Wednesday, Jun. 10, 1998

Testimony of Armand Minthorn for the Confederated Tribes of the Umatilla Indian Reservation

Mr. Chairman, the Confederated Tribes of the Umatilla Indian Reservation of Oregon strongly objects to H.R. 2893, to amend the Native American Graves Protection and Repatriation Act (NAGPRA). This bill, if enacted, would make a mockery of NAGPRA. Instead of assuring the return of our ancestors and cultural items to us, H.R. 2893 would twist NAGPRA into a law that virtually guarantees that items of Native American heritage be handed over to scientists, perhaps in perpetuity, for whatever study they may choose. This result directly conflicts with Congress' intent in enacting NAGPRA just 8 years ago.

Furthermore, Mr. Chairman, there is no need for this legislation. We know the discovery of the remains, commonly referred to as the Kennewick Man, along the banks of the Columbia River some 2 years ago, served as the catalyst for this bill.

While the disposition of the remains is pending in federal court, the parties to that litigation and the tribes that have filed claims for the remains under NAGPRA have agreed upon the selection of a mediator and have agreed to begin mediation on June 17th -one week from today. The intervention of Congress is not necessary to resolve the Kennewick Man dispute.

Yet, H.R. 2893 would impose that standard upon us, requiring that the cultural and religious practices of our past be conformed today to ideas of burial and ancestry brought to this land by people from an entirely different culture. And should we fail to meet that standard, H.R. 2893 would provide that our ancestors be turned over to scientists to then determine - should they choose to do so - that they are ours.

Mr. Chairman the concerns raised in H.R. 2893 were raised, discussed, and we thought settled with the enactment of NAGPRA in 1990. In enacting NAGPRA, Congress struck a delicate balance between the rights of tribes for the return of the remains of our ancestors and the rights of science. H.R. 2893 would disrupt that balance and strongly favor the scientific testing of Native American remains. This testing conflicts with fundamental tenets of human dignity, of the culture of my tribe and the intent of Congress as expressed in NAGPRA.

H.R. 2893 would turn most of the essential provisions of NAGPRA inside out. First, the bill dispossesses tribes of ownership of cultural items found on federal land within the tribe's aboriginal territory for which no lineal descendency is established and for which cultural affiliation is not certain. For the great number of items for which lineal descendency or cultural affiliation is not determined, the federal agency in charge of the land on which the cultural items have been found would be granted the controlling interest until a cultural affiliation is established.

H.R. 2893 requires that cultural items found on federal land since NAGPRA's enactment, except those for which lineal descent is established or those found on Indian land, shall be available for study. All such available items shall remain in federal control for at least 90 days after their discovery is published in the Federal Register. All cultural items already in federal or museum possession, except remains and associated funerary objects with established lineal descent, shall also be available for study. Studies can be for scientific, historical, or cultural information, or to establish cultural affiliation.

So long as the cultural affiliation of an item is not established, it can be retained for study indefinitely. Please note that efforts to determine cultural affiliation are not required.

While NAGPRA provides repatriation to Native Americans must occur unless the cultural item is needed for the completion of a study of "major benefit to the United State," H.R. 2893 requires the reverse, that the items be rendered up for study except when "clear and convincing evidence" is presented by a federal agency or museum (not a tribe) that "potential" scientific benefits of the study are "substantially outweighed under the circumstances by curatorial, cultural, or other reasonable conditions."

H.R. 2893 also provides that, even if the cultural affiliation is determined for an item found on federal land, the federal agency is still required to submit the object for study if needed for the completion of a specific scientific study, the outcome of which is "reasonably expected to provide significant new information."

A scientist could request that an item be made available for study at some time in the distant future and the 180 days may only start to toll when the item is actually presented, or made available, at that time.

Finally, because H.R. 2893 is retroactive to the November 16, 1990 date of NAGPRA's enactment, cultural items already returned to tribes under NAGPRA would revert to federal control and be subject to H.R. 2893's requirement that such items be made available, on demand, for study. Because the Federal Register publication required by H.R. 2893 for the federal relinquishment of those items will not have occurred, a tribe now in possession of such cultural objects would be forced to turn them over to the federal agency, and hence the scientists for study. It would be the ultimate irony that the amendments in H.R. 2893 would so contort the Native American Graves Protection and Repatriation Act that it would be used to force tribes to turn over cultural items in their possession to scientists for study.

H.R. 2893 establishes a presumption that a great many Native American cultural items do not belong to Native Americans unless restrictive criteria are satisfied. It then places scientists in a primary position of making that determination without, in fact, even requiring them to do so. The bill so twists NAGPRA that, instead of seeking to assure that the majority of our cultural items are returned to us, it would assure that those items be turned over to scientists, upon their demand for whatever studies they might dream up, quite possibly into perpetuity.

This bill has nothing to do with respecting our culture, our ancestors, or our history. Instead, it has everything to do with giving the scientific community all it wants and continuing the unnecessary desecration of our ancestors. We oppose H.R. 2893 and urge that this Committee reject it.