Tuesday, Dec. 23, 1997

Interior Department answers judges questions

This letter was written Dec. 23, 1997 by Francis P. McManamon, head of the Interior Department's efforts to investigate Kennewick Man.

Dear Lieutenant Colonel Curtis:

This responds to your August, 5, 1997 letter requesting our views on certain matters related to the Native American Graves Protection and Repatriation Act (NAGPRA).

On June 27, 1997, United States Magistrate John Jelderks issued an opinion in connection with the consolidated cases of Bonnichsen, et al. v. United States, et al., (D. Oregon, Civil No. 96-1481-JE), and Asatru et al. v. United States, et al., (D. Oregon, Civil No. 96-1516-JE). The court directed the Corps of Engineers to consider a number of issues related to NAGPRA and the ultimate disposition of human remains recently discovered on lands owned by the Corps of Engineers within the State of Washington.

We have the following responses to the questions posed by your letter which, in certain instances, have been rephrased or reorganized for purposes of clarity:

For the sake of clarity, our responses refer to Native American human remains and cultural items as separate categories of materials. Under NAGPRA, however, human remains and the several types of cultural items it describes (funerary objects, sacred objects, and objects of cultural patrimony) are referred to collectively as cultural items (25 U.S.C. 3001 (3)). In addition, although NAGPRA applies equally to Indian tribes and Native Hawaiian organizations, this memorandum does not make reference to Native Hawaiian organizations except where necessary for substantive reasons.

1. Whether these human remains are subject to NAGPRA, and why (or why not)?

We are able to advise on the matters that should be considered in making this decision. Two questions should be addressed in this regard:

A. Were the remains discovered or excavated from Federal or tribal lands after November 16, 1990? (43 CFR 10.2 (f) (I)). We understand this to be the case. Section 3 of NAGPRA (25 U.S.C. 3002; "section 3") governs the ownership of control of Native American human remains or cultural items which are excavated or discovered on Federal or tribal lands after November 16, 1990.

B. Are the remains of a person of Native American ancestry? (43 CFR 10.2 (d) (1)). At this time, this office does not have sufficient information to determine whether the remains are Native American within the meaning of NAGPRA.

If the answer to both questions is yes, the remains are subject to NAGPRA and their recovery, documentation, and disposition is to be carried out under NAGPRA'S implementing regulations, particularly 43 CFR 10.3 through 10.7.

2. What is meant by the terms "Native American" and "indigenous" in the context of NAGPRA and the facts of this case?

We base these views primarily on the statutory definition of the term "Native American," which is defined in 25 U.S.C. 3001 (9), and in the NAGPRA implementing regulations at 43 CFR 10.2 (d) as meaning "of, or relating to, a tribe, people, or culture that is indigenous to the United States, including Alaska and Hawaii." We consider this definition clear and self-explanatory. We also note that NAGPRA's legislative history contains no express amplification or clarification of the term.

The court in this matter, however, indicated in its opinion that there may be an issue as to the meaning of the term "Native American" because of the word "indigenous" contained in this definition. (The court in footnote 24 of its opinion queries whether Congress may have intended a dictionary definition of "indigenous," i.e., "occurring or living naturally in an area; not introduced; native." American Heritage Dictionary of the English Language (New College Edition).

Particularly, the court queries in footnote 24 whether the term "Native American" as defined in NAGPRA may be limited by the word "indigenous" to not include tribes, peoples, or cultures that "descended from immigrants who came to the Americas from other continents."

In this connection, there are differences of opinion as to the origins of at least some present-day Indian tribes with respect to whether or not they are descended from peoples which immigrated to the lands now comprising the United States. (See the discussion in footnote 24 of the court's opinion.)

However, we point out that NAGPRA repeatedly applies the term "Native American" to human remains and cultural items affiliated with Native Hawaiians. For example, the statute states as follows in pertinent part:

The original acquisition of Native American human remains and associated funerary objects which were excavated, exhumed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe or Native Hawaiian organization is deemed to give right of possession to those remains (25 U.S.C. 3001 (13), emphasis added).

Congressional understanding of the term "indigenous" as used in NAGPRA also can be found in several other statutes. The Native Hawaiian Education Act of 1994 (20 U.S.C. 7902), states as follows in pertinent part:

(1) Native Hawaiians are a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago, whose society was organized as a nation and internationally recognized as such by the United States, Britain, France, and Japan, as evidences by treaties governing friendship, commerce, and navigation.

(2) At the time of the arrival of the first non-indigenous people in Hawaii in 1778, the Native Hawaiian people lived in a highly organized subsistence social system based on a communal land tenure system with a sophisticated language, culture, and religion (20 U.S.C. 7902, emphasis added.) (This use of the term "indigenous" is also found in the Native Hawaiian Health Care Act (42 U.S.C. 1170 et seq.).

Please note that, as discussed fully in the response to question 13 below, Native American human remains or cultural items that are not claimed by a lineal descendant or qualified present-day Indian tribe pursuant to section 3 (a) are to be disposed of in accordance with regulations promulgated by the Secretary of the Interior pursuant to section 3 (b).

3. Does, if there was more than one wave of ancient migration to the Americas, or if there were sub-populations of early Americans, NAGPRA apply to human remains or cultural items from a population that failed to survive and is not directly related to modern Native Americans?

In this regard, under section 3 (a) of NAGPRA (25 U.S.C. 3002 (a)), the disposition of Native American human remains and cultural items which are excavated or discovered on Federal or tribal lands after November 16, 1990 is, with priority given in the order listed:

(1) in the case of human remains and associated funerary objects, in the lineal descendant of the Native American, or

(2) in any case in which such lineal descendant cannot be ascertained, and in the case of unassociated funerary objects, sacred objects, and objects of cultural patrimony -

(A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered;

(B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or

(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 judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe -

(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 than 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.

Some of these categories require the establishment of cultural affiliation or a biological relationship. However, section 3 (a)(2)(A) Indian tribe claims to human remains and cultural items found on tribal lands and section 3 (a)(2)(C)(1) Indian tribe claims to human remains and cultural items found on Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of a present-day Indian tribe do not require either a cultural or biological relationship between the claimant Indian tribe and the claimed human remains or cultural items.

4. Does NAGPRA require (either expressly or implicitly) a biological connection between human remains and a contemporary Indian tribe?

No. As discussed above, NAGPRA and its implementing regulations by their own terms apply to all Native American human remains and cultural items which otherwise fall within the scope of NAGPRA, whether or not they have a direct relationship to a present-day Indian tribe.

43 CFR 10.14 (e) states as follows with respect to evidence that may be considered with respect to determining cultural affiliation for purposes of disposition of Native American human remains and cultural items under NAGPRA:

(e) Evidence. Evidence of a kin or cultural affiliation between a present-day individual, Indian tribe, or Native Hawaiian organization and human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by using the following types of evidence: Geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion.

5. Does there have to be any cultural affiliation between these human remains and a present-day Indian tribe for purposes of NAGPRA - and if yes, how is that affiliation established if no cultural objects are found with the remains?

For the reasons discussed above in regard to biological connections, the right to ownership and control of Native American human remains and cultural items under section 3 (a) does not necessarily require a cultural affiliation between Native American human remains and cultural items and the Indian tribe with a right to ownership to such materials.

6. What level of certainty is required to establish cultural affiliation between human remains and a present-day Indian tribe for purposes of NAGPRA?

Cultural affiliation between a present-day Indian tribe and Native American human remains and cultural items must be established by a preponderance of the evidence. Scientific certainty is not required (43 CFR 10.14 (f)).

7a. Are scientific studies needed prior to determining whether these human remains are subject to NAGPRA?

The statute only applies to Native American human remains and cultural items. If there is a concern as to whether the human remains in question are Native American within the meaning of NAGPRA and scientific study is necessary to resolve the issue, appropriate scientific studies should be conducted.

At this time, this office does not have enough information about the particular human remains in question to provide specific advice about the necessity for further scientific study to determine whether they are Native American.

b. Are such studies legally permissible?

8. Is there evidence of a link, either biological or cultural, between these remains and a modern Indian tribe or to any other ethnic or cultural group including (but not limited to) those of Europe, Asia, and the Pacific islands?

This office does not have sufficient information at this time to provide advice on this question.

9. Are the "study" provisions of 25 U.S.C. 3005 (b) limited to human remains and cultural items in the possession or control of a Federal agency or museum prior to November 16, 1990?

10. Does any other law (e.g., ARPA) or any other section of NAGPRA such as 25 U.S.C. 3002 " or 3003 (b)(2), either permit or forbid scientific study of these remains?

As discussed in our response to question 7, no provision of NAGPRA or other law forbids scientific study of these remains to determine whether they are subject to NAGPRA, and, if so, their appropriate disposition under the statute. However, we would recommend that any additional studies be conducted in consultation with Indian tribes and other interested parties, as appropriate. In addition, if archeological work on Federal land is to be conducted, applicable ARPA permitting and consultation procedures must be followed. Finally, if ownership and control of the human remains or cultural items is determined under NAGPRA to be with an individual or Indian tribe, no further study of such materials may be conducted without the consent of that individual or Indian tribe.

11. Are scientific study and repatriation of human remains mutually exclusive or can both objectives be accommodated?

12. What law controls if the human remains are not subject to NAGPRA?

If the human remains in question do not fall under NAGPRA, there are two possibilities. The first is that they may be archeological materials subject to ARPA. At this point, this office does not have enough information to know if the remains in question would be within the scope of ARPA, if they are not within the scope of NAGPRA. If neither NAGPRA nor ARPA apply, it is likely that state or local law would dictate the treatment of the remains.

13. What happens to the remains if no present-day Indian tribe can establish cultural affiliation?

As discussed above, in certain circumstances no cultural affiliation is required for section 3 (a) Indian tribe ownership and control of Native American human remains and cultural items.

In these circumstances, the Native American human remains and cultural items in question would be subject to disposition under the section 3 (b) regulations to be promulgated by the Secretary of the Interior in consultation with the NAGPRA review committee, Indian tribes, and museum and scientific organizations. A regulatory section has been reserved for that purpose at 43 CFR 10.7. These regulations, when promulgated, will encompass Native American human remains and cultural items for which no qualified owner exists under section 3 (a)'s categories or for which an owner is identified under such categories, but that owner does not make a claim.

14. Do the plaintiffs have a right (under the First Amendment or otherwise) to study these human remains?

As this issue is beyond our program responsibilities and has been briefed by the United States Department of Justice in connection with this matter, we defer to the views of the Department of Justice.

15a. Should non-Indians be permitted to file a claim for these human remains?

However, as discussed above, the Secretary of the Interior has authority to promulgate regulations which address the disposition of section 3 Native American human remains and cultural items for which no claim is made pursuant to section 3 (a) or for which no qualified claimant exists. Such regulations, when promulgated, may provide for disposition of unclaimed section 3 Native American human remains and cultural items to persons or entities that are not Indian tribes or members of an Indian tribe.

b. Is there any merit to the equal protection arguments asserted by the plaintiffs?

As this issue is beyond our program responsibilities and has been briefed by the Department of Justice in connection with this matter, we defer to the views of the Department of Justice.

16. What role should the Native American Graves Protection and Repatriation Review Committee play in resolving the issues presented in this case?

However, the Secretary of the Interior has authority under section 8 of NAGPRA to assign additional responsibilities to the review committee. 25 U.S.C. 3006 (c)(8). These responsibilities could include providing advice with respect to the human remains in question. In addition, under section 3 (b), the regulations for unclaimed human remains and cultural items as discussed above are to be promulgated by the Secretary in consultation with the review committee.

17a. Is NAGPRA silent on the important issues raised by this case?

b. Will Congressional action be required to clarify the law regarding "culturally unidentifiable ancient remains?"

The term "culturally unidentifiable" as used in NAGPRA relates to Native American human remains contained in Federal agency or museum collections (25 U.S.C. 3006 (c)(5)). Under NAGPRA's implementing regulations, the term is defined as applying to Native American human remains in Federal agency or museum collections that cannot be culturally identified or are not culturally affiliated with a present-day Indian tribe (43 CFR 10.10 (g)).

The term is not applicable to section 3 human remains (human remains discovered on Federal or tribal lands after November 16, 1990). Such unclaimed remains, if no claim is made for them by a qualified lineal descendant or present-day Indian tribe, or, if no such qualified claimant exists under section 3 (a)'s claim categories, will be subject to disposition under regulations to be promulgated by the Secretary of the Interior pursuant to section 3 (b).

Accordingly, we do not consider that Congressional action is required to clarify NAGPRA with respect to the disposition of the human remains in question. If they are Native American within the meaning of NAGPRA, they should be disposed of pursuant to section 3 (a) or 3 (b) of NAGPRA, as applicable.

I hope that these responses prove useful in your efforts to comply with NAGPRA. Please contact me, NAGPRA Team Leader C. Timothy McKeown, or Lars A. Hanslin of the Office of the Solicitor, if you have any additional questions.

Sincerely,

Francis P. McManamon, Department Consulting Archeologist, Chief, Archeology and Ethnography Program