Maurice Eben, Chairman
Commission on Repatriation and Burial Sites Protection
National Congress of American Indians
House Committee on Resources
Hearing on H.R. 2893
June 10, 1998
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 in
opposition to 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. My name is Maurice Eben. I am Chairman
of NCAI's Commission on Repatriation and Burial Sites Protection. I am also a Council
member of the Pyramid Lake Tribe located in the State of Nevada. NCAI is the oldest,
largest and most representative Indian advocacy organization in the nation and was
organized in 1944 in response to termination and assimilation policies and legislation
promulgated by the federal government which proved to be devastating to Indian Nations and
Indian people throughout the country. 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 LAW 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. As a result of Constitutional mandate, hundreds of duly-ratified
treaties, a plethora of federal statutes, and dozens of Supreme Court cases, Indian tribes
have a unique legal and political relationship with the United States. This relationship
is grounded in the political, government-to-government relationship and is not race-based.
(1)
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
Following the passage of Public Law 101-601, the Native American Graves Protection and
Repatriation Act (NAGPRA) in 1990, Native Americans rejoiced at the prospect that their
lost ancestors and sacred objects would be returned to them after decades of separation.
Congress' intent in enacting NAGPRA was to ensure that Native American remains and
cultural items retained by the federal government, universities, and the museum community
are returned to the appropriate lineal descendants, tribes, or Native organizations.
NAGPRA is considered "remedial" legislation in that it provides a legal basis
for the return of human remains, grave goods, and objects of cultural patrimony. However,
NAGPRA cannot continue to remedy the problem it was intended to if the provisions of H.R.
2893 become law.
The original process involved in drafting NAGPRA must always be kept 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 result 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
The provisions of H.R. 2893 are far reaching and extreme in what they propose. If they
were to be included in NAGPRA, it would place the scientific and anthropological community
and Indian country at even greater odds. H.R. 2893, as proposed by Representative Hasting,
calls for broad changes to the current law with regard to cultural affiliation and
scientific study, changes which would jeopardize a delicate balance originally achieved
through careful consideration. NCAI opposes H.R. 2893 for the following reasons:
1. Section 1 of H.R. 2893 would strike Section 3(C) of NAGPRA, an important and
critical provision. This provision requires that if cultural affiliation cannot be
reasonably ascertained and if the objects (or remains) 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 the ownership or
control shall be "in the Indian tribe that is recognized as aboriginally occupying
the area in which the objects were discovered" or "if it can be shown by a
preponderance of the evidence that a different tribe has a stronger cultural
relationship" in the Indian tribe that has the strongest demonstrated relationship.
Section 3(C) was accepted as the 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,
"Where human remains and associated funerary objects are concerned, the Committee
is aware that it may be extremely difficult, in many instances, for claimants to trace an
item from modern Indian tribes to prehistoric remains without some reasonable gaps in the
historic or prehistoric record. 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."
Furthermore, Section 7(a)(4) of NAGPRA states:
"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."
NAGPRA is human rights law based on standard property rights principles with legally
accepted provisions for the determination of ownership. Various types of information and
knowledge are considered, both scientific and traditional, in order to strike a fair
balance of acceptable evidence. Such provisions are critical to keeping this law balanced.
To disclaim cultural affiliation solely on the basis that the remains or items pose
questions to science is of serious concern and threatens a good compromise which a number
of parties agreed upon in 1990.
2. Also under Section 1 of H.R. 2893, the testing and recording of NAGPRA would be
amended by the following:
"(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)."
This language is of particular concern since it would make it a requirement of NAGPRA
to test human remains and cultural items. The opportunity for testing is already available
under NAGPRA. NAGPRA does not preclude the analysis of human remains or cultural items
excavated or discovered on Federal or tribal land for the purposes of determining their
disposition under the law. 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.
3. Section 3 of H.R. 2893 proposes to add the following subsections to Section 7 of
NAGPRA. 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:
(A) If cultural affiliation of a cultural item has not been established, studies may
be conducted in an attempt to establish such an affiliation or to obtain scientific,
historical, or cultural information. If the cultural affiliation of a cultural item is
determined pursuant to this subparagraph, the Federal agency or museum having custody of
the cultural item shall, not later than 90 days after such determination, notify any
culturally affiliated Indian tribe or Native Hawaiian organization of their affiliation.
Such notice shall be given in the manner specified in paragraph (2) and (3) of section
5(d)."
This language is redundant and completely unnecessary. NAGPRA already provides the
opportunity to determine cultural affiliation through study since it does not necessarily
preclude such studies.
4. Section 3 of H.R. 2893 also proposes to add the following subsections to Section 7
of NAGPRA:
"(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."
This language is completely bias and opens the doors to unlimited scientific study. The
language is very vague and skewed towards an interpretation that would support a wide
variety of scientific studies with an equal variety of ends. If enacted, H.R. 2893 would
be opening a "Pandora's Box" with the provision that studies could be done if it
is "reasonably expected to provide significant new information concerning the history
or prehistory of the United States." This language is extremely dangerous and again
violates the spirit and intent of NAGPRA.
5. The following subsections to Section 7 of NAGPRA proposes that:
"(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."
NAGPRA was originally drafted with the consideration and inclusion of
tribal concerns as well. These provisions do not permit tribal governments to deny the
undertaking of any study that is contrary to tribal law, policy, or beliefs.
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. As has been shown by the "Kennewick" case, scholars from
throughout the country may not agree on a number of factors in a case. However, even if
they do finally come to some agreement, Native Americans also have certain knowledge and
traditions in a number of areas which must also be heard. Apparently, there is no
"burden of proof" that scholars must meet before their scientific theories
threaten a law which was carefully considered and based upon a broad range of knowledge.
In the case of "Kennewick" man, there are scholars who have laid claim to
primacy in the use of these remains in defiance of established knowledge by using outmoded
theories. The American Anthropological Association has clearly stated that race cannot be
determined scientifically. By not requiring some standard of scholarship to be met by any
scholar or scientist making a claim to use human remains, the effects will be devastating
for both Native Americans and the scientific community. 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.
Based on current history (both Indian and non-Indian), anthropology, and
science, remains that are found to be nine thousand years old in North America, such as
Kennewick Man, should logically be determined as Native American considering the
preponderance of evidence now available. Therefore, the Army Corps of Engineers' decision
to repatriate those remains under NAGPRA was a proper decision, supported by accepted
knowledge and standards.
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. Furthermore, 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
(attached), 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.
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