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Managing Repatriation: Implementing the Native American Graves Protection and Repatriation Act
Francis P. McManamon

Reproduced from CRM 15(5), 1992

Not long ago, a colleague remarked that all this "repatriation business" would disappear if only existing statutes were adhered to. I remember thinking at the time that only the Archaeological Resources Protection Act could result in some human skeletons being considered as scientific or museum specimens, and that this statute did not apply to very many of the museum or scientific collections that archeologists might be concerned with. In fact, most statutes that dealt with human skeletons were state or local statutes designed to protect burials or cemeteries. In 1989 and 1990 Federal statutes were enacted that provided direction on how Native American remains and other special artifacts are to be treated. The 1989 statute deals with collections owned or controlled by the Smithsonian Institution. In 1990, a far more comprehensive statute, the Native American Graves Protection and Repatriation Act, was enacted.

On November 16, 1990, President Bush signed into law the Native American Graves Protection and Repatriation Act (P.L. 101-601, 25 U.S.C. 3001-3013). The law has generated widespread interest and concern among Native Americans, museum professionals, archeologists, and Federal agency officials charged with meeting its requirements. A variety of actions are needed to implement the Native American Graves Protection and Repatriation Act of 1990. These range from the bureaucratic establishment of the review committee mandated by the law, to the development of regulations, to providing training in various aspects of compliance and administering a grants program. This article describes two of the main aspects of the statute that seem clear in the language of the act and the intent expressed in congressional reports on the legislation that became the statute: (1) the types of organizations primarily responsible to undertake activities required by the statute, and (2) the kinds of remains and artifacts covered by the statute.

Both the statutory language and the Committee reports describe the context for effective implementation. A successful approach will require consultations and agreements between and among Indian Tribes and Native Hawaiian organizations, traditional Native American religious leaders, Federal agencies, and museums receiving Federal funds. The Committee reports express the hope that these discussions will lead to a better understanding of the historic and contemporary cultural values of remains and objects. The Senate Report notes both that human remains must at all times be treated with dignity and respect and the important role that museums play in educating the public and increasing social awareness about the Nation's prehistory and history.

Overview of the Act

The Native American Graves Protection and Repatriation Act establishes two main requirements. First, Federal agencies and museums receiving Federal funds are required to inventory individually Native American human remains and associated funerary objects and develop written summaries for unassociated funerary objects, sacred objects, and objects of cultural patrimony that are in the collections they own or control. As part of the inventory process, agencies and museums are to establish, as best they can from the items, records, and other data, the likely lineal descendent(s) or cultural affiliation of these items with modern Native American individuals, Indian Tribes, or Native Hawaiian organizations, or conclude that lineal descent or cultural affiliation cannot be established. Agencies and museums must notify Indian Tribes or Native Hawaiian organizations that appear to be culturally affiliated with the items of their holdings and offer them the opportunity to claim the remains and items. Tribes and Native Hawaiian organizations may then request the repatriation of these cultural items and are entitled to those with which they are culturally affiliated or to which they have a relationship of lineal descent.

Potential lineal descendants, Indian Tribes, or Native Hawaiian organizations may request the repatriation of human remains or associated funerary objects for which no cultural affiliation is established by the agency or museum, or for which they disagree with the lineal descent or cultural affiliation established by the agency or museum. Remains and objects for which lineal descent can be demonstrated or for which a Tribe or Native Hawaiian organization can show cultural affiliation by a preponderance of the evidence using geographic, kinship, biological, archeological, anthropological, linguistic, folklore, historic, oral traditional, or other relevant information or expert opinion are to be repatriated, if requested by the appropriate descendent, Tribe, or Native Hawaiian organization.

The statute also requires a set of steps and conditions related to the description of cultural items, either through item-by-item inventories or written summaries, the evaluation of likely lineal descent or cultural affiliation, and the repatriation of unassociated funerary objects, sacred objects, and objects of cultural patrimony are similar to those for human remains and associated funerary objects.

The second principal intention of the law is the protection, on Federal and Tribal land, of Native American graves and other cultural items still located within archeological sites. This approach encourages the in situ preservation of archeological sites, or at least the portions of them that contain burials or other kinds of cultural items, but may encompass other actions to preserve these remains and items. Therefore, it is advantageous for Federal agencies and Tribes undertaking land-modifying activities on their lands to precede them with careful consultations with traditional users of the land and intensive archeological surveys whenever possible. This will help agencies and Tribes to locate and then avoid unmarked Native American graves, cemeteries, or other places where cultural items might be located. On Federal and Tribal lands, archeological investigations for planning or research purposes, or other land modifying activities that inadvertently discover cultural items require the Federal agency or Tribe involved to consult with affiliated or potentially affiliated Native Americans concerning the treatment and disposition of these items.

Other provisions of the Act may be summarized as follows: (1) it stipulates that illegal trafficking in human remains and cultural items may result in criminal penalties; (2) it authorizes the Secretary of the Interior to administer a grants program to assist museums and Indian Tribes in complying with this law; (3) it requires the Secretary of the Interior to establish a Review Committee to provide advice and assistance in carrying out key provisions of the statute; and (4) it directs the Secretary to develop regulations in consultation with this Review Committee.

Responsible Organizations

Executing the provisions of the Graves Protection and Repatriation Act involves three primary participants: Federal agencies, all museums receiving Federal funds (including state, local, and private institutions), and Indian Tribes and Native Hawaiian organizations. This section summarizes the roles of each. Oversight of and directions for the activities required of these three types of organizations are to be provided by the Secretary of the Interior and the Review Committee established by the statute.

Other organizations with which some of the activities required by the Act should be coordinated are the Advisory Council on Historic Preservation and the State Historic Preservation Officers. For projects or activities that require review under Section 106 of the National Historic Preservation Act in addition to the Graves Protection and Repatriation Act, close coordination during the completion of the two review processes will save time in project planning and execution.

Indian Tribes and Native Hawaiian Organizations

The definitions of Indian Tribe and Native Hawaiian organization are provided in the statute. The statutory definition of Indian Tribe is, "any Tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." Native Hawaiian organizations are defined by the statute as, "any organization which (A) serves and represents the interests of Native Hawaiians, (B) has as a primary and stated purpose the provision of services to Native Hawaiians, and (C) has expertise in Native Hawaiian Affairs, and shall include the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei."

These definitions are important in describing the organizations that may make claims related to the rights affirmed by the statute. They also make clear that agencies and museums are to deal with representatives of these organizations, not with Native American individuals, or those claiming to be Native Americans, except in cases for which lineal descent is being claimed.

Museums Receiving Federal Funds

The statute defines "museum" as "any institution or state or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items. Such term does not include the Smithsonian Institution or any other Federal agency."

A number of Federal agencies supply financial support to museums and most museums receive at least some Federal funds. The committee reports are silent on issues of when and how directly any museum has received funding in order for it to be required to comply with the statute. Most large museums and many smaller museums within the United States will have to comply with this statute.

Museums are required to conduct inventories or written summaries of all cultural items within their collections regardless of the means of accession or geographical point of origin of the items. Some museums serve as the repositories for cultural items that were obtained from Federal or Tribal lands. The museums may conduct the required inventories or written summaries on behalf of Federal agencies or Tribes if these entities request it. However, for human remains and other cultural items that came from Federal lands or for which Federal agencies have administrative responsibility, each agency must ensure that inventories or summaries are done either within each agency structure or by a repository. Federal agencies may transfer the workload to a museum, not the ultimate responsibility for complying with the statute.

Federal Agencies

Except for the Smithsonian Institution, which is covered under a separate statute, all Federal agencies that manage land or are responsible for archeological collections from their lands or generated by their activities must comply with the Native American Graves Protection and Repatriation Act.

In addition to these three kinds of primarily responsible organizations, two other officials or committees are key to the implementation and functioning of the statute.

Secretary of the Interior

The statute assigns responsibility for implementation of many aspects of the Native American Graves Protection and Repatriation Act to the Secretary of the Interior. Specifically, the Secretary must:

  1. establish a review committee of seven persons to monitor and review inventory, identification, and repatriation activities;
  2. provide reasonable levels of administrative and staff support for the review committee along with any rules and regulations for its operations; and
  3. promulgate regulations for implementing the statute.

In addition, the Secretary is authorized to do the following:

  1. develop and administer a grants program to assist Tribes and museums in repatriation activities;
  2. review requests from museums for extensions of time to complete inventories of human remains and funerary objects, and to grant temporal extensions upon finding a "good faith" effort;
  3. assess civil penalties of any museum that fails to comply with the statute or its implementing regulations; and
  4. when requested by agencies, assume the review and consultation responsibilities that would normally be required of Federal agencies when Native American cultural items are discovered inadvertently on agency lands.

Selected Secretarial responsibilities have been delegated to the Departmental Consulting Archeologist, Archeological Assistance Program, National Park Service.

The Review Committee

This review committee is established by Section 8 of the statute. The committee's views do not bind the Federal Government, but will be a very important consideration for any action that the Secretary or others must take in implementing the statute.

To ensure a fair expression of all views, committee membership is explicitly stated in the law. Appointment of members is by the Secretary of the Interior from nominations submitted by Indian Tribes, Native Hawaiian organizations, and traditional Native American religious leaders, and from national museum and scientific organizations. Consisting of seven members, the duties of the committee are to monitor and review inventory, identification, and repatriation activities. It may make findings relating to cultural affiliation and repatriation issues if requested, facilitate the resolution of disputes, consult with parties, and offer suggestions about the care of repatriated materials. The regulations that implement the statute are to be developed in consultation with the committee. The committee must compile an inventory of culturally unidentifiable human remains that are in the possession or control of each museum and Federal agency, and recommend specific actions for developing a process for disposition of such remains. Each year, the committee is to submit a report to Congress on the progress made and any barriers encountered in carrying out its function.

The statute assigns an important role of national scope to the committee. However, most specific matters concerning repatriation, inventory, and potential agreements concerning excavation are best approached through agreements negotiated by local agency offices, museums, Tribes, and Native Hawaiian organizations. It is anticipated that the committee's role in consulting and facilitating dispute resolution will only be invoked when such agreements at the local level are not possible.

What is Covered: The Definitions of Cultural Items

The kinds of remains and the artifacts covered by provisions of the statute are: (1) human remains and associated funerary objects; (2) unassociated funerary objects; (3) sacred objects; and (4) objects of cultural patrimony. With the exception of human remains, each of these kinds of cultural items is defined within Section 2 of the statute.

"Human remains" are not defined in the statute, and consequently all Native American human remains are covered. This means that whether or not Native American human remains came from a burial site, such remains are covered by the statute. In other words, isolated human bones, teeth, hair, or other kinds of bodily remains that may have been disturbed from a burial site are still subject to the provisions of this statute.

"Associated funerary objects" are objects reasonably believed to have been placed with human remains as part of a death rite or ceremony. The use of the adjective "associated" refers to the fact that these items retain their association with the human remains with which they were found and that these human remains can be located. It applies to all objects that are stored together as well as objects for which adequate records exist permitting a reasonable reassociation between the funerary objects and the human remains that they were buried with. This situation may include materials located in a different repository from the human remains. This category of cultural items also includes objects "...exclusively made for burial purposes or to contain human remains...", but that may not have been found with human remains.

It frequently occurs in archeological sites that artifacts seemingly from burials were not placed with the human remains as part of a death rite; rather they have been introduced into the burial later by natural processes or cultural activities unrelated to death rites or ceremonies. These latter objects would not be considered funerary objects.

"Unassociated funerary objects" are items that "...as a part of a death rite or ceremony of a culture are reasonably believed to have been placed with individual human remains either at the time of death or later...", but for which the human remains are not in the possession or control of the museum or Federal agency. These objects also must meet one of two further conditions. They must be identified by a preponderance of the evidence as either "... related to specific individuals or families or to known human remains..." or "...as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe."

"Sacred objects" are defined in the statute as "...specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents..." Further discussion of this term is supplied by the Senate Committee report:

"There has been some concern expressed that any object could be imbued with sacredness in the eyes of a Native American, from an ancient pottery shard to an arrowhead. The Committee does not intend this result. The primary purpose of the object is that the object must be used in a Native American religious ceremony in order to fall within the protection afforded by the bill."

Additional information is supplied by the House Report:

"The definition of "sacred objects" is intended to include both objects needed for ceremonies currently practiced by traditional Native American religious practitioners and objects needed to renew ceremonies that are part of traditional religions. The operational part of the definition is that there must be 'present day adherents' in either instance."

The key provision in this definition is whether the items are needed to practice or renew traditional religions. It should be possible to describe specific religious uses for the objects identified as sacred. Review of this definition through the regulation development process may require definitions of such terms as "religious leaders," "traditional," and "religious use." All of these terms probably will vary among groups and between regions.

"Objects of cultural patrimony" are defined in the statute as having "...ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual..." The key provision in this definition is whether the property was of such central importance to the Tribe or group that it was owned communally. The potential vagueness of this term again produced comment by the Senate Committee:

"The Committee intends this term to refer to only those items that have such great importance to an Indian Tribe or to the Native Hawaiian culture that they cannot be conveyed, appropriated or transferred by an individual member. Objects of Native American cultural patrimony would include items such as Zuni War Gods, the Wampum belts of the Iroquois, and other objects of a similar character and significance to the Indian Tribe as a whole."

In contrast to a more general usage, the Senate Committee comments concerning "objects of cultural patrimony" indicate that most often this category will relate to specific, often ethnographic objects, rather than a generic class of archeological objects; we believe that this category probably includes few archeological objects. On the other hand, some items found in museums or collections of Federal agencies may have been inadvertently acquired from individuals who had no right of alienation or possession.

Having reviewed the definitions of cultural items, note that many objects in archeological or ethnographic collections are not covered by the statute, because they never had a burial, funerary, religious, or cultural patrimonial context in the culture that they were part of. Such objects would be retained in existing repositories with appropriate treatments and care. When archeological investigations or unanticipated discoveries on Federal or Tribal land result in the recovery of such items, they are to be treated and disposed of according to the requirements of the appropriate archeological or historic preservation laws.

Summary

The requirements of the Native American Graves Protection and Repatriation Act and the legislative intent based upon the committee reports present a clear picture of the kinds of organizations that bear primary responsibility for actions under the statute. There are three main types of organizations responsible for various actions required by the statute: Indian Tribes and Native Hawaiian organizations, Federal agencies, and museums that receive Federal funds. Similarly, the kinds of objects in existing collections and that will be excavated or inadvertently discovered on Federal or Tribal lands and are subject to treatment or disposition as described in the act are clear.

This article has attempted to integrate many comments and answer questions we have received from museums, Federal agencies, and Native Americans concerning the statute. Many of these suggestions and the issues that they raise cannot be answered outside of the formal rulemaking process. We have attempted to explore some of the issues that this process may consider.

All Federal agencies, museums that receive Federal funds, Indian Tribes, and Native Hawaiian organizations are encouraged to collaborate in developing creative and mutually respectful solutions to the challenges posed by this important statute.

Dr. Francis P. McManamon is the Departmental Consulting Archeologist for the U.S. Department of the Interior and chief, Archeological Assistance Division, National Park Service, Washington, DC.

 

 

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