRA, particularly in regard to the threshold compliance problem involving Washington College and the George Albee Collection of Plains objects and artifacts, including the shirt held out to have belonged to Tasunke Witko, Crazy Horse. For the record, along with my oral testimony transcript, I am enclosing copies of five pages from the Sotheby's catalogue of the May 21, 1996 sale, entitled: "Fine American Indian Art" which present "an important group of Plains beadwork and regalia, from a Northeastern Educational Institution." Second, in response to the questions posed by Senator Inouye to the panel on which I participated with regard to the definition of "sacred" as applied in the Native American Graves Protection and Repatriation Act, and the separate question of "unidentified human remains" held by the Smithsonian Institute, I would like to take this opportunity to expand upon the comments made at the Oversight Hearing. With regard to the definition of "sacred", I will refer you to a brief commentary by Mr. Sebastian (Bronco) LeBeau, Preservation Officer of the Cheyenne River Sioux Tribe, which accompanies this letter. I would point out that his comments are echoed in the beliefs held by traditional spiritual leaders at Rosebud and among the other Lakota, Nakota and Dakota communities. With regard to the issue of “unidentified human remains” held by the Smithsonian Institution, while cultural affiliation or association may not be apparent, it would appear that the vast majority of these remains can, in fact, be identified at least as to the general geographic area of their origin. Such remains are revered by most tribes as "Unknown Ancestors" for which the present generation has the sacred duty of repatriation, the duty to bring rest to their spirits and to bring their earthly remains back to their homelands. As to those human remains coming from the area included within the so-called Louisiana Purchase, I would suggest that the Senate Indian Affairs committee consider the establishment of a special Commission composed of Native representatives from various tribes across the Nation, and from boards, organizations and committees with broad knowledge and expertise in the area of repatriation. This Commission would convene a "Grand Council" of tribal leaders from those tribes and nations which are, or have been historically, associated with that territory. This Grand Council could convene in a centrally located place within the Louisiana Purchase territory and could include traditional, spiritual and governmental leaders, who would come together as the present day caretakers and relatives of those "Unknown Ancestors" to discuss and determine their proper deposition. This Grand Council could deliberate as to whether a single site, one or more regional site or a national site for the reburial of these Unknown Ancestors would be most appropriate. The site or sites could be on reservations lands, or on some federally protected land to be dedicated to the Unknown Ancestors, with title placed in trust for participating tribes. Perhaps, an abandoned Fort in Oklahoma, perhaps, a national grassland where members of the Buffalo Nation could stand as guardians, could serve as an appropriate tomb for these Unknowns. Those tribes and nations uncomfortable with assuming a responsibility for remain not known to be of a direct and immediate relation to them, could allow those other tribes and nations willing to accept such responsibility. The Commission would assist a group designated by this Grand Council to oversee the repatriation in a timely manner with appropriate ceremony. The Commission could be established by making a special appropriation to the Smithsonian Institution to be administered for these expressed purposes. This repatriation activity could be accomplished and ceremonially concluded by the bicentennial of the Louisiana Purchase in 2003. This federal repatriation would appropriately mark the occasion with respect to the "Unknown Ancestors" who have walked these lands before the coming of the Europeans to North America and with honor to the best values and ideals for which this Republic stands. I am sure that most of the tribes and nations located within or associated with the so-called Louisiana Purchase area stand ready to assist the Smithsonian Institution in displaying the high moral leadership necessary in developing a process which might be applied elsewhere in the United States by the Smithsonian and by other institutions with "unidentified human remains" of known geographical origins. As we enter the New Millenium, I can think of no better way to celebrate the best in America than by reconciling our debt, through a federal repatriation, to those Unknowns" who were here before us and whose earthly remains are in our hands. I again thank the committee for the privilege of addressing these important issues. I remain, |