It appears from the record on file with the National Park Service that for the past 60 years Washington College has held a collection of Native American artifacts which include a shirt said to be trimmed with human scalp that is purported to have belonged to the famed Lakota leader, Crazy Horse. The estate and the tribe have made repeated attempts to examine the objects and artifacts in this collection of materials and related documentary evidence as to its provenance.

Washington College has knowingly ignored these requests and has proceeded to sell the bulk of this collection, including the shirt, through an auction house in New York City on May 21, 1996 without having either filed a summary or inventory of the collection as required under NAGPRA.

Apparently, Washington College unilaterally decided, based upon expert evidence and advice in a written legal opinion, that they did not need to comply with the requirements of the law. Incredibly, the college presumed on its own and without benefit of input from known and interested Native parties that the objects and artifacts in its Native American collection were not subject to the requirements of the act. Having opted out of any compliance requirements, the college was then free to sell these objects and artifacts through Sotheby's Auction House to the highest bidder.

This sale occurred without proper notice to either the tribe or the estate, who are parties known to Washington College as having an affiliation, association, and interest in this collection. This sale has materially damaged the tribe and estate through a loss of any opportunity to examine, investigate, or potentially repatriate such jects and artifacts.

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A matter of particular concern for us today is the critical need for action by the National Park Service in enforcing the civil provisions of NAGPRA. To date, we are not aware of any enforcement proceedings initiated under the civil penalties provisions of the act. We seek a determination that Washington College has failed to comply with NAGPRA and that such failure has ultimately resulted in the sale and subsequent disposal of the collection.

We ask this committee: Where in the law are federally-funded institutions possessing objects and artifacts that may be subject to NAGPRA protection allowed to presume that the Federal law does not apply to them? Where in the law are such institutions excused or exempted from filing appropriate summaries or inventories of their collections based upon their own hardly disinterested determinations that such items are not subject to the act?

Washington College's non-compliance in the sale of its collection without notice to identified interested parties effectively prevents any fair or open determination of what may or may not satisfy the NAGPRA categorical requirements. The position of Washington College only satisfies its self-interest and indeed financial gain. The prospect of an institution evading its legal duty and financially profiting in the sale of human remains, sacred objects, or objects of cultural patrimony is reprehensible and I believe unlawful.

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 prece

dent will effectively preempt tribal participation and foreclose Federal regulation under the act.

We seek only effective compliance and diligent enforcement of the Federal protections provided under this 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 NAGPRA may 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 such sale would not aid, abet, or promote willful non-compliance with NAGPRA.

To date, as far as we understand, 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 Parks Service is ill-equipped or illdisposed to properly carry out the enforcement functions of NAGPRA. The failure of the National Park Service to adequately respond in accordance with the express provisions of the Act further compounds this evasion and denigration of this all too necessary Federal legislation.

On behalf of the estate of Tasunke Witko and the Rosebud Sioux NAGPRA Committee, I thank you for your time and consideration in this matter.

[Prepared statement of Mr. Gough appears in appendix.] Senator INOUYE. I thank you very much, Mr. Gough.

Now may I call upon the Vice President of NCAI, Mr. Stevens. STATEMENT OF ERNIE STEVENS, JR., VICE PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS, WASHINGTON, DC

Mr. STEVENS. Good morning, sir.

Good morning, Vice Chairman Inouye. My regards to chairman Campbell and distinguished members of the Senate Committee on Indian Affairs who are not here this morning. On behalf of the National Congress of American Indians and our president, Ron Allen, I thank you for the opportunity to present testimony regarding the implementation of the Native American Graves Protection and Repatriation Act, NAGPRA. My name is [remarks given in Native tongue] and I am also known as Ernie Stevens, Jr. I am First Vice President of the National Congress of American Indians and a member of the Oneida of Wisconsin's Business Committee. Joining me this morning is NCAI governmental associate, Brian Stockes, representing our Washington, DC office.

Following NAGPRA's enactment in 1990, Native Americans rejoiced at the prospect that their lost ancestors and sacred objects would be returned after decades of separation and that their sacred

burial sites would now receive some legal protection. As you know, Congress' intent in enacting NAGPRA was to ensure that the Native American human remains and sacred objects retained by the Federal, State, and local governments, universities, and the museum community are returned to the appropriate tribes and our descendants. The law also ensures that burial sites on tribal and Federal lands are properly protected. However, unless those involved in the process maximize the law's mandates and potentials, NAGPRA cannot address the problems it was intended to address.

In order to bring their people home to their rightful resting places, to protect those at rest, and to fulfill the mandates of NAGPRA, Native people have over the years begun to understand both the scope and limitations of the law, its process, and its regulations. At the same time, they are also looking at their own community's needs and goals and how to address their concerns through the NAGPRA review committee.

In 1996, the National Congress of American Indians established a commission on repatriation and burial site protection, which meets during our mid-year and annual sessions, to address the variety of issues involved in repatriation and burial site protection and preservation. The National Congress of American Indians' commission is comprised of nine members from throughout Indian country. Mr. Minthorn is a member of that committee as well.

The formation of this national repatriation and burial sites protection coalition has helped tribes through the sharing of common experiences to work together on the sometimes difficult and complex decisions involved in the NAGPRA process. Over the next few months, the National Congress of American Indians' commission will be developing a survey that will help determine the existence and scope of tribal NAGPRA programs across Indian country.

When discussing NAGPRA and its implementation, the original intent involved in the enactment of this legislation must be always kept in mind. It was enacted to address and correct the standards and behavior of the scientific community which were discriminatory, paternalistic, and a violation of human rights and property rights. It was drafted as a delicate compromise between the scientific community and Indian country, with an understandable emphasis on the perspectives and needs of Native peoples.

Over the last 9 years, many tribal leaders, their staff, elders, and religious leaders have worked to develop programs to deal with the many complex and difficult issues involved in the NAGPRA process. Some tribes have had a lot of experience and have established viable repatriation programs while others may not have had resources to implement this important act.

There are many positive aspects to the law as well as many shortcomings. For many of our member tribes, the task has not only been to identify and address these shortcomings, but also to make the best of what the law already provides.

The following are some of the critical issues and concerns raised by our member tribes with regard to the implementation of NAGPRA.

One of the most important and central issues of concern to tribes is having the resources to develop their own program or system that would assist them in the implementation of NAGPRA and

help them meet their individual cultural and historic preservation goals. For those tribes which have the resources, their programs have incorporated a number of components which you will find in our full written testimony.

Overall, tribal programs have been instrumental in helping tribes meet many of their objectives, which in turn has helped them comply with NAGPRA. By facilitating and ensuring tribal compliance, those in government, museums, and universities will also be held more accountable. The resources and expertise are available, but the tribes must have access to those resources to meet the ultimate goals of NAGPRA.

Since the passage of NAGPRA, activities under the law have intensified in a number of areas, including the completion of summaries and inventories of the remains and objects as well as very successful repatriations. However, while the process is moving forward, many tribes are still finding themselves with very little resources and limited staff available to complete the work necessary to properly fulfill the mandates of the law. Meanwhile, government agencies, museums, and universities-in many cases have the available resources and staff available to implement the law's requirements.

Despite a continual request since fiscal year 1994 for NAGPRArelated grants of $10 million, to date the administration has requested and Congress has appropriated only a fraction of that amount, $2.4 million annually. This funding level is far below the projected amount necessary to successfully comply with the provisions of the Act and well below the $10 million level.

Mr. Chairman, in order to be equal partners in the NAGPRA process, tribal governments must be provided with sufficient funding, a request which was recently conveyed to this committee during its hearing on the President's fiscal year 2000 budget request. Another issues of vital concern to our member tribes is the status and viability of the NAGPRA program within the National Park Service under the Department of the Interior. The NAGPRA program plays a critical role in providing much of the funding and technical assistance necessary for tribal governments to carryout the mandates of NAGPRA and its administrative regulations. To place this program under the authority of the departmental consulting archaeologist is clearly erroneous due to the obvious potential for conflict of interest.

The position requires the oversight of a Federal statute, NAGPRA, that mediates museum and archaeological interests with the interests of American Indians, Alaskan Natives, and Native Hawaiians. The National Congress of American Indians believes that the original intent and focus of the law requires that the NAGPRA program be raised to the level and location within the Department of the Interior which will provide for the least amount of bias and accordingly it's staffed with qualified individuals attuned to the objectives and goals of this very important human rights legislation.

The United States must consider the government-to-government relationship and the trust responsibility to Indian tribes and their members concerning the return of goods and remains. The responsibility carries with it the highest fiduciary standards regarding

the conduct of Federal agencies in its treatment of tribes in the area of repatriation.

Mr. Chairman, the proper placement of the NAGPRA program within the Department of the Interior is a very important decision, one which requires the consideration of a variety of issues and perspectives involved in the implementation of the act.

Therefore, pursuant to National Congress of American Indians' resolution MRB-98–102, which is included in our full testimony, we ask that the Senate Committee on Indian Affairs examine the issue of conflict of interest and consider the views and concerns expressed above by our member tribes.

As tribes continue to become familiar with NAGPRA, it has become clear to them that the implementation of the act has not provided those protections which the law had intended. We have a number of concerns with regard to repatriation and burial sites protection, most of which you will find in our complete written testimony. However, I would like to touch on two issues.

To determine cultural affiliation for implementation of the NAGPRA, the law expressly calls for the use of a variety of sources of evidence including tribal history, knowledge, and tradition. However, in many cases archaeologists have exclusively been making these determinations and we take exception.

The need for stronger enforcement by the Department of the Interior and Justice this requires investigation, prosecution, and the imposition of penalties for violators of the law, including Federal agencies and States.

Last, the National Congress of American Indians would like to take this opportunity to point out the high profile publicity given to the controversy over human remains discovered near Kennewick, WA, which has made it very difficult to discuss the issues involved in the treatment of human remains.

It is unfortunate that some scholars have chosen to introduce the concept of race, which is disavowed by the American Anthropological Association, as a factor in reviewing NAGPRA and making recommendations to amend this act. The Kennewick case has shown that there are scholars from throughout this country who do not agree on what factors to use in reviewing the case. However, even if they do finally come to some agreement, Native Americans also have certain knowledge and traditions in a number of areas which must also be considered.

Apparently, there is no burden of proof that scholars must meet before their scientific theories threaten a law which was carefully considered and based upon a broad range of knowledge, while Native Americans are restricted in their claims.

Scientists must also be restrained so that all competing interests will be served, particularly since NAGPRA was passed in 1990 to prevent the discriminatory and high-handed tactics which scholars and scientists had historically shown toward Native Americans. To now accept such principles would be a dreadful step backward.

Remains that are found to be 9,000 years old in North America, such as the Kennewick case, should logically be determined as Native American based on a preponderance of evidence now available, including current history-both Indian and non-Indian-anthropol