All such information and objects deriving from state lands shall remain the property of the state and be utilized for scientific or S.D.C.L. §1-20-25. Under state law, there is no distinction between archaeological resources and native cultural resources. These resources are state-owned and public dissemination of information is required. Under federal law, notification to the Tribe is required, mitigation is mandatory and ownership is vested with the Tribe. 25 U.S.C. §3002(c) & (d), 16 U.S.C. §470f. Significantly, under federal law sensitive information may be withheld from disclosure. 16 U.S.C. §470w-3. Under the S.D. Mitigation Act, up to 200,000 acres of federal land are to be transferred to the state of South Dakota. This land is outside of the present-day Reservations, which were established in the Act of March 2, 1889. However, this land is within the boundaries established for the Great Sioux Reservation in Article 2 of the 1868 Fort Laramie Treaty. Consequently, the right to ownership and repatriation of remains applies to this land. Section 605(h) of the S.D. Mitigation Act provides the "Notwithstanding any other provision of this Act, the following provisions of law shall apply to land transferred under this section.... national Historic Preservation Act.... Archaeological Protection Act... (and) Native American Graves Protection and Repatriation Act." However, it is very unclear how this section shall be implemented. The land is to be transferred to the state of South Dakota. There shall be no federal land manager to monitor unearthing of remains. There shall be no federal presence whatsoever on the land. As discussed above, under state law, the cultural resources on state land are deemed the property of the state. Without question, at best the protections for the Sioux Nation under NAGPRA and implementation of repatriation rights are serioiusly threatened. The most insurmountable issue involves removal of the responsible federal land manager. Under the federal scheme that is currently in place, the federal land manager is responsible for determining if there is an excavation and for the notification, mitigation and repatriation requirements. There is no comparable sate official authorized to carry out these functions. Consequently, there is no way for the Tribes to enforce their rights under federal law upon the state, if the land transfer is enacted. Let there be no question that South Dakota law provides nowhere near the protections conferred by federal law on important native cultural resources. South Dakota law, which shall apply to the transferred lands, shall lead to the desecration and public dissemination of sensitive information about native cultural resources along the Missouri River. Prior to the passage of the Mitigation Act, under NAGPRA the cultural resources on these lands that are associated with the Great Sioux Nation, and their protection is a federal responsibility, implemented by the Corps of Engineers. However, the Mitigation Act provides for the transfer of this land to the state of South Dakota. I am respectfully requesting the Committee on Indian Affairs to give serious consideration to the diminishment of NAGPRA protections for the Great Sioux Nation, contained Title VI of the 1999 Appropriations Act, and to redress this grave injustice in the process of developing amendments to NAGPRA Hearing on the Native American Graves Protection and Repatriation Act April 30, 1999 Chairman Nighthorse Campbell and Committee Members: My name is Harold D. Salway. I serve as President of the Oglala Sioux Tribe. We are one of Seven Council Fires of the Great Sioux Nation, and as such we have a rich cultural history. Some of the most prominent events in American history, such as the defeat of Custer at the Little Big Horn, and some of the saddest and darkest, such as the Massacre at Wounded Knee, have involved our ancestors and our Tribe. 2 Our current homeland, the nearly 4 million-acre Pine Ridge Indian Reservation, is home to some of the most valuable cultural resources in America. Our reservation is a small part of the Great Sioux Reservation, recognized in the Treaty of Fort Laramie of April 29, 1868. The Great Sioux Reservation consists of 80 million acres from the Missouri River westward to Wyoming. The Black Hills of present day South Dakota was the spiritual center of our homeland and historically, our camps moved throughout our aboriginal homeland, resulting in valuable Oglala Lakota cultural resources from the Powder River in Wyoming to the Missouri River is what is now South Dakota. NAGPRA Testimony: April 30, 1999 - Page Two. We rely on the rights of repatriation under the Native American Graves Protection and Repatriation Act (NAGPRA) to ensure that we receive repatriation of our ancestors remains that have been taken and confiscated by museums, and the protection of our ancestors' remains throughout our aboriginal territory. The Oglala Sioux Tribe has been very active repatriating human remains and associated funerary objects. There has been repatriation of 43 of our ancestors, whose remains were disinterred and located at the Smithsonian Museum. We have also received 2 sets of funerary objects from the Heard Museum in Phoenix, Arizona. These objects were misidentified by archaeologists at the Heard Museum, and were being displayed as certain ceremonial objects, when in fact they were tools of one of our traditional societies, the Kit Fox Society. The Oglala Sioux Tribe serves as the lead project sponsor for the Mni Wiconi Water System, a rural water supply system serving three Indian Reservations and a non-Indian water district. In this capacity, we have performed Class I and Class I surveys of hundreds of square miles of the Great Sioux Nation, providing for protection and mitigation of sacred and ceremonial areas and cultural resources. The Tribe has enacted a Repatriation Ordinance, incorporating our NAGPRA rights and repatriation policies and procedures into Tribal law. We have entered into a Government-to-Government Memorandum of Agreement with the Cheyenne River Sioux Tribe, Rosebud Sioux Tribe and the Santee Sioux Tribe, for mutual cooperation and assistance in identifying Lakota remains and funerary objects at museums and within our 1868 Treaty boundaries. NAGPRA Testimony: April 30, 1999 - Page Three. As Tribal President, I am concerned with the continuing exploitation of Native American cultural resources. NAGPRA should be protected to ensure that Indian Tribes have a statutory right of first refusal upon the sale of cultural objects associated with that Tribe. This is a very important issue for the Oglalas. Because of our prominent role in American history, museums and collectors throughout the world have obtained human remains, cultural objects and artifacts of our Tribe. NAGPRA should be amended to ensure that Tribes, such as the Oglalas, have a right of first refusal to acquire these cultural resources when they are sold or transferred. The U.S. Department of State should be provided authority to assist the Tribes with inventorying native cultural resources in museums and collections in foreign countries and provide for their repatriation. Significantly, however, in some respects the Oglalas have had more cooperation on repatriation with foreign collectors than with museums in the United States. For example, a Ghost Dance shirt was recently returned to our Tribe from a county in Scotland, notwithstanding a legal mandate. Our cultural resources shall be enhanced through better education and reconciliation efforts. Instead, we too often suffer local ill-will on these types of issues. The retention of Indian names and mascots for school and professional sports teams remains hurtful. Perhaps NAGPRA Amendments could authorize the Department of Justice, in cooperation with the Tribes, to investigate the impacts of Indian logos and mascots by sports teams throughout the United States. |