January 6, 2008

Dr. Sherry Hutt

Manager, National NAGPRA Program

National Park Service

Docket No. 1024-AC84

1849 C Street, NW (2253)

Washington, DC 20240

Re: RIN 1024-AD68, proposed rule regarding procedures for the
disposition of culturally unidentifiable human remains in the possession
of museums and Federal agencies pursuant to the Native American Graves
Protection and Repatriation Act.

Dear Dr. Hutt:

The Ohio Archaeological Council (OAC) is a private, non-profit,
charitable, scientific, and educational membership organization whose
mission is to promote the advancement of archaeology in Ohio. The
majority of our members are professional archaeologists working in
private, for-profit cultural resource management firms and private and
public sector, non-profit universities, museums, and government
agencies, some of which are defined as museums and Federal agencies in
the Native American Graves Protection and Repatriation Act (NAGPRA). The
institutions with which our members are associated contain hundreds of
thousands of students, faculty, and members. The culturally
unidentifiable human remains and associated funerary objects that are
the subject of the proposed rule are of vital importance to the
collective missions of these institutions, including physical
anthropologists, physicians, and forensic scientists who teach at
associated medical schools, universities, and colleges. On behalf of the
Board of Directors and members of the OAC, I offer the following
comments opposing the Secretary of the Interior's (SOI) proposed rule
regarding the disposition of culturally unidentifiable human remains and
associated funerary objects.

The OAC supports the positions taken by the Society for American
Archaeology (SAA) and the American Association of Physical
Anthropologists (AAPA) opposing the promulgation of the proposed rule.
The OAC is in agreement with our colleagues that promulgation of the
rule is likely to severely damage the generally positive yet somewhat
tenuous relationships that NAGPRA has fostered between Native Americans
and the scientific community, one positive result of Congress'
thoughtful effort to balance scientific and cultural interests when it
enacted NAGPRA. The following comments are intended to supplement those
submitted by the SAA and the AAPA.

***The SOI does not have the authority to issue the proposed rule.***
The SOI cannot promulgate a rule that, by regulatory fiat, amends NAGPRA
regarding the disposition of culturally unidentifiable human remains and
associated funerary objects. Only Congress can amend the law. NAGPRA
does not authorize taking culturally unidentifiable human remains and
associated funerary objects from museums and Federal agencies and giving
them to culturally unaffiliated Indian tribes and Native American
groups. When Congress was crafting NAGPRA, it received divergent
opinions concerning such matters from Indian tribes, museums, and the
scientific community. At that time agreement was unattainable, so
Congress requested that the Review Committee provide Congress with
recommendations regarding this issue. The only language in NAGPRA that
addresses this matter is where the Review Committee is charged with the
task of "compiling an inventory of culturally unidentifiable human
remains that are in the possession or control of each Federal agency and
museum and recommending specific actions for developing a process for
disposition of such remains" \[25 U.S.C. 3006(c)(5)\]. The Review
Committee provided recommendations recognizing the legitimacy of
traditional cultural and scientific interests, and to this day no
consensus has emerged. Congress did not find the Review Committee's
recommendations compelling enough to amend NAGPRA. Congress did not
authorize the SOI to develop a rule by which the disposition of
culturally unidentifiable human remains and associated funerary objects
would be required. Furthermore, our colleagues note that despite the
SOI's assertions to the contrary, the rule may violate the Fifth
Amendment takings clause of the United States Constitution. Promulgation
of this rule could result in years of costly legal challenges that could
threaten the constitutional basis of NAGPRA itself.

***The proposed rule asserts control over cultural material not covered
in NAGPRA.*** Contrary to the original intent of NAGPRA, the proposed
rule is not restricted to culturally unidentifiable Native American
human remains. It appears to encompass all culturally unidentifiable
human remains in museums and Federal agencies, even those where there is
no evidence connecting the human remains to Native Americans. The
proposed rule defines culturally unidentifiable human remains as "human
remains and associated funerary objects in museum or Federal agency
collections for which no lineal descendant or culturally affiliated
Indian tribe or Native Hawaiian organization has been identified." The
rule does not specify that the human remains also must meet the legal
definition of Native American to be considered culturally
unidentifiable. As noted by our colleagues, the proposed rule's
broadening of the intent of NAGPRA appears to be an attempt to
circumvent the Ninth Circuit Court's ruling in the Kennewick Man case,
which restricted the legal definition of Native American to ancient
groups with a clear cultural connection to a modern tribe. The proposed
rule also appears to apply to human anatomical collections of Native
American origin and otherwise that medical schools use for training
physicians, nurses, forensic scientists, and other medical personnel.
This was not the intent of Congress when it enacted NAGPRA.

***The proposed rule does not conform to the principles of agreement
proposed by the Review Committee.*** The Review Committee\'s 1999 Draft
Principles of Agreement Regarding Disposition of Culturally Identifiable
Human Remains acknowledged \"\...the legitimate public interest in the
educational, historical, and scientific information conveyed by those
remains and objects (25 U.S.C. 3002 (c); 25 U.S.C.3005 (b)).\" By
ignoring legitimate educational, historical, and scientific interests,
the proposed rule makes a mockery of Congress' intended balancing of
divergent interests. As the AAPA wrote,

> "NAGPRA works because it recognizes the legitimate interests of Indian
> tribes in their ancestral remains and the legitimate interests of
> science and the broader public in gaining knowledge about our common
> human heritage from archaeological and physical anthropological
> studies of human remains."

Furthermore, the proposed rule is inconsistent with the SOI's support
for the Ninth Circuit Court's ruling in the Kennewick Man case. In a
2005 NAGPRA oversight hearing before the Senate Committee on Indian
Affairs, Paul Hoffman, the Department of the Interior Deputy Assistant
Secretary for Fish and Wildlife and Parks, stated,

> \"As previously stated, in Bonnichsen the Ninth Circuit concluded that
> congressional intent was \'to give American Indians control over the
> remains of their genetic and cultural forbearers, not over the remains
> of people bearing no special and significant genetic or cultural
> relationship to some presently existing indigenous tribe, people, or
> culture.\' We believe that NAGPRA should protect the sensibilities of
> currently existing tribes, cultures, and people while balancing the
> need to learn about past cultures and customs. In the situation where
> remains are not significantly related to any existing tribe, people,
> or culture they should be available for appropriate scientific
> analysis.\"

***The proposed rule confers \"binding legal force\" to the Review
Committee\'s actions that were explicitly withheld under NAGPRA***.

Under NAGPRA, the Review Committee was established to \"advise Congress
and the Secretary on matters relating to these regulations and the
Act,\" but all actions of the Review Committee were \"advisory only and
not binding on any person\" (43 CFR Part 10 §10.16). In the House Report
on NAGPRA, this point was reaffirmed: \"The \[House\] Committee concurs
with the Justice Department comments that section 7 does not accord
binding legal force to the Review Committee\'s actions\" (H. R. Report
No. 101-877, p. 4375). Under the proposed new regulations, however, the
disposition of unidentifiable human remains must meet guidelines
established by the Review Committee and any disposition agreement for
unidentifiable human remains first must be reviewed by the Committee.
Thus, the proposed rule attempts to enlarge the role of the Review
Committee beyond that which Congress specifically intended.

***The proposed rule may lead to results antithetical to the original
intent of NAGPRA.*** The proposed rule will result in the transfer of
culturally unidentifiable human remains and associated funerary objects
in museums and Federal agencies to Indian tribes and Native American
groups that have only a tenuous, if any, cultural or other connection
with them. In the proposed rule, final disposition of culturally
unidentifiable human remains and associated funerary objects is enabled
largely through the mechanism of requiring the disposition of these
cultural materials to Indian tribes and Native American groups whose
claims are based solely on some sort of cultural relationship to a
region in which the materials were found, or simply to the region in
which a museum is located. The term \"cultural relationship\" is not
defined in NAGPRA. Unlike the NAGPRA defined term \"cultural
affiliation,\" an Indian tribe or Native American group could claim a
cultural relationship with human remains and funerary items without
showing a demonstrable cultural connection to these materials. Thus, the
proposed rule facilitates a result expressly unintended by Congress, the
final disposition of human remains and associated funerary objects to
culturally unaffiliated Indian tribes and Native American groups.

***The proposed rule is impractical because it cannot be comprehensively
and fairly implemented without a substantial increase in NAGPRA grant
funds to museums and Federal agencies, the funding for which is unlikely
to be appropriated by Congress in the foreseeable future.*** The
proposed rule's consultation requirements are so broad that they are
unreasonable and financially burdensome. Our colleagues have determined
that the unfunded mandate placed on museums and Federal agencies is
likely to cost hundreds of millions of dollars. According to the
proposed rule, under penalty of law museums and Federal agencies are
required to consult with an unknown and perhaps unknowable number of
officials and religious leaders from Indian tribes and Native American
groups claiming a cultural relationship to a region. Additionally,
museums are burdened by the requirement that they document the more than
825,000 funerary objects associated with culturally unidentifiable human
remains. Contrary to the provisions of NAGPRA, the proposed rule
recommends the repatriation of these objects. Furthermore, the provision
in the proposed rule that allows museums to maintain culturally
unidentifiable human remains in their collections is irrational and
impossible to meet. The only basis in the proposed rule for a museum to
retain possession of culturally unidentifiable human remains is for the
museum to "prove that it has a right of possession, as defined at
§10.10(a)(2)." However, the provision referenced requires showing that
consent was obtained from the next of kin or from a culturally
affiliated Indian tribe or Native Hawaiian organization, which, of
course, is a requirement that cannot be met for human remains that are
culturally unaffiliated. This provision is so illogical that, as our
colleagues suggest, it appears to be a conscious effort on behalf of the
SOI to end the scientific study of culturally unidentifiable human
remains, a result that is unacceptable to the OAC.

Sincerely,

Lynn Simonelli

President