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101ST CONGRESS HOUSE OF REPRESENTATIVES REPORT
2d Session 101-877
PROVIDING FOR THE PROTECTION OF NATIVE AMERICAN
GRAVES, AND FOR OTHER PURPOSES
OCTOBER 15, 1990. Committed to the Committee of the Whole House on the State of
the Union and ordered to be printed
Mr. UDALL, from the Committee on Interior and Insular Affairs,
submitted the following
REPORT
[To accompany H.R. 5237]
[Including cost estimate of the Congressional Budget Office]
The Committee on Interior and Insular Affairs, to whom was referred the bill (H.R. 5237) to
provide for the protection of Native American graves, and for other purposes, having considered
the same, report favorably thereon with an amendment and recommend that the bill as amended
do pass.
The amendment is as follows:
Page 1, line 3, strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Native American Grave 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
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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 adher-
ents, 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 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 and shall include,
except as may be inconsistent with the provisions of P.L. 101-185, the Smithsonian Institution.
(5) "Federal lands" means any land other than tribal lands which are controlled or owned by the United States.
(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" shall have the meaning given such term in section 4 of the Indian Self Determination and
Education Assistance Act (25 U.S.C. 450b).
(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, but does
not include any 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 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 funerary object, sacred object, or object of cul-
tural 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. The original acquisi-
tion of Native American human remains which were excavated, exhumed, or otherwise obtained with full knowledge
and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe or
Native Hawaiian organization is deemed to give right of possession to those remains. Nothing in this paragraph shall
affect the application of relevant State law to the right of ownership of unassociated funerary objects, sacred objects,
or objects of cultural patrimony.
(14) "Secretary" means the Secretary of the Interior.
(15) "tribal land" means
(A) all lands within the exterior boundaries of any Indian reservation;
(B) all dependent Indian communities;
(C) lands conveyed to, or subject to an interim conveyance of, Native Corporations pursuant to the Alaska
Native Claims Settlement Act; and
(D) any lands administered for the benefit of Native Hawaiians pursuant to the Hawaiian Homes Commission
Act, 1920, and section 4 of Public Law 86-3.
SEC. 3. OWNERSHIP.
(a) NATIVE AMERICAN HUMAN REMAINS AND OBJECTS. The ownership or control of Native American
cultural items which are excavated or discovered on Federal or tribal lands after the date of enactment of this Act shall
be (with priority given in the order listed)
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(l) in the case of Native American human remains and associated funerary objects, in the lineal descendants of the
Native American; or
(2) in any case in which such lineal descendants cannot be ascertained, and in the case of unassociated funerary
objects, sacred objects, and objects of cultural patrimony
(A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were
discovered;
(B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such
remains or objects and which, upon notice, states a claim for such remains or objects; or
(C) if the cultural affiliation of the objects cannot be reasonably ascertained and if the objects were discovered
on Federal land that is recognized by a final judgement of the Indian Claims Commission as the aboriginal land
of some Indian tribe
(1) in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were
discovered, if upon notice, such tribe states a claim for such remains or objects, or
(2) if it can be shown by a preponderance of the evidence that a different tribe has a stronger cultural
relationship with the remains or objects than the tribe or organization specified in paragraph (1), in the
Indian tribe that has the strongest demonstrated relationship, if upon notice, such tribe states a claim for such
remains or objects.
(b) UNCLAIMED NATIVE AMERICAN HUMAN REMAINS AND OBJECTS. Native American cultural items not
claimed under subsection (a) shall be disposed of in accordance with regulations promulgated by the Secretary in
consultation with the review committee established under section 8, Native American groups, representatives of museums
and the scientific community.
(c) INTENTIONAL EXCAVATION AND REMOVAL OF NATIVE AMERICAN HUMAN REMAINS AND
OBJECTS. The intentional removal from or excavation of Native American cultural items from Federal or tribal lands
for purposes of discovery, study, or removal of such items is permitted only if
(1) such items are excavated or removed pursuant to a permit issued under section 4 of the Archaeological
Resources Protection Act of 1979 (93 Stat. 721; 16 U.S.C. 470aa et seq.) which shall be consistent with this Act;
(2) such items are excavated or removed after consultation with or, in the case of tribal lands, consent of the
appropriate (if any) Indian tribe or Native Hawaiian organization;
(3) the ownership and right of control of the disposition of such items shall be as provided in subsections (a) and
(b); and
(4) proof of consultation or consent under paragraph (2) is shown.
(d) INADVERTENT DISCOVERY OF NATIVE AMERICAN REMAINS AND OBJECTS. (1) Any person who
knows, or has reason to know, that such person has discovered Native American cultural items on Federal or tribal lands
after the date of enactment of this Act shall notify, in writing, the Secretary of the Department, or head of any other
agency or instrumentality of the United States, having primary management authority with respect to Federal lands and
the appropriate Indian tribe or Native Hawaiian organization with respect to tribal lands, if known or readily ascertainable.
If the discovery occurred in connection with an activity, including (but not limited to) construction, mining, logging, and
agriculture, the person shall cease the activity in the area of the discovery, make a reasonable effort to protect the items
discovered before resuming such activity, and provide notice under this subsection. The activity may resume after a
reasonable amount of time and following notification under this subsection.
(2) The disposition of and control over any cultural items excavated or removed under this subsection shall be
determined as provided for in this section.
(3) If the Secretary of the Interior consents, the responsibilities (in whole or in part) under paragraphs (1) and (2) of
the Secretary of any department (other than the Department of the Interior) or the head of any other agency or
instrumentality may be delegated to the Secretary with respect to any land managed by such other Secretary or agency
head.
(e) RELINQUISHMENT. Nothing in this section shall prevent the governing body of an Indian tribe or Native
Hawaiian organization from expressly relinquishing control over any Native American human remains, or title to or control
over any funerary object, or sacred object.
SEC. 4. ILLEGAL TRAFFICKING.
(a) ILLEGAL TRAFFICKING. Chapter 53 of title 18, United States Code, is amended by adding at the end thereof
the following new section:
"SEC. 1170. ILLEGAL TRAFFICKING IN NATIVE AMERICAN HUMAN REMAINS AND CULTURAL ITEMS
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"(a) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native
American without the right of possession to those remains as provided in the Native American Graves Protection and
Repatriation Act shall be fined in accordance with this title, or imprisoned not more than 12 months, or both, and in the
case of a second or subsequent violation, be fined in accordance with this title, or imprisoned not more than 5 years, or
both.
"(b) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural
items obtained in violation of the Native American Graves Protection and Repatriation Act shall be fined in accordance
with this title, imprisoned not more than one year, or both, and in the case of a second or subsequent violation, be fined
in accordance with this title, imprisoned not more than 5 years, or both."
(b) TABLE OF CONTENTS. The table of contents for chapter 53 of title 18, United States Code, is amended by
adding at the end thereof the following new item:
"1170. Illegal Trafficking in Native American Human Remains and Cultural Items.".
SECTION. 5. INVENTORY FOR HUMAN REMAINS AND ASSOCIATED FUNERARY OBJECTS.
(a) IN GENERAL. Each Federal agency and each museum which has possession or control over holdings or collections
of Native American human remains and associated funerary objects shall compile an inventory of such items and, to the
extent possible based on information possessed by such museum or federal agency, identify the geographical and cultural
affiliation of such item.
(b) REQUIREMENTS. (1) The inventories and identifications required under subsection (a) shall be
(A) completed in consultation with tribal government and Native Hawaiian organization officials and traditional
religious leaders;
(B) completed by not later than the date that is 5 years after the date of enactment of this Act, and
(C) made available both during the time they are being conducted and afterward to a review committee established
under section 8.
(2) Upon request by an Indian tribe or Native Hawaiian organization which receives or should have received notice, a
museum or federal agency shall supply additional available documentation to supplement the information required by
subsection (a) of this section. The term "documentation" means a summary of existing museum or Federal agency records,
including inventories or catalogues, relevant studies, or other pertinent data for the limited purpose of determining the geo-
graphical origin, cultural affiliation, and basic facts surrounding acquisition and accession of Native American human
remains and associated funerary objects subject to this section. Such term does not mean, and this Act shall not be
construed to be an authorization for, the initiation of new scientific studies of such remains and associated funerary objects
or other means of acquiring or preserving additional scientific information from such remains and objects.
(c) EXTENSION OF TIME FOR INVENTORY. Any museum which has made a good faith effort to carry out an
inventory and identification under this section, but which has been unable to complete the process, may appeal to the
Secretary for an extension of the time requirements set forth in subsection (b)(1)(B). The Secretary may extend such time
requirements for any such museum upon a finding of good faith effort. An indication of good faith shall include the
development of a plan to carry out the inventory and identification process.
(d) NOTIFICATION. (1) If the cultural affiliation of any particular Native American human remains or associated
funerary objects is determined pursuant to this section, the Federal agency or museum concerned shall, not later than 6
months after the completion of the inventory, notify the affected Indian tribes or Native Hawaiian organizations.
(2) The notice required by paragraph (1) shall include information
(A) which identifies each Native Amrican human remains or associated funerary objects and the circumstances
surrounding its acquisition;
(B) which lists the human remains or associated funerary objects that are clearly identifiable as to tribal origin; and
(C) which lists the Native American human remains and associated funerary objects that are not clearly identifiable
as being culturally affiliated with that Indian tribe or Native Hawaiian organization, but which, given the totality of
circumstances surrounding acquisition of the remains or objects, are determined by a reasonable belief to be remains
or objects culturally affiliated with the Indian tribe or Native Hawaiian organization.
(3) A copy of each notice provided under paragraph (1) shall be sent to the Secretary who shall publish each notice in
the Federal Register.
(e) INVENTORY. For the purposes of this section, the term "inventory" means a simple itemized list that summarizes
the information called for by this section.
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SEC. 6. SUMMARY FOR UNASSOCIATED FUNERARY OBJECTS, SACRED OBJECTS, AND CULTURAL
PATRIMONY.
(a) IN GENERAL. Each Federal agency or museum which has possession or control over holdings or collections of
Native American unassociated funerary objects, sacred objects, or objects of cultural patrimony shall provide a written
summary of such objects based upon available information held by such agency or museum. The summary shall describe
the scope of the collection, kinds of objects included, reference to geographical location, means and period of acquisition
and cultural affiliation, where readily ascertainable.
(b) REQUIREMENTS. (1) The summary required under subsection (a) shall be
(A) in lieu of an object-by-object inventory;
(B) followed by consultation with tribal government and Native Hawaiian organization officials and traditional
religious leaders; and
(C) completed by not later than the date that is 3 years after the date of enactment of this Act.
(2) Upon request, Indian tribes and Native Hawaiian organizations shall have access to records, catalogues, relevant
studies or other pertinent data for the limited purposes of determining the geographic origin, cultural affiliation, and basic
facts surrounding acquisition and accession of Native American objects subject to this section. Such information shall be
provided in a reasonable manner to be agreed upon by all parties.
SEC. 7. REPATRIATION.
(a) REPATRIATION OF NATIVE AMERICAN HUMAN REMAINS AND OBJECTS POSSESSED OR
CONTROLLED BY FEDERAL AGENCIES AND MUSEUMS. (1) If, pursuant to section 5, the cultural affiliation of
Native American human remains and associated funerary objects with a particular Indian tribe or Native Hawaiian
organization is established, then the Federal agency or museum, upon the request of a known lineal descendant of the
Native American or of the tribe or oranization and pursuant to subsections (b) and (e) of this section, shall expeditiously
return such remains and associated funerary objects.
(2) If, pursuant to section 6, the cultural affiliation with a particular Indian tribe or Native Hawaiian organization is
shown with respect to unassociated funerary objects, sacred objects or objects of cultural patrimony, then the Federal
agency or museum, upon the request of the Indian tribe or Native Hawaiian organization and pursuant to subsections (b),
(c) and (e) of this section, shall expeditiously return such objects.
(3) The return of cultural items covered by this Act shall be in consultation with the requesting lineal descendant or tribe
or organization to determine the place and manner of delivery of such items.
(4) Where cultural affiliation of Native American human remains and funerary objects has not been established in an
inventory prepared pursuant to section 5 or where Native American human remains and funerary objects are not included
upon any such inventory, then, upon request and pursuant to subsections (b) and (e) and, in the case of unassociated
funerary objects, subsection (c), such Native American human remains and funerary objects shall be expeditiously returned
where the requesting Indian tribe or Native Hawaiian organization can show cultural affiliation by a preponderance of the
evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional,
historical, or other relevant information or expert opinion.
(5) Upon request and pursuant to subsections (b), (c) and (e), sacred objects and objects of cultural patrimony shall be
expeditiously returned where
(A) the requesting party is the direct lineal descendant of an individual who owned the sacred object;
(B) the requesting Indian tribe or Native Hawaiian organization can show that the object was owned or controlled
by the tribe or organization; or
(C) the requesting Indian tribe or Native Hawaiian organization can show that the sacred object was owned or
controlled by a member thereof, provided that in the case where a sacred object was owned by a member thereof,
there are no identifiable lineal descendants of said member or the lineal descendants, upon notice, have failed to make
a claim for the object under this Act.
(b) SCIENTIFIC STUDY. If the lineal descendant, Indian tribe, or Native Hawaiian organization requests the return
of culturally affiliated Native American cultural items, the Federal agency or museum shall expeditiously return such items
unless such items are indispensable for completion of a specific scientific study, the outcome of which would be of major
benefit to the United States. Such items shall be returned by no later than 90 days after the date on which the scientific
study is completed.
(c) STANDARD OF REPATRIATION. If a known lineal descendant or an Indian tribe or Native Hawaiian
organization requests the return of Native American unassociated funerary objects, sacred objects or objects of cultural
patrimony pursuant to this Act and presents evidence which, if standing alone before the introduction of evidence to the
contrary, would support a finding that the Federal agency or musuem did not have the right of possession, then such
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agency or museum shall return such objects unless it can overcome such inference and prove that it has a right of
possession to the objects.
(d) SHARING OF INFORMATION BY FEDERAL AGENCIES AND MUSEUMS. Any Federal agency or museum
shall share what information it does possess regarding the object in question with the known lineal descendant, Indian tribe,
or Native Hawaiian organization to assist in making a claim under this section.
(e) COMPETING CLAIMS. Where there are multiple requests for repatriation of any cultural item and, after complying
with the requirements of this Act, the Federal agency or museum cannot clearly determine which requesting party is the
most appropriate claimant, the agency or museum may retain such item until the requesting parties agree upon its
disposition or the dispute is otherwise resolved pursuant to the provisions of this Act or by a court of competent
jurisdiction.
(f) MUSEUM OBLIGATION. Any museum which repatriates any item in good faith pursuant to this Act shall not be
liable for claims by an aggrieved party or for claims of breach of fiduciary duty, public trust, or violations of state law
that are inconsistent with the provisions of this Act.
SEC. 8 REVIEW COMMITTEE.
(a) ESTABLISHMENT. Within 120 days after the date of enactment of this Act, the Secretary shall establish a
committee to monitor and review the implementation of the inventory and identification process and repatriation activities
required under sections 5, 6 and 7.
(b) MEMBERSHIP. (1) The Committee established under subsection (a) shall be composed of 7 members,
(A) 3 of whom shall be appointed by the Secretary from nominations submitted by Indian tribes, Native Hawaiian
organizations, and traditional Native American religious leaders with at least 2 of such persons being traditional Indian
religious leaders;
(B) 3 of whom shall be appointed by the Secretary from nominations submitted by national museum organizations
and scientific organizations; and
(C) 1 who shall be appointed by the Secretary from a list of persons developed and consented to by all of the
members appointed pursuant to subparagraphs (A) and (B).
(2) The Secretary may not appoint Federal officers or employees to the committee.
(3) In the event vacancies shall occur, such vacancies shall be filled by the Secretary in the same manner as the original
appointment within 90 days of the occurrence of such vacancy.
(4) Members of the committee established under subsection (a) shall serve without pay but shall be reimbursed at a rate
equal to the daily rate for GS-18 of the General Schedule for each day (including travel time) for which the member is
actually engaged in committee business. Each member shall receive travel expenses, including per diem in lieu of
subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.
(c) RESPONSIBILITIES. The committee established under subsection (a) shall be responsible for
(1) designating one of the members of the committee as chairman;
(2) monitoring the inventory and identification process conducted under sections 5 and 6 to ensure a fair, objective
consideration and assessment of all available relevant information and evidence;
(3) reviewing upon the request of any affected party and finding relating to
(A) the identity or cultural affiliation of cultural items, or
(B) the return of such items;
(4) facilitating the resolution of any disputes among Indian tribes, Native Hawaiian organizations, or lineal
descendants and Federal agencies or museums relating to the return of such items including convening the parties to
the dispute if deemed desirable;
(5) compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each
Federal agency and museum and recommending specific actions for developing a process for disposition of such re-
mains;
(6) consulting with Idian tribes and Native Hawaiian organizations and museums on matters within the scope of
the work of the committee affecting such tribes or organizations;
(7) consulting with the Secretary in the development of regulations to carry out this Act;
(8) performing such other related functions as the Secretary may assign to the committee; and
(9) making recommendations, if appropriate, regarding future care of cultural items which are to be repatriated.
(d) RECOMMENDATIONS AND REPORT. The committee shall make the recommendations under paragraph (c)(5)
in consultation with Indian tribes and Native Hawaiian organizations and appropriate scientific and museum groups.
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(e) ACCESS. The Secretary shall ensure that the committee established under subsection (a) and the members of the
committee have reasonable access to Native American cultural items under review and to associated scientific and
historical documents.
(f) DUTIES OF SECRETARY. The Secretary shall
(1) establish such rules and regulations for the committee as may be necessary, and
(2) provide reasonable administrative and staff support necessary for the deliberations of the committee.
(g) ANNUAL REPORT. The committee established under subsection (a) shall submit an annual report to the Congress
on the progress made, and any barriers encountered, in implementing this section during the previous year.
(h) TERMINATION. The committee established under subsection (a) shall terminate at the end of the 120-day period
beginning on the day the Secretary certifies, in a report submitted to Congress, that the work of the committee has been
completed.
SEC. 9. PENALTY.
(a) PENALTY. (1) Any museum that fails to comply with the requirements of this Act may be assessed a civil penalty
by the secretary of Interior pursuant to procedures established by the Secretary through regulation. No penalty may be
assessed under this subsection unless such museum is given notice and opportunity for a hearing with respect to such
violation. Each violation shall be a separate offense.
(2) 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 archeological, historical or commercial value of the item involved;
(B) the damages suffered, both economic and non-economic, by an aggrieved party;
(C) the number of violations that have occurred.
(3) Any museum aggrieved by an order assessing a civil penalty under this subsection may file a petition of judicial
review of such order with the United States District Court for the District of Columbia or for any other district in which
the museum is located. Such a petition may only be filed within the 30-day period beginning on the date the order making
such assessment was issued. The court shall hear such action on the administrative record and sustain the imposition of
the penalty if it is supported by substantial evidence on the record considered as a whole.
(4) If any museum fails to pay an assessment of a civil penalty after a final administrative order has been issued and
not appealed or after a final judgement has been rendered, the Attorney General may institute a civil action in a district
court of the United States for any district in which such museum is located to collect the penalty and such court shall have
jurisdiction to hear and decide such action. In such action, the validity and amount of such penalty shall not be subject
to review.
(5) Hearings held during proceedings for the assessment of civil penalties authorized by this subsection shall be
conducted in accordance with section 554 of Title 5. Subpoenas may be issued for the attendance and testimony of
witnesses and the production of relevant papers, books and documents. Witnesses summoned shall be paid the same fees
and mileage that are paid to witnesses in the courts of the United States. In the 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 located, resides or transacts business, upon application 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 or produce documents, or both,
and any failure to obey such order of the court may be punished by such court as a contempt thereof.
SEC. 10. GRANTS.
(a) INDIAN TRIBES AND NATIVE HAWAIIAN ORGANIZATIONS. The Secretary is authorized to make grants
to Indian tribes and Native Hawaiian organizations for the purpose of assisting such tribes and organizations in the
repatriation of Native American cultural items.
(b) MUSEUMS. The Secretary is authorized to make grants to museums for the purpose of assisting the museums in
conducting the inventories and identification required under sections 5 and 6.
SEC. 11. SAVINGS PROVISIONS.
Noting in this Act shall be construed to
(1) limit the authority of any Federal agency or museum to
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(A) return or repatriate Native American cultural items to Indian tribes, Native Hawaiian organizations, or
individuals, and
(B) enter into any other agreement with the consent of the culturally affiliated tribe or organization as to the
disposition of control over items covered by this Act;
(2) delay actions on repatriation requests that are pending on the date of enactment of this Act;
(3) deny or otherwise affect access to any court;
(4) limit any procedural or substantive right which may otherwise be secured to individuals or Indian tribes or Native
Hawaiian organizations; or
(5) limit the application of any State or Federal law pertaining to theft or stolen property.
SEC. 12. SPECIAL RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND INDIAN TRIBES.
This Act reflects the unique relationship between the Federal government and Indian tribes and Native Hawaiian
organizations and should not be construed to establish a precedent with respect to any other individual, organization or
foreign government.
SEC. 13. REGULATIONS.
The Secretary shall promulgate regulations to carry out this Act within 12 months of enactment.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary to carry out this Act.
PURPOSE
The purpose of H.R. 5237 is to protect Native American burial sites and the removal of human
remains, funerary objects, sacred objects, and objects of cultural patrimony on Federal, Indian and
Native Hawaiian lands. The Act also sets up a process by which Federal agencies
and museums receiving federal funds will inventory holdings of such remains and objects and
work with appropriate Indian tribes and Native Hawaiian organizations to reach agreement on
repatriation or other disposition of these remains and objects.
BRIEF SUMMARY
H.R. 5237, the Native American Grave Protection and Repatriation Act, achieves two main
objectives. The first objective deals with Native American human remains, funerary objects,
sacred objects and objects of cultural patrimony which are excavated or removed from Federal or
tribal lands after the enactment of the Act.
The Act calls for any persons who wish to excavate such items or other archeological items
to do so only after receiving a permit pursuant to the Archeological Resources Protection Act (P.L
96-96). If any of such remains or objects are found on Federal Lands and it is known which tribe
is closely related to them, that tribe is given the opportunity to reclaim the remains or objects.
If the tribe does not want to take possession of the remains or objects, the Secretary of the Interior
will determine the disposition of the remains or objects in consultation with Native American,
scientific and museum groups.
The Act also addresses those cases involving the incidental discovery of such items on Federal
land by persons engaged in other activities such as mining, construction, logging or other similar
endeavors. When one or more of these items are found in this manner, the activity must
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temporarily cease and a reasonable effort must be made to protect the item. Written notification
must be made to the Federal land manager in charge and notification must also be given to the
appropriate tribe or Native Hawaiian organization if known or easily ascertainable.
Penalties are included for selling, or otherwise profiting from, any Native American human
remains, funerary objects, sacred objects or objects of cultural patrimony acquired in violation of
this Act.
The second main objective addressed in this Act deals with collections of Native American
human remains, associated and unassociated funerary objects, sacred objects, and objects of
cultural patrimony currently held or controlled by Federal agencies and museums.
Within 5 years of enactment, all Federal agencies and all museums which receive federal
funds, which have possession of, or control over, any Native American human remains or
associated funerary object (items which are found with a specific body), are to compile an
inventory of such remains or objects and, with the use of available information they have, attempt
to identify them as to geographical and cultural affiliation. Upon completion of the inventory, the
appropriate tribe or Native Hawaiian organization is to be contacted. If it is clear which tribe or
Native Hawaiian organization is related to the remains or objects and that tribe or organization
wishes the return of the items, they are to be returned.
Instead of an object-by-object inventory, a written summary of unassociated funerary objects
(those items which are known to be funerary objects but are not connected to a specific body),
sacred objects, and objects of cultural patrimony which are controlled by a Federal agency or
museum is to be completed. The summary is to describe the collection, the number of objects in
it, and roughly how, when, and from where the collection was received. Following the summary,
the appropriate Indian tribe or Native Hawaiian organization is to be contacted and the two sides
are to meet to discuss the future disposition of the items in question.
This Act allows for the repatriation of culturally affiliated items as well as any other agreement
for disposition or caretaking which may be mutually agreed upon by involved parties.
BACKGROUND
Digging and removing the contents of Native American graves for reasons of profit or
curiosity has been common practice. These activities were at their peak during the last century
and the early part of this century.
In 1868, the Surgeon General issued an order to all Army field officers to send him Indian
skeletons. This was done so that studies could be performed to determine whether the Indian was
inferior to the white man due to the size of the Indian’s cranium. This action, along with an
attitude that accepted the desecration of countless Native American burial sites, resulted in
hundreds of thousands Native American human remains and funerary objects being sold or housed
in museums and educational institutions around the country.
For many years, Indian tribes have attempted to have the remains and funerary objects of their
ancestors returned to them. This effort has touched off an often heated debate on the rights of
the Indian versus the importance to museums of the retention of their collections and the scientific
value of the items.
NATIONAL DIALOGUE ON MUSEUM/NATIVE AMERICAN RELATIONS
House Report 101-877
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In 1988, the Senate Select Committee on Indian Affairs held a hearing on legislation which
provided a process for the repatriation of Native American human remains. Several witnesses
requested that the Committee postpone further action on the bill to allow the museum community
and the Native American community to have an opportunity to enter into a dialogue on
repatriation issues. The Committee agreed and, during 1989, the Barry M. Goldwater Center of
Cross Cultural Communication of the Heard Museum in Phoenix, Arizona sponsored the Panel
of National Dialogue on Museum-Native American Relations.
Several museum professionals, college professors (including archaeologists and
anthropologists), and Indian representatives (including tribal and religious leaders) met and
discussed various issues surrounding repatriation during this year-long dialogue.
The panel issued a report citing its findings and recommendations. The panel was not
unanimous on all recommendations, but all members did agree that much was gained in
understanding the views of others.
The panel recommended that all resolutions be governed by respect for the human rights of
Native Americans and the value of scientific study and education. The majority believed that
"Respect for Native human rights is the paramount principle that should govern resolution of the
issue when a claim is made. . .".
The Panel was split on what to do about human remains which are not culturally identifiable.
Some maintained that a system should be developed for repatriation while others believed that the
scientific and educational needs should predominate. The report strongly supported dialogue
between museums and Indian tribes during all aspects of both the acquisition of sensitive
materials, and repatriation requests. The Panel concluded that Federal legislation on this matter
was needed.
NATIONAL MUSEUM OF THE AMERICAN INDIAN ACT
On November 28, 1989, the President signed into Public Law 101-185, the National Museum
of the American Indian Act. This law established a museum for the American Indian to be built
as part of the Smithsonian Institution. Testimony received during consideration of this legislation
revealed that the Smithsonian Institution held thousands of Native American human remains and
funerary objects. Several tribes and Native Hawaiians having cultural and historical affiliation
with these remains stressed their great desire to have the remains of their ancestors returned to
them. After long negotiations between interested parties, provisions were included in the
legislation which authorized the repatriation of identifiable remains and funerary objects.
H.R. 1381 NATIVE AMERICAN BURIAL SITE PRESERVATION ACT OF 1989
On March 14, 1989, Representative Charles Bennett introduced H.R. 1381, the Native
American Burial Site Preservation Act of 1989. This bill would prohibit excavations or removal
of any content from any Native American burial site without a State permit. The bill provides
penalties for violation with fines of not more than $10,000 per violation. The bill provided that
anything taken in violation of the legislation would become the property of the United States.
H.R. 1646 NATIVE AMERICAN GRAVE AND BURIAL PROTECTION ACT
House Report 101-877
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On March 23, 1989, Representative Morris Udall introduced H.R. 1646, the Native American
Grave and Burial Protection Act. This bill would make it illegal to sell, profit, or transport across
state lines any Native American skeletal remains without written consent of the lineal descendants
or of the governing body of the culturally affiliated tribe. Penalties of fines of not more than
$10,000 per violation would be assessed.
The bill would require all Federal agencies and instrumentalities to list and identify, within
2 years, all Native American skeletal remains and sacred ceremonial objects in their possession
or control. Within 3 years, all agencies would notify appropriate tribes of their findings and,
within 1 year of notification, the concerned tribe would decide whether or not it wanted the
remains or objects returned. If the items were not acquired with the consent of the tribe or
legitimate owner and the item is not needed for a scientific study the outcome of which would be
of major benefit to the United States, the items are to be returned. Any museum not in
compliance would not be eligible for further Federal funding.
H.R. 5237 NATIVE AMERICAN GRAVE PROTECTION AND REPATRIATION
ACT
After the negotiations by the museum, Indian and scientific communities were completed,
Representative Morris Udall introduced H.R 5237, the Native American Grave Protection and
Repatriation Act, on July 10, 1990. As introduced, this bill states that any Native American
human remains, funerary objects, sacred objects, and objects of inalienable communal property
that are found on Federal or tribal lands after the date of enactment would be considered owned
or controlled by (in this order) lineal descendants, the tribe on whose land it was found, the tribe
having the closest cultural affiliation with the item, or the tribe which aboriginally occupied the
area.
Anyone who discovered any of the items covered by the provisions of the bill accidentally or
through activities such as mining, logging, or construction would have to cease the activity, notify
the Federal land manager responsible and the appropriate tribe, if known, and make a reasonable
effort to protect the items before continuing the activity.
Anyone who profited in violation of the provisions of the bill would be fined in accordance
with title 18, United States Code, imprisoned not more than one year, or both, with the penalty
increasing to 5 years for a second violation.
All Federal agencies and museums receiving Federal funds which have control over any of the
items covered in the bill would, within 5 years, have to inventory and identify the items, notify
the affected tribes and make arrangements to return such items if the appropriate tribe made a
request. If the Federal agency or museum shows that the item was acquired with the consent of
the tribe or if the item was part of a scientific study which was expected to be of major benefit
to the country, the request for repatriation could be denied.
As introduced, this bill established a review committee to be composed of 7 members, 4 of
whom were to be from nominations made to the Secretary of the Interior from Indian tribes,
Native Hawaiian organizations, and traditional Native American religious leaders. The
committee’s responsibilities would be to monitor the inventory and repatriation activities, review
any questions as to the identity or return of any items, arbitrate among tribes any disputes relating
House Report 101-877
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to this Act, and compile an inventory of unidentifiable remains and recommend action for
disposition of such remains.
Grants were made available to tribes to assist in the repatriation process and to museums to
assist in the inventory and identification process.
House Report 101-877
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LEGISLATIVE HEARING
On July 17, 1990, the Committee held a hearing on H.R. 1381, the Native American Burial
Site Preservation Act of 1989; H.R 1646, the Native American Grave and Burial Protection Act;
and H.R. 5237, the Native American Grave Protection and Repatriation Act.
Testimony was presented by professional scientific and museum associations, archaeologists,
representatives of individual museums, Indian organizations, Tribal religious leaders, Native
Hawaiian representatives, and private art dealers.
Much of the Indian testimony revolved around their rights to the remains and objects held by
the museums and the information surrounding the acquisition of such items. Some Indian
representatives testified that the spirits of their ancestors would not rest until they are returned to
their homeland and that these beliefs have been generally ignored by the museums which house
the remains and objects. There was testimony that non-Indian remains which are unearthed are
treated much different than those of Indians. The non-Indian remains tend to be quickly studied
and then reburied while so many Indian remains are sent to museums and curated.
Testimony received from the scientific community stressed the importance of human remains
to scientific study and the need to learn for the future from the past. They expressed concern that
if remains are reburied now they will be lost to science forever and not reachable when future
study techniques are developed. Most testimony indicated the need for strong legislation to
protect burial sites from being looted or desecrated in the future.
Testimony from the museum community stressed the responsibilities which museums have to
maintain their collections and concern for liability surrounding repatriation. One witness described
a situation where a museum returned Wampum Belts to a tribe. After long negotiations, a
mutually agreed upon compromise was implemented whereby the tribe received the belts back to
continue their ceremonies and the museum maintained access to the belts for legitimate study and
educational purposes. Most agreed that museums needed to become more sensitive to the needs
and desires of Native Americans whose remains and objects they house.
Witnesses representing private art dealers testified that Native Americans should not be the
sole conservators of their cultural items because all Americans have a right to their history. The
Art dealers present denied dealing in human remains per se but did admit that a war shirt in very
good condition containing scalp locks could be sold for $200,000 on the open market.
Discussion and testimony received by the Committee indicated that a process was needed by
which Native Americans could gain access to collections housed in museums and Federal
agencies.
COMMITTEE AMENDMENT
The Committee adopted an amendment in the nature of a substitute for H.R 5237. The
substitute was developed on the basis of issues and concerns expressed by witnesses at the
Committee hearing, questions and positions of Committee Members, correspondence from
concerned representatives of the Indian community, the museum and scientific community and the
general public, and meetings with Administration officials and other interested parties. A detailed
explanation of the substitute is contained in the Section-by-Section Analysis
House Report 101-877
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portion of this report. Certain major substantive changes effected by the substitute are discussed
below.
DEFINITIONS
Definitions of several key terms used in the legislation were changed to tighten and clarify
their meaning.
In the definition of "cultural affiliation", the requirement that a tribe show a "shared group
identity which can be reasonably traced historically or prehistorically" is intended to ensure that
the claimant has a reasonable connection with the materials. Where human remains and associated
funerary objects are concerned, the committee is aware that it may be extremely difficult, in many
instances, for claimants to trace an item from modern Indian tribes to prehistoric remains without
some reasonable gaps in the historic or prehistoric record. In such instances, a finding of cultural
affiliation should be based upon an overall evaluation of the totality of the circumstances and
evidence pertaining to the connection between the claimant and the material being claimed and
should not be precluded solely because of some gaps in the record.
The definition of "sacred objects" is intended to include both objects needed for ceremonies
currently practiced by traditional Native American religious practitioners and objects needed to
renew ceremonies that are part of traditional religions. the operative part of the definition is that
there must be "present day adherents" in either instance. In addition to ongoing ceremonies, the
Committee recognizes that the practice of some ceremonies has been interrupted because of
governmental coercion, adverse societal conditions or the loss of certain objects through means
beyond the control of the tribe at the time. It is the intent of the Committee to permit traditional
Native American religious leaders to obtain such objects as are needed for the renewal of
ceremonies that are part of their religions.
The definition of "Federal agency" includes the Smithsonian Institution "except as may be
inconsistent with the provisions of Public Law 100-185". Public Law 100-185 refers to the Act
authorizing the addition of the Museum of the American Indian to the Smithsonian Institution.
The Committee does not wish to change the agreements reached under the Museum of the
American Indian Act with respect to the inventory and repatriation of native American human
remains and funerary objects, but does intend that the Smithsonian fulfill the obligations stipulated
in H.R. 5237 regarding sacred objects and objects of cultural patrimony. The Committee further
intends for the Smithsonian Institution to comply with obligations stipulated in H.R. 5237 with
respect to unassociated funerary objects insofar as such obligations do not weaken those stipulated
in Public Law 100-185.
The definition of "right of possession" in section 2(13) of the bill was amended to include
language providing that nothing in the paragraph is intended to affect the application of relevant
State law to the right of ownership of unassociated funerary objects, sacred objects or objects of
cultural patrimony. The language was adopted to meet the concerns of the Justice Department
about the possibility of a 5th amendment taking of the private property of museums through the
application of the terms of the Act. While the Committee did not feel that implementation of the
Act would give rise to such a taking, the language was accepted to make clear its intention. The
language is not jurisdictional in nature. It does not confer or detract from the existing jurisdiction
to determine ownership of an item covered by this Act. Depending upon the circumstances
involved, the law which would be applicable by the court of competent jurisdiction could be
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Federal, State, or tribal. The definition of the right of possession will supplement any existing
law in that respect.
The term "tribal land", as defined in section 2(15), is for purposes of this Act only and may be
inapplicable in other circumstances. The Committee does not intend that the definition will be
determinative of the status of land owned by Native Corporations pursuant to the Alaska Native
Claims Settlement Act for any other purposes than for this Act.
OWNERSHIP
Section 3(d) refers to the inadvertent discovery of Native American remains and objects by
persons engaged in an otherwise unrelated activity. Section 3(d)(1) states that, after there has been
compliance with the other requirements of the subsection, "The activity may resume after a
reasonable amount of time". Although a specific time limit was not added here, the Committee
does intend to protect the remains and objects found and does not intend to weaken any provisions
of other laws, such as Archeological Resources Protection Act, regarding similar situations.
INVENTORY
Section 5(d) refers to notification of Indian tribes and Native Hawaiian organizations no later
than 6 months after completion of the inventory requirements. The Committee intends that tribes
and organizations be notified as soon as possible after an inventory is completed. The allowance
of 6 months to make the notification was added to assist small museums with very limited
staffs.
SUMMARY
Due to the possible high number of unassociated funerary objects, sacred objects, and objects
of cultural patrimony, this section is intended to make it easier for the Federal agencies, museums,
and institutions of higher education to compile and survey the objects they have in their
possession or under their control. It is also intended that there be a shorter time frame for
completion of the summary (3 years) than for the item-by-item inventory to permit earlier contact
with the appropriate tribe so open discussions can begin.
REPATRIATION
Section 7(b) refers to scientific studies the outcome of which would be of major benefit to the
United States. The Committee recognizes the importance of scientific studies and urges the
scientific community to enter into mutually agreeable situations with culturally affiliated tribes in
such matters.
House Report 101-877
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SHARING OF INFORMATION
Section 7(d) refers to the sharing of information following the preparation of the initial
inventory or summary. Any tribe which may have a cultural affiliation with certain items may
request any additional available information needed to pursue a claim under the Act. All tribes
which receive notice pursuant to the inventory process or those that should have received notice
because of a potential cultural affiliation (regardless of whether the showing of such affiliation
would be based upon museum records or non-museum sources) would have standing to request
such information.
REVIEW COMMITTEE
One of the responsibilities of the Review Committee is to compile an inventory of culturally
unidentifiable human remains and develop a process for their disposition. There is general
disagreement on the proper disposition of such unidentifiable remains. Some believe that they
should be left solely to science while others contend that, since they are not identifiable, they
would be of little use to science and should be buried and laid to rest. The Committee looks
forward to the Review Committees recommendations in this area. The Committee concurs with
the Justice Department comments that section 7 does not accord binding legal force to the Review
Committee’s actions. As such, the bill did not have to be amended to conform the appointments
procedures for the committee to the Constitution’s appointments clause.
PENALTY
The penalty provision of section 9 is not meant to be an exclusive remedy for any disputes
which may arise from the implementation or interpretation of the terms of the Act nor to preclude
resort of any of the parties to remedies which may be available under other existing law.
SAVINGS PROVISIONS
Section 11(1)(B) preserves the right of all parties to enter into other mutually agreeable
arrangements than those provided for in this Act. The Committee encourages all sides to negotiate
in good faith and attempt to come to agreements, where possible, which would keep certain items
available to all those with legitimate interests.
CONSULTATION
The term "consultation", wherever it appears in the bill, means a process involving the open
discussion and joint deliberations with respect to potential issues, changes, or actions by all
interested parties.
SECTION-BY-SECTION ANALYSIS
Section 1
This section cites this Act as the "Native American Grave Protection and Repatriation Act".
Section 2
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This section contains definitions of various terms used in the legislation.
Section 3
Subsection (a) provides that the ownership or right of control of any Native American human
remains, funerary objects, sacred objects or objects of cultural patrimony found on Federal or
tribal land after the date of enactment will be under the control of (in this order) lineal
descendants, the tribe or Native Hawaiian organization on whose land the item was found, the
tribe or Native Hawaiian organization which is the most closely affiliated with the item, or with
the tribe or Native Hawaiian organization which is recognized by the Indian Claims Commission
as having aboriginally occupied the area.
Subsection (b) provides that the ownership of any item covered under this Act which is not
claimed under subsection (a) will be determined by regulations established by the Secretary of
Interior after consultation with the review committee established in section 8 of this Act, Native
American groups, representatives of museums and the scientific community.
Subsection (c) provides that items covered by this Act can be excavated from Federal or tribal
lands if proof exists that a permit has been acquired in accordance with section 4 of the
Archaeological Resources Protection Act, that the appropriate tribe or Native Hawaiian
organization has been consulted or (in the case of tribal land) consents to the excavation, and if
it is agreed that the right of control of any item covered by this Act which is unearthed will be
determined in accordance with subsection (a) and (b).
Subsection (d) provides that anyone who discovers any item covered by this Act accidentally,
or by an otherwise unrelated activity, on Federal or tribal land shall notify the head of the Federal
entity having primary jurisdiction over the land in question and any appropriate tribe or Native
Hawaiian organization if known or easily ascertainable. If the item was discovered during an
activity such as logging, mining, or construction, the activity must stop and a reasonable effort
must be made to protect the item before resuming the activity. This subsection further provides
that, if the Federal land managers involved agree, the Secretary of Interior can be delegated the
responsibility of such managers with respect to this Act.
Subsection (e) provides that nothing in this section will prevent the governing body of any
tribe or Native Hawaiian organization from giving up their rights to any Native American human
remains, funerary object or sacred object.
Section 4
Subsection (a) amends chapter 53 of title 18 of the United States Code by adding a new
section at the end thereof as follows:
Subsection (a) of the new section provides that any person who knowingly sells, purchases,
uses for profit, or transports for sale or profit the human remains of a Native American without
the right of possession, as defined in the Native American Grave Protection and Repatriation Act,
shall be fined in accordance with title 18 or imprisoned for not more than 12 months or both and,
for subsequent violations, fined in accordance with title 18 or imprisoned for not more than 5
years or both.
Subsection (b) of the new section provides any person who similarly deals in Native American
cultural items in violation of the Native American Grave Protection and Repatriation Act shall be
liable to fines and prison terms similar to those provided in subsection (a).
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Subsection (b) of section 4 of the bill amends chapter 53 to add the new section title, "Illegal
Trafficking in Native American Human Remains and Cultural Items" to the chapter table of
contents.
Section 5
Subsection (a) provides that any Federal agency or museum which has possession of, or
control over, any Native American human remains or associated funerary objects is to inventory
the items and list the geographic and cultural identity of each.
Subsection (b) provides that the inventory in subsection (a) shall be completed, after
consultation with tribal and Native Hawaiian organizational officials and traditional religious
leaders within 5 years and shall be made available to the review committee established in section
8. This subsection also uses and defines the term "documentation".
Subsection (c) provides for an extension of time for the inventory deadline if good faith can
be shown by a museum.
Subsection (d) provides that, following completion of the inventory, all Federal agencies and
museums shall notify the affected tribes or Native Hawaiian organizations of any determinations
of cultural affiliation within 6 months. The notice shall include how each item was acquired, a
list of the human remains and associated funerary objects which are clearly identifiable, and a list
of the tribal origin all items which cannot be positively identified, but, given all information
available, can be identified by a reasonable belief. This subsection further stipulates that all
notices be sent to the Secretary of the Interior and published in the Federal Register.
Subsection (e) provides a definition of the term "inventory" which is used in this section.
Section 6
Subsection (a) provides that all Federal agencies and museums which possess, or have control
over, any Native American unassociated funerary objects, sacred objects, or objects of cultural
patrimony shall provide a written summary of the objects.
Subsection (b) provides that the summary be done in lieu of the item-by-item inventory of
Section 5 and that it be followed by consultation with tribal and Native Hawaiian officials. The
summary is to be completed within 3 years of the date of enactment of this Act.
Section 7
Subsection (a) provides for the return of human remains, associated funerary objects,
unassociated funerary objects, sacred objects and objects of cultural patrimony which were
identified pursuant to sections 5 and 6. It further calls for all returns to be completed in
consultation with the requesting descendent, tribe or Native Hawaiian organization.
Subsection (b) provides that, if an item covered in this Act is needed for a specific scientific
study the outcome of which would be of major benefit to the United States, the item may be kept
for the duration of the study and returned within 90 days of completion.
Subsection (c) provides that, if a request is made for the return of an unassociated funerary
object, sacred object or object of cultural patrimony, the requesting tribe or organization must first
make a showing that the Federal agency or museum does not have a right of possession to that
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item. If this showing is made, the burden shifts to the agency or museum to show that it does
have a right of possession to the object.
Subsection (d) provides that the Federal agency or museum shall share its information with
the requesting descendant, tribe or Native Hawaiian organization to assist in making a claim under
this section.
Subsection (e) provides that, where there are legitimate competing claims for any cultural item,
the Federal agency or museum can retain the item until the requesting parties or the courts decide
which requesting party is the appropriate claimant.
Subsection (f) provides that any museum which repatriates items in good faith will not be
liable for any claims because of that repatriation.
Section 8
Subsection (a) provides for the establishment, by the Secretary of the Interior, of a committee
to monitor and review the implementation of the provisions of this Act.
Subsection (b) provides that the committee shall have seven members, three of whom are to
be from nominations submitted to the Secretary of Interior by tribes, Native Hawaiian
organizations, and traditional Native American religious leaders with two of those being traditional
religious leaders. Three are to be from nominations submitted to the Secretary by national
museum organizations and scientific organizations and one who shall be appointed with the
consent of the other six. It also provides that the members shall serve without pay but shall be
eligible for reimbursement for expenses.
Subsection (c) provides for the responsibilities of the committee which shall be: to choose a
chairperson; to monitor the inventory process; to review upon request any findings relating to the
identification or return of any items covered by this Act; to facilitate the resolution of any disputes
among or between tribes, Native Hawaiian organizations, lineal descendants, Federal agencies, or
museums; to compile an inventory of unidentifiable human remains and recommend actions for
their disposition; to consult with tribes and Native Hawaiian organizations on anything that affects
them; to consult with the Secretary of the Interior in developing regulations to carry out this Act;
and to make appropriate recommendations regarding the future care of cultural items to be
repatriated.
Subsection (d) provides that the committee shall make its recommendations regarding
unidentifiable human remains in consultation with tribes, Native Hawaiian organizations, and
museum and scientific groups.
Subsection (e) provides that the Secretary of the Interior will ensure that committee members
have reasonable access to the items under review and all relevant materials.
Subsection (f) provides that the Secretary of the Interior shall establish rules and provide staff
for the committee.
Subsection (g) provides that the committee submit an annual report to Congress.
Subsection (h) provides for the termination of the committee following certification to
Congress by the Secretary of the Interior that its work is finished.
Section 9
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Subsection (a), paragraph (1), provides that any museum that fails to comply with the
requirements of the Act shall be assessed a civil penalty by the Secretary. No such penalty is to
be assessed unless the museum has been given adequate notice and opportunity for hearing and
each violation is to be a separate offense.
Paragraph (2) provides that the penalty to be assessed shall be determined by regulations
promulgated under this Act taking into consideration the value of the item involved, damages
suffered, and the number of violations.
Paragraph (3) authorizes the judicial review of any penalty assessed under this subsection by
the Federal district courts.
Paragraph (4) provides that, if any museum fails to pay such a penalty after final
administrative or judicial action, the Attorney General may initiate appropriate action to collect
such penalty.
Paragraph (5) establishes powers and procedures for administrative actions to determine, assess
and collect such penalties.
Section 10
Subsection (a) provides for grants to tribes and Native Hawaiian organizations to assist in the
return of items covered in this Act.
Subsection (b) provides for grants to museums to assist in the inventory and summary
requirements in this Act.
Section 11
Section 11 provides that nothing in this Act should be understood as limiting the authority of
any Federal agency or museum to return any items covered in this Act or to stop or limit any
other agreements which can be made regarding the disposition of such items. It further provides
that this Act should not delay any current actions regarding the return of items. This section
provides that this Act does not intend to restrict access to any court or limit any rights of
individuals, Indian tribes, or Native Hawaiian organizations. It also states that it is not meant to
limit the application of any State or Federal law pertaining to theft or stolen property.
Section 12
Section 12 recognizes the special relationship between the Federal government and Indian
tribes and Native Hawaiian organizations.
Section 13
Section 13 provides that the Secretary of the Interior shall promulgate regulations to carry out
this Act within 12 months.
Section 14
Section 14 appropriates such sums as may be necessary to carry out this Act.
COST AND BUDGET ACT COMPLIANCE
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The cost and budgetary analysis of H.R. 5237, as evaluated by the Congressional Budget
Office, is set forth below:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, October 15, 1990.
Hon. MORRIS K. UDALL
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed H.R. 5237, the
Native American Grave Protection and Repatriation Act, as ordered reportd by the Committee on
Interior and Insular Affiars, October 10, 1990. CBO estimates that enactment of this legislation
would cost the federal government between $20 million and $50 million over five years, assuming
appropriation of the necessary funds. The range of total estimated costs is wide primarily because
of uncertainty about the cost of compiling an accurate inventory of Native American human
remains.
H.R. 5237 would regulate ownership, trade and disposition of Native American remains, burial
objects, and objects of sacred or cultural significance. Human remains of funerary objects found
on federal land would be returned to the most closely affiliated tribes, permits would be required
for excavation of remains found on federal or tribal lands, and it would be illegal to trade in
Native American remains of funerary objects.
H.R. 5237 also would require that federal agencies and museums that receive federal funding
create inventories of Native remains and associated burial objects, notify tribes of their holdings
and return objects to tribes upon request. The bill would require that inventories be completed
within five years of enactment. Agencies and museums also would be required to summarize their
holdings of other objects covered by the bill. A review committee would be established to
oversee the process of repatriation, mediate disputes and review museums’ progress in completing
inventories. The bill would authorize the appropriation of such sums as are necessary for grants
to assist museums in compiling inventories and to assist tribes in pursuing their claims. Although
no funds are specifically authorized for federal agencies that have collection of remains and other
opjects, the estimated costs to these agencies (primarily the Department of the Interior and the
Department of the Army) are included in this estimate. The largest federal collectors, the
Smithsonia, is already covered by similar provisions in the National Museum of the American
Indian Act.
The main costs from enactment of H.R. 5237 would be the cost to federal agencies of
preparing the inventories required by the bill and the cost of grants to museums to assist them in
carrying out inventories. To some extent, the total cost is discretionary the more funds made
available, the more accurate and comprehensive will be the information collected by museums.
This estimate represents the cost of compiling an initial inventory based on existing information.
Two variables determine the cost: the number of remaining and associated objects and the cost
House Report 101-877
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to inventory each object. This estimate assumes that museums and federal agencies hold between
100,000 and 200,000 Native American remains that would have to be reviewed.
The cost of preparing an accurate inventory of the original and tribal affiliation of human
remains can vary considerably depending on the information already available, the amount of
research needed to accurately determine tribal affiliation and the contentiousness surrounding
individual pieces. There is considerable disagreement about the nature of the inventory required
by H.R. 5237, and widely varied estimates of costs. Based on the experience of museums that
already have repatriated remains, we assume costs of $50 to $150 per remain, or a total cost of
between $5 million and $30 million over five years, for museums to provide tribes with the basic
information required by the bill. This estimate includes the costs of an inventory of museums’
collections, as well as a review of existing information to determine origin. More extensive
studies costing up to $500-$600 per remain would be necessary to determine the origin of some
of the remains; however, such studies generally are not required by H.R. 5237. If museums were
required to identify all of their holdings definitvely, the costs of this bill would be significantly
higher than the $30 million estimate.
H.R. 5237 also would require an inventory of bruial objects associated with the human
remains, and a summary by each museum of their holdings of unassociated funerary objects,
sacred objects or culturally important objects. CBO estimates that these inventories and summary
studies would cost museums about $10 million over 5 years.
Finally, H.R. 5237 would provide grants to tribes to assist them in the repatriation of the
remains and objects covered in the bill. This effort could include assistance in pursuing tribal
claims as well as assistance in repatriating the remains. CBO estimates costs of $5 million to $10
million over five years for these grants.
As operators of about one-third of all museums, state and local governments could face costs
from enactment of H.R. 5237. Assuming appropriation of adequate amounts by the federal
government, however, these costs would be covered by federal grants made availbale under the
bill.
If you wish further details on this estimate, we will be pleased to provide them. The CBO
staff contact is Marta Morgan, who can be reached at 226-2860.
Sincerely,
ROBERT D. REISCHAUER,
Director.
House Report 101-877
page 23
INFLATIONARY IMPACT STATEMENT
Enactment of H.R. 5237 would have no significant impact on inflation.
OVERSIGHT STATEMENT
No specific oversight activities were undertaken by the Committee and no recommendations
were submitted to the Committee pursuant to rule X, Clause 2.
COMMITTEE RECOMMENDATIONS
The Committee on Interior and Insular Affairs, by voice vote, approved the bill and
recommends its enactment by the House, as amended.
EXECUTIVE COMMUNICATIONS
The Committee requested a report from the Department of the Interior on a similar bill, H.R.
1381, by letters dated June 19, 1989, and February 27, 1990, and on H.R. 1646 by letter dated
February 27, 1990. No reports on these bills were received at the time of the filing of this report.
Comments on H.R. 5237 from the Army Corps of Engineers, the Department of Justice and the
Department of the Interior follows:
Executive communications received on this legislation are as follows:
DEPARTMENT OF THE ARMY,
Washington, DC, August 31, 1990.
Hon. MORRIS K. UDALL,
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: This office is responding to your letter of July 13, 1990 requesting
the views of the Army Corps of Engineers on H.R. 1381, 101st Congress the "Native American
Burial Site Preservation Act of 1989", H.R. 1646, 101st Congress, the "Native American Grave
and Burial Protection Act", and H.R. 5237, 101st Congress, the "Native American Grave
Protection and Repatriation Act".
The purposes of the bills are to protect Native American burial sites on Federal lands from
excavation and vandalism; to prevent the interstate sale of Native American remains; and, in the
case of H.R. 1646 and H.R. 5237, to provide a mechanism by which cultural resources can be
returned to their native tribe.
The Department of the Army shares your concern for the protection of Native American burial
sites; however, these three bills, in our view, are problematic for a number of reasons.
First, many of the provisions in the bills overlap with the provisions of the Archaeological
Resources Protection Act (ARPA), which already has a framework in place for the protection of
Indian cultural resources. In the ARPA, the term "archaeological resource" would encompass
Native American burial sites, as the term means "any material remains of past
House Report 101-877
page 24
human life or activities which are of archaeological interest. . . .". 16 U.S.C. 470bb. This Act
authorizes Federal land management agencies to provide permits to persons for the purpose of
excavating or removing archaeological resources on public lands. The Act provides that if a
permit issued could result in harm to or destruction of any religious or cultural site, the Federal
land manager must notify any Indian tribe which may consider the site as having religious or
cultural importance. 16 U.S.C. 470cc(b), (c). To avoid duplication of existing law and confusion
to program managers, additional protection to Native American burial sites should be framed as
amendments to the ARPA.
In addition, we are concerned that some of the provisions in the bills are untenable and
conflict with the ARPA. For instance, H.R. 1381 would prohibit the excavation of Native
American burial sites, except as permitted by States under State law. This provision conflicts with
section 4 of the ARPA, which provides for Federal permits for excavation of archaeological
resources. We believe that jurisdiction for permits to excavate or remove Indian remains properly
rests with the Federal Government. The Federal government has a fiduciary obligation to ensure
that in the execution of laws that protect Indian property, full effect is given to that purpose.
Moreover, there is an established rule of construction of the law that Congress’ actions towards
Indians are to be interpreted in light of the special relationship and special responsibilities of the
Government towards the Indians. In our view, to transfer permitting authority to States would
usurp the Federal Government’s duty to ensure that the law be carried out for the benefit of
Indians. Moreover, this provision raises jurisdictional questions as to whether a State can issue
permits for activities on Federal property.
H.R. 1626 and H.R. 5237 also contain provisions that would prohibit excavation of Native
American remains without notice to and consent of the affiliated Indian tribe or organization.
From our perspective, these provisions create an impossible burden for Federal land managers.
Whenever possible, the Army Corps of Engineers consults with cultural descendents when human
remains and associated items are identified, and we enter into agreements with descendent tribes
when sites are likely to contain human remains. Nevertheless, there are circumstances when
cultural descendants may not be present or identifiable. By requiring consent from an affiliated
tribe before any excavation could take place, these provisions could virtually stop the progress of
any Corps project. Essentially, we oppose the overly strict requirements in these two bills, and
would favor a balanced approach that would allow for a reasonable effort on the part of Federal
land managers to consult with cultural descendents before an area was excavated.
Finally, you requested that the Corps include the current number of Native American skeletal
remains and funerary objects in its possession or control and the policy regarding those items.
At the present time, the Corps does not have an accurate number of those items for you.
However, the Corps is currently revising its regulations on curation and collections management
that would require all Corps offices to conduct inventories of curated cultural
______________________
House Report 101-877
page 25
and human remains. When the regulation is further developed, the Corps will be able to proceed
on a project by project basis to conduct the necessary inventories.
Sincerely,
ROBERT W. PAGE,
Assistant Secretary of the Army (Civil Works).
C. EDWARD DICKEY,
Acting Principal Deputy Assistant Secretary
(Civil Works).
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, DC, September 17, 1990.
Hon. MORRIS K. UDALL,
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: This letter presents the views of the Department of Justice on two
related bills: H.R. 5237, the "Native American Grave Protection and Repatriation Act," and H.R.
1646, the "Native American Grave and Burial Protection Act."
H.R. 5237 and H.R. 1646 are similar in substance. Both would protect and provide for
repatriation of Native American human remains, objects associated with those remains, and other
sacred objects. H.R. 5237 would also protect and provide for repatriation of a fourth category of
objects "inalienable communal property" defined to include items "having historical, traditional,
or cultural importance central to the Native American group or culture . . . ." H.R. 5237, § 2(6).
1
On the policy goals and efficacy of these bills, we defer to the federal agencies responsible
for administration of Native American programs, particularly the Department of the Interior. As
to the legal issues involved, however, we believe that both bills would raise concerns under the
Takings Clause of the Constitution. U.S. Const., Amend. V (". . . nor shall private property be
taken for public use, without just compensation"). We first discuss a Takings Clause issue
common to the repatriation provisions in both H.R. 5237 and H.R. 1646. We then discuss three
further matters unique to one or the other bill.
1. Repatriation. Both H.R. 5237 and H.R. 1646 would call upon private museums to return
protected objects upon request from a Native American tribal body affiliated with the particular
object. H.R. 5237, § 6(a)(1) and (b)(1); H.R. 1646, § 6.
2
The precise procedures
1
A third bill H.R. 1381, the "Native American Burial Site Preservation Act of 1989" would prohibit excavation of a Native
American burial site. H.R. 1381, § 3. The Department of Justice has no comments on this legislation.
2
The term "museum," as used in either bill, would clearly encompass private museums. See H.R. 5237, § 2(9) ("museum"
means "any person, State, or local government agency . . . that receives Federal funds and has possession of, or control over"
protected objects); H.R. 1646, § 3(7) ("museum" means "any museum, university, government agency, or other institution receiving
Federal funds which possesses or has control over any Native skeletal remains or ceremonial objects").
House Report 101-877
page 26
for repatriation differ between the two bills. Under H.R. 5237, requests addressed to private
museums would turn upon the results of an inventory of Native American objects that the museum
itself would be required to complete. H.R. 5237, § 6(a)(1). Only if a private museum establishes
the origin of a particular protected object as part of the required inventory may a request for
repatriation of that object be made. Id. By contrast, H.R. 1646 would not require private museums
to conduct inventories, see H.R. 1646, § 5 (only federal agencies and instrumentalities must
conduct inventories), nor would it make requests for repatriation to any type of museum dependent
upon the results of any inventories.
The two bills also differ concerning the grounds upon which a private museum may refuse a
request for repatriation. Under H.R. 5237, a private museum would need to show "by a
preponderance of the evidence that [it] has right of possession to [the requested] remains or
objects." H.R. 5237, § 6(c)(1). H.R. 5237 would define "right of possession" to mean "possession
obtained with the voluntary consent of an individual or group that had authority of alienation."
H.R. 5237, § 6(d). Under H.R. 1646, a private museum need not grant a request for repatriation
if the object sought was "acquired with the consent of the tribe or the Native American owners
of such items" or, in the case of skeletal remains, is "indispensable for the completion of a
scientific study, the outcome of which would be of major benefit to the United States." H.R.
1646, § 6(1) and (2).
3
Under either bill, any museum that fails to comply with the relevant repatriation provisions
would be ineligible to receive federal funding during the period of non-compliance. H.R. 5237,
§ 6(f); H.R. 1646 § 6. Th Supreme Court has recognized that Congress as part of its spending
power has broad authority to place conditions upon the receipt of federal funds. See South
Dakota v. Dole, 107 S. Ct. 2793, 2796 (1987). In so doing, Congress may seek to accomplish
objectives not otherwise within its Article I powers. Id. (upholding the withholding of federal
highway funds to induce States to adopt uniform drinking ages, "even if Congress may not
regulate drinking ages directly"). Without extensive elaboration, however, the Court has noted
that such conditions may not be used to induce "activities that would themnselves be
unconstitutional." Id. at 2798 (citing authorities).
This limitation upon the power of Congress to condition the receipt of federal funds would
arguably be implicated by H.R. 5237 and H.R. 1646. Although we have identified no authorities
that speak directly to the relationship between the spending power and the Takings Clause, we
believe that a strong argument could be made that Congress may not exercise the spending power
to accomplish an uncompensated taking of private property, as such action would contravene the
Constitution. Cf. Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (state commission
may not, absent just compensation, condition a permit to rebuild house upon transfer of easement
to the public across owner’s property).
By its terms, the Takings Clause provides that "private property" shall not be taken for "public
use" absent the payment of "just compensation." U.S. Const., Amend. V. We discuss first the
"private property" requirement.
Both bills would also permit requests for repatriation to be made to federal agencies and federal museums. H.R. 5237, § 6(b);
H.R. 1646, § 6. This aspect of the two bills does not implicate the Takings Clause, as the property in question is that of the United
States and, hence, may be repatriated by Congress. U.S. Const., Art. IV, § 3, cl. 2 (power of Congress to dispose of "Property
belonging to the United States").
3
By contrast, H.R. 5237 would permit only federal agencies and federal museums to refuse a request on scientific grounds.
See H.R. 5237, § 6(b).
House Report 101-877
page 27
Both H.R. 5237 and H.R. 1646 recognize that a private museum need not return a protected
object acquired with the consent of a person or tribe with authority to transfer that particular
object. H.R. 5237, § 6(d); H.R. 1646, § 6(1). There may, however, be other means by which a
private museum might have acquired a property interest in a protected object.
For example, the Antiquities Act of 1906 provides that a permit shall be required for
"excavation of archaeological sites" on federal lands. 16 U.S.C. § 432. As a condition for receipt
of a permit, the applicant must provide for "permanent preservation [of excavated objects] in
public museums." Id. A privatre museum open to the public would have a strong argument that
protected objects duly obtained in the past pursuant to such federal permits constitute museum
property. Apart from laws concerning federal lands, property interests may be recognized by state
law as well. For example, a private museum might have purchased protected objects that were
accidentally discovered in the course of construction work or other excavation upon private land.
As currently drafted, however, H.R. 5237 and H.R. 1646 do not appear to exclude from
repatriation objects acquired other than through the consent of the relevant Native Americans.
Section 6 of H.R. 1646 states that only "the tribe or the Native American owners oif [protected]
items" may consent to their acquisition. The equivalent provision of H.R. 5237 refers more
broadly to "consent of an individual or group that had authority of alienation," but the examples
that follow this statement are restricted to consent involving Native Americans. H.R. 5237 § 6(d).
The language of both bills would appear to exclude consent by a governmental or private
landowner that leads by design or by accident to the discovery of Native American artifacts that
are later transferred to a private museum. In short, consent by the United States to excavation on
federal lands (or, alternatively consent by a private landowner to excavation on his property) may
confer a property interest in the objects discovered but would not appear to protect a private
museum from the repatriation requirement. The bills thus may affect private property and thereby
call into play the Takings Clause.
This problem could be resolved by an amendment to exclude private museums and, hence,
private property from repatriation. Alternatively, the provisions under which a private museum
may decline repatriation might be broadened to exempt all objects in which the museum has a
property interest cognizable under federal or state law. Similar legislation introduced in the
Senate, for example, would permit a museum to refuse repatriation if it has "legal title" to the
requested object. See S. 1980, § 5(c)(1). Either revision, however, would reduce perhaps
significantly the number of protected objects that would be returned to Native Americans.
Absent such revisions, further issues would arise under the "public use" and "just
compensation" requirements of the Takings Clause. The courts generally will defer to Congress’
detremination of what constitutes a "public use" of private property. See Hawaii Housing
Authority v. Midkiff, 467 U.S. 229, 240 (1984). The Government "does not itself have to use
property to legitimate the taking," id. at 224; transfers of property from one private party to
another have been upheld when designed by the legislature to further a public purpose, see, e.g.,
id. Here, however, Congress has inserted no findings in either H.R. 5237 or H.R. 1646 to explain
how the transfer of protected objects from private museums to Native American tribes will
advance the public good. Should Congress wish to reach private property through these bills, it
would be advisable that such findings be included.
Finally, the Takings Clause requires that "just compensation" be paid for the taking of private
property. The absence of a compensation procedure in either H.R. 5237 or H.R. 1646 would not
prevent a private museum from obtaining compensation in the event that a taking is effected by
either bill. Under the Tucker Act, a private museum may seek such compensation in the Claims
Court. 28 U.S.C. § 1491(a) (jurisdiction to resolve claims against the United States based upon
House Report 101-877
page 28
the Constitution). The payment of compensation to private museums would increase the cost of
repatriation legislation. Absent such payments, however, the conditioning of federal funding upon
consent to an uncompensated taking as we have explained may well be an unconstitutional
exercise of the spending power.
2. Ownership Provision of H.R. 1646. As currently drafted, section 4(c) of H.R. 1646 would
implicate the Takings Clause. That section would declare that "[a]ny grave goods or sacred
ceremonial objects found on public or tribal land shall be deemed to be owned by the tribe"
associated with those objects. To avoid the implication that this section would transfer ownership
of objects found in the past such that compensation would be due to the previous owners, we
recommend amendment of this section to apply only to objects "found after the date this Act
becomes law." Such an amendment would clarify that section 4(c), like the protections for Native
American artifacts elsewhere in section 4, will have only a prospective application.
3. Appointment of Review Committee in H.R. 5237. Under section 7 of H.R. 5237, the
Secretary of the Interior would be required to establish a "review committee" that "shall be
composed of 7 members, 4 of whom shall be appointed by the Secretary from nominations
submitted by Indian tribes, Native Hawaiian organizations, and traditional Native American
religious leaders." H.R. 5237 § 7(b)(1). The committee shall, inter alia, "review[] upon the
request of any affected party any finding relating to" the identification of a protected object or the
return of such an object. H.R. 5237, § 7(c)(2)
As drafted, the bill would not accord binding legal force to the committee’s review. Should
Congress intend otherwise, section 7(b)(1) of the bill would need to be amended to conform the
procedures for appointment of the review committee to the Constitution’s Appointments Clause.
See U.S. Const., Art. II, § 2, cl. 2; Buckley v. Valeo, 424 U.S. 1, 126, 141 (1976) (officials
exercising "significant authority pursuant to the laws of the United States"
must be appointed pursuant to the Appointments Clause). While the Appointments Clause permits
Congress to vest the appointment of "inferior Officers" in the President alone, we do not believe
that it sanctions limitations upon the power of appointment by reference to a fixed list of
nominees, because such a requirement would permit the creator of the list here, Native American
organizations to share in the appointment power.
4. Access Requirement of H.R. 5237. Section 7(e) of H.R. 5237 also concerns the review
committee. This section would require the Secretary of the Interior to "ensure" that the committee
will have "full and free access" to any protected objects necessary for their review. In its current
form, the language of section 7(e) might implicate the Takings Clause in particular situations. A
court will ask whether the particular intrusion "unreasonably impair[s]" the economic value of
private property. PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980). In this "ad hoc
inquiry," the court will regard several factors as "particularly significant the economic impact of
the regulation, the extent to which it interferes with investment-backed expectations, and the
character of the governmental action. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 432 (1982).
Here, a requirement of "full and free" access might be read broadly to authorize the
sequestration of protected objects that would otherwise be part of a major exhibition in a private
museum. Although the result would turn largely upon the particular facts, a private museum
would have a substantial argument that such an intrusion constitutes a taking and, thus, must be
accompanied by the payment of just compensation. To avoid such a situation, we recommend
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House Report 101-877
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amendment of section 7(e) to provide merely for "reasonable access" to protected items by the
review committee.
Sincerely,
BRUCE C. NAVARRO,
Deputy Assistant Attorney General.
U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, DC, October 2, 1990.
Hon. MORRIS K. UDALL,
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: This is to provide you with our views on H.R. 5237, the "Native
American Grave Protection and Repatriation Act".
We support the goal of H.R. 5237, but would oppose it unless amended as we suggest below.
In addition, we oppose provisions in the bill that would authorize open-ended and unlimited grants
to tribes and museums involved in the repatriation process. H.R. 5237 also raises serious
constitutional problems that must be satisfactorily addressed prior to enactment. We defer to the
Department of Justice for an analysis of the legal issues associated with this bill, which has been
previously provided to the Committee.
H.R. 5237 would establish criminal penalties for anyone selling or transporting Native
American skeletal remains without the consent of the heirs of the deceased or the tribe which is
culturally affiliated with the remains. The bill would also establish ownership of grave goods
found on pubic or tribal lands. It would require Federal agencies having possession of Native
American skeletal remains or ceremonial objects (1) within five years to inventory them and
determine tribal origin; and (2) within six months to notify each tribe of the items in the agency’s
possession or control. Tribes would be provided an opportunity to decide if they wished the items
returned, and Federal agencies would be required to return them unless they are obtained with the
consent of the tribal entity, or are indispensable for study. Similar requirements for return of such
items would be levied on any museum which receives Federal funds. A review committee would
be established to monitor and review the implementation of the inventory and identification proc-
ess required by this bill.
In March of this year, Secretary Lujan directed the National Park Service to develop a new
policy and revise an existing guideline on the treatment of human remains and funerary objects.
The National Park Service already has been informally reviewing the current policy and guidelines
at the staff level for over a year. This informal review has included meetings with representatives
of Indian groups, as well as with archaeological and museum groups. The specifics of the Interior
policy and guidelines remain to be defined following more detailed consultation with Indian,
archaeological, museum, and other interested groups. However, we have identified certain basic
principles that we would need to see incorporated in any legislation which we would support.
House Report 101-877
page 30
Secretary Lujan wants a more sensitive treatment of archaeological human remains, funerary
objects, sacred objects, and objects of Native American cultural patrimony by managers on Interior
lands. He wants other Federal, State and local agencies that look to the Secretary of the Interior
for guidance to adopt similar sensitive approaches. However, the Secretary has indicated that he
wants to affirm the right of each tribe to determine the treatment that is afforded human remains
and associated objects that are affiliated clearly with that Tribe. This right is central to the
purpose of H.R.. 5237.
Although the Federal government legally owns human remains, it is our position that the
government should have only stewardship responsibilities for human remains and other cultural
items which should be held in trust for culturally affiliated groups who can establish rights to their
ownership and for the scientific and educational benefits derived from some of these cultural
items.
We recognize the legitimate interests of contemporary Native Americans, tribes and tribal
components, including extended family groups, in making a claim. Therefore, in cases where
human remains and associated funerary objects can be linked to contemporary Native Americans
and a claim is made and substantiated, the culturally affiliated group should determine ultimate
disposition.
We further believe that in cases where human remains and associated funerary objects can be
linked to contemporary Native Americans, justifiable scientific and humanistic studies may be un-
dertaken with the permission of the acknowledged kin group or tribal representatives who will
decide about the appropriate conditions of study and final disposition of the human remains and
associated funerary objects.
Under present policy, in cases where human remains and associated funerary objects cannot
be linked to contemporary Native Americans or when a claim is not made, the Federal government
would maintain its stewardship role, providing the opportunity for future evaluation whenever
additional evidence of cultural affiliation is forthcoming and claims are made. In this area,
however, the outcome of Secretary Lujan’s policy review is not yet certain. We support the effort
to stem the removal of these cultural items from their resting places by looting and inadvertent
modern disturbances and to halt the trafficking in these items.
We believe that H.R. 5237 would largely incorporate these basic principles. However, the
following amendments would be necessary in order for us to support this bill.
In cases where human remains and associated funerary objects cannot be linked to
contemporary Native Americans, or where a claim has not been made, we believe it is
appropriate for the Federal government to maintain its stewardship role over these remains,
but provide the opportunity for future evaluation of cultural affiliation if future claims are
made. Therefore, we recommend section 3(a)(2)(B) be changed to read, "in the Indian tribe
or Native Hawaiian organization which is affiliated with such objects or remains and which,
upon notice, states a claim for such objects or remains."
We believe it would not be proper to use aboriginal occupation as the sole criteria for
establishing affinity where no affinity to contemporary groups can be established. In some
cases this criterion will be reasonable, in other cases it will not. Therefore, we recommend
section 3(a)(2)(C) be deleted.
We agree that the Secretary of the Interior should develop regulations for the treatment and
disposition of items that are determined to be unaffiliated with any modern Native American
House Report 101-877
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entity. The stewardship role over these items can result in a wide variety of treatments,
ranging from museum curation of remains and objects to reburial. If the regulations contem-
plated in section 3(b) of the bill (providing procedures to be followed in determining proper
treatment for unclaimed items) are intended to provide such broad authority, report language
establishing this intent is necessary.
In order for repatriation or continued government stewardship of cultural items to operate
effectively, inventories of present collections in Interior and other Federal agencies are
needed. In order to ensure that cultural items are returned to the appropriate Native
American entity, it will sometimes be necessary to gather evidence of relatedness, which
would include appropriate combinations of forensic, ethnographic, archaeological, and
archival information. Therefore, we recommend that section 5(b)(2), dealing with inventory
requirements, be amended to allow for additional studies where necessary to ensure a correct
determination of affinity. We want to ensure, to the best of our ability, that remains and
objects are returned to the correct contemporary groups and those that stay under Federal
stewardship are identified properly.
The time and costs for Federal agencies and curation facilities could be substantial. Federal
agencies will need to begin evaluating collections for which they have responsibility in order
to develop plans and cost estimates. The new regulations on curation of Federal
archaeological collections (36 CFR 79), which will become effective on October 12, 1990,
will be helpful for agencies beginning to organize their efforts. Scheduling for the repatri-
ation of human remains and associated funerary objects must be realistic. Therefore, we
recommend that Federal agencies have available the same provisions for extension of the
time requirements for completing their inventories as museums are provided in section 5(c).
Although we believe that many human remains and funerary objects will be identified with
affiliated groups through the inventory required by the bill, we are not confident that the
broader categories of "scared objects" and "objects of cultural patrimony" could be treated
along these same lines. These terms and the concepts they represent are too broad and
unformulated to include within this legislation.
We have had experiences with legislation where the definitions embodied concepts that
were too broad to be dealth with effectively by the agencies that had to implement the law.
During the mid-1960s the concepts of adaptive use and rehabilitation of historic structures
were similarly broad, and only by working on the concepts and learning the necessary limits
of use and rehabilitation through trial and error during the 1960s and 1970s were we able
to produce the standards and guidelines that direct much of this work today. A similar
period of development concerning the identification, treatment, and use of Native American
sacred objects and cultural patrimony would provide the same grounds for developing useful
and widely accepted standards and guidelines.
Tribal preservation programs working in consensus and consultation with Federal agencies
and national preservation programs, would resolve issues of ownership, control, or
possession of sacred objects and cultural patrimony. We expect the appropriate concepts,
relationships, and procedures concerning sacred objects and cultural patrimony will emerge
during the next few years as Tribes, agencies, and other interested organizations work within
House Report 101-877
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the existing framework on these issues. We urge that decisions about stronger legislation
concerning sacred objects and cultural patrimony be postponed until this process has
occurred.
We would support the creation of a review committee as contemplated by this bill.
However, this committee should be purely advisory in nature. Therefore, the review
committee should be limited to providing oversight and facilitation of the repatriation
process. Accordingly, at a minimum, we recommend deletion of section 7(c)(4), which
would require the review committee to complies an inventory of identifiable human remains
that are under the control of each Federal agency or museum.
In conclusion, the Department of the Interior is very concerned that archaeological human
remains, funerary objects, sacred objects, and objects of Native American cultural patrimony are
treated with the respect and sensitivity which they deserve. However, we would oppose H.R.
5237 unless amended as we described above including serious constitutional problems and new,
open-ended, unlimited grant programs. We look forward to working with the Congress and the
affected groups to ensure that we indeed live up to our responsibilities in this area.
The Office of Management and Budget has advised that there is no objection to the presentation
of this report from the standpoint of the Administration’s programs.
Sincerely,
SCOTT SEWELL,
Deputy Assistant Secretary.
CHANGES IN EXISTING LAW
In compliance with clause 3 of Rule XIII of the Rules of the House of Representatives,
changes in existing law made by the bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which
no change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
CHAPTER 53. INDIANS
Section 1151. Indian country defined
* * * * * * * * * * * *
. Illegal Trafficking in Native American Human Remains and Cultural Items
§ 1151. Indian country defined
* * * * * * * * * * * *
SEC. .ILLEGAL TRAFFICKING IN NATIVE AMERICAN HUMAN REMAINS AND
CULTURAL ITEMS.
(a) Whoever knowingly sells, purchases, used for profit, or transports for sale or profit, the
human remains of a Native American without the right of possession to those remains, as
House Report 101-877
page 33
provided in the Native American Grave Protection and Repatriation Act, shall be fined in
accordance with this title, or imprisoned not more than 12 months, both, and in the case of
a second or subsequent violation, be fined in accordance with this title, or imprisoned not
more than 5 years, or both.
(b) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any
Native American cultural items obtained in violation of the Native American Grave Protection
and Repatriation Act shall be fined in accordance with this title, imprisoned not more than one
year, or both, and in the case of a second or subsequent violation, be fined in accordance with
this title, imprisoned not more than 5 years, or both.