June 3, 1999 Senator Daniel K. Inouye Vice Chairman U.S. Senate Committee on Indian Affairs 838 Hart Senate Office Building Washington, D.C. 20510 Dear Senator Inouye, Thank you for inviting me to provide text for possible amendments to the Native American Graves Protection and Repatriation Act. This law has been called a "true compromise" that mediated the interests of Indian tribes, Native Hawaiian organizations, museums, and agencies regarding the disposition or repatriation of Native American cultural items. NAGPRA has largely been successful in clarifying the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations. The following amendments are offered in the spirit of that compromise to clarify the law. Any amendments which would substantively change the law and alter the balance would compromise the success of NAGPRA as a property rights law. This In 1. Amend Section 3. Ownership to Section 3. Disposition. term accurately reflects the process mandated by Section 3. effect the law directs that upon future discovery of protected items the land manager will make a determination of rights to the item. Human remains cannot be owned, but a disposition may be made of protected items which are not to be accessioned by the land management agency. Specifically the amendment would be as follows: Sec. 3. of NAGPRA (25 U.S.C. 3002) is amended (1) in the title, by deleting the word "OWNERSHIP" and replacing it with the following: "DISPOSITION" (2) in paragraph (a), by deleting the words "ownership or control of: and replacing them with the following: "disposition of and control over" (3) in paragraph (a) (2) (c), by adding after the words "is recognized by a" the following: "treaty, statute, or" (4) in paragraph (c) (3), by deleting the words "ownership and right of control of the" and adding after the words "disposition of" the following: "and control over" 2. The inability of federal agencies to withhold certain information from disclosure has frustrated the purpose of the The following new section should be added to the law as law. 56-249 99-3 Section 16 of the Native American Graves Protection and "Section 16. AUTHORITY TO WITHHOLD FROM DISCLOSURE Upon the request of a lineal descendant, Indian tribe, or Native Hawaiian organization, the head of a federal agency may withhold information related to consultation about specific human remains, funerary objects, or objects of cultural patrimony from disclosure to the public if the Federal agency determines that disclosure will: (1) be detrimental to the practice of traditional Native American religion by present day adherents; or (2) provide public access to information that an Indian tribe or Native Hawaiian organization considers inalienable." 3. Currently the Review Committee is charged with making recommendations for the disposition of culturally unidentifiable human remains, but not the associated funerary objects of those individuals. This is inconsistent with traditional notions of property law. Section 8 (c) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3006 (c)) is amended as follows: (1) in paragraph (5), by adding after the words "culturally unidentifiable human remains" the following: "and associated funerary objects" (2) in paragraph (5), by adding after the words "such remains." the following: "and associated funerary objects." 4. Two alterations to the use of civil penalties would further facilitate the act. One suggestion is to allow the Secretary to retain fines collected to fund enforcement and the other would allow the Secretary to give awards to individuals who provide information leading to civil penalties, such as is provided in the Archaeological Resources Protection Act (16 U.S.c. 470gg (a) ). Section 9 of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3007) is amended by adding the following new paragraph: "(e) Enforcement. Penalties collected under this section will supplement the appropriation bearing the cost of related enforcement activities. The Secretary may: (1) pay to any person who furnishes information which leads to the finding of a civil penalty (except officers or employees of the United States or any State or local government who furnishes information or renders service in the performance of official duties) an amount not to exceed one half of such penalty or $5000, which ever is less: and (2) reduce a penalty if the violator agrees to pay appropriate restitution to the aggrieved party or parties or may pay to aggrieved parties as restitution an amount not to exceed the amount of the penalty." 5. Section 4 ILLEGAL TRAFFICKING IN NATIVE AMERICAN CULTURAL ITEMS, is divided into two sections, which in practice have no legal distinction and which has caused some confusion in criminal cases. Subsection (a) prohibits trafficking in Native American human remains "without the right of possession." Subsection (b) makes it a crime to traffick in cultural items "in violation of the Native American Graves Protection and Repatriation Act." Subsection (b) may be violated in one of two ways: 1. in contravention of Section 3. OWNERSHIP by removing protected items from federal or Indian land without the right of possession; or, 2. in contravention of Section 7. REPATRIATION by obstructing the repatriation process for a protected item without the right of possession for that item. Therefore in any criminal case the essence of the crime is the trafficking of a protected item without the right of possession. Sec. 4 (a) ILLEGAL TRAFFICKING--(18 U.S.C. 1170) is amended as follows: (1) in the title of sec. 1170, by deleting the words "Human Remains and" (2) in subparagraph (a), by: (a) deleting the letter " (a) " (b) deleting the words ", the human remains of a Native American" and replacing them with the following: "any Native American cultural items" (c) deleting the words "those remains" and replacing them with the following: "those cultural items" (3) by deleting subparagraph (b) 6. The law may be further amended by adding a civil prosecution component analogous to that in ARPA (16 U.S.C. 470ff), by adding the following new section (25 U.S.C. 3015): "Sec. 17. CIVIL PENALTIES FOR ILLEGAL TRAFFICKING IN NATIVE AMERICAN CULTURAL ITEMS (a) Any person who trafficks in Native American cultural items without the right of possession may be assessed a civil penalty by the Secretary. No penalty may be assessed under this section unless such person is given notice and opportunity for a hearing with respect to such violation. Each violation shall be a separate offense. Any such penalty remitted to the Secretary may be mitigated by the Secretary. The amount of such penalty shall be determined under regulations promulgated pursuant to this Act, taking into account in addition to other factors(A) the commercial value of the item, and (B) the costs of curation, disposition and reburial. Such regulations shall provide that, in the case of a second or subsequent violation by any person, the amount of such civil penalty may be double the amount which would have been assessed if such violation were the first violation by such person. The Secretary may agree to reduce the penalty amount if the violator agrees to pay restitution to the aggrieved party or parties. The penalty amount may exceed the amount of restitution. (b) (1) Any person aggrieved by an order assessing a civil penalty under subsection (a) may file a petition for judicial review of such order with the United States District Court for the District of Columbia or for any other district in which such person resides or transacts business. A such a petition may only be filed with the 30-day period beginning on the date the order making such assessment was issued. The court shall hear such action on the record made before the Secretary and shall sustain his action if it is supported by substantial evidence on the record considered as a whole. (2) If any person fails to pay an assessment of a civil penalty(A) after the order making the assessment has become a final order and such person has not filed a petition for judicial review of the order in accordance with paragraph (1), or (B) after a court in an action brought under paragraph (1) has entered a final judgment upholding the assessment of a civil penalty, the Secretary may request the Attorney General to institute a civil action in a district court of the United States for any district in which such person is found, resides, or transacts business to collect such penalty and such court shall have jurisdiction to hear and decide any such action. such action, the validity and amount of such penalty shall not be subject to review. In (c) Hearings held during proceedings for the assessment of civil penalties authorized by subsection (a) shall be conducted in accordance with section 554 of the title 5 of the United States Code. The Secretary may issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and milage that are paid to witnesses in the court of the United States. In case of contumacy or refusal to obey a subpena served upon any person pursuant to this paragraph, the district court of the United States for any district in which such person is found or resides or transacts business, upon publication by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Secretary or to appear and produce documents before the Secretary, or both, and any such failure to obey such order of the court may be punished by such court as contempt thereof." |