Wednesday, Jun. 10, 1998

Testimony of Maurice Eben, chairman, Commission on Repatriation and Burial Sites Protection, National Congress of American Indians

I. Introduction

Good morning Chairman Young, Vice-Chairman Miller and distinguished members of the House Resources Committee. On behalf of W. Ron Allen, President of the National Congress of American Indians (NCAI) and Chairman of the Jamestown S'Klallam Tribe located in Washington State, thank you for the opportunity to present testimony regarding H.R. 2893, a bill to amend the Native American Graves Protection and Repatriation Act to provide for appropriate study and repatriation of remains for which cultural affiliation is not readily ascertainable.

NCAI remains dedicated to advocating aggressively on behalf of the interests of our 230 member tribes on a myriad of issues including the protection and preservation of Native culture and tradition as intended by the Native American Graves Protection and Repatriation Act (NAGPRA). We also remain dedicated to the exercise of tribal sovereignty and the continued viability of tribal governments.

II. Fundamental Federal Indian And Policy

Any discussion of federal Indian policy must be grounded in fundamental principles which inform federal Indian law and policy. Since the earliest days of our republic, Indian tribes have been considered sovereign, albeit domestic, nations with a separate legal and political existence. Along with states and the federal government, tribal governments represent one of three enumerated sovereign entities mentioned in the U.S. Constitution.

In return for vast Indian lands and resources ceded to the United States, the federal government made certain promises to Indian tribes including the protection of Indian lands from encroachment, as well as promises to provide in perpetuity various goods and services such as health care, education, housing, and the continued right to self-government. In addition to inherent sovereignty, tribes benefit from the federal government's "trust responsibility" to them.

This responsibility eludes simple definition but is grounded in the oversight and trusteeship of Indian lands and resources by the United States. Using analogous common law principles of trusteeship, the trust responsibility has been determined by federal courts to be similar to the highest fiduciary duty owed a beneficiary by a trustee.

III. The Native American Graves Protection And Repatriation Act

The original process involved in drafting NAGPRA must always be kept in mind. It was a delicate compromise between the scientific community and Indian country. NAGPRA is human rights legislation signed into law in order to provide a legal avenue for tribes to right some of the wrongs committed against them. H.R. 2893 would unbalance this compromise and subject tribes to undue pressure in the name of science.

Furthermore, these drastic changes would stem from a controversy over the unproven and unaccepted theories of a small group of anthropologists. A successful resolution of the "Kennewick" case is more likely to be found through administrative means and meetings between all interested parties, rather than an extreme legislative fix proposed by a single interest group.

IV. H.R. 2893 And The Intent Of NAGPRA

Sec. 3 Ownership (25 U.S.C. 3002)

Section 1 of H.R. 2893 would strike the following critical provisions regarding aboriginal territory under Section 3(C) of NAGPRA:

(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 or the United States Court of Claims 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 that 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.

These provisions were accepted as a proper standard for determining ownership when the law was originally passed in 1990. These are the final provisions in a series of guidelines which must be followed in order to determine ownership. They were carefully considered by Congress, the Administration, the scientific community, and the tribes.

They set in place an objective standard through the requirement that the determination be based on "Federal land that is recognized by a final judgement of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe". These provisions were included to ensure that a number of factors are considered in making a decision. This was the original intent of Congress.

According to House Report 101-877, which was submitted in 1990 with the original bill,

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."

Also under Sec. 7(a)(4) NAGPRA states that,

"Where cultural affiliation of Native American human remains and funerary objects has not been established ... 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."

H.R. 2893 also proposes to amend NAGPRA with the following language regarding the testing and recording of NAGPRA related items:

(f) Recording and Status of Items, Excavated or Discovered After November 16, 1990. - Cultural items excavated or discovered after November 16, 1990, except those items whose ownership or control is established under paragraph (1) or paragraph (2)(A) of subsection (a)-

(1) shall be reasonably recorded according to generally accepted scientific standards;

(2) shall remain under the control of the agency having primary management authority for the land on which the cultural item was excavated or discovered until 90 days after the publication in the Federal Register of a notice setting out a general description of the item, its estimated age, and the general area of discovery; and

(3) are subject to the study provisions of subsection 7(b)

To make testing a mandate under NAGPRA would seriously impact tribal cultures and traditions. Such an idea was brought forward in the original debates concerning the passage of this law and tribal governments vehemently opposed such a provision. Furthermore, such a requirement would place undue financial burdens on those agencies or institutions which have possession of those items. The museum and scientific community also opposed such a requirement when the law was originally considered, sighting the obvious financial obligations which would result from such a mandate.

Sec. 7. Repatriation. (25 U.S.C. 3005)

H.R. 2893 would add the following subsections to NAGPRA under Sec. 7. The inclusion of this language tips the scales in favor of the scientific community regarding NAGPRA related issues:

(b) Study and Recording. - (1) In cases of human remains and associated funerary objects for which no lineal descendants have been identified and in cases of other cultural items:

The language cited above is redundant and completely unnecessary. NAGPRA already provides the opportunity to determine cultural affiliation through study since it does not necessarily preclude such studies.

(B) If the cultural affiliation of a cultural item has been established with an Indian tribe or Native Hawaiian organization, studies of such item may be conducted if needed for the completion of a specific scientific study, the outcome of which is reasonably expected to provide significant new information concerning the history or prehistory of the United States.

If the culturally affiliated tribe or organization requests the return of the cultural item, the Federal agency or museum shall return such item to the Indian tribe or native Hawaiian organization not later than 90 days after the date on which the scientific study is completed. Study of a cultural item under this subparagraph shall not be permitted to delay return of the item for more than 180 days after the item is made available for study, unless a longer period of study is agreed upon by the culturally affiliated tribe or organization that has requested return of the cultural item.

(2) Not later than 180 days after a study conducted under this subsection is completed, the Federal agency or museum with custody of the cultural item shall provide a report of the results of the study to any Indian tribe or Native Hawaiian organization that has an established cultural affiliation with the cultural item studied.

(3) If study of a cultural item pursuant to subparagraph (A) or (B) of paragraph (1) is requested, the Federal agency or museum with custody of such an item must make such an item reasonably available for such study unless the Secretary determines that the Federal agency or museum has presented clear and convincing evidence that the potential scientific benefit of the requested study is substantially outweighed under the circumstances by curatorial, cultural, or other reasonable considerations.

(4) Nothing in this subsection shall be construed to require any museum to undertake or permit any study of a cultural item that is contrary to policies of the museum or to its prior agreements.

V. NAGPRA And Sound Science

The high profile publicity given to the controversy over human remains discovered near Kennewick, Washington has made it very difficult to discuss the issues involved in the treatment of human remains. It is also unfortunate that some scholars have chosen to introduce the concept of race, which is disavowed by the American Anthropological Association (AAA), as a factor in reviewing NAGPRA and making recommendations regarding its amendment.

In the case of "Kennewick" man we have scholars, using outmoded theories, laying claim to primacy in the use of these remains in defiance of established knowledge. The American Anthropological Association has clearly stated that race cannot be determined scientifically. The effects can be devastating, for both Native Americans and the scientific community, by not requiring some standard of scholarship to be met by any scholar or scientist making a claim to use human remains.

Currently, Native Americans are restricted in their claims by a number of provisions, including aboriginal occupancy. How are scientists restrained so that all competing interest will be served? Keep in mind Mr. Chairman, NAGPRA was originally passed in 1990 to prevent the discriminatory and high-handed tactics which scholars and scientists had historically shown towards Native Americans. To now accept such principles would be a dreadful step backwards.

VI. Conclusion

Mr. Chairman, in order to properly and faithfully carry out Congressional intent and to facilitate the NAGPRA process, the concerns of tribes must be equally weighed. The United States government has a trust responsibility to tribal governments and Indian people to protect and preserve Native culture and tradition.

To allow scientists to dictate cultural affiliation is a serious breach of that trust responsibility and contrary to the intent of NAGPRA. NAGPRA was the result of serious debate and the consideration of a variety of perspectives. Amending NAGPRA as proposed by H.R. 2893 will simply create an intolerable state of affairs, spawning excessive litigation about the terms and concepts used in the language of this amendment.

Further, Congress should not allow itself to be forced into precipitous actions by a flood of media and attention that has featured and fostered racial antagonisms in spite of common knowledge. Pursuant to Resolution #SFE-97-091, NCAI strongly opposes H.R. 2893 and calls upon Congress to uphold the spirit and intent of NAGPRA.

Mr. Chairman, this concludes my statement. Thank you for allowing me to present for the record the National Congress of American Indians' comments regarding H.R. 2893. I will be happy to answer any questions which you may have at this time.