STATEMENT OF DAN WENK, DEPUTY DIRECTOR, OPERATIONS,
NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR, BEFORE THE COMMITTEE ON
NATURAL RESOURCES, CONCERNING THE NATIVE AMERICAN GRAVES PROTECTION AND
REPATRIATION ACT.
OCTOBER 7, 2009
Mr. Chairman and members of the Committee, thank
you for the opportunity to appear before you today to present the Department of
the Interior’s views on the implementation of the Native American Graves
Protection and Repatriation Act.
The Native American Graves Protection and Repatriation
Act of 1990 (NAGPRA), provides a process for determining the rights of lineal
descendants, Indian tribes, and Native Hawaiian organizations to certain Native
American human remains, funerary objects, sacred objects, and objects of
cultural patrimony.
The Department of the Interior and the several federal
agencies and museums that have NAGPRA obligations take their responsibilities
seriously. As a result of NAGPRA,
thousands of Native American human remains, funerary objects, and other
cultural items have been returned to tribes and Native Hawaiian organizations. Consultations between tribes, Native Hawaiian
organizations, and federal agencies and museums, which occur as part of the
NAGPRA process, result in better relations and have added to the body of
knowledge of museum collections.
NAGPRA
does not change ownership of items.
Rather it asks the question of to whom do these items rightfully belong. Permits, granted by federal agencies for
scientific study, confer access to human remains and cultural items for the
accumulation of data, but do not transfer possession to the permittee.
Administration
of NAGPRA
The Secretary of the
Interior is responsible for implementing many of the provisions in NAGPRA under
the statute. The Secretary must provide
guidance to museums and federal agencies to assist them with their compliance
requirements.
The National NAGPRA
Program administered by the National Park Service conducts the following
activities for the Secretary:
- publishing in the Federal Register inventory
and repatriation notices for museums and federal agencies that indicate
their decision to transfer control of remains or objects to tribes,
- creating and maintaining a database of
Culturally Unidentifiable Human Remains,
- making grants to assist museums, tribes, and
Native Hawaiian organizations in consulting on the determination of
cultural affiliation and identification of cultural items, and to provide
funding for travel and ceremonies associated with bringing ancestors and
items home,
- providing support to the Assistant Secretary
for Fish, Wildlife and Parks for investigating civil penalty allegations
and preparing assessments of
penalties on museums that fail to comply with provisions of the
Act,
- establishing and providing support to the
Native American Graves Protection and Repatriation Review Committee, which
resolves disputes and aids repatriation,
- providing
technical assistance in those instances where there are excavations
and discoveries of cultural items on federal and Indian lands,
- drafting, promulgating, and implementing
regulations, and
- providing technical assistance through
training, the web, and reports for the Review Committee, as well as
supporting law enforcement investigations of illegal trafficking.
The National Park Service also
has compliance obligations for parks, separate from the National NAGPRA
Program.
Federal Agency and Museum NAGPRA Obligations
Federal
agencies and Indian tribes have NAGPRA responsibilities for the prompt
disposition of Native American human remains and cultural items excavated or
removed after November 16, 1990, when NAGPRA was passed. Notice of the disposition of NAGPRA items to
tribes or lineal descendants is posted in newspapers, with copies sent to the
National NAGPRA Program. To date,
federal agencies have reported 85 dispositions.
NAGPRA
requires museums and federal agencies to prepare summaries of their collections
that may contain Native American unassociated funerary objects, sacred objects,
and objects of cultural patrimony. They
must also prepare item-by-item inventories of Native American human remains,
with their associated funerary objects. The
summaries provide notice to tribes and Native Hawaiian organizations of items of
interest in a collection and invite consultation. There have been 1,551 summaries[1]
and 460 statements of no summary required[2]
submitted to the National NAGPRA Program.
As a result of the summaries, 475 notices of intent to repatriate
cultural items claimed by a tribe have been published accounting for 144,163
funerary objects, 4,301 sacred objects, 948 objects of cultural patrimony, an
additional 822 objects that are both sacred and cultural patrimony and 292
undesignated items. Not all objects
identified in a summary will meet a NAGPRA category or be subject to a
claim.
Inventories
provide clear descriptions of the cultural affiliation of the Native American
human remains of the museum or federal agency and are to be followed within six
months with Federal Register publication of a Notice of Inventory Completion
that establishes the rights of tribes and Native Hawaiian organizations to
request repatriation. There have been 1,043
inventories submitted to the National NAGPRA Program and 1,287 notices of
inventory completion published, accounting for 38,656 Native American human
remains and one million funerary objects.[3]
Consultation
Consultation
with tribes by museums and federal agencies is central to the NAGPRA process,
whether the circumstances arise from collections or new discoveries. The National NAGPRA Program website includes
maps of current tribal lands, treaty areas with tribes, and areas of tribal
aboriginal occupancy. These maps assist
museums and federal agencies in determining present-day tribes that may have an
interest in items from an area, so that they may be included in consultation
efforts. The Consultation Database lists
names and addresses of tribal contacts that can also be used as a starting
point for consultation.
At the end of the NAGPRA consultation process, the museum or federal agency has the non-delegable duty to make a decision on cultural affiliation and to acknowledge and act on claims for cultural items. A NAGPRA inventory is the product of consultation. Museums that submitted inventories in 1995, but did not initially do consultation, have often gone back to consult with tribes on segments of the collection and update inventory decisions. NAGPRA grants are awarded for this purpose. There were 71 grant requests received this year for a total of $4.3 million in requests. The full $1.85 million available was awarded in 37 grants. From 1994-2009, 619 NAGPRA grants were awarded to museums, tribes, and Native Hawaiian organizations, totaling over $33 million.
Database of Culturally
Unidentifiable Native American Human Remains (CUI)
Museums and federal agencies prepare two inventories under NAGPRA. Those individual remains for whom cultural affiliation can be determined are listed on one inventory. If information is lacking to make a reasonable determination, the individual remains are listed on the inventory of culturally unidentifiable Native American human remains, the CUI inventory.
A public access database of CUI
was launched in fall 2005 to assist in further consultation and identification.
Currently there are the remains of 124,000 individuals listed on the database and 915,783 funerary objects
associated with those remains. The
number of CUI subsequently culturally identified, or transferred by a
disposition to a requesting tribe, without cultural affiliation determination,
is 8,136. Pending regulations will
specify a process for disposition of CUI to tribes and Native Hawaiian
organizations, without requiring requests for recommendations for disposition
to be presented to the Review Committee which makes recommendations to the
Secretary. Native Hawaiian organizations
and federally recognized tribes can then take responsibility for care and
reburial of the unidentified Native American remains removed from their graves.
We hope to launch
soon a public access database of the culturally affiliated inventories, so that
tribes and concerned parties can cross-reference the CUI and affiliated
databases to assist in further identification of currently unidentifiable
remains. Inventories can be amended at
any time to reflect updated and more complete decisions. A Notice of Inventory Completion must be published
in the Federal Register for all culturally affiliated human remains and
associated funerary objects. A recent
report from the National NAGPRA Program found the remains of over 1,000
individuals for whom cultural affiliation had been decided, but who were not in
published notices.
Withdrawal of Notices
Compliance with the law
requires publication of a notice in the Federal Register of a Notice of
Inventory Completion and not merely submission to National NAGPRA of a draft
document. Failure of a museum or federal
agency to provide permission to publish a notice following completion of an
inventory halts the repatriation process for the remains of the individuals
listed in the inventory.
In spring 2004, there
were over 300 drafts of notices submitted between 1996 and 2004 for which the
museum or federal agency had not given the National NAGPRA Program permission
to publish in the Federal Register. Beginning in 2005, the National NAGPRA Program
sent letters to the originators asking that they move forward on abandoned
drafts, even if they withdrew them to complete consultation. At this time, there are less than two dozen
older drafts, and all are in active preparation for publication. New incoming notices are published within
weeks of receipt. In FY 2008, the number
of notices almost doubled from prior years to 180 and almost 200 notices have
been published in FY 2009. The number of
published notices is a reflection of the efforts of museums and federal
agencies to consult with tribes and make decisions on cultural affiliation,
repatriation of cultural items, and for disposition of the CUI. Abandoned drafts have been replaced with
published notices.
Civil
Penalties
NAGPRA allows for
penalties to be assessed against museums that fail to comply with a number of
aspects of the NAGPRA process.
Regulations were promulgated in 1997 and, in 2006, the first NAGPRA
civil penalties were pursued. To date 70
investigations have been completed and those museums found in violation have
come into compliance.
Barriers to Implementation and
Current Issues in NAGPRA
·
Curation: There are issues of access and use of
Native American human remains and cultural items that remain in museum and federal
agency collections. If the remains are
determined to be CUI, the federal agency or museum has determined that there is
no federally recognized tribe or Native Hawaiian organization with which to
consult on access or use.
·
Collections Audits: The National NAGPRA Program
does not audit federal agency or museum collections to determine that all
Native American human remains and cultural items are listed on inventories or
summaries. The National NAGPRA Program
does not have the authority to survey NAGPRA obligated entities to determine
the number of human remains repatriated.
Accounting for federal agency collections in non-federal repositories is
an agency responsibility. A Government
Accountability Office study of federal agency compliance is pending.
·
NAGPRA only applies to those human remains and
cultural items that a museum or federal agency determines are Native American. The U.S. Court of Appeals for the Ninth
Circuit Court, in 2004, ruled that for remains to be deemed Native American
there must be a general finding that the remains have a significant
relationship to a presently existing tribe, people, or culture. This ruling has created confusion for museums
and federal agencies that must make a threshold determination of Native
American for ancient remains.
This concludes my prepared remarks. I would be happy to answer any questions that
you or other members of the Committee may have.