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
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. …