Wednesday, Jun. 10, 1998

Testimony of Congressman Doc Hastings, R-Wash.

Mr. Chairman,

Thank you for the opportunity to testify before the Committee on my legislation to clarify the Native American Graves Protection and Repatriation Act of 1990, known as NAGPRA.

This issue first came to my attention in 1996, when two young college students stumbled upon a partially buried skeleton along the bank of the Columbia River in my district. Although the condition and characteristics of the bones at first suggested that they were relatively modern, preliminary tests now indicate that this skeleton is actually between 9,200 and 9,600 years old. Dubbed "Kennewick Man" in honor of the city in which it was discovered, it is one of the oldest skeletons ever discovered in the United States.

Specifically, the Kennewick Man skull exhibits a number of characteristics which are categorized as caucasoid. This does not necessarily mean that the 9,000 year old man is of European origin, since some very ancient racial groups in Asia also displayed these same characteristics. Rather, the Kennewick Man is compelling evidence that the history of human settlement in North America is far more varied and complex than was previously thought. It is, according to scientists, a remarkable and dramatic discovery.

Within days of the skeleton's discovery, however, the U.S. Army Corps of Engineers announced plans to turn the skeleton over to representatives of Northwest Indian tribes for an immediate and secret burial. The Corps claimed that the federal NAGPRA law requires them to turn the bones over to any tribe from that geographic area which claims the Kennewick Man or similar remains. I was skeptical of this decision, as were many of my constituents.

As a result, a number of my colleagues in the Washington State Congressional delegation joined me in asking the Army Corps of Engineers to conduct further studies before the bones were lost forever. That's when the real shock came. The Corps of Engineers had made its decision without regard to empirical evidence and with no scientific study, because informed decisions on these matters are actually discouraged under the current regulatory interpretation of this law.

Many legal experts - including supporters of NAGPRA - believe that the act itself is at fault, in large part because it is so vague on the subject of very ancient remains of unknown origin. In fact, a number of prominent archaeologists and anthropologists have now sued the Army Corps of Engineers for making its decision without adequate study and on the basis of unproven assumptions.

Granting individuals and tribes rights to the physical remnants of their own forebears makes sense. But how do we determine which individual or tribe may be related? The answer is that in most cases only through study can we make these determinations.

Furthermore, it's particularly troubling to me that NAGPRA assumes that all individuals and tribes will wish to treat physical remains and cultural items in the same way. Without more exacting standards of identification, we run the very real risk of granting one group the authority to make decisions about another group's cultural heritage and ancestors.

After more than a year of considering these questions, as the likelihood dims that the federal courts will be able to resolve these questions about ancient remains by interpreting the often vague text of NAGPRA, I decided to introduce legislation to amend the law. The goal of my bill-H.R. 2893-is to ensure that when a federal agency repatriates remains, we can be reasonably confident that the remains are affiliated with the tribe or group that receives them.

Specifically, my legislation makes the following changes to NAGPRA:

- It designates cultural affiliation based on sound science as the primary factor in determining ownership of human remains and cultural items. This addresses the problem of deciding custody based on geography, because in many cases multiple tribes were present in the same area over time. I would just like to note that 200 years ago the famous American explorers Lewis and Clark observed that tribes in the Columbia Basin frequently migrated across hundreds of miles to hunt.

If we can't accurately determine exact locations and clear borders for Indian peoples 200 years ago, how can we have any confidence about these borders nearly 10,000 years ago?

- The bill would also require basic information about all discoveries to be recorded and published in the Federal Register. Publication in the Federal Register means that tribes and other interested parties will no longer be dependent on direct notification from federal agencies to learn of new discoveries. This problem was clearly demonstrated in the Kennewick Man case, when both the scientific community and interested tribes such as the Colville Confederated Tribes of Washington learned of this discovery from media reports, rather than from the appropriate agency.

- I also want to make it clear that my legislation applies only to discoveries on federal lands. Tribal governments will not be required to take actions that may violate cultural mores or religious beliefs, and they will continue to be free to determine their own policies for handling remains found on tribal lands.

The changes to NAGPRA contained in H.R. 2893 would allow for scientific study appropriate to the relationship established between the remains and an individual or tribe, while continuing to show consideration and respect for Indian cultures. Furthermore, by clarifying the language in NAGPRA and balancing the interests of both sides, federal agencies such as the Army Corps of Engineers will be relieved of the more burdensome and controversial implementation responsibilities imposed by NAGPRA.

I would also like to make a brief observation in response to the Administration statement presented by the Administration. Although it was readily apparent to me that NAGPRA was not intended to apply to unaffiliated ancient remains, the Department of the Interior and the Park Service have failed to recognize this fact over the past eight years. I am encouraged, however, by the personal interest Secretary Babbitt has taken in this issue since I brought it to his attention. Nevertheless, I'm convinced that his effort to revise Departmental policies would be significantly aided by Congressional action to remove any uncertainties about our legislative intent.

There is no doubt this legislation will provoke strong emotions. This is only natural given the fact that NAGPRA was originally conceived and written in the context of religion and human rights. However, strong feelings should not discourage Congress from revisiting NAGPRA and restoring a sense of balance and equal treatment to federal policy.

This is a balanced, targeted, and fair modification to the existing law. As a result, I urge the Committee to work with us to reform this essential, but vague, federal law.