Wednesday, Jun. 10, 1998

Testimony by the Association on American Indian Affairs

HOUSE RESOURCES COMMITTEE

HEARING ON H.R. 2893

AMENDMENTS TO

THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT

JUNE 10, 1998

STATEMENT OF THE ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC.

BY

BRADFORD KEELER, PRESIDENT

I. Introduction and Overview of Testimony

AAIA urges you to reject H.R. 2893 for several reasons:

2. H.R. 2893 dismantles a carefully crafted compromise between the Native American and scientific communities -- including the deletion of compromise language on aboriginal land claims which was specifically drafted in conjunction with the scientific community and has a reasonable basis in policy and history.

3. The provisions in H.R. 2893 go far beyond the alleged problem which has given rise to the legislation -- the treatment of ancient remains -- to eliminate an entire category of Native repatriation claims and authorize, indeed almost require, a broad range of scientific study for virtually all human remains and cultural items which are discovered.

II. Background, Intent and Operation of NAGPRA

NAGPRA was bipartisan legislation unanimously passed by the Congress and supported and actively promoted by both Republican and Democratic legislators, including then-Reps. Udall, Campbell, Young, Rhodes and Richardson and Senators McCain, Inouye and Domenici. Senator Inouye cogently summarized the testimonial background and intent of NAGPRA in his floor statement at the time of Senate passage as follows:

When the Army Surgeon General ordered the collection of Indian osteological remains during the second half of the 19th Century, his demands were enthusiastically met not only by Army medical personnel, but by collectors who made money from selling Indian skulls to the Army Medical Museum. The desires of Indians to bury their dead were ignored. In fact, correspondence from individuals engaged in robbing graves often speaks to the dangers these collectors faced when Indians caught the

[T]he bill before us is not about the validity of museums or the value of scientific inquiry. Rather, it is about human rights...

[136 Cong. Rec. S17174 (daily ed. Oct. 26, 1990)]

As Senator McCain restated it, NAGPRA was intended to "establish a process that provides the dignity and respect that our Nation's first citizens deserve." 136 Cong. Rec. S17173 (daily ed. Oct. 26, 1990).

The bill that was enacted did not include all that the Native community wanted, however. Rather, it reflected a delicately balanced compromise forged by representatives of the museum, scientific and Indian communities. 136 Cong. Rec. S 17173 (daily ed. Oct. 26, 1990) (statement of Senator John McCain). Indeed, a purpose of the bill was to "encourage a continuing dialogue between museums and Indian tribes and Native Hawaiian organizations and...promote greater understanding between the

The evidence is that NAGPRA has been working. It has allowed Indian tribes and Native Hawaiian organizations to commence the process of repatriating their ancestors and sacred cultural items. It has led to new cooperative relationships between museums, scientists and Native Americans based upon respect. The law is not without its flaws, nor have conflicts between the Native, museum and scientific communities ceased, but substantial progress has been made.

III. H.R. 2893

A. Repatriation based upon Aboriginal Land Title

Section 1(a) of H.R. 2893 would eliminate any repatriation to Indian tribes based upon aboriginal land title as provided for by section 3(a)(2)(C) of NAGPRA (25 U.S.C. 3002(a)(2)(C)). The Society for American Archeology (SAA) and American Association of Physical Anthropologists (AAPA) have asserted that this NAGPRA provision is "based upon recent land use", "take(s) no account of change through time" and that "there is no necessary connection between a modern tribe and ancient remains".

This criticism of the aboriginal land claims section, however, ignores the history of this section and the essential compromise which it reflects. It also ignores significant facts about the nature of imbedded grave sites and the history of Native people on this continent which provide a policy basis for the aboriginal land provision.

1. Section 3(a)(2)(C) of NAGPRA was a political compromise.

Thus, the existing section, while derived from Congress' emphasis on human rights and its understanding of and respect for the religious and cultural views of Native Americans, already falls significantly short of what Native Americans would prefer. The SAA, AAPA and other scientific organizations supported this compromise in 1990 as a practical and workable solution which bridged the divergent positions of the communities involved. Section 1(a) of H.R. 2893 which would delete the abor

2. Section 3(a)(2)(C) of NAGPRA is reasonable policy.

While it is certainly true that Congress could have chosen a different approach to empowering Native communities in regard to imbedded remains and objects, there is no perfect mechanism to achieve the reasonable policy goal of providing Native people with ownership or control over most remains and objects unearthed on federal land in the future. The mechanism that was chosen was and is an imperfect, but reasonable, attempt to provide objective criteria to obtain that goal.

3. Section 1(a) of H.R. 2893 must be rejected.

Section 3(a)(2)(C) was the product of a delicate political compromise following difficult negotiations between the scientific, museum and Native communities. It recognizes that it is just and proper to provide Native Americans with the ultimate ownership and control over most imbedded remains, funerary objects, sacred objects and cultural patrimony unearthed on federal lands in the future.

B. Scientific Study

The Kennewick case which gave rise to this legislation raises the narrow, although important, question of whether ancient remains discovered on federal lands whose cultural affiliation is uncertain should be subject to scientific study. Yet, the scientific study provisions in H.R. 2893 are extremely broad and go far beyond the circumstances present in the Kennewick case.

1. Study of Culturally Affiliated Remains and Objects

AAIA believes that if any amendment to NAGPRA is to be enacted pertaining to the study of culturally affiliated remains, a "tribal consent" requirement is the amendment that should be adopted. In this regard, we would bring to the Committee's attention a letter which was submitted in 1990 as part of AAIA's NAGPRA testimony by Dr. Emery Johnson, former head of the Indian Health Service, in which he discussed a similar issue which arose during his tenure at IHS. In Dr. Johnson's own word

Similarly, informed consent of culturally affiliated tribes before any study or analysis of human remains or cultural items takes place should be an explicit requirement in NAGPRA. A culturally affiliated tribe is one with a "shared group identity" with the tribe or group of the person whose remains or objects have been excavated -- in short, at least some present-day tribal members are descendants of, or related to, the individual whose remains or objects have been unearthed. In such case, wh

Thus, we urge this Committee and Congress to reject the scientific study proposals in H.R. 2893 which pertain to "unaffiliated" remains and objects.

IV. Conclusion

NAGPRA has been working to repatriate human remains and cultural items to Indian tribes and Native Hawaiian organizations. It has served as a catalyst for the development of cooperative relationships between the scientific, museum and Native communities. Its enactment was a long-overdue expression of respect for Native American people and their traditions.

To the contrary, H.R. 2893 was developed without tribal input and over tribal objections. It fundamentally alters the focus of NAGPRA from respect of tribal religious and cultural beliefs to the promotion of science. It will reopen the wounds which NAGPRA has begun to heal and could very well lead to a new era of conflict between the Native American and scientific communities. As such, it should be rejected by this Committee and Congress.

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Testimony Submitted to The Honorable Don Young

Chairman, House Resources Committee

U.S. House of Representatives

June 10, 1998

We are submitting this testimony for the record of the June 10, 1998 House Resources Committee hearing in order to express our concern over the proposed Hastings Amendment (H.R. 2893) to the Native American Graves Protection and Repatriation Act. agencies dealing with repatriation. In fact, Mending the Circle has been used as a text at Harvard Law School.

Our work involves acting as a liaison between Native peoples and non-Native collectors, archaeologists, art dealers, and others holding Native American material. The intent of NAGPRA was to build bridges among these groups. In the past six years we have been witness to the birth of a new understanding and cooperation between Native peoples and those who currently hold collections of Native American material, both public and private. NAGPRA has also set a standard in the international community for dealing with the cultural and religious rights of indigenou

Respect for our cultural and religious differences is one of the founding principles of this country. NAGPRA has been an important step in ensuring that respect for the First Peoples by recognizing the basic right of Native Americans to bury their ancestors and to practice their religion. The Hastings Amendment will encroach upon these fundamental rights.

For these reasons we strongly oppose HR 2893.