December 21, 2007

Dr. Sherry Hutt

National NAGPRA Program

National Park Service, Docket 1024-AC84

1849 C Street, NW, (2253)

Washington, DC 20240

Dear Dr. Hutt:

On behalf of the Native American NAGPRA Coalition (NANC), we are writing
to submit the following comments on the proposed rule for the
disposition of Culturally Unidentifiable Human Remains (RIN 1024-AD68).
The Native American NAGPRA Coalition is an alliance of tribal
organizations, Native American individuals, and concerned non-natives
who formed in response to issues surrounding the treatment of Native
American remains housed at the Phoebe Hearst Museum of Anthropology at
the University of California, Berkeley. NANC asserts that the Phoebe
Hearst Museum has been negligent in its implementation of NAGPRA and has
failed to appropriately consult with Native Americans in determining the
disposition of these Native American remains. The Coalition has the
support of over 65 tribal nations, as well as the National Congress of
American Indians (NCAI). The Hearst Museum holds the single largest
collection of ancestral remains subject to NAGPRA (only the Smithsonian
Institution has a larger collection) with as many as 18,000 individuals
in the collection. Given the large number of ancestral human remains in
their collection, and the fact that the Phoebe Hearst Museum has
designated an excessively large number of these remains as "culturally
unidentifiable", we are greatly concerned with the promulgation of these
proposed rules and their ultimate implementation.

First, we are pleased that the National NAGPRA Review Committee has
fulfilled its obligation under Section 8(c)(5) of the Act to recommend
specific actions for developing a process for disposition of culturally
unidentifiable human remains. Furthermore, we are encouraged that the
Department is moving forward with the promulgation of the rules and
recognize its authority to do so under Section 13 of the Act \[25 USC
3011\] . Nonetheless, we do have concerns about the proposed rules and
their implementation, and what follows are our comments on the rules
organized around seven key themes.

**Collaboration and the Primacy of Native American Voice**

In its recommendations on the disposition of culturally unidentifiable
human remains, the NAGPRA Review Committee determined that the process
must be done within a spirit of collaboration with all appropriate
Indian tribes as mandated in 43 CFR 10.9(b). This consultation must
incorporate evaluation of all lines of evidence, including tribal
knowledge and oral histories. Our fear, however, is that too many
museums have designated human remains as "culturally unidentifiable"
with little or no consultation with tribal entities. Furthermore, when
completing their inventories they failed to consider all of the
available lines of evidence. We are also concerned that when
consultation does happen, the Native perspective is treated as just one
of many to consider, and does not have the primacy it deserves. We ask,
therefore, for language in the proposed regulations that emphasizes not
just the necessity of full collaboration, but also the primacy of tribes
in determining whether or not human remains are culturally identifiable.
Furthermore, if human remains are deemed "culturally unidentifiable"
under the terms of NAGPRA, the tribes retain the primary role in
determining the appropriate disposition of these remains.

**Priority Ownership Categories**

The proposed rules suggest using the priority ownership categories as
established in Section 3(a) of the Act as the basis for establishing
disposition of culturally unidentifiable human remains. We have no major
concerns with the use of these categories. The drafters of the proposed
regulations have requested comments on the meaning of the term "cultural
relationship" as utilized in the 3^rd^ priority ownership category. We
recommend that the meaning of this term be determined by the specific
tribal entities that are appropriate on a case-by-case basis.
Furthermore, tribal understandings of the definition of "cultural
relationship" should be considered primary over those definitions
expressed by museums, federal agencies and other interested non-native
entities.

**Non-Federally Recognized Groups**

Section 10.11(c)(3)(i) of the proposed regulations state that museums
and federal agencies *may* repatriate culturally unidentifiable human
remains to federally unrecognized groups. While we applaud the fact that
the proposed regulations make it clear that culturally unidentifiable
human remains can be repatriated to non-recognized tribal organizations,
we are very concerned that this repatriation is voluntary and is at the
discretion of the federal agency or museum. This has been a highly
contentious issue for our coalition, as it especially relates to the
human remains currently held at the Phoebe Hearst Museum. While the
Hearst Museum contains human remains from across North America, a large
number of remains come from the San Francisco Bay area and are directly
connected with Ohlone peoples. These groups --- who due to the vagaries
of history and the manifestations of colonialism inherent in the
recognition process --- are currently not federally recognized. The
current regulations do nothing to force the Phoebe Hearst to repatriate
these remains, which are clearly culturally connected to an identifiable
Native American group, but are only considered "unidentifiable human
remains" due to recognition issues.

We recognize that some (i.e. the Society for American Archaeology) may
protest repatriation to unrecognized tribes based on a fear that these
groups may not be legitimate tribal entities. Our recommendation,
however, is that any concerns about repatriation to non-recognized
tribes should be 1) addressed at a regional level based on tribal
consultation, and 2) brought before the National NAGPRA Review Committee
if necessary. We suggest that the proposed rules include language to
this effect.

**Models for Disposition of Culturally Unidentifiable Human Remains**

In its recommendations the NAGPRA Review Committee proposed two models
for the disposition of culturally unidentifiable human remains: joint
recommendations of tribal claimants and museums, and joint
recommendations of regional consortia. We applaud any recommendations
that allow for flexibility in the disposition of culturally
unidentifiable human remains, and we especially stress those
recommendations that provide for regional solutions for disposition and
repatriation. We wish to make it clear, however, that tribal entities
should be the appropriate organizations to determine the make-up of
these regional consortia, and that it is not up to the museum or federal
agency to determine the legitimacy of these groups. Federal agencies and
museums can be treated as consulting parties on these decisions, but
should not have final or even equal say on this. The regional tribes are
the appropriate authorities, and it is up to them to make decisions on
disposition. Additionally, we are concerned that the legitimacy of
regional consortia is not addressed specifically and prominently in the
language of the proposed regulations itself. We recommend that the
regulations directly state the authority of these regional tribal
consortia.

**Funerary Objects Associated with Culturally Unidentifiable Human
Remains**

As written, the proposed rules do not mandate the disposition of
funerary objects associated with culturally unidentifiable human
remains. Section 10.11(c)(4) states that a museum or federal agency may
transfer associated funerary objects to tribal entities, and in fact
this transfer is recommended by the Secretary. However, we urge you to
make this disposition mandatory rather than voluntary, if the
disposition is desired by the respective tribal entities. As our
experiences with the Phoebe Hearst Museum have taught us, the language
of "voluntary action" on the part of museums is meaningless in practice.
Simply put, at places like the Phoebe Hearst, disposition of associated
funerary objects will never happen unless it is required by law.

**Right of Possession**

We applaud that Section 10.11(c) notes that museums or federal agencies
that are unable to prove right of possession of culturally
unidentifiable human remains must offer to transfer control of these
remains to Indian tribes. Our assessment is that museums in a
significant number of cases cannot prove right of possession to the
human remains in their collections. The designation of these remains as
"culturally unidentifiable" should not negate the fact that museums have
no right to hold these ancestors in the first place. We also support
Section 10.12(b)(1)(ix) that allows for the assessment of civil
penalties against museums that fail to offer to transfer control of
culturally unidentifiable human remains for which they cannot prove
right of possession. While we appreciate these efforts, we request that
the language in the regulations be very clear that the burden of proof
for right of possession is on museums and federal agencies.

**Treatment of Culturally Unidentifiable Human Remains in the Interim**

The law notes that "culturally unidentifiable" is not a fixed category
and can change as a result of the introduction of new information or the
change in recognized status of a tribal organization. Until the time of
disposition and/or repatriation these ancestral remains should be
treated with the utmost respect. Therefore, these "culturally
unidentifiable" ancestral remains should not be used for the purposes of
scientific research and/or as teaching collections. We recommend that
language to this effect be explicitly stated in the regulations and feel
that Section 10.9(e)(5)(ii)(A&B) is not sufficient to ensure appropriate
respect.

**Conclusion**

While we do have concerns with aspects of the proposed rules, we are
encouraged that these rules stress that the intent of the Act is
repatriation, as is stated in its name. Furthermore, these proposed
rules make it clear that the goal of the legislation is the appropriate
disposition of all Native American remains, including those designated
as "culturally unidentifiable". This is extremely relevant, as a number
of research organizations (i.e. the Society for American Archaeology and
the American Association of Physical Anthropologists) have erroneously
operated under the assumption/hope that the designation of remains as
"culturally unidentifiable" would preclude their repatriation. We
strongly urge the Department to continue to stress that the appropriate
disposition of culturally unidentifiable human remains must occur within
the framework of consultation and collaboration. Furthermore, within
this framework of collaboration, Native Americans must not be viewed as
simply one voice among many, but as the primary voice. Finally, we wish
to stress that these ancestral remains are connected to modern tribal
populations and that their appropriate treatment should be determined by
those populations. The status of these ancestral remains as "culturally
unidentifiable" is due primarily to poor record-keeping, attempts by
museums to keep these remains from being repatriated, and the historical
ambiguities of federal recognition and non-recognition. To Native
Americans these remains are not "unidentifiable" but rather are
identified as ancestors to whom they owe the responsibility of proper
and respectful care.

Thank you for your consideration of our comments and concerns and for
your efforts to fulfill the obligations of this important section of
NAGPRA. If you have any questions please do not hesitate to contact us
at either lonetree@ucsc.edu or daehnke@stanford.edu.

Sincerely,

Amy Lonetree (Ho-Chunk), Ph.D. Jon Daehnke, Ph.D.

Assistant Professor Post-Doctoral Fellow in the Humanities

University of California, Santa Cruz Stanford University