In the Smaller Scope of Conscience: The Native American Graves Protection & Repatriation Act Twelve Years After

McKeown, C. Timothy, Hutt, Sherry, UCLA Journal of Environmental Law & Policy

I.

THE TRUE COMPROMISE

Standing before the United States Senate on October 26, 1990, Senator John McCain asked the approval of his colleagues to consider H.R. 5237, the Native American Graves Protection and Repatriation Act (1) (NAGPRA). "The passage of legislation marks the end of a long process for many Indian tribes and museums. The subject of repatriation," stressed McCain, "is charged with high emotions in both the Native American community and the museum community. I believe this bill represents a true compromise." (2) H.R. 5237 had originally been introduced by McCain's fellow Arizonan, Representative Morris Udall. With McCain's urging, the Senate passed the bill by a voice vote. The House of Representatives passed the amended version by unanimous consent the next day.

Congress was not acting unilaterally in supporting NAGPRA. A May 11, 1990 letter to House and Senate members urging passage of repatriation legislation was signed by representatives of the American Baptist Churches, American Ethical Union, Church of the Bretheren, Church Women United, Evangelical Lutheran Church in America, Friends Committee on National Legislation, Episcopal Church, Jesuit Social Ministries, Mennonite Central Committee, Presbyterian Church, Unitarian Universalist Association of Congregations, United Church of Christ, and the United Methodist Church. (3) An October 12, 1990 letter from the American Association of Museums also indicated its support of H.R. 5237. (4) An October 17, 1990 letter to members of Congress further broadened support for H.R. 5237 to include representatives of the American Civil Liberties Union, American Jewish Committee, American Jewish Congress, Central Conference of American Rabbis, National Council of Jewish Women, and Union of American Hebrew Congregations. (5) A November 2, 1990 letter urging President George Bush to sign the bill into law further added and diversified parties to this compromise. (6) The letter was signed by the heads of the Society for American Archaeology, American Anthropological Association, American Association of Physical Anthropologists, Archaeological Institute of America, Association on American Indian Affairs, Native American Rights Fund, National Conference of State Historic Preservation Officers, National Congress of American Indians, National Trust for Historic Preservation, Preservation Action, Society for Historical Archaeology, and Society of Professional Archaeologists.

The long process of which McCain spoke began in 1986, as Congress sought to reconcile four major areas of federal law. As civil rights legislation, Congress wished to acknowledge that throughout U.S. history, Native American human remains and funerary objects suffered from disparate treatment as compared with the human remains and funerary objects of other groups. (7) Congress also wanted to recognize that the loss of sacred objects by Indian tribes and Native Hawaiian organizations to unscrupulous collectors negatively impacted Native American religious practices. (8) In making this Indian law, Congress founded its efforts on an explicit Constitutional recognition of tribal sovereignty and the government-to-government relationship between the United States and Indian tribes. (9) Regarding property law, Congress wanted to clarify the unique status of the dead as well as highlight the failure of American law to adequately recognize traditional concepts of communal property in use by some Indian tribes. (10) Lastly, in trams of administrative law, Congress would direct the Department of the Interior to implement Congress' mandate, including the promulgation of regulations to ensure due process, awarding of grants, and assessment of civil penalties. (11) In all, 26 separate bills were proposed or introduced, and two public laws were enacted over a four-year period as a compromise on these multiple issues was negotiated. (12)

NAGPRA reconciled these various concerns by establishing three sets of provisions. Following an introductory section and definitions, Section 3 establishes procedures in the United States Code upon the discovery and, if necessary, excavation or removal of Native American human remains and "cultural items" (including funerary objects, sacred objects, or objects of cultural patrimony) on federal or tribal lands after November 16, 1990. (13) Section 4 makes it a crime to traffic in Native American human remains or cultural items under certain conditions. (14) Sections 5 through 10 establish procedures to allow lineal descendants, Indian tribes, and Native Hawaiian organizations to repatriate Native American human remains and cultural items from museum and federal agency collections. (15)

McCain's "true compromise" went into effect on November 16, 1990. However, interpretation of this or any other law is guided not by continued efforts at compromise but rather by established canons of interpretation. The legal effect of a statute must be determined by either the internal definitions, where supplied, or by the ordinary meaning of the words used in the text. (16) For example:

* Every word must be given legal effect. (17)

* A word used several times in a statute must be interpreted identically in each place. (18)

* In contrast, different words used in a statute may not be interpreted to have the same meaning. (19)

* Where an ambiguity is identified in the statutory language, the legislative history may be used to resolve the ambiguity. (20)

* The sequence of changes in a statute prior to enactment provides strong evidence of the meaning of the enacted statute. (21)

* Newer or more specific usage of a word prevails over older or more general usage. (22)

* Ambiguous words may not be interpreted in a way that would bring the constitutionality of the statute into question. (23)

* Statutes passed for the benefit of Indian tribes must be construed in favor of Indian interests. (24)

Responsibility for implementing NAGPRA was assigned to the Secretary of the Interior. (25) The following overview of NAGPRA's provisions is based on the final rule promulgated by the Department of the Interior and published in the Code of Federal Regulations, (26) as well as other administrative and judicial opinions over the 12 years since NAGPRA became law. (27)

II.

WHO MUST COMPLY WITH THE STATUTE?

Questions of jurisdiction are usually the first asked of any legislation. Congress has limited jurisdiction to place the responsibility for compliance with the statute upon two broad categories of institutions: 1) federal agencies and 2) institutions that receive federal funds. In NAGPRA, Congress has chosen to extend responsibility for compliance to the full extent of its domain.

The statute defines a federal agency as "any department, agency, or instrumentality of the United States." (28) This definition includes all components of the executive, legislative, and judicial branches of the United States government that either manage land or hold collections of Native American human remains or cultural items, with only one exception: the Smithsonian Institution. The National Museum of the American Indian Act established basic repatriation provisions for the Smithsonian Institution in 1989. (29) The more elaborate repatriation provisions established under NAGPRA were also intended to apply to the Smithsonian Institution until just prior to the bill's passage when procedural concerns were raised by the Senate Committee on Rules and Administration. (30) Separate legislation to apply some NAGPRA terms and procedures to the Smithsonian was introduced immediately prior to NAGPRA's passage in 1990 but was not voted on by Congress. (31) Some of these provisions eventually became law in 1996. (32)

All federal agencies, except the Smithsonian Institution, must complete summaries and inventories of Native American collections in their control (33) and ensure compliance regarding inadvertent discoveries and intentional excavations conducted on federal or tribal lands. (34) Federal agencies are responsible for the appropriate treatment and care of all collections from federal lands being held by non-governmental repositories. (35)

A museum is defined in the statute 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." (36) As used in this definition, "possession" means having physical custody of such objects with sufficient legal interest to lawfully treat them as part of the museum's collection. (37) "Generally, a museum would not be considered to have possession of human remains [or cultural items] on loan from another individual, museum, or Federal agency." (38) "Control" means "having a legal interest in human remains [or cultural items] sufficient to lawfully permit the museum or Federal agency to treat the objects as part of its collection," whether or not the objects are in the physical custody of the museum. (39) "Generally, a museum that has loaned human remains [or cultural items] to another individual, museum, or Federal agency is considered to retain control of [those objects]." (40) "Receives Federal funds" means "the receipt of funds by a museum after November 16, 1990 from a Federal agency through any grant, loan, contract (other than a procurement contract), or other arrangement by which a federal agency makes or made available to a museum aid in the form of funds." (41) Procurement contracts are not considered a form of federal-based assistance but are provided to a contractor in exchange for a specific service or product. Federal funds provided for any purpose that are received by a larger entity of which the museum is a part are considered federal funds for purposes of these regulations. "For example, if a museum is a part of a State or local government or private university and [that entity] receives Federal funds for any purpose, the museum is considered to receive federal funds." (42) The application of federal laws to institutions that receive federal funds is common, being used with such recent legislation as the Americans with Disabilities Act of 1990. (43) NAGPRA applies to certified local governments. The statute covers tribal museums if the Indian tribe of which the museum is a part receives federal funds through any grant, loan, or contract (other than a procurement contract). (44) The Secretary of the Interior is authorized to assess civil penalties on museums that fail to comply with provisions of the statute. (45)

While an earlier bill would have required private individuals that receive federal funds to comply with the repatriation provisions, (46) the final statute and regulations do not apply to private individuals, nor to institutions that do not receive federal funds or are not part of a larger entity that receives federal funds.

III.

WHO HAS STANDING TO MAKE A REQUEST?

The regulations provide certain individuals and organizations the opportunity to request Native American human remains and cultural items. Lineal descendants, Indian tribes, and Native Hawaiian organizations may request Native American human remains, funerary objects, and sacred objects. Only Indian tribes and Native Hawaiian organizations may request objects of cultural patrimony. The criteria needed to identify who has standing to make a request are outlined below.

"Lineal descendant" is not defined in the statute. The statute does make clear, however, that lineal descendants have priority over Indian tribes or Native Hawaiian organizations in making requests for human remains, funerary objects, and sacred objects. (47) "Lineal descendant" is defined by regulation as an individual tracing his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the American common law system of descendance to a known Native American individual whose remains, funerary objects, or sacred objects are being requested. (48) The necessity for a direct and unbroken line of ancestry between the individual making the request and a known individual is a high standard, but one that is consistent with the preference for disposition or repatriation to lineal descendants required by the statute. Reference to traditional kinship systems in the definition is designed to accommodate the different systems that individual Indian tribes and Native Hawaiian organizations use to reckon kinship. (49)

"Indian tribe" is defined to mean any tribe, band, nation, or other organized Indian group or community of Indians, including any Alaska Native village as defined in or established by the Alaska Native Claims Settlement Act, (50) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. (51) This definition was drawn explicitly from the Indian Self Determination and Education Act (ISDEA), (52) a statute implemented by the Bureau of Indian Affairs since 1976 to apply to a specific list of eligible Indian tribes and Alaska Native villages and corporations. NAGPRA's use of the definition within the ISDEA precludes extending applicability of NAGPRA to non-federally recognized Indian groups that have been terminated, that are current applicants for federal acknowledgement, or that have only state or local jurisdiction legal status. (53) Earlier repatriation bills would have provided standing to both state recognized Indian groups and federally terminated Indian tribes. (54)

A Native Hawaiian organization is defined 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." (55) The statute specifically identifies the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei as being Native Hawaiian organizations. (56) An earlier bill included a provision requiring Native Hawaiian organizations to have a membership of which a majority is Native Hawaiian. (57) However, this provision was not included in the statute, and the legislative history must be interpreted to mean that Congress considered the additional criterion and decided it should not be included. The Congressional rejection of the Native Hawaiian membership criterion seems prescient in light of the U.S. Supreme Court's recent decision that a state law restricting non-Native Hawaiians from voting for trustees of the Office of Hawaiian affairs was unconstitutional. (58) Legislation to establish a single Native Hawaiian government by the United States for purposes of carrying on a government-to-government relationship was recently introduced in Congress. (59)

Non-federally recognized Indian groups do not have standing to make a direct disposition or repatriation request under the statute. Although they may be comprised of individuals of Native American descent, these groups are not recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Human remains in federal agency or museum collections for which a relationship of shared group identity can be shown with a particular non-federally recognized Indian group are considered "culturally unidentifiable." Federal agencies and museums must retain possession of culturally unidentifiable human remains pending promulgation of regulations, unless legally required to do otherwise, or recommended to do otherwise by the Secretary of the Interior. (60) Federal agencies and museums that hold culturally unidentifiable human remains may request the Native American Graves Protection and Repatriation Review Committee to recommend disposition of such remains to the appropriate non-federally recognized Indian group. (61) The administration of this process is handled by the U.S. National Park Service. (62)

IV.

WHAT OBJECTS ARE COVERED?

The regulations apply to four types of Native American cultural items: 1) human remains; 2) funerary objects; 3) sacred objects; and 4) objects of cultural patrimony. (63) A particular item may fit more than one category.

The term "Native American" means "of, or relating to, a tribe, people, or culture indigenous to the United States, including Alaska and Hawaii." (64) The Department of the Interior subsequently clarified the term to apply to all tribes, peoples, and cultures that occupied the United States prior to historically documented European exploration. (65) The term is used only to refer to human remains and cultural items. It is not used in the regulations to reference any individual or group with standing to make a request. This usage was first introduced by Representative Udall in H.R. 5237. (66) Earlier bills had used the term to identify present day Indians, Eskimo, Aleut, and Native Hawaiians. (67) Some have argued that the term only applies to cultural items for which there is proof of a relationship with present-day Native people. (68) This interpretation would appear to be counter to the specific intent of Congress since the statute calls for the identification and development of a process for the disposition of human remains or cultural items for which a relationship with present-day lineal descendant, Indian tribe, or Native Hawaiian organization cannot be shown. (69)

"'Human remains' means the physical remains of a body of a person of Native American ancestry." (70) The term has been interpreted broadly to include bones, teeth, hair, ashes, and mummified or otherwise preserved soft tissues. (71) The regulations make no distinction between fully articulated burials and isolated bones and teeth. (72) The term applies equally to recent and ancient Native American human remains. (73) The term does not include remains, or portions of remains, freely given or naturally shed by the individual from whose body they were obtained, such as hair made into ropes or nets. (74) Purposefully disposed human remains should not be considered either freely given or naturally shed. (75) For the purposes of determining cultural affiliation, human remains incorporated into funerary objects, sacred objects, or objects of cultural patrimony are considered as part of that object. (76) This provision is intended to prevent the destruction of a cultural item that is affiliated with one Indian tribe but incorporates human remains affiliated with another Indian tribe. (77) Human remains that have been repatriated under NAGPRA to date include complete and partial skeletons, isolated bones, teeth, scalps, and ashes. (78)

"Funerary objects" are defined as "objects that, as a part of the 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." (79) Items that inadvertently came into contact with human remains are not considered to be funerary objects. (80) Certain Indian tribes, particularly those from the northern plains, have ceremonies in which objects are placed near, but not with, the human remains at the time of death or later. (81) These items should also be considered funerary objects. Funerary objects that have been repatriated under NAGPRA to date include: beads of various types; pottery jars, bowls, and shards; tools and implements of wood, stone, bone, and metal; trade silver and other goods; weapons of many types, including dries and revolvers; and articles or fragments of clothing. (82)

"Sacred objects" are defined 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." (83) Traditional religious leaders are individuals recognized by members of an Indian tribe or Native Hawaiian organization as being responsible for performing cultural duties relating to the ceremonial or religious traditions of that Indian tribe or Native Hawaiian organization, or exercising a leadership role in an Indian tribe or Native Hawaiian organization based on the tribe's or organization's cultural, ceremonial, or religious practices. (84) Sacred objects that have been repatriated under NAGPRA to date include medicine bundles, prayer sticks, pipes, effigies and fetishes, basketry, rattles, and a birchbark scroll. (85) Some earlier bills had included much broader definitions of "sacred object." (86) Other earlier bills included narrower definitions of the term, such as a requirement that sacred objects not only be needed currently for religious practice, but also were devoted to a ceremony in the past. (87) The term was amended to its final form shortly before passage. (88)

"Objects of cultural patrimony" are defined as items "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." (89) These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual tribal member. (90) Such objects must have been considered inalienable by the affiliated Indian tribe or Native Hawaiian organization at the time the object was separated from the group. (91) Objects of cultural patrimony that have been repatriated under NAGPRA to date include a wolf-head headdress, a clan hat, several medicine bundles, and ceremonial masks of varying types. (92)

It should be stressed that the definitions of human remains, funerary objects, sacred objects, and objects of cultural patrimony simply define the applicability of the regulations and do not in any way attempt to restrict other concepts of "sacredness" or "patrimony." Further, the four categories are not mutually exclusive. Items fitting both the sacred object and object of cultural patrimony definitions that have been repatriated under NAGPRA to date include Zuni ahayuda (also known as War Gods), a Sun Dance wheel, ceremonial masks of several types and functions, and a tortoise shell rattle. (93)

IV.

WHAT ACTIVITIES ARE REQUIRED?

The NAGPRA regulations bring together federal agencies and museums that receive federal funds with lineal descendants, Indian tribes, and Native Hawaiian organizations to resolve the complex issues surrounding custody of Native American human remains and cultural items. The regulations outline two sets of activities to ensure the proper disposition or repatriation of these objects. The first set of activities provides a mechanism for federal land managers to consult with Indian tribes and Native Hawaiian organizations to determine the appropriate disposition of Native American human remains and cultural items that are or might be discovered, removed, or excavated on federal or tribal lands. The second set of activities provides a mechanism for federal agency or museum officials to consult with and, upon request, repatriate Native American human remains and cultural items in their collections to lineal descendants or culturally affiliated Indian tribes or Native Hawaiian organizations. The activities for dealing with excavations or discoveries on federal or tribal lands are different than those for dealing with museum and federal agency collections.

A. Discovery, removal, or excavation from federal or tribal lands

Provisions that apply to discovery, removal, or excavation went into effect on November 16, 1990, the date the statute was enacted. (94) Though earlier bills applied to all lands, (95) these provisions generally apply only to federal lands and tribal lands. (96) These provisions do not generally apply to private, municipal, or state lands, but have occasionally been explicitly applied to nonfederal lands. (97) These provisions generally do not apply to undertakings involving federal funds conducted pursuant to the National Historic Preservation Act. (98) However, human remains or cultural items obtained through such an undertaking may fall under the summary or inventory provisions once the items come under the control of a federal agency or museum. (99)

Federal regulations contain detailed provisions regarding discovery, removal and excavation. These regulations outline a process for advance planning when human remains or cultural items may be impacted by development, as well as for those incidents when such planning has not occurred and human remains or cultural items are discovered. The two scenarios addressed are "intentional excavation" and "inadvertent discovery." Inadvertent discovery refers to the unanticipated detection of human remains or cultural items found under or on the surface of federal or tribal lands. (100) Any person who knows, or has reason to know, that he or she has inadvertently discovered human remains or cultural items on …

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Publication information: Article title: In the Smaller Scope of Conscience: The Native American Graves Protection & Repatriation Act Twelve Years After. Contributors: McKeown, C. Timothy - Author, Hutt, Sherry - Author. Journal title: UCLA Journal of Environmental Law & Policy. Volume: 21. Issue: 2 Publication date: Winter 2003. Page number: 153+. © 1998 University of California at Los Angeles, School of Law. COPYRIGHT 2003 Gale Group.

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