Wednesday, Jun. 10, 1998

Statement of Katherine H. Stevenson

Statement of Katherine H. Stevenson, Associate Director, Cultural Resource Stewardship and Partnerships, National Park Service, Department of the InteriorPhillip L. Walker, Department of Anthropology, University of California, Santa Barbara for the American Association of Physical Anthropologists

Mr. Chairman, the American Association of Physical Anthropologists (AAPA) appreciates the opportunity to comment on the amendments Rep. Hastings has introduced to the Native American Graves Protection and Repatriation Act (NAGPRA).

The AAPA is the world's leading professional organization for physical anthropologists. We currently have more than 1500 members with research interests in all areas of human biology, including the scientific study and interpretation of human skeletal remains spanning entire history of humankind from our African origins to modern times. At our recent annual meeting, our members unanimously voted to support H.R. 2893.

It will allow scientific research to continue to enhance our understanding of the past and, at the same time, protect the ability of Native American tribes and Hawaiian organizations to decide the disposition of culturally affiliated human remains, funerary objects, sacred objects, and objects of cultural patrimony.

I am personally deeply committed to goals of NAGPRA. In 1992 the Secretary of Interior appointed me to the NAGPRA Review Committee for a five-year term. During my tenure on the committee I worked on the regulations for the act and helped mediate disputes arising from its implementation.

We support H.R. 2893 because it and improves the consistency of scientific recording of remains recently discovered on federal lands and remedies a problem with NAGPRA relating to the repatriation of culturally unaffiliated remains.

The amendment removes the section from NAGPRA that uses recent land use as a basis for giving human remains and other cultural items to tribes that are not culturally affiliated with those remains. It seems clear, based on a close reading of House and Senate reports, that Congress did not pass NAGPRA with the goal of giving specific modern tribes special rights over remains they are culturally unaffiliated with.

Automatically giving remains to culturally unaffiliated groups is inconsistent with the key goal NAGPRA and also precludes the possibility that future research will allow the correct cultural affiliation of such remains to be determined. Instead, we believe that the disposition of such discoveries should be determined under the provisions of NAGPRA that deal with other culturally unaffiliated material.

In this way, the amendment carefully balances the interests of tribes and Native Hawaiian organizations against the important information such studies can provide about our nation's heritage for the benefit of the American people. By clearly defining the conditions under which studies can be done, H.R. 2893 will eliminate problems that have arisen because of inconsistencies in the way that different federal agencies have interpreted NAGPRA's provisions for scientific research.

As a physical anthropologist, I am especially aware of the important role skeletal studies can play in helping to determine the cultural affiliation of Native American remains. Physical anthropologists have a long history of working with law enforcement agencies, federal officials, and Native American groups to provide a scientific perspective on the cultural affiliation of inadvertently discovered human remains.

Besides helping in the determination of cultural affiliation, the scientific research enabled by H..R. 2893 is important because of the unique historical perspective that physical anthropological studies can provide on the demography, diet, diseases, and social relations of earlier human groups. For example, I have found that skeletal evidence for the "battered child syndrome" that I commonly encounter in my forensic work, is absent in the skeletons of ancient Native American and European children.

This work has suggested some social explanations for the epidemic of child abuse we are currently experiencing in the United States. The broad comparative perspective provided by skeletal studies is also extremely valuable in helping us to unravel the environmental and genetic causes of diseases such as cancer and osteoporosis.

The American Association of Physical Anthropologists supports HR 2893 because it clarifies several problematic areas of NAGPRA while preserving the balance between the concerns of Native Americans and members of the scientific community that is central to the act. The amendment accomplishes this without diminishing the capacity of culturally affiliated tribes or Native Hawaiian organizations to repatriate ancestral remains. We thank you for allowing us to express our views on this important piece of legislation.

We cannot support H.R. 2893 in its current form. We understand the intent of the legislation is to permit the scientific study of the remains of non-identifiable lineal descendants. However, we do not believe this bill achieves this goal nor do we believe it is wise to legislate on this issue, which we feel can best be addressed through regulations and guidance.

Since the enactment of NAGPRA, the Department has worked with representatives of Indian tribes, Native Hawaiian organizations, national museum organizations, and national scientific organizations to implement the law in a balanced way. The regulations issued by the Department in January 1996 provide the necessary guidance and procedures to deal with appropriate study and repatriation of human remains.

Section 1(a) of H.R. 2893 would repeal a provision of NAGPRA addressing disposition of Native American human remains and cultural items excavated or discovered on federal lands. Current law allows disposition of the remains and items to an Indian tribe that is recognized by a final judgement of the Indian Claims Commission or the United States Court of Claims as aboriginally occupying the federal land on which the objects were discovered.

We believe the decisions of the Indian Claims Commission and the United States Court of Claims provide useful guidance for decision-making regarding the disposition of Native American human remains. We, therefore, disagree with the position taken in H.R. 2893 to repeal this section.

Any excavation or removal in cases of inadvertent discoveries must be conducted according to the Archaeological Resource Protection Act (ARPA), cited in section 3(c)(1) of NAGPRA and its regulations (43 CFR 10.3(b)(1)). The use of contemporary, professional scientific archeological methods and techniques is required. Proper professional recording, examination, interpretation, and reporting of the results of the excavation or removal must be carried out by the responsible agency before any disposition of the remains occurs.

Section 1(c) of H.R. 2893 would add a new section 3(f) to NAGPRA. The new section would require human remains inadvertently discovered to be reasonably recorded according to generally acceptable scientific standards. However, the existing regulations reference the requirements of ARPA, which call for a rigorous, less ambiguous standard of recording, examination, interpretation, and reporting than the proposed section might allow.

The proposed section might, in fact, reduce the extent of recording presently required by the statute and regulations because the wording is less detailed and less specific than that in ARPA.

Section 2 of H.R. 2893 makes technical changes to NAGPRA.

Section 3 of H.R. 2893 revises section 7(b) of NAGPRA to authorize studies of Native American human remains and cultural items under certain circumstances. We believe the amendment to section 7(b) is unnecessary. In its present form, NAGPRA cannot be used as "authorization for ... new scientific studies..." as part of the documentation for inventories of Native American human remains and funerary objects held in public agency or museum collections. NAGPRA does not prohibit new scientific studies; it simply cannot be used as the authorization for them.

Public agencies and museums that hold such remains and objects are permitted to undertake or allow new studies under ARPA and other statutes and regulations. In the case of museums, they are permitted to undertake or allow new studies according to their articles of incorporation, statements of purpose, or other legal statements under which they were established.

The statute identifies ten specific kinds of evidence that should be considered when evaluating whether or not a relationship of cultural affiliation exists: "... geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion." The process of gathering, evaluating, interpreting, and reaching a decision about cultural affiliation requires study. Similarly, the new excavations and inadvertent discovery requirements of NAGPRA incorporate the conduct of study through use of modern archeological methods and techniques for excavation, analysis, and reporting.

To reopen the law now could polarize the various interests affected by NAGPRA. We believe this is the time to bring parties together to find mutually acceptable solutions to problems that arise under this Act. We believe through our current regulations and guidelines we can work out many of the problems raised by the scientific community. We feel strongly that these issues should not be legislated.

We understand that this legislation was a result of the litigation over the reported 9,000-year-old skeleton known as the Kennewick Man. We are working closely with the Department of Justice and the U.S. Army Corps of Engineers to sponsor mediation to sort through these issues. The first mediation session is scheduled for mid-June.

The mediation holds promise of achieving acceptable resolution under the existing statute. While we cannot be overly optimistic about any mediation process, it provides an alternative forum for discussing these issues with concerned tribal and scientific communities, and makes consideration of amendments to NAGPRA premature.

Mr. Chairman, this concludes my remarks. I would be happy to answer any questions you may have.