would be $50-150. Those estimates now appear to be very low in light of our experience since that time. As a result, viable tribal and museum requests for the NPS grants authorized under NAGPRA continue to exceed available funds by a large margin. In addition, museums cannot repatriate to the tribes until appropriate notices go into the Federal Register, and there is currently a backlog of about 150 such notices at the NPS, about a year's work, due to lack of staff to process them. While I know that it is not in the purview of this Committee to set the annual appropriations levels for the repatriation grant program and for staffing to administer the law, I believe that you would want to be aware of these constraints.

Let me add that Native peoples and museums generally, not just the Bishop, have discovered that the exchange of data required under NAGPRA is yielding new information that helps us all. In the process of identifying sensitive cultural items, museums have learned much more about their entire collections. Delegations of elders and religious leaders have supplied valuable new insights about many objects in the repositories they have visited, and in turn they are discovering items of immense interest to their own tribes, the existence of which had been unknown in recent generations. Few items in these categories are being sought for repatriation; it is simply that access to the collections has led to much better mutual understanding and exchange of knowledge. While the repatriation process will eventually end as the transfer of materials is completed, the long-term relationships created between museums and tribes, and the more accurate and respectful exhibits and education programs that are the fruit of those relationships, will continue.

In brief, then, while the situation with respect to repatriation differs very broadly across the museum community, the data we have indicates that the experience of the Bishop with many more repatriable items than it could initially estimate; with much higher costs to follow the procedures of NAGPRA, most of which it has had to bear itself; and with the importance of, and the value of, collaboration with Native Americans and Native Hawaiians, is in important respects representative of the experience of museums nationally with the repatriation process.

Before closing, I would like to comment briefly on concerns that have been raised about the appropriateness of continuing to administer NAGPRA at the Archaeology and Ethnology Program at the National Park Service. I can speak only to the experience we have had with the NPS at the Bishop, and what I know of the experience of other museums. That experience has been mostly favorable. Museums have a general sense that the NPS has striven to be even-handed with all parties to the law. Some elements of the regulations are still not completed, and some of the publication of notices necessary to the repatriation process have been delayed, but we understand that that is due to lack of funds for staff. Museums have generally appreciated the NPS staff's expertise on the law and regulations and their breadth of information. We have seen them as partners with all the parties to the law in making the repatriation process work, and we appreciate their grant program, from which the Bishop and many other museums and Native peoples have benefited.

Thus, if the Committee were to consider moving the administration of the law, museums would want to be sure that such a step did not proceed without some reasonable assurance that there would be at least equal understanding in a new administrator of the complexities of the law and regulations, and of the spirit of cooperation and balance of interests that informs the law and regulations.

Thank you for the opportunity to testify on this issue. I would be happy to respond to any questions you might have.

ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC.

PO Box 268 SISSETON, SD 57262⚫ TELEPHONE: (605) 698-3998 OR (605) 698-3787 FAX: (605) 698-3316

STATEMENT OF THE ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC.

BY

JERRY FLUTE, EXECUTIVE DIRECTOR

AND

JACK F. TROPE, COUNSEL

I. INTRODUCTION

Mr. Chairman and members of the Committee. The Association on American Indian Affairs, Inc. (AAIA) is a 77 year old national nonprofit citizens' organization headquartered in South Dakota and dedicated to the preservation and enhancement of the rights and culture of American Indians and Alaska Natives. The policies of the Association are formulated by a Board of Directors, all of whom are Native Americans. AAIA was actively involved in the negotiations which resulted in the enactment of the Native American Graves Protection and Repatriation Act (NAGPRA) and is fully cognizant of the reasons for various provisions in NAGPRA and how they were developed. It has continued to be actively involved in promoting the proper implementation of the Act, including assisting with specific repatriations of human remains and cultural items.

NAGPRA was bipartisan legislation unanimously passed by the Congress and supported and actively promoted by both Republican and Democratic legislators, including then-Reps. Udall, Campbell, Young, Rhodes and Richardson and Senators McCain, Inouye and Domenici. Senator Inouye cogently summarized the testimonial background and intent of NAGPRA in his floor statement at the time of Senate passage as follows:

When the Army Surgeon General ordered the collection of Indian osteological remains during the second half of the 19th Century, his demands were enthusiastically met not only by

Army medical personnel, but by collectors who made money from selling Indian skulls to the Army Medical Museum. The desires of Indians to bury their dead were ignored. In fact, correspondence from individuals engaged in robbing graves often speaks to the dangers these collectors faced when Indians caught them digging up burial grounds...In light of the important role that death and burial rites play in native American cultures, it is all the more offensive that the civil rights of America's first citizens have been so flagrantly violated for the past century. Even today, when supposedly great strides have been made to recognize the rights of Indians to recover the skeletal remains of their ancestors and to repossess items of sacred value or cultural patrimony, the wishes of native Americans are often ignored by the scientific community... [T]he bill before us is not about the validity of museums or the value of scientific inquiry. Rather, it is about human rights...

[136 Cong. Rec. S17174 (daily ed. Oct. 26, 1990)]

As Senator McCain restated it, NAGPRA was intended to "establish a process that provides the dignity and respect that our Nation's first citizens deserve." 136 Cong. Rec. S17173 (daily ed. Oct. 26, 1990).

The evidence is that NAGPRA has had a significant and positive impact. It has allowed Indian tribes and Native Hawaiian organizations to commence the process of repatriating their ancestors and sacred cultural items. It has led to new cooperative relationships between museums, scientists and Native Americans based upon respect.

Thus, AAIA urges you to use caution in considering whether NAGPRA should be amended. Certainly the law has its flaws and in this testimony we will provide a number of recommendations as to how NAGPRA might be improved. However, given the proposal to limit the application of NAGPRA advanced by Rep. Hastings in the last Congress, it is important that the Committee proceed in a manner which will ensure that such harmful provisions are not included in any bill that might be considered.

A.

II. PROBLEMS WITH NAGPRA

Use of NAGPRA to delay, interfere with or prevent
repatriation

NAGPRA specifically provides that "[n]othing in the Act shall be construed to limit the authority of any Federal agency or museum to return or repatriate Native American cultural items to Indian tribes, Native Hawaiian organizations, or individuals" 25 U.S.c. 3009 (1) (A). This was placed in NAGPRA to make clear that NAGPRA

was meant to facilitate repatriation of cultural items in addition to whatever repatriations would otherwise take place. It was never the intent of Congress that NAGPRA would in any way be used to limit, frustrate or delay repatriation.

Yet certain regulations have been drafted and policies developed in a manner designed to make repatriation more difficult, particularly in the case of so-called "culturally unidentifiable human remains" and embedded cultural items, as well as issues pertaining to scientific analysis. Moreover, certain proposals by the Society of American Archaeologists would exacerbate these problems.

1. "Culturally unidentifiable" remains

25

NAGPRA provides that the NAGPRA Review Committee will compile an inventory of culturally unidentifiable remains and recommend "specific actions for developing a process for such remains." U.S.C. 3006 (c)(5). Nowhere in the Act, however, is repatriation of such items prohibited or even discouraged pending the Review Committee's recommendations. Indeed, as noted, the savings clause quoted above makes clear that the Act is not to be interpreted as limiting authority to repatriate.

Nonetheless, in its regulations, the Department of Interior has included a requirement that "[m]useums or Federal agencies must retain possession of [culturally unidentifiable] human remains pending promulgation of [regulations] unless legally required to do otherwise, or recommended to do otherwise by the Secretary. Recommendations regarding the disposition of culturally unidentifiable human remains may be requested..." 43 C.F.R. 10.9(e) (6). As a result of this regulation, agencies and museums who have reached agreements with tribes or tribal consortia on repatriation of culturally unidentifiable remains have been required to submit these agreements to the NAGPRA Review Committee and Department of the Interior for review and significant and onerous procedural requirements have been imposed before repatriation could go forward in some cases. Although repatriation of culturally unidentified human remains has taken place, substantial delays have occurred.

Amazingly, the SAA recommends that the Secretary of Interior go even further and withhold future approval of such requests. They are highly critical of recent approvals by the Review Committee of requests by federal agencies and museums to repatriate culturally unidentifiable human remains to tribal consortia. In short, they want to interpret NAGPRA as prohibiting repatriation of any remains absent a strict legal showing of cultural affiliation. This turns NAGPRA into a statute that is a barrier to repatriation agreements between tribes and agencies regarding specific remains. It is a proposal that must be rejected.