NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT TUESDAY, APRIL 20, 1999 U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. The committee met, pursuant to notice, at 9:40 a.m., in room 301, Senate Russell Building, Hon. Daniel K. Inouye (vice chairman of the committee) presiding. Present: Senator Inouye. STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS Senator INOUYE. Good morning and welcome to this oversight hearing of the Committee on Indian Affairs on the implementation of the Native American Graves Protection and Repatriation Act. The act has its origins in a legislative proposal that was introduced in 1986 and again in 1987 by Senator John Melcher of Montana. In February 1987, this committee held a hearing on that measure, and it was then that we learned that the Smithsonian Institution had in its possession approximately 14,500 human remains of American Indians, Alaska Natives, and Native Hawaiians. We also learned at that time that other museums and scientific institutions were also in possession of thousands of Native American human remains, associated funerary objects, sacred items, and objects of cultural patrimony. Although the evidence presented to the committee was compelling and provided ample justification for the need to enact legislation, the American Association of Museums called upon the committee to forbear from acting so that a process of dialog could be initiated between members of the museum and scientific institution communities, and representatives of Indian country. That national dialog did proceed, and while it did not yield proposed legislation, as some of the participants had anticipated, the parties did reach agreement on a guiding set of principles. It was those principles that served as the foundation for the act which we consider today. Along the way there were many interesting discussions, including a struggle on the part of museums and scientific institutions to understand what might be included in the scope of what is viewed as sacred by Native religious and cultural leaders as well as tribal citizens. The concern expressed at that time was that if (1) Native people were allowed to determine what was sacred, they might deem everything as sacred. I believe the first remains to be repatriated under the authority of the repatriation provisions of this act were some 200 Native Hawaiian human remains from the Smithsonian Institution. We are advised that since 1992, 400 notices of an intent to repatriate have been published in the Federal Register, covering approximately 300,000 funerary objects, 300 to 400 sacred objects, and 100 to 200 objects of cultural patrimony. In addition, out of the approximately 200,000 Native American human remains, 14,000 have been repatriated. It would appear that the act, on the whole, is working. But we also know that there have been challenges encountered in the implementation of the act, and we are here this morning to develop a better understanding of those challenges so that we may determine whether there is a need for adjustments in the manner in which the law is being administered, or whether the may require amendment. [Public Law 101-601 follows:] 104 STAT. 3048 PUBLIC LAW 101-601-NOV. 16, 1990 Public Law 101-601 101st Congress An Act Nov. 16, 1990 [H.R 5237] Native American Graves Protection and Repatriation Act. Hawaiian Natives. Historic preservation. 25 USC 3001 note. 25 USC 3001. To provide for the protection of Native American graves, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the "Native American Graves Protection and Repatriation Act". SEC. 2. DEFINITIONS. For purposes of this Act, the term (1) "burial site" means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which as a part of the death rite or ceremony of a culture, individual human remains are deposited. (2) "cultural affiliation" means that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group. (3) "cultural items" means human remains and— (A) "associated funerary objects" which shall mean objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, and both the human remains and associated funerary objects are presently in the possession or control of a Federal agency or museum, except that other items exclusively made for burial purposes or to contain human remains shall be considered as associated funerary objects. (B) "unassociated funerary objects" which shall mean objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, where the remains are not in the possession or control of the Federal agency or museum and the objects can be identified by a preponderance of the evidence as related to specific individuals or families or to known human remains or, by a preponderance of the evidence, as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe, (C) "sacred objects" which shall mean specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents, and (D) “cultural patrimony" which shall mean an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native PUBLIC LAW 101-601-NOV. 16, 1990 104 STAT. 3049 American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group. (4) "Federal agency" means any department, agency, or instrumentality of the United States. Such term does not include the Smithsonian Institution. (5) "Federal lands" means any land other than tribal lands which are controlled or owned by the United States, including lands selected by but not yet conveyed to Alaska Native Corporations and groups organized pursuant to the Alaska Native Claims Settlement Act of 1971. (6) "Hui Malama I Na Kupuna O Hawai'i Nei" means the nonprofit, Native Hawaiian organization incorporated under the laws of the State of Hawaii by that name on April 17, 1989, for the purpose of providing guidance and expertise in decisions dealing with Native Hawaiian cultural issues, particularly burial issues. (7) "Indian tribe" means any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. (8) "museum" means any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items. Such term does not include the Smithsonian Institution or any other Federal agency. (9) "Native American" means of, or relating to, a tribe, people, or culture that is indigenous to the United States. (10) "Native Hawaiian" means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. (11) "Native Hawaiian organization” means any organization which (A) serves and represents the interests of Native Hawaiians, (B) has as a primary and stated purpose the provision of services to Native Hawaiians, and (C) has expertise in Native Hawaiian Affairs, and shall include the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei. (12) "Office of Hawaiian Affairs" means the Office of Hawaiian Affairs established by the constitution of the State of Hawaii. (13) “right of possession" means possession obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of a Native American unassociated funerary object, sacred object or object of cultural patrimony from an Indian tribe or Native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such object is deemed to give right of possession of that object, unless the phrase so defined would, as |