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S. HRG. 112–157

FINDING OUR WAY HOME: ACHIEVING THE

POLICY GOALS OF NAGPRA

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

JUNE 16, 2011

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on June 16, 2011 ............................................................................... 1

Statement of Senator Akaka ................................................................................... 1 

Statement of Senator Murkowski ........................................................................... 2

Statement of Senator Udall .................................................................................... 23

Prepared statement .......................................................................................... 23

WITNESSES

Gover, Kevin, Director, Smithsonian Institution’s National Museum of the 

American Indian ................................................................................................... 30

Prepared statement with attachment ............................................................. 31

Isham, Ted, Cultural Preservation Manager/Tribal Historical Preservation 

Officer, Muscogee (Creek) Nation ....................................................................... 68

Prepared statement with attachments ........................................................... 70

Macarro, Hon. Mark, Chairman, Pechanga Band of Luisen ̃ o Indians ................ 39

Prepared statement .......................................................................................... 42

Mittal, Anu K., Director, Natural Resources and Environment Division, U.S. 

Government Accountability Office; accompanied by Jeff Malcolm, Assistant 

Director ................................................................................................................. 2

Prepared statement .......................................................................................... 5

O’dell, Peggy, Deputy Director, National Park Service, U.S. Department of 

the Interior; accompanied by John ‘‘Jack’’ Rever, Director, Office of Facilities, Environment and Cultural Resources, Bureau of Indian Affairs, U.S. 

Department of the Interior .................................................................................. 25

Prepared statement .......................................................................................... 27

Wright, Jr., Hon. Mervin, Vice Chairman, Pyramid Lake Paiute Tribe ............. 55

Prepared statement .......................................................................................... 58

APPENDIX

Franklin, Reno Keoni, Chairman, National Association of Tribal Historic 

Preservation Officers, prepared statement ........................................................ 118

Landreth, Natalie A., Counsel, Working Group on Native American Culturally 

Unidentified Human Remains, prepared statement with attachments .......... 105

Limp, William F., Ph.D., President, Society for American Archaeology, prepared statement with attachment ...................................................................... 135

McCarter, Jr., John W., President/CEO, Field Museum of Natural History, 

prepared statement .............................................................................................. 94

Merritt, Elizabeth S., Deputy General Counsel, National Trust for Historic 

Preservation, prepared statement ...................................................................... 88

Na ̄mu‘o, Clyde W., Chief Executive Officer, Office of Hawaiian Affairs, prepared statement ................................................................................................... 87

Response to written questions submitted by Hon. Daniel K. Akaka to: 

Kevin Gover ...................................................................................................... 145

Ted Isham ......................................................................................................... 142

Salt River Pima-Maricopa Indian Community, prepared statement .................. 129

Stewart, Leo, Interim Chair, Board of Trustees, Confederated Tribes of the 

Umatilla Indian Reservation, prepared statement ........................................... 97

Thompson, George, Mekko, Ocevpofv Cuko Rakko (Hickory Ground Ceremonial Ground), prepared statement with attachment ......................................... 100

Trepp, Robert W., Member, Loca’pokv Tribal Town, Beaver Clan, and 

Muscogee (Creek) Nation, prepared statement ................................................. 124

Trope, Jack F., Executive Director, Association on American Indian Affairs, 

prepared statement .............................................................................................. 91

Page

IV

Wesaw, Matthew, Chairman, Pokagon Band of Potawatomi Indians, prepared 

statement .............................................................................................................. 99

Worl, Dr. Rosita Kaahanı ́, Vice Chair, Sealaska Corporation, prepared statement ...................................................................................................................... 126

(1)

FINDING OUR WAY HOME: ACHIEVING THE 

POLICY GOALS OF NAGPRA 

THURSDAY, JUNE 16, 2011

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:40 p.m. in room 

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. This hearing of the Committee on Indian Affairs 

will come to order. 

Welcome to the Committee’s oversight hearing on Finding Our 

Way Home: Achieving the Policy Goals of NAGPRA. 

For thousands of indigenous ancestors, the road home has been 

a difficult one. Many have not been able to begin their journey 

home as they, along with their sacred objects, fell into the possession of the Federal Government and museums across the Country. 

This was the result of archaeological excavations, construction 

projects and museum and university research. 

I know this can be painful and deeply personal topic for many 

native peoples. My own people believe the Mana, the spirit and 

power of a person, rests in the bones and connects families between 

the generations. Native Hawaiian tradition holds that what affects 

the bones can affect the future lives of the progeny and the after 

lives of the ancestors of those bones. 

Native Hawaiian burials are some of the most secretive in the 

world, and I smile because we are still looking for some of the 

places and the bones. Native Hawaiian children today are still 

taught what to do if they encounter any ancestral bones. When my 

people think about those ‘iwi kupuna or those ancestors, whose 

bones are subjected to scientific scrutiny, display or catalogue storage, there is a sense of outrage and sorrow over the failure to care 

for the bones as our tradition requires. 

Our kinship and active connection with the remains of our forbears and the objects that were sacred enough to warrant burial 

with them is not unique. Native peoples across the United States 

feel this connection. Acknowledging this connection, the policy of 

repatriation was born. 

Both the National Museum of the American Indian Act and the 

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2

lished procedures for repatriation. Yet, over 20 years after the enactment of these two laws, GAO found many Federal agencies have 

not fully complied with NAGPRA. In addition, the Smithsonian has 

much work to do in order to comply with the Museum Act. 

Today, we will hear from the GAO about their findings and from 

the Administration and Smithsonian about what they are doing to 

comply with Federal laws. 

Finally, we will hear from tribal leaders about their experiences, 

challenges and ideas to improve the process. 

As many of you have noticed, the Committee works in a bipartisan manner. It is always a pleasure to be working with the other 

side of the aisle, and right now a very close friend. We both belong 

to States not connected to the lower 48 that have large indigenous 

populations. Senator Murkowski and I have worked so closely on 

Native issues and she is doing a terrific job here for her State of 

Alaska. 

And I would like to ask her whether she has any opening statement to make. 

STATEMENT OF HON. LISA MURKOWSKI,

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. I appreciate you have held this hearing this 

afternoon on how we achieve the policy goals of the Native American, the Repatriation Act, and how we, as you say, bring it home. 

And it is an important issue for so many Alaska natives from Barrow down to Ketchikan. And I appreciate the attention that you are 

giving through this hearing. 

I look forward to the witnesses today and working with many of 

you on many of the issues that are so important to us. 

The CHAIRMAN. Thank you very much. 

As Chairman, it is my goal to ensure that we hear from all who 

want to contribute to the discussion. So the hearing record is open 

for two weeks, I just want you to know that. So if you are thinking 

of something and you are not one of the witnesses, you can still let 

us know to these letters. And I encourage everyone to submit your 

comments through your written testimony that you may send in. 

I want to remind the witnesses to please limit your oral testimony to five minutes today. 

Serving on our first panel, from the GAO, Natural Resources and 

Environment Division, is Director Anu Mittal. She is accompanied 

by Jeffrey Malcolm, the Assistant Director. 

And I want to say welcome to all, and Ms. Mittal, it is so good 

to have you here. So please proceed with your testimony. 

STATEMENT OF ANU MITTAL, DIRECTOR, NATURAL

RESOURCES AND ENVIRONMENT DIVISION, U.S.

GOVERNMENT ACCOUNTABILITY OFFICE; ACCOMPANIED BY 

JEFF MALCOLM, ASSISTANT DIRECTOR 

Ms. MITTAL. Chairman Akaka and Senator Murkowski, thank 

you for inviting us to participate in your hearing on repatriation 

issues. Accompanying me, as you mentioned, is Jeff Malcolm, the 

Assistant Director at GAO who manages our work on Native American issues. 

3

As you mentioned, GAO recently issued two reports: one on Federal agency implementation of NAGPRA; and one on the 

Smithsonian’s efforts under the National Museum of the American 

Indian Act. I would like to briefly highlight some of the key findings from both reports. 

With regard to Federal efforts to implement NAGPRA, our review found that after almost 20 years, Federal agencies have not 

yet fully complied with all of the requirements of the Act. We found 

that the amount of work Federal agencies put into identifying their 

NAGPRA items and the quality of the documents that they prepared varied widely. As a result, only a few agencies had a high 

level of confidence that they had identified all of the NAGPRA 

items in their historical collections. 

We also reviewed the actions of the National NAGPRA Office and 

identified two concerns with how it carried out some of its responsibilities. For example, we found that the National NAGPRA Office 

developed a list of Indian tribes for NAGPRA purposes that is inconsistent with BIA’s policy for federally recognized tribes. And we 

found that the National NAGPRA Office did not always properly 

screen nominations for the NAGPRA Review Committee and inappropriately recruited nominees contrary to the processes laid out in 

the Act. 

The third NAGPRA-related area of concern that we identified 

was a lack of systematic and comprehensive process to track repatriation activities and the lack of a mechanism for reporting this 

information to a central source. As a result, this information is not 

readily or easily available to the tribes or to Congress. 

Based on our own independent data collection efforts, we determined that as of September 2009, Federal agencies had repatriated 

a total of 55 percent of the human remains and 68 percent of the 

associated funerary objects that they had identified for repatriation. 

Shifting to our review of the Smithsonian, we found that the 

Smithsonian also has much work remaining to identify and repatriate the Indian human remains and objects in its collections that 

are subject to the NMAI Act. Specifically, we found that in the last 

21 years, the Smithsonian has only offered for repatriation about 

one-third of the human remains that may be in its collection. 

Contributing to this slow process is the lengthy and resource-intensive process that the Smithsonian uses to identify and affiliate 

its repatriation items. As a result, we suggested that Congress may 

wish to take certain actions to expedite this process. 

In addition, we identified four areas of concern in the 

Smithsonian’s implementation of certain repatriation-related activities. First, although the Smithsonian established a Review Committee as required by the Act, it limited the committee’s oversight 

to the repatriation activities of the Natural History Museum, which 

we believe is inconsistent with the Act. 

Second, we found that neither the Smithsonian nor the Review 

Committee submit annual reports to Congress on the progress of 

repatriation. Although there is no annual reporting requirement in 

the NMAI Act, given that the Smithsonian’s repatriation activities 

have continued well past the original estimated five years, and may 

4

take several more decades to complete, we believe that such information should be provided to Congress. 

Third, the Smithsonian has no independent appeals process for 

tribes in the event of a dispute, and we believe that such an appeals process should be established. 

Finally, the Smithsonian does not have a policy on the disposition of culturally unidentifiable items. The NMAI Act does not discuss how these items should be handled and the museum’s repatriation policies do not cover this issue either. 

Based on the findings of our reports, we made five recommendations to improve Federal agency’s compliance with NAGPRA and 

four recommendations to improve the Smithsonian’s compliance 

with the NMAI Act. The agencies and the Smithsonian generally 

agreed with our recommendations and have stated that they will 

begin to implement them. We will continue to monitor their 

progress. 

In conclusion, Mr. Chairman, our two studies clearly show that 

after two decades of effort, much work still remains to be done to 

address the goals of both NAGPRA and the NMAI Act. In this context, we believe that it is imperative for the agencies to implement 

our recommendations to ensure that they are efficiently and effectively fulfilling their statutory responsibilities. 

This concludes our prepared statement. Jeff and I would be 

pleased to answer any questions that you might have. 

[The prepared statement of Ms. Mittal follows:]

5

PREPARED STATEMENT OF ANU MITTAL, DIRECTOR, NATURAL RESOURCES AND

ENVIRONMENT DIVISION, U.S. GOVERNMENT ACCOUNTABILITY OFFICE


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The CHAIRMAN. Thank you very much for your testimony. 

Ms. Mittal, in your two reviews was there a demonstrated need 

for additional funding, greater technical assistance, or capacity 

building for tribes and native organizations to successfully participate in the repatriation process? 

Ms. MITTAL. Funding was definitely an issue that we heard repeatedly both from the agency perspective, as well as from the tribal perspective, in terms of completing the process. The National 

NAGPRA Office does implement a grant program and since 1994 

through 2009, we found that the office has made $33 million of 

grants available to both tribes and the museums. 


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Two-thirds of this money has actually gone to the tribes, but the 

amount of money requested by the tribes was more than double of 

that. The tribes actually requested over $52 million during that period of time, and less than half of their needs were met through 

those grants. 

When we spoke to the tribal officials that had not repatriated 

items that were made available for repatriation, they identified the 

lack of funding for repatriation activities as one of their challenges. 

The number of grants made for repatriation activities is actually 

very small. Out of the $33 million, only $1 million has been made 

available for repatriation activities, which amounts to about six 

tribes a year getting about $50,000 from the National NAGPRA Office for repatriation activities. 

The CHAIRMAN. Can you tell me whether there have been requests for funds for this? 

Ms. MITTAL. There have been. Every year, there have been twice 

as many requests for funds as have been available. 

The CHAIRMAN. In your reviews of both the Federal agencies and 

the Smithsonian, what mechanisms were in place regarding oversight and enforcement? Did you find these mechanisms to be effective? 

Ms. MITTAL. Well, with regard to the NAGPRA, there are enforcement mechanisms in the Act. National NAGPRA does provide 

oversight. The Review Committee also provides oversight, but they 

do not have any tools or enforcement processes that they can use 

to enforce or encourage the Federal agencies to comply with the 

Act. So if they find that an agency is not complying with the Act, 

they really don’t have a hammer or a stick to force them to comply. 

On the Smithsonian side, what we found is that because the 

Smithsonian limited the Review Committee’s oversight activities to 

the Natural History Museum, the American Indian Museum does 

not fall into the purview of the Review Committee. So in our opinion, we believe that the Review Committee’s oversight responsibilities should be expanded to cover both museums. 

The CHAIRMAN. Thank you. One of your key recommendations is 

that museums and agencies report on their progress annually to 

Congress. Can you describe the data you believe should be included 

in such a report? 

Ms. MITTAL. Sure. What the agencies have to do when they make 

a repatriation is they have to permanently document that repatriation activity. But there is no requirement for them to compile that 

information or track it on an agency-wide basis. And they also do 

not provide that information to a central body like the National 

NAGPRA Office. So therefore, there is no easy or ready information 

available to Congress or the tribes about what the progress of repatriation has been by the agencies. 

So we recommended that the agencies on an annual basis should 

provide this information to the National NAGPRA Office. The National NAGPRA Office should collate this information across the 

Federal Government and provide this information to the Review 

Committee and that information can then go to Congress. 

At the Smithsonian, what we found is the Smithsonian has no 

reporting requirements to Congress, and so Congress has been reVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00025 Fmt 6633 Sfmt 6601 S:\DOCS\68066.TXT JACK
22

ceiving no information on an annual basis on the progress that the 

Smithsonian has made with regard to repatriation. 

The CHAIRMAN. Well, thank you so much. This is important to 

us and we will certainly work on this. So I want to thank you very 

much. 

Let me now ask Senator Murkowski for any questions she may 

have. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Ms. Mittal, you mentioned some agencies do a better job in terms 

of meeting the requirements of NAGPRA. Can you identify who the 

better performers are and perhaps point out why they are doing a 

better job? We always look to best practices around here. What can 

we be learning from those that are actually doing what we had 

hoped? 

Ms. MITTAL. Sure. We actually looked at the repatriation activities of eight agencies in detail, because these are the agencies that 

have very significant historical collections. And what we found was 

that the Forest Service, the Corps of Engineers, and the National 

Park Service were the three of the eight agencies that actually had 

performed the most activities to comply with NAGPRA. 

The common features that we found in these three agencies 

versus the other five that had not done as much was the fact that 

they had centralized data, so they had better information on where 

their collections were and who held their collections. All of these 

collections are generally scattered at hundreds of repositories 

across the Country. So if an agency doesn’t know where their collections are, they can’t begin the process of identifying the items 

that are subject to NAGPRA. 

These three agencies had much better information about where 

their collections were. These agencies also had very good processes 

about going about identifying the items and they also dedicated 

staff and resources to the effort. The other agencies did not do such 

a good job in all of those areas. 

Senator MURKOWSKI. So resources, obviously, are always a factor 

out there. But it also goes back to how they collect the data and 

how that has been available. So we could be looking to these three 

agencies for some ideas in terms of how to translate those to the 

others. 

Ms. MITTAL. Yes, I think so. 

Mr. MALCOLM. And yes, if I may, a number of the agencies, of 

course, within Interior are very decentralized, but even with the 

Park Service, which is within Interior, they have a centralized office there that works with all of the sub-offices and units to track 

that information centrally. So you are correct, resources is one 

thing, but effective use of the resources you have is another. And 

having a centralized kind of process to track the use of those resources across the agency is a characteristic that all three of those 

have. 

Senator MURKOWSKI. I appreciate that. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Murkowski. 

Now, I would like to ask Senator Udall for any questions he may 

have, and to welcome him to the Committee to make any opening 

remarks. 

23

STATEMENT OF HON. TOM UDALL,

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you, Chairman Akaka, very much. And I 

would just like to put my opening remarks in the record and just 

follow up with a question or two here. 

[The prepared statement of Senator Udall follows:]

PREPARED STATEMENT OF HON. TOM UDALL, U.S. SENATOR FROM NEW MEXICO

I would like to thank the Chairman for holding this important hearing. This is 

a serious issue and I hope that our Committee can help to improve the Native 

American Graves Protection and Repatriation Act, and implementation of the Act. 

I thank the members of the panel for bringing their varying experience and perspective on the Act and look forward to hearing from each witness. 

Sadly, the task of repatriation of Native American remains and other cultural objects is a huge task and takes the involvement of many partners, from federal agencies, to museums and research institutions, to the tribes who should house the remains of their ancestors and other culturally sensitive and sacred objects. I hope 

that this Committee can work with all of these partners to ensure that this process 

moves forward in the best possible way.

Senator UDALL. Following on Senator Murkowski’s comment 

about best practices by the agencies, could you give us some examples in a quantitative way of the three agencies, what kinds of repatriations they have done and the numbers of collections returned, 

that kind of thing? 

I know these are so important when they happen. There was a 

repatriation with the Jemez Pueblo that I remember. They had big 

trucks that loaded things from the East Coast and they drove all 

the way across America and came to the native sites that they had 

chosen to put everything into the ground, and huge turnout by the 

tribe and just a huge emotional feeling about doing that. 

And so each of these that you are going to tell me about are an 

example of, I hope, where something like that happened and where 

we had a success. 

Please go ahead. 

Mr. MALCOLM. I will go over some of those numbers, but one 

thing to point out I think that is very important is that once the 

agency makes that cultural affiliation and determined who the 

items belonged to and could potentially be repatriated to, at that 

point, the ball kind of shifts to be in the tribe’s court and the tribe 

has to initiate that action to come forward and say, yes, we are 

ready or we want those items returned. We have identified an appropriate burial place for them or other ways to care for those 

items and what not. 

Senator UDALL. And that can take a long time, right? 

Mr. MALCOLM. Correct. 

Senator UDALL. Because many times the tribe isn’t necessarily 

prepared. 

Mr. MALCOLM. Correct. 

Senator UDALL. And we shouldn’t view that as a failure to not 

happen quickly. It is just the tribe has been put on notice and they 

are going out to try to figure out how they want to deal with this. 

And when they do, which is the ultimate act, then they receive the 

items and put them where they think is the best place in terms of 

their traditions. 

24

Mr. MALCOLM. Correct. The example or the contrast I was going 

to make was the Forest Service, which is one of the agencies we 

have highlighted as being a good performer as far as NAGPRA 

compliance. Their percentage of repatriation on their human remains is only 15 percent, which on the surface is very low, but 

again, it is really the tribes. In that area, there have been some 

issues working out tribal things. So they still haven’t reached an 

agreement on how to return those items, so they are in this kind 

of state where they are waiting for tribal agreement on how to participate in that. 

So we have a number of examples. And of the three agencies that 

we have highlighted, for example the Corps of Engineers has repatriated 623 human remains, about 86 percent, and the National 

Park Service has repatriated 3,416 MNI, which is minimum number of individuals, how they count the human remains. And that 

is around 84 percent for them. 

So the top agencies that we have identified, and these agencies 

track that information so they know what items have been repatriated and not, and they can provide information to the tribes on 

what items are still waiting for them to come forward and ask that 

they be returned. 

Senator UDALL. Right. 

Ms. MITTAL. I think the important thing to point out, though, is 

that none of the agencies have fully identified all of the NAGPRA 

items that are in their collections. What we do know is what they 

have offered for repatriation. We have some confidence in that 

number and we also have some confidence in the number of items 

that have been repatriated. But we do not have good information 

on what are the total number of items in any one of these collections. 

Senator UDALL. Okay. Thank you very much. Thanks for your 

work on this. 

Mr. Chairman, I yield back. 

The CHAIRMAN. Thank you. Thank you very much, Senator 

Udall. 

I want to thank you very much, Anu Mittal and Jeff Malcolm, 

for your responses here. It will certainly help the Committee with 

its work. And we will continue to look towards working together 

with you on this. 

Thank you very much. 

Ms. MITTAL. Thank you. 

Mr. MALCOLM. Thank you. 

The CHAIRMAN. I would like to invite the second panel to the witness table. 

Serving on our second panel is Ms. Peggy O’Dell, the Deputy Director of the National Park Service at the Department of Interior. 

Also, she is accompanied by Mr. John Rever, the Director of the Office of Facilities, Environment and Cultural Resources at the Bureau of Indian Affairs. 

Also, we have Mr. Kevin Gover, who is the Director of the National Museum of the American Indian located in Washington, D.C. 

It is good to have all of you here. I want to welcome you to the 

Committee. 

Ms. O’Dell, will you pleased proceed with your testimony. 

25

STATEMENT OF PEGGY O’DELL, DEPUTY DIRECTOR,

NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE

INTERIOR; ACCOMPANIED BY JOHN ‘‘JACK’’ REVER,

DIRECTOR, OFFICE OF FACILITIES, ENVIRONMENT AND 

CULTURAL RESOURCES, BUREAU OF INDIAN AFFAIRS, U.S. 

DEPARTMENT OF THE INTERIOR 

Ms. O’DELL. Thank you, Mr. Chairman and Senator Murkowski 

and Senator Udall. Thank you for the opportunity to appear before 

you today to present the Department of Interior’s views on the implementation of the Native American Graves Protection and Repatriation Act. We appreciate your attention to the implementation of 

this important law. 

If I may, Mr. Chairman, I would like to summarize my testimony 

and submit my entire statement for the record. 

The CHAIRMAN. I appreciate that. 

Ms. O’DELL. I am accompanied by John ‘‘Jack’’ Rever from the 

Bureau of Indian Affairs, who is available to assist with questions. 

The Department of the Interior and several Federal agencies and 

museums that have NAGPRA obligations take their responsibilities 

seriously; 10,000 Native American human remains; 1 million funerary objects; and thousands of sacred objects and objects of cultural 

patrimony are reported to have been united with tribes and Native 

Hawaiian organizations. 

The consultations between tribes and Federal agencies and museums which occur as part of the NAGPRA process have resulted 

in better relations between tribes and Federal agencies. 

It must be recognized that fundamentally NAGPRA does not 

change ownership of items. Permits granted by Federal agencies 

confer access for the accumulation of data, but do not transfer ownership to the permit holder. NAGPRA provides a process to sort out 

possession and authority for control, which allows those with priority rights to direct use and disposition. 

The administration of the law follows two tracks, that of Federal 

agencies and museums with NAGPRA obligations and that of the 

national NAGPRA Program which administers some of the Secretary of Interior’s obligations for NAGPRA. 

The National NAGPRA Program which is based in the National 

Park Service has responsibility for these eight activities, publishing 

inventory and repatriation notices for museums and Federal agencies indicating their decision to transfer control to tribes. We have 

reached almost 2,000 notices accounting for 42,000 Native American human remains, with 10,000 human remains repatriated. 

Creating and maintaining databases, there are now seven web 

databases giving access and transparency to all NAGPRA compliance information. We make grants with museums, Indian tribes 

and Native Hawaiian organizations to consult on the determination 

of cultural affiliations and identification of cultural items, as well 

as the cost of repatriations. 

From 1994 to 2010, 665 NAGPRA grants of nearly $38 million 

were awarded. And repatriation grant requests have increased 300 

percent in the past two years. 

We investigate civil penalty allegations and prepare assessments 

on penalties from museums that fail to comply with provisions of 

the Act. We have had 166 counts that have been investigated and 

26

$50,000 in penalties that have been collected since the promulgation of regulations in 1997. We establish and provide staff support 

to the Native American Graves Protection and Repatriation Review 

Committee. We provide technical assistance when there are excavations of Native American human remains and cultural items on 

Federal and Indian lands. And to date, Federal agencies have reported 111 dispositions. 

We draft and promulgate implementing regulations. The rule on 

disposition of culturally unidentifiable Native American remains 

became final in 2010. A rule on disposition of unclaimed human remains and funerary objects on Federal lands is under review at the 

Department of the Interior. And the complete review of the 1995 

regulations is underway to resolve issues and aid compliance. 

And finally, we provide technical assistance for the Review Committee and supporting law enforcement investigations of illegal 

trafficking. 

In addition to administering the National NAGPRA Program, the 

National Park Service has responsibility for NAGPRA in national 

parks. Since 2005, the two programs have been fully separated in 

administration. 

Federal agency and museum compliance with the NAGPRA process begins with consultation with tribes to establish inventories of 

Native American human remains, resulting in notices of inventory 

completion. This is a necessary first step to repatriation. In my prepared statement, you will see a complete list of those inventories 

in detail. 

A recent report by GAO in 2010 reported on withdrawal notices, 

which are pre-publication drafts. Failure of a museum or a Federal 

agency to publish a notice following inventory halts the repatriation process. In 2004, there were over 300 drafts for which a museum or a Federal agency had not given the National NAGPRA 

Program permission to publish in the Federal Register. 

In 2005, the National NAGPRA Program sent letters to the originators of all of those documents and asked them to move forward 

and today less than 20 of the aging drafts await publication. So we 

have made significant progress there. 

There are concerns about the implementation of NAGPRA in the 

following two areas. In curation, there are issues of access and use 

of Native American human remains and cultural items that remain 

in museum and Federal agency collections. Research institutions 

holding those collections desire more time for study and tribes desire consultation on cultural affiliation prior to more study. Federal 

agencies are seeking to locate the extensive collections in non-Federal repositories in order to complete the NAGPRA compliance 

process. 

And in reporting collections, the National NAGPRA Program 

does not audit any Federal agency or museum collections. It is up 

to each one of those entities to report its inventory. The GAO report requested that Federal agencies determine their need for time 

and resources to complete their NAGPRA compliance and to publish certain notices. 

And finally, in my prepared remarks you will see the status of 

the five recommendations that GAO made in the National 

NAGPRA report and our responses to those recommendations. 

27

That concludes my statement, Mr. Chairman. Jack and I will be 

available for questions. 

[The prepared statement of Ms. O’Dell follows:]

PREPARED STATEMENT OF PEGGY O’DELL, DEPUTY DIRECTOR, NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY JOHN ‘‘JACK’’ REVER, 

DIRECTOR, OFFICE OF FACILITIES, ENVIRONMENT AND CULTURAL RESOURCES,

BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

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. We 

appreciate your attention to the implementation of this important law. 

The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) 

provides a process for determining the rights of lineal descendants and Indian tribes 

and Native Hawaiian organizations to Native American human remains, funerary 

objects, sacred objects, and objects of cultural patrimony in the possession or control 

of Federal agencies and museums and for human remains or items excavated or discovered on Federal or tribal lands after November 16, 1990. These items are basic 

to the humanity and definition of tribes. Resolution of rights to long-separated items 

through NAGPRA provides a means to restore long-denied rights and cultural heritage to tribes and to Native Hawaiian organizations. 

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, 10,000 Native American human remains, one million funerary objects, 

and thousands of sacred objects and objects of cultural patrimony are reported to 

have been united with tribes and Native Hawaiian organizations. The consultations 

between tribes and Federal agencies and museums, which occur as part of the 

NAGPRA process, have resulted in better relations between tribes and Federal 

agencies and have added to the body of knowledge on museum collections. 

It must be recognized that, fundamentally, NAGPRA does not change ownership 

of items. Rather, it asks to whom these items should rightfully belong, against a 

history in which Native American human remains and cultural items were removed 

without permission from descendants, and in which it was assumed that possession 

conferred ownership. NAGPRA provides a process to sort out possession and authority for control, which allows those with priority rights to direct use and disposition. 

As a result, permits granted by Federal agencies for scientific study on the land confer access to allow accumulation of data, but do not transfer ownership to the permit 

holder. 

Administration of NAGPRA 

The administration of the law follows two tracks: that of Federal agencies and 

museums with NAGPRA obligations, and that of the National NAGPRA Program, 

which administers some of the Secretary of the Interior’s obligations for NAGPRA. 

The National NAGPRA Program, which is based in the National Park Service 

(NPS), has the responsibility for the following activities for the Secretary of the Interior:

• Publishing inventory and repatriation notices for museums and Federal agencies in the Federal Register, which indicate their decision to transfer control to 

tribes. These will shortly number 2,000 notices accounting for 42,000 Native 

American human remains, of which 10,000 have been repatriated to tribes and 

Native Hawaiian organizations, and over one million funerary and other cultural objects

• Creating and maintaining databases. The database of Culturally Unidentifiable 

Human Remains is now one of seven on the web maintained by the National 

NAGPRA Program to give access and transparency to all NAGPRA compliance 

information and assist in consultation and repatriation. Maps of tribal lands 

and other resources for consultation and repatriation are found on the National 

NAGPRA Program website at www.nps.gov/NAGPRA.

• Grant Making to assist museums, Indian tribes, and Native Hawaiian organizations in consulting on the determination of cultural affiliation and identification 

of cultural items, as well as for costs of repatriation when tribes bring ancestors 

and items home. From 1994–2010, 665 NAGPRA grants were awarded to museums and tribes, totaling nearly $38 million. Repatriation grant requests have 

increased 300 percent in the past two years.

28

• Investigating civil penalty allegations and preparing assessments of penalties 

on museums that fail to comply with provisions of the Act. Since the promulgation of the regulations in 1997, 166 counts have been investigated and $50,000 

in penalties collected. Each museum found to not be in compliance has come 

into compliance by the end of the civil penalty process.

• Establishing and providing staff support to the Native American Graves Protection and Repatriation Review Committee, which resolves disputes and aids repatriation. Their report to Congress is a nationwide view of accomplishments 

and barriers.

• Providing technical assistance for prompt disposition when there are excavations of Native American human remains and cultural items on Federal and 

Indian lands. To date, Federal agencies have reported 111 dispositions, accounting for almost 1,000 human remains and 9,000 funerary objects.

• Drafting and promulgating implementing regulations. The rule on disposition of 

Culturally Unidentifiable Native American Human Remains became final in 

2010; a rule on disposition of ‘‘unclaimed’’ human remains and funerary objects 

on Federal lands is under review at the Department of the Interior; and a complete review of the 1995 regulations is underway, to resolve issues and aid compliance.

• Providing technical assistance, through training, the web and reports for the 

Review Committee, as well as support for law enforcement investigations of illegal trafficking. Training is provided to upwards of 2,000 participants annually 

in in-person, webinar and video training. The National NAGPRA Program responds to thousands of inquiries annually.

In addition to administering the National NAGPRA Program, the National Park 

Service has responsibilities for NAGPRA in national parks. Since 2005, the two programs have been fully separate. At that time a consultative relationship between 

the Assistant Secretary of Fish and Wildlife and Parks and the Assistant Secretary 

of Indian Affairs was also established. The Office of the Solicitor, representing both 

agencies, consults on regulations and assists the National NAGPRA Program functions, including training. 

Federal agency and museum compliance with the NAGPRA process begins with 

consultation with tribes to establish inventories of Native American human remains 

resulting in notices of inventory completion. This is a necessary first step to repatriation and works in conjunction with the distribution of collections summaries to 

tribes resulting in consultation and claims for cultural items resolved in notice of 

intent to repatriate notices. Dedication to the process is seen in the following:

• There have been 1,539 summaries and 459 statements that no NAGPRA collections summary was required submitted to the National NAGPRA Program from 

770 museums and 286 Federal agency units. As a result, 531 notices of intent 

to repatriate have been published, accounting for 144,782 unassociated funerary 

objects, 4,321 sacred objects, 962 objects of cultural patrimony, 1,217 objects 

that are sacred and patrimony, and 292 undesignated items.

• There have been 1,119 inventories submitted to the National NAGPRA Program 

and 1,441 notices of inventory completion published, accounting for over 41,000 

Native American human remains and 1 million funerary objects associated with 

them. All notices are on the web.

• Museums and Federal agencies prepare two inventories. One inventory lists 

those individuals for whom cultural affiliation can be determined. The list includes the decision of the museum or Federal agency. If information is lacking 

by which a determination can be made on a reasonable basis, the Native American individual is listed on the second list-the ‘‘inventory of culturally unidentifiable’’ (CUI) Native American human remains. A public access database of CUI 

was launched in fall 2005 by the National NAGPRA Program to assist in further consultation and identification. To date there are 125,671 individuals listed 

on the database and 939,385 funerary objects associated with those individuals. 

The number of CUI subsequently culturally identified to date is 5,544 and the 

number of CUI transferred by a disposition to a requesting tribe, without a cultural affiliation determination, is 3,960.

Withdrawal of Notices 

In 2010, the Government Accountability Office (GAO) prepared a report on 

NAGPRA, which includes findings for the Bureau of Indian Affairs (BIA), the Bureau of Reclamation, the Bureau of Land Management, the Fish and Wildlife Service, the National Park Service, the Army Corps of Engineers, the U.S. Forest Service 

29

and the Tennessee Valley Authority. It reported on withdrawal notices, which are 

pre-publication drafts. Failure of a museum or Federal agency to publish a notice 

following completion of an inventory halts the repatriation process. Compliance requires publication of a notice and not mere submission to the National NAGPRA 

Program of a draft document. In 2004, there were over 300 drafts, 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. 

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. The National NAGPRA Program tracks human remains listed in 

inventories, through resolution in a notice, and finally into transfer of control to 

tribes and Native Hawaiian Organizations. The National NAGPRA Program does 

not withdraw a notice, but facilitates the publication of notices. Less than 20 of the 

aging drafts await publication. 

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. Research 

institutions holding collections desire more time for study and tribes desire consultation on cultural affiliation prior to more study. Federal agencies are seeking to locate the extent of collections in non-Federal repositories in order to complete the 

NAGPRA compliance process.

Reporting Collections: 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. It is up to each 

Federal agency or museum to report its inventories. The GAO report requested that 

Federal agencies determine their need for time and resources to complete NAGPRA 

compliance and publish certain notices. Federal agencies hold one-fifth of NAGPRA 

items in collections, while museums hold four-fifths of all collections. Three-fourths 

of the total number of culturally affiliated individuals in Federal agency collections 

are represented in published notices of inventory completion. 

NPS Response to 2010 GAO NAGPRA Report 

The 2010 GAO report on NAGPRA made five recommendations:

Recommendation 1: Develop and provide to Congress a needs assessment listing 

specific actions, resources, and time needed to complete the inventories and 

summaries required by NAGPRA sections 5 and 6 for their historical collections. 

Response: Federal agencies are compiling their needs assessments and 

timelines, which are due to Congress by June 30, 2011. These responses will 

be submitted by the deadline.

Recommendation 2: Develop and provide to Congress a timetable for the expeditious publication in the Federal Register of notices of inventory completion for 

all remaining Native American human remains and associated funerary objects 

that have been culturally affiliated in inventories. 

Response: Federal agencies are compiling their timetables, which are due to Congress by June 30, 2011. These responses will be submitted by the deadline.

Recommendation 3: Reassess whether Alaska Native Claims Settlement Act 

(ANCSA) corporations should be considered as eligible entities for the purposes 

of carrying out NAGPRA given the Solicitor’s opinion and BIA policy concerning 

the status of ANCSA corporations that has been completed. 

Response: The Solicitor issued a memorandum on March 18, 2011 and the Department of the Interior will shortly publish an amendment to the NAGPRA 

regulations to delete the regulatory definition of ‘‘tribe’’ to be consistent with the 

statute, which does not include Alaska corporations as tribes.

Recommendations 4: Strictly adhere to the nomination process prescribed in the 

Act and, working with the Department of the Interior’s Office of the Solicitor, 

as appropriate, ensure that all Review Committee nominations are properly 

screened to confirm that the nominees and nominating entities meet statutory 

requirements. 

Response: The nomination process for NAGPRA Review Committee members 

was modified in 2008 and all selections from that time forward have followed 

the GAO recommendations.

Recommendation 5: Request that the Department of the Interior request Federal agencies to report their human remains actually repatriated to tribes to the 

National NAGPRA Program on an annual basis and that the National NAGPRA 

30

Program report the information to the NAGPRA Review Committee for inclusion in their report to Congress. 

Response: The National NAGPRA Program began reporting the numbers to the 

Review Committee at their fall meeting in 2010 and in each report since. The 

numbers of human remains repatriated from Federal agency and museum collections to tribes and Native Hawaiian organizations will appear in the Review 

Committee Report to Congress for 2010, to be finalized on June 22, 2011, and 

in each annual report in the future.

Mr. Chairman, that concludes my statement. I will be pleased to answer any 

questions that you may have.

The CHAIRMAN. Thank you very much for your testimony, and 

good to have you here. 

Ms. O’DELL. Thank you. 

The CHAIRMAN. Mr. Gover, will you please proceed with your testimony? 

STATEMENT OF KEVIN GOVER, DIRECTOR, SMITHSONIAN

INSTITUTION’S NATIONAL MUSEUM OF THE AMERICAN

INDIAN 

Mr. GOVER. Thank you, Mr. Chairman. Good afternoon to the 

Members of the Committee. 

At the Smithsonian, our repatriation programs operate on a belief that it is important that we return these remains and objects 

to the correct community, to the correct tribe, and that the real objective of the Act is not really to expunge these materials from 

these collections, but rather to respond to the tribes in the way 

that they wish concerning the disposition of these remains. 

And so that is to say the objective is to repatriate, and not to 

purge the collections. The objective is not simply to remove all 

human remains from museum collections, only those that have 

been requested and whose affiliation has been established. 

And that is why we are required by the statute to review the 

best available scientific and historical documentation in making 

these decisions about the affiliation of particular remains with particular communities. 

We do appreciate the work of the GAO and the patient and collegial way in which the review was conducted. We learned a great 

deal in the process and, as you have read, the GAO did as well. 

The report raises several issues. We began working on those internally at the Smithsonian on just how to resolve those issues. 

We do want to note and say that it is gratifying that the tribes 

which the GAO contacted concerning the repatriation processes of 

the two museums at the Smithsonian with these sorts of collections 

expressed satisfaction with how the S.I. conducts its repatriation 

process. 

We have tried to establish a process that is open, that is collegial, that is not adversarial. It is not a matter of us protecting our 

protections from these communities, but rather working together 

with these communities to find a resolution that is satisfactory to 

them and not to us. 

So for us, this program is not just about removing objects. It is 

about the proper culturally sound care of these things that perhaps 

some could be repatriated, but for any variety of reasons have not. 

And so even if at the end of a process the tribe chooses not to have 

objects or remains returned to them, we want to continue to care 

31

for those materials in the way that the tribe wishes for them to be 

cared for. 

These collections came together at the end of the 19th century 

and early 20th century. And that was a time when anthropology 

really considered itself to be conducting a salvage operation in connection with Native American communities. The presumption was 

that these communities would not continue to exist and so it was 

important that science get out there, capture these materials and 

preserve them for posterity. 

Well, it turns out these communities are still here and they don’t 

seem to be going anywhere soon. And so Congress has addressed 

the issue in an appropriate way by saying to institutions like the 

Smithsonian which is, in the end, a federally sponsored institution, 

that we need to work with these tribes in order to arrange for a 

proper disposition of these materials. That is our objective. 

And so while we are anxious to do this with all the expedition 

possible, what is of greatest interest to us, what is of greatest import to us and, we believe, to the tribes with which we work, is this 

ongoing relationship concerning the care of the materials that originate in these communities. 

Again, upon request, we will continue to return those items that 

are subject to the statute. We may on occasion return even objects 

that are not subject to the statute because that is the nature of our 

relationship with these communities. 

But what we don’t want to do, and the portion of the GAO report 

that I personally at least, and I think most of us at the institution 

really struggle with, is the idea that we should dispose of these materials, in particular these human remains, without making our 

very best efforts to determine their origin. We think it is more important to see that they return to the correct communities than 

that they simply leave the collection. 

There will come a point, of course, at which we have made our 

best efforts and determined that we simply will not be able to determine the origin of some of these remains. And so GAO is absolutely right to say we should have an open, publicly developed policy for dealing with those circumstances. And so to that end, we 

will be doing so expeditiously and working with the tribes to develop our response. 

So I will stop there, Mr. Chairman, and would be grateful to answer questions. 

Thank you. 

[The prepared statement of Mr. Gover follows:]

PREPARED STATEMENT OF KEVIN GOVER, DIRECTOR, SMITHSONIAN INSTITUTION’S

NATIONAL MUSEUM OF THE AMERICAN INDIAN

Mr. Chairman and members of the Committee, I am Kevin Gover, Director of the 

Smithsonian Institution’s National Museum of the American Indian. I am here 

today on behalf of the Smithsonian Institution to share with you our record in implementing the repatriation provisions of the National Museum of the American Indian Act. 

The Smithsonian Institution is home to two museums that possess collections of 

Native American materials. The National Museum of Natural History (NMNH) collections include collections of archaeological, ethnological, and physical anthropological materials. The National Museum of the American Indian (NMAI) holds archaeological and ethnological collections. The NMNH opened its doors in 1910. The 

NMAI was established by Congress in 1989 in the National Museum of the AmerVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 S:\DOCS\68066.TXT JACK
32

ican Indian Act, and its Mall museum opened its doors in 2004. Both Smithsonian 

museums possess vast collections compiled largely in the 19th and early 20th centuries. 

Collecting practices in those times were very different from our current collecting 

practices. Those old practices sometimes disregarded the values and sensibilities of 

the Native communities from which the materials originated. As a result, both collections contain materials that properly should reside in the Native communities 

from which they came. When Congress passed the NMAI Act in 1989, it directed 

the Smithsonian to undertake the repatriation of human remains and funerary objects. In 1996, Congress amended the NMAI Act to add sacred objects and objects 

of cultural patrimony to the materials to be repatriated when requested by a tribe 

or eligible individual. 

The Smithsonian has assumed the responsibility with considerable energy. In just 

over twenty years, the Smithsonian has offered for repatriation nearly 6,000 human 

remains, over 212,000 funerary objects, and over 1200 sacred objects and objects of 

cultural patrimony. For a variety of reasons ranging from the cultural to the practical, not all of these offers were accepted. Because of the vastness of the collections 

of the two museums, moreover, many remains and objects that might be repatriated 

are still in the collections despite the aggressive repatriation programs of the two 

museums. As you know, the General Accountability Office (GAO) has completed a review of 

the Smithsonian’s repatriation activities. We appreciate the GAO’s work and the 

manner in which it was conducted, and recognize that the report raises worthy 

issues for the consideration of this Committee and the Smithsonian leadership. 

Perhaps the most important issue presented by the GAO report involves the tension between the statutory objective of promptly returning eligible materials to requesting tribes and individuals on the one hand, and the statutory objective of returning eligible materials to the correct claimants on the other. As noted in the report, the NMAI Act requires the Smithsonian to consider the best available historical and scientific documentation in making its repatriation decisions. This requirement imposes a higher burden of proof on Smithsonian museums than is contemplated under the Native American Graves Protection and Repatriation Act 

(NAGPRA). It is a requirement both burdensome and necessary. The Smithsonian 

is committed to the advancement and diffusion of knowledge. Knowledge is the 

product of thorough research and analysis. Such scholarship produces conclusions 

that are as accurate as practicable. In the context of our repatriation activities, this 

means that our decisions should correctly determine the cultural affiliation of 

human remains and objects to be repatriated. 

Turning to the specific recommendations contained in the GAO report, we share 

the report’s objective of maintaining an orderly, effective, and transparent program 

of repatriation. To this end, the Smithsonian will consider ways in which the role 

of Repatriation Review Committee could include some relationship with the repatriation program at the NMAI. Because, historically, the RRC has not been involved 

with the repatriation decisions rendered of the NMAI, the precise nature of the relationship will be the subject of further discussions with key stakeholders. The NMAI 

Board of Trustees brings the same scholarly credentials and cultural expertise to 

the task as the RRC. The NMAI Board of Trustees must by statute have a Native 

American majority; the Trustees collectively are knowledgeable of Native cultures 

and committed advocates of the preservation of Native culture. The Board plays the 

independent advocacy role that the Congress anticipated when it empowered the 

Board of Trustees with ‘‘sole authority’’ over the NMAI collections, subject to the 

general policies of the Smithsonian. Nonetheless, we recognize the benefit of working more closely with the Repatriation Review Committee and we are evaluating the 

most effective and efficient way to enable that. 

We agree with the GAO that a system of periodic reporting to Congress on the 

progress of the Smithsonian’s repatriation activities should be established. By virtue 

of the GAO’s report, we recognize that Congress is indeed interested in the scope 

of repatriation on a national scale and the Institution will develop a reporting mechanism through which the Secretary of the Smithsonian can provide to Congress a 

complete picture of its robust and successful repatriation program. 

The Smithsonian also agrees with the GAO that the process of appealing repatriation decisions by the two museums should be changed. We note, though, how rare 

it has been for repatriation decisions by the museums to be challenged. Indeed, in 

over twenty years, there have been only two cases in which a Smithsonian museum’s decision was challenged. The collegial processes pursued by both museums and 

the roles played by the RRC and the NMAI Board of Trustees in the process have 

resulted, in the overwhelming majority of cases, in the acceptance of the museums’ 

decisions by those who have requested repatriations. 

33

In the interest of transparency and consistency, we are examining different procedures for appeals. We agree with the GAO that the decision maker on an appeal 

from a museum’s decision should not have been involved in the museum’s decision. 

We will consider different options and establish a new process that has these characteristics. 

We agree with the GAO that the Smithsonian should adopt and publish policies 

for the handling of culturally unaffiliated items in the collections. We note that the 

Smithsonian’s obligations with regard to such items are different from those established in NAGPRA. We believe, therefore, that our policies should not necessarily 

be the same as those established by the Interior Department for NAGPRA institutions, and that such policies should be developed by the NMAI and NMNH in consultation with tribal governments. We will embark on such a consultation process 

promptly. 

Thank you for the opportunity to testify, Mr. Chairman. I would be happy to answer any questions the Committee may have.

The CHAIRMAN. Thank you very, very much, Mr. Gover, for your 

testimony and your spirit of working with the tribes. 

Ms. O’Dell? 

Ms. O’DELL. Yes, sir? 

The CHAIRMAN. We will hear from tribal leaders today about the 

importance of consultation when it comes to repatriation. What is 

the department doing to ensure that tribes are consulted in the repatriation process? Is there room for improvement in these consultations? 

Ms. O’DELL. I think consultation is reported to be the best tool 

that we have to be able to carry out the NAGPRA law. And we 

have created a transparent system of data. We have collected a lot 

of data and we have put all of that up on the website for anyone 

to access. And we use that as a way to communicate as best we 

can with tribes. 

The tribes look at that data and they get an understanding of 

whether or not they have any remains or objects that might belong 

to them, and they begin the consultation process with us. We conduct a lot of training. One of the missions that we have in running 

the National NAGPRA Program is to conduct training for tribes, 

for museums and for Federal agencies to help them understand 

how best to go through the process of identifying where these remains belong and how best to repatriate them. 

The CHAIRMAN. Well, that is great. 

Throughout your testimony, Mr. Gover, you agree with many of 

the GAO recommendations. How will you prioritize and implement 

these recommendations? And can you provide the Committee with 

a timeline on when these recommendations may be fully implemented? 

Mr. GOVER. I can’t, not at this moment. But I think if you will 

give me the opportunity to go back and consult with the Natural 

History Museum and with the Secretary, we will provide that in 

writing. I think you will find that it will not be a long time; that 

there is some work we need to to internally, but these aren’t enormous tasks. And we would be happy to provide a report on our 

progress very promptly. 

The CHAIRMAN. Thank you very much for that. You can tell that 

we are trying to set a timeframe to get some of these things acted 

on, and that is our spirit. So we look forward to working with you. 

Mr. GOVER. If you give me a deadline, Mr. Chairman, I will meet 

it. 

34

The CHAIRMAN. Ms. O’Dell, in 2005, this Committee held a hearing on NAGPRA which focused on an amendment to the definition 

of Native American. Does the department have a position on this 

proposed amendment? 

Ms. O’DELL. Does this have to do with Alaska Native Corporation, sir? 

The CHAIRMAN. This has to do with the proposed amendments to 

redefine the definition of Native American in NAGPRA, which 

means, of or relating to a tribe, people, or culture that is indigenous to the United States. 

Ms. O’DELL. I am sorry, sir, I haven’t heard any recent discussion, but I will be happy to get back to you with that answer. 

The CHAIRMAN. All right. Thank you very much. I am glad we 

are coming to the point where we are trying to get responses. 

Ms. O’DELL. Absolutely. 

The CHAIRMAN. And thank you very much for that. 

So let me ask Senator Murkowski, I am going to call for a second 

round, so I will pass it on to her at this point in time. 

Senator Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Ms. O’Dell, what does it cost for an average repatriation? Is there 

an average? 

Ms. O’DELL. I don’t know that there is an average. The way repatriation, the way we fund them out of the National NAGPRA Program is that a tribe will make a request for a certain dollar 

amount for a repatriation. And so far I think we have been spending about $150,000 a year on that and we have never had to turn 

down a request from a tribe for a repatriation. 

Senator MURKOWSKI. So you are saying that you have got enough 

money to grant out to tribes, anybody that is looking to go through 

this process, so that funding of it is not an issue. 

Ms. O’DELL. I would say that it is probably circumstantial. And 

as more information becomes available and tribes are able to identify more of their remains to come home, that there may be a point 

in time where that may not be a true statement, but to this point, 

we have been able to grant the dollars that the tribes want. 

Senator MURKOWSKI. So there is no backlog, to your knowledge, 

out there of anybody who has made a request who has not yet received the funding. 

Ms. O’DELL. Not to my knowledge. 

Senator MURKOWSKI. Okay. You are like the only entity that I 

have ever talked to that says that we have enough money for the 

program that we are currently engaged in. Don’t tell anybody who 

is working through this budget issue and problem that you are 

doing okay. 

Because I think it is an important aspect of this, and what I 

have been told is that it is a considerable financial undertaking to 

go through the repatriation process. And not only costly financially, 

or from a financial perspective, but the time involved and the individuals that are involved with making it happen. 

I know that within the State of Alaska, and you mentioned in response to the Chairman, you mentioned is this about the Alaska 

Native corporations. One of the benefits that we have seen in the 

State of Alaska is our ANCs, our Alaska Native corporations, are 

35

on a stronger financial footing than most of our Alaska Native village tribes and are in a better position to thereby invest their own 

funds in the NAGPRA mission out there. 

In March, I was notified by the National Park Service that it intends to change their regulations in a way that would make ANC’s 

ineligible to receive any NAGPRA grants and participate in the 

NAGPRA consultations. And it is this whole aspect of the consultation I think that is troubling as well. 

But we were told that the reason for this change is that the 

NAGPRA statute, unlike probably a dozen or more other Federal 

Indian statutes, chooses to narrowly define the term Indian tribe 

in a way that does not include Alaska Native village and the regional corporations. 

This is a pretty substantial change from the Interior Department’s position in the past where they have included Alaska Native 

corporations as participants on an equal basis with other Indian 

tribes. And we recognize that ANCs are not tribal governments, 

but they are considered tribes for purposes of dozens of other Federal laws. Our ANCSA Board of Directors are made up exclusively 

of native people. ANCs were statutorily created by Congress to 

manage the land and the resources of tribal people. 

And as I mentioned, ANCs have a greater capacity, most clearly, 

and the resources to reclaim the property, whether it is the cultural objects or the remains, and really the greatest capacity to 

reach the most native people. 

So given how Alaska tribes clearly can benefit from the policy 

goals of NAGPRA in terms of the repatriation and all that comes 

with it, and the knowledge that ANCs are better able to get around 

the financial issues, why the change in policy? 

Ms. O’DELL. It is based on the solicitor’s opinion of reading the 

NAGPRA law and trying to make our regulations support that and 

be consistent with what the law says. 

Senator MURKOWSKI. So would the department object if I were 

to offer legislation that expressly included Alaska Native corporations in the definition of Indian tribe under NAGPRA in order to 

clear up any confusion or issue that might remain? 

Ms. O’DELL. I think that would help clarify things, ma’am. 

Senator MURKOWSKI. And I am assuming by that statement that, 

yes, it would clarify things and that the department wouldn’t have 

objection to Alaska Native corporations being eligible for the 

NAGPRA consultation and just being able to work within 

NAGPRA. 

Ms. O’DELL. Correct. It is just a matter of being in concert with 

the law. 

Senator MURKOWSKI. I appreciate that. We want to make sure 

that everybody is doing what we need to be doing. 

Mr. Gover, I wanted to ask you one quick question. And this is 

as it relates to international museums. Within the Museum of 

American Indian, do we have agreements with other museums outside of this Country with regards to international repatriation that 

you are aware of? 

Mr. GOVER. Senator Murkowski, we have no standing agreements with institutions in other countries. We have on occasion repatriated materials to other countries, working both through the 

36

national governments there and with the local indigenous communities where we believe these materials originated. But we have no 

continuous standing agreements. 

Senator MURKOWSKI. Is that something that other countries 

have? Because I know that we have, or I believe that we have ancestral remains and cultural items within collections in international museums outside of our borders. That is correct. 

Mr. GOVER. We do. In fact, there are native materials and native 

human remains throughout the globe in different museums. I can 

say based on a conversation I had with the Australian ambassador 

a few months ago that Australia is pursuing a very aggressive program of attempting to repatriate all remains from Australia that 

are in museums outside Australia to be returned there. And that 

their policy will be upon request to return materials in Australian 

museums to other countries where they originate. 

And so that is a national policy, but it is not embodied in treaty 

or agreement of any kind. 

Senator MURKOWSKI. So it really would be collection by collection, where we would go to a specific museum and make that request for repatriation. Is that how it works? 

Mr. GOVER. Yes, Senator, that is how it works. 

Senator MURKOWSKI. All right. I thank you. 

I thank you all, and I thank you, Mr. Chairman, for the hearing 

this afternoon. I won’t be able to stay for the third panel, as I have 

another engagement, but it was important to be able to get some 

questions answered here today. 

So thank you. 

The CHAIRMAN. Well, thank you very, very much for being here 

with us, Senator Murkowski. 

Mr. Gover, the NMAI Act, which specifically mentioned Native 

Hawaiian organizations, can you please discuss the significance of 

this inclusion in the Act and the Smithsonian’s efforts to repatriate 

items to Native Hawaiian organizations? 

Mr. GOVER. Yes, Mr. Chairman. Obviously, in the passage of the 

NMAI Act, Native Hawaiian peoples were dealt with in some very 

interesting ways, essentially as the equivalent of American Indians 

and the indigenous people of the Western Hemisphere. And so, for 

example, in the NMAI Act, the Smithsonian is just as it is expected 

to repatriate human remains, funerary objects, sacred objects to 

American Indian tribes, it is also expected to do to, it is directed 

to do so when it comes to materials from Hawaii. 

And so I learned just this morning, because I thought you might 

be interested, that when the Act was passed in 1989, we had in the 

Smithsonian collections 180 individuals, the remains of 180 individuals and five funerary objects. And I am pleased to be able to 

report that all of those have been repatriated to Native Hawaiian 

communities. 

Let me just say, if I may, Senator, when I was at the Interior 

Department not that long ago, it was the time when both Congress 

and the Administration were considering the status of Native Hawaiian people under Federal law. And as you know, we presented 

a report at the direction of Congress in which my agency participated. And again, speaking for myself, I just wanted to say that we 

are grateful for the work that you are doing on that issue now. 

37

The CHAIRMAN. Well, let me comment on that and thank you so 

much for your interest and your involvement at that time, which 

was really the beginning of what we are trying to do and I appreciate it very much. 

Ms. O’Dell, the 2010 GAO report stated that BIA, along with the 

Tennessee Valley Authority, had done the least amount of work to 

identify NAGPRA items and include them in their summaries and 

inventories. Since that report, what actions has BIA taken to address this issue? 

Ms. O’DELL. All of the Federal agencies have been working very 

hard since the GAO report. And since I have Mr. Rever with me, 

I will let him address that question for the BIA, if that is all right 

with you, Sir? 

The CHAIRMAN. Yes. 

Mr. REVER. Thank you very much, Mr. Chairman, for allowing 

me the opportunity to address that issue. 

It is true that in 2009, there were three vacancies on the staff 

for handling museum collections, and largely NAGPRA issues, two 

curators and one archaeologist. At that time, those positions had 

languished for some while and we had fallen behind in our attention to the NAGPRA Program. 

At that time, and I point out on page 46 of the report, that GAO 

noted that the number of human remains published in notices was 

464, with 443 repatriated, which indicates that it was not being ignored; that actually it was being taken when the remains were 

identified and the cultural affiliation made. 

But since that time, those numbers have doubled. We have published notices of 828 NMIs and 194 of those have been repatriated. 

The other remaining 36 remain. They have been noticed. There 

have been none claimed from the tribes to repatriate for a variety 

of reasons, some of which have to do with cultural reasons and the 

coordination and consultation of multiple tribes. 

Because if you look at the notices, what you find is a cultural affiliation with more than one tribe. And we are very pleased to report that working closely with the Park Service and with the tribes 

that are included in those notices, we have been able to effect a 

very high rate of repatriations because the tribes themselves have, 

in working with us, reconciled the difference between the cultural 

affiliations and who would take possession of the remains and treat 

them with respect and the proper circumstances. 

And we are very pleased to be able to report that. We have made 

tremendous progress and achievement in this area. There are a 

ways to go. For instance, we know that we have 61 repositories of 

NAGPRA items. Now, those 61 are included across all of the lower 

48 States, but there are 15 States that we have not inventoried. We 

have not made an effort to go out and look at the potential 

NAGPRA items that would be under our control, but in the possession of those agencies. 

We don’t have anything in our possession. Everything is outside 

the Federal agency BIA. However, those are the 15 least likely 

States where items may be. We do, though, because we are working very closely with the National Park Service. Whenever a museum identifies a cultural items that is subject to the NAGPRA 

provisions and they have not notified Indian Affairs, we are notiVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 S:\DOCS\68066.TXT JACK
38

fied by the Park Service. And then we take action for joint publication notices and that sort of thing. 

So we have made tremendous progress and we are very pleased 

to be able to report that to the Committee. 

The CHAIRMAN. Thank you very much. 

Mr. Gover, can you provide the Committee with a few examples 

of culturally unaffiliated items within the collections and describe 

how the Smithsonian’s obligations with regard to these items differ 

from those established under NAGPRA? 

Mr. GOVER. Sure. The issue is whether any given bone usually 

can be properly associated with a particular community or as having a particular origin. Sometimes, it will come to us, for example, 

what comes to mind is a case where we had some modified material where there were human vertebrae into which had been inserted quite post-mortem, this was not the cause of death, arrowheads into these vertebrae. 

Well, there is really no particular evidence to indicate that they 

relate to a given tribe. We know the area that they are from, but 

we also know that the arrowheads are not necessarily from that region. So there are some very strange things in museum collections 

sometimes, and that is a good example. 

Now, we do think we can put together enough evidence to deal 

with that particular situation, but first glance, there is no reason 

to associate such things, which were basically made for tourist sale, 

there is no reason to associate such things with any particular community. We will make every effort to do so. 

The more common case is going to be where the record supporting a particular skeleton, for example, isn’t adequate to tell us 

exactly where something came from. And so those particular remains may have been part of a much larger group that arrived at 

some museum well over a century ago and were simply inadequately documented. 

Now, there because neither of the Smithsonian museums engage 

in any sort of destructive testing, we may never know exactly 

where these particular remains came from. And in reality, it can’t 

even be estimated. We just may never know. 

Finally, there are materials in the collections that have been, the 

phrase we use is culturally modified. And so you might find a particular garment or a necklace that includes a human bone or locks 

of human hair. And the question then becomes: Are we attempting 

to identify the owner of the necklace or the owner of the hair? And 

how do we make sure that is the same person? 

And so those are the kinds of things that are going to continue 

to come up and we have not reached solutions. But that is why we 

do agree with GAO that we should be talking about that out in the 

open and really working with the tribes to try to develop a policy 

on how to deal with those. 

The CHAIRMAN. Well, we really appreciate that. We look forward 

to that happening. 

Ms. O’Dell, in 2009, the Nation’s largest investigation of archaeological and cultural artifacts led to the arrest of nearly two dozen 

individuals. Many of these individuals desecrated American Indian 

burials and stole priceless artifacts. Were these individuals prosVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 S:\DOCS\68066.TXT JACK
39

ecuted? Do we need tougher penalties for those who desecrate and 

steal from sacred sites? 

Ms. O’DELL. I believe you are referring to the BLM case down 

in the Four Corners area, sir. And I believe the individuals were 

prosecuted, and BLM is in the process of consultation to repatriate 

all of those artifacts that were recovered in the seizure after the 

arrests. 

The CHAIRMAN. Yes, well, thank you very much. We look forward 

to continuing to work with you and to try to get some information 

from you as well, as we continue our work here. And if we need 

to, we will legislate some things. If not, we will try to do it administratively. But we certainly want to resolve some of the concerns 

that the native peoples have had over all of these years. 

So I thank you very much for being a part of this. 

Ms. O’DELL. Thank you, Mr. Chairman. It is an honor to administer the program with you. 

The CHAIRMAN. Thank you. 

I would like to invite the third panel to the witness table. Serving on our third panel is the Honorable Mark Macarro, chairman 

of the Pechanga Band of Luisen ̃ o Indians from Temecula, California; the Honorable Mervin Wright, Vice Chairman of the Pyramid Lake Paiute Tribe from Nixon, Nevada; and Mr. Ted Isham, 

Cultural Preservation Manager and Tribal Historical Preservation 

Officer at the Muscogee Creek Nation located in Okmulgee, Oklahoma. 

So I want to welcome all of you to this hearing. 

Chairman Macarro, will you please proceed with your testimony? 

STATEMENT OF HON. MARK MACARRO, CHAIRMAN, 

PECHANGA BAND OF LUISEN ̃ O INDIANS 

Mr. MACARRO. Mr. Chairman and Members of the Committee, 

[greeting in native language]. It is good to be here with all of you, 

and good afternoon. And it is an honor to be here to testify on this 

issue [phrase in native language]. 

First, a bit of background. The homeland of the Pechanga people 

is the Pechanga Indian Reservation located near Temecula, as you 

said. Our people have called the Temecula Valley home for more 

than 10,000 years. We are 60 miles due north of San Diego along 

Interstate 15. 

Our people have named the Temecula Valley since time began as 

[phrase in naive language.] It might be why it is sometimes hard 

to pronounce, and we believe that the world was created in 

Temecula. That is where all life began. 

In 1847, 18 treaties were negotiated in sequence with tribes 

throughout California, and the Treaty of Temecula was the 17th of 

those treaties. There was one more after us, the treaty I think of 

Santa Ysabel. In good faith, huge land cessions were made under 

these treaties involving ceding most of what we know as modern 

day Southern California in exchange for a permanent inviolable 

homeland and the provision of goods and services to improve 

health, education and welfare of my great-grandparents. 

Shortly after ceding these huge tracts of land and within one 

month of arriving back in Washington, D.C., gold was discovered 

in the Hills of Julian, about 40 miles away. The timing was indeed 

40

unfortunate for all of us Indians and tribes because the Senate, 

upon hearing of the gold, they chose not to ratify these 18 treaties. 

And still, surprisingly enough, our land was taken from us. Most 

of the goods and services that were promised as well in our treaty 

never materialized and we remained, however, on our lands at that 

point in time, that legally they had begun to be dispossessed from 

us. 

But there is more. Twenty-six years after that treaty-making, in 

1873, sheep farmers laid claim to the land that we managed to 

hang on to for about 25 years. That is where our last aboriginal 

village stood. These sheep farmers obtained a Federal court decree 

of ejectment from a Federal court in San Francisco. 

And on a summer day in 1875, after two years of fighting that 

decree of ejectment, a posse led by the Sheriff of San Diego County 

showed up and under gunpoint evicted my ancestors from their village. And in one swell swoop, 300 elders, women, children were 

loaded onto wagons with a few personal effects and just dumped 

in a dry wash two miles away. Their former homes, their orchards, 

their village, their crops, their gardens were destroyed, burned, and 

their livestock herds, which were numerous, were seized to pay for 

the court costs and the cost of the eviction. 

On June 27th, 1882, and that anniversary is coming up here, 

President Chester Arthur signed the executive order that established the Pechanga Reservation, finally a homeland for my people. 

Now, this timely oversight hearing follows the release of two 

GAO reports demonstrating that Federal agencies have in general 

failed to comply with NAGPRA. On behalf of the Pechanga, we 

greatly appreciate your time and interest in consideration of these 

issues. The Pechanga has been fortunate to create a Cultural Resources Department dedicated to the return and protection of our 

tribal ancestors and their cultural belongings. We have actively 

participated on hundreds of development projects that directly impact our invaluable and irreplaceable Luisen ̃ o cultural resources. 

Despite these remarkable advances, the Luisen ̃ o people continue 

to confront daily threats to our ancestors, and it is for this reason 

I come to the Committee today urging you to strengthen NAGPRA 

20 years after its passage. 

The two primary issues I need to address are compliance failures 

and consultation failures. We go into great detail of these in our 

written testimony. 

On compliance failures, the La Jolla ancestors example. Unfortunately, the University of California example illustrates several 

NAGPRA concerns. I refer you to our written testimony for the full 

facts. But briefly, the University of California San Diego has refused to repatriate the remains of ancestors to our Kumeyaay 

neighbors to the south, neighbors who are culturally affiliated. And 

they used science to deny oral tradition, tribal oral tradition, and 

further demanding evidence contrary to NAGPRA standards. 

The matter demonstrates the following shortcomings with the 

law. One, NAGPRA allows the university to set its own standards 

for appointing decision-makers to address repatriation claims. The 

U.C. and its campuses have a poor record of including representatives from California’s federally recognized tribes. 

41

Unfortunately, we see that many of these NAGPRA review committees are stacked by the institution against tribal interests, thus 

assuring that our tribal ancestors and their belongings will never 

return home. 

The lack of guidance, standards or best practices results in inconsistencies and ultimately wrongheaded decisions which contravene 

NAGPRA’s mandate. These institutions are simply unable to self 

police themselves to follow the law correctly. There is enforcement 

that is needed. 

Two, the U.C. interprets NAGPRA’s definitions in a manner 

which forces tribes to provide evidence of cultural affiliation and 

proof of identity of cultural items beyond the law’s evidentiary 

standards. The guidance in NAGPRA provides institutions with yet 

another way to avoid repatriating by concluding that items are not 

subject to the law or, as the U.S. example shows, using the new 

culturally identifiable rule to question the very Indian-ness of our 

ancestors found within our ancestral territories or by trying to invent competing claims where none existed before. 

Certainly, Congress did not intend for these results. We urge the 

Committee to provide clear guidance concerning these local review 

committees and evidentiary thresholds, which uphold the letter 

and spirit of NAGPRA. 

I am almost done. 

Consultation failures, our written comments provide several situations. But let me just say this. The United States Marine Corps 

Base Camp Pendleton is only a few miles away from our reservation. It is squarely within the aboriginal territory of all Luisen ̃ o 

people. They are our most active Federal neighbor and they generally attempt to handle consultations responsibly. 

However, we nonetheless still encounter NAGPRA compliance 

issues. For example, the base holds group consultations wherein 

several recognized and non-federally-recognized tribes are invited 

to participate in these consultations at the same time. This places 

us in a precarious position because Federal law requires the agency 

to consult on an individual government to government basis with 

federally recognized Indian tribes. 

Two, to our dismay, federally assisted institutions have divulged, 

without tribal input or consultation, very sacred and significant 

Luisen ̃ o songs that were recorded by ethnographers decades ago on 

aluminum discs. We believe NAGPRA’s definitions should be clarified to specifically reference objects of cultural patrimony that are 

non-physical tribal properties like tribal sacred recordings, as was 

the law’s original intent. These recordings are sacred, they belong 

to no one else, and they are regarded as intellectual property. 

So we urge the Committee to consider creating a consultation 

definition with protocols and best practices that ensure consistent 

and just application of the law. California has adopted a definition 

under its sacred sites protection law that includes a number of key 

provisions and components which we would like to see made part 

of NAGPRA, including requirements for parties to take into account tribal cultural values and work toward mutually accepted 

agreements. 

Finally, we ask that you consider how the U.N. Declaration on 

the Rights of Indigenous Peoples would apply. And particularly I 

42

would turn your attention to sections 11 and 12, paragraphs two 

in each one of those, the implications of these provisions on how 

we can all improve NAGPRA. These paragraphs urge the redress 

of wrongs. They set a new framework for looking at how indigenous 

peoples are dealt with in a positive and respectful and honorable 

way. 

We believe that by using these principles and making changes to 

Federal laws like NAGPRA, perhaps also the 1989 NMAI Act, will 

empower sovereign Indian governments in the proper treatment 

and return of their ancestral remains and cultural items. 

In conclusion, I specifically ask that this Committee’s strongly 

consider our examples and our suggestions and move forward with 

recommendations and amendments to NAGPRA, its implementing 

regulations, and the new culturally unidentifiable rule, as well as 

issuing best practice guidance. In doing so, we believe that this 

Committee will further NAGPRA’ initial intent and ensure that the 

wrongs committed against tribal peoples in the United States are 

righted. 

Thank you. 

[The prepared statement of Mr. Macarro follows:]

PREPARED STATEMENT OF HON. MARK MACARRO, CHAIRMAN, PECHANGA BAND OF

LUISEN ̃ O INDIANS

Good afternoon, Chairman Akaka and distinguished members of the Committee: 

My name is Mark Macarro and I am Chairman of the Pechanga Band of Luisen ̃ o Indians, located in Southern California. On behalf of the Pechanga People and our 

ancestors, we thank you for the opportunity to participate in this oversight hearing 

on achieving the policy goals of the Native American Graves Protection and Repatriation Act (NAGPRA). The protection and proper treatment of our ancestors and 

their personal items is a responsibility the Pechanga People accepts with pride. 

Each day our Tribe faces the destruction of and desecration to our cultural resources, including human remains, and constant threats to our sacred and cultural 

places. 

Our People have taken steps to proactively protect these vital components to our 

heritage, cultural worldview and self governance; however, existing federal (and 

state) laws simply do not always provide sufficient protection for the resources that 

are housed in museums and educational facilities, as well as those items which are 

subject to disturbance every day because of development, both on and off federal 

lands. It is this constant struggle that we endeavor to succeed in honor of our ancestors. We appreciate the opportunity to provide helpful examples and suggestions for 

the Committee’s consideration on how we can strengthen NAGPRA to better assist 

all tribal peoples across the United States in their duty to care for their ancestors 

and cultural items. 

I. Introduction: ‘‘Sacred is the Duty Trusted Unto our Care and With Honor 

We Rise to the Need’’

For more than twenty years, the Pechanga Band of Luisen ̃ o Indians (‘‘Pechanga 

Tribe’’ or ‘‘Tribe’’) has invested significant resources in our cultural resource protection program. I am proud to say that the result of our efforts include: a state of 

the art curatorial facility that meets federal standards and which includes both tribal and non-tribal curation staff; a full staff dedicated solely to the identification, 

preservation and protection of the Tribe’s invaluable and irreplaceable resources 

both on and off reservation; and technological advancement, including a full-fledged 

GIS department housing our data and information concerning resources in the 

Tribe’s traditional territory, which often times surpasses the information and technology of the agencies with management control over tribal resources. In the spirit 

of cooperation, and in the interest of our cultural resources, the Tribe is able to offer 

its resources and expertise to assist federal, state and local agencies in identifying 

and avoiding impacts to known resources and cultural sites as well as planning for 

impacts to areas with the potential for unknown resources. To further our duty to 

our ancestors, we have successfully developed and implemented a professional tribal 

monitoring program that allows us to have highly trained and skilled tribal repVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 S:\DOCS\68066.TXT JACK
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resentatives work side by side with archaeologists to offer the highest protection to 

our ancestor’s physical and cultural remains. 

However, despite the opportunity to achieve these cultural protection milestones 

under NAGPRA and otherwise, the Pechanga People still face a constant struggle 

to reclaim, protect and preserve our ancestors and their cultural belongings. The 

legal framework available to us is insufficient and lacking in many areas. In too 

many situations NAGPRA and its counterparts do not go far enough to protect these 

resources, provisions are simply implemented incorrectly, and in some cases, ignored 

all together. We hope these comments and the examples we provide below will enable the Committee to see the real world challenges faced by the Pechanga Tribe 

today, as well as other tribal nations across the United States, and will encourage 

your Committee to take action to make NAGPRA work better for all Indian Peoples. 

II. Issues, Real World Examples and Potential Solutions 

To provide the Committee a solid understanding of the practical issues facing the 

Pechanga Tribe, and many other tribes in the Nation, with regard to NAGPRA, we 

provide several examples below. We hope the Committee will find these illustrations 

and accompanying suggestions helpful as the laws and policies are reviewed and 

changes contemplated. 

a. Intentional Excavations and Inadvertent Discoveries 

While the Pechanga Tribe has concerns about how NAGPRA is implemented for 

those remains and items in the possession of museums and educational facilities, 

we also face day to day issues with current and future disturbance of our ancestor’s 

final resting places and cultural sites. NAGPRA, while focused heavily on the return 

of items to tribes, also provides for the treatment and disposition of remains and 

cultural items found on federal (and tribal) lands through intentional excavations 

and inadvertent discoveries. Below is an example of how we are confronted with the 

shortcomings of these provisions on a frequent basis as we work closely with one 

of our neighboring federal agencies. 

Example: The Camp Pendleton Conundrum 

The Marine Corps Base Camp Pendleton (‘‘MCBCP’’ or ‘‘Base’’) is located within 

the Pechanga Tribe’s traditional aboriginal territory. The Tribe works very closely 

with Base staff through consultation and tribal monitoring on permitted development projects that occur within the Base. The Tribe and the Base have programmatic agreements in place, as well as agreements that provide for tribal monitoring to address any cultural resources that are surveyed or uncovered. In addition, 

the Base has developed on its own a protocol for handling situations governed by 

NAGPRA and in recent months the Base has engaged the local tribes in reviewing 

and potentially revising the protocol. However, despite the existence of these types 

of agreements among Pechanga, MCBCP and other interested Tribes who may have 

cultural affiliation to the items which will or may be uncovered or excavated during 

a project, the items are often not returned promptly or handled expediently. Unfortunately, human remains and cultural items must still go through the lengthy, cumbersome and culturally insensitive process of ‘‘Custody’’ pursuant to 10.6 of the Part 

10 Regulations (43 CFR 10.6), which process includes notice, a claims process and 

publication of the details of disposition of such items, before the final disposition 

and/or repatriation of the remains and/or items can be carried out. 

When tribes and lineal descendents already accepted as the affiliated tribes are 

involved in a permitted project taking place on federal lands, deference should be 

given to the agreements between those parties. The Pechanga Tribe has been told 

by the MCBCP that even though we have agreements in place concerning treatment, disposition and repatriation of items subject to NAGPRA, the Base is not able 

to transfer custody of those items without going through the entire Custody and Notification process in NAGPRA as those items technically became part of federal collections. This process is both culturally inappropriate and offensive because of the 

requirement to publish the plans for proposed disposition in newspapers of general 

circulation and is time consuming, costly and repetitive. The Tribe has to wait 

months, sometimes much longer, before items are repatriated even though agreements to repatriate have already been reached between the federal agency and the 

Tribe. 

Solution: Deference to Agreements 

Since its passage, the consultation process under NAGPRA has resulted in, for the 

most part, a positive relationship between the Tribe and MCBCP, as well as other 

federal agencies. However, as is so often the case with legislative attempts to ‘‘right 

wrongs,’’ the application of the law in a practical and real world manner often conflicts with how the law was originally conceived. The example above demonstrates 

44

how the intent of NAGPRA was to not only return those remains and cultural items 

to their rightful peoples, but also to develop strong relationships among, in particular, federal agencies through the consultation and treatment provisions of the 

law. However, as we have discovered, that intent is hampered by the law itself because even when the Tribe and federal agency can reach an agreement, the return 

of items is slow and cumbersome, resulting in further disrespect to those remains 

and resources and affected tribal peoples. 

To address this ‘‘conundrum’’ we propose that the Intentional Excavation and Inadvertent Discovery sections of NAGPRA be amended to include provisions giving 

deference to previously reached agreements concerning treatment and repatriation 

where all the relevant and appropriate parties are involved in a permitted project. 

This could be in the form of a written Plan of Action concerning the remains and 

items subject to NAGPRA or other agreements that address the pertinent issues. 

We believe that this will ensure that the final disposition of items happens in a 

more timely and respectful manner. In addition, such a provision will also aid in 

honoring the confidentiality issues important to tribes, including details concerning 

the resources’ identity and disposition and in some cases, location. 

Solution: A More Tribally Inclusive Approach 

Because of the experiences of the Pechanga Tribe, we believe that the NAGPRA 

sections covering intentional archaeological investigations and inadvertent discoveries must encompass a more inclusive and broader approach to the treatment of 

the remains and cultural items still in their final resting places, yet facing potential 

or certain disturbance and destruction by future development activities. 

For example, the processes outlined in NAGPRA itself and its implementing regulations should include actual government-to-government consultation concerning the 

excavations and the potential discoveries resulting from such proposed work. We understand that other federal laws are designed to cover such consultation, but they 

fall short because they ultimately only cover items and places that are determined 

to be ‘‘historic properties’’ or ‘‘significant’’ sites or have significance to archaeologists—classifications which are ‘‘terms of art’’ with respect to their governing law 

and which classification we note often conflicts with tribal world reviews regarding 

these resources. Many of the individual items that are excavated do not meet those 

narrow definitions and thus encompass a group of culturally significant items over 

which some agencies argue affiliated tribes have no control and no legal right to be 

included in the decisions concerning their final treatment and disposition. 

Although NAGPRA is primarily concerned with the repatriation of existing collections housed at federally assisted institutions, it does contain sections concerning 

ground-disturbing activities on federal land and how such activities affect tribal sacred resources. NAGPRA is intended as a human rights law to address the return 

and tribal control over Indian Tribes’ own cultural resources that have been taken 

away from tribes through human rights violations committed against tribal people, 

including inhumane treatment, grave desecration and the loss of land through force. 

Presently a gap exists in federal law which can result in tribes’ inability to control 

the destiny of their own cultural resources. Pechanga has worked on numerous 

projects where federal law has failed to protect the resources and further has failed 

to allow the Tribe’s expert opinion to play a determining role in the ultimate disposition of the resources. In many cases, it is hard to state that the cultural finds 

were ‘‘inadvertent’’ when the Tribe told the agency that the project area held cultural significance to the Tribe even if it was not able to pinpoint the exact location 

or precise nature of the resources at the time of the project’s environmental review. 

The Tribe’s first preference for such resources is in situ preservation instead of excavation. Still today, twenty years after the passage of this human rights law, many 

of our places are written off as ‘‘non-significant’’ and the resources are destroyed or 

left as orphaned collections with cultural resource management firms or other curatorial institutions. 

To address this problem, we believe NAGPRA should contain provisions specifically calling for tribal consultation and including a requirement of reaching treatment agreements that meet the satisfaction of the affiliated tribes. The law should 

also address the ability for tribes to set a preference that the sites and items themselves be avoided and stay protected and preserved so that the issue of repatriation 

never has to be reached. The present status of the law seems to still encourage excavation and arguably actually forecloses certain options for the affiliated tribes concerning final disposition of the items. For example, the sections are written to assume that items uncovered will be excavated and removed from the place from 

which they were found. Pechanga takes great steps in always seeking to preserve 

in place human remains and sacred items in addition to other cultural resources. 

Unless the law requires avoidance as the preferred alternative, we fear the continVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 S:\DOCS\68066.TXT JACK
45

ued destruction of our cultural resources will result. We believe that NAGPRA intended to right the wrongs of the past while also avoiding additional wrongs in the 

future. Protecting these resources in situ is the best way to achieve that morally 

correct goal. 

As stated above, many of these individual items and sites are not covered under 

other federal (or state) laws so they are left with no protection or tribal input as 

to their disposition. We respectfully suggest that NAGPRA be expanded to provide 

deserving protections for sites subject to intentional excavation and inadvertent discovery on federal lands, which would include mandatory government-to-government 

consultation with encouraged outcomes, a preference for preservation and avoidance 

of cultural and sacred sites, and the deference to tribes to determine the significance 

and ultimate disposition of the sites and resources. 

Solution: Defining Consultation 

The issue of proper consultation is not a new concern expressed by tribal people 

vis-a`-vis NAGPRA. In fact, speakers raised certain consultation issues during the 

2009 House hearings on NAGPRA. The issue with proper consultation arises in 

many contexts under NAGPRA, including those situations identified above and 

below. 

While we will not endeavor to provide an exact definition of consultation here, in 

our experience, certain key points regarding consultation should be included in such 

a definition. For example, in 2004, California adopted a definition of consultation 

under a traditional cultural places protection law (generally known as SB 18): Consultation ‘‘means the meaningful and timely process of seeking, discussing and considering carefully the views of others, in a manner that is cognizant of all parties’ 

cultural values and, where feasible, seeking agreement. Consultation between government agencies and Native American tribes shall be conducted in a way that is 

mutually respectful of each party’s sovereignty. Consultation shall also recognize the 

tribes’ potential needs for confidentiality with respect to places that have traditional 

tribal cultural significance.’’ While not perfect, there are several key components to 

this definition that we believe provide guidance for both federal agencies and institutions subject to NAGPRA. 

The Pechanga Tribe urges the Committee to consider creating a definition of ‘‘consultation’’ with input from both tribal governments and federal agencies. We are 

confident that this will ensure strong guidance for both parties and in turn, will 

serve to more effectively and efficiently meet the intent and requirements of 

NAGPRA. 

Further, another component to this solution is developing consultation protocols 

and best practices that will assist federal agencies in meeting their consultation duties. While some agencies may have developed their own internal protocols, having 

a standard to meet will ensure that consultation is effective across the board and 

vary less from agency to agency. To borrow again from state law, the Governor’s 

Office in California has developed consultation guidelines for local agencies to properly consult under SB 18 (noted above) and have made these readily available 

through training sessions and posting them on the state website. We are sure there 

are other workable examples available as well, but this is one potential resource the 

Committee could consider in advancing consultation protocols. 

Example: Sacred to the Tribe, But Not NAGPRA 

In addition to the above situation, it has been our experience with permitted 

projects on federal lands outside our reservation that the scope of items covered 

under the intentional excavation and inadvertent discoveries sections of NAGPRA 

is too narrow. Further, the definitions under NAGPRA are too constrained as they 

fail to account for some items that are sacred to tribes, yet do not meet the stringent, narrow definition in the law. 

Shortly after NAGPRA was enacted, the Pechanga Tribe was involved in a reservoir project where a local water district was the lead agency and the project subject to NAGPRA. Although this area was known and accepted to be an area where 

tribal cultural sites and resources existed, not all of the areas were designated as 

significant sites or historic properties under the applicable laws. As such, many of 

the cultural items were not preserved and were instead excavated and removed 

from the property. When the Tribe attempted to repatriate the items, the water district refused to convey all the items to the Tribe, even though the items were all 

culturally related to one another. The district ultimately only turned over the items 

that it alone determined met the definitions set forth in the NAGPRA. 

This poses several concerns for the Tribe. First, the definition and process leaves 

the determination of what falls under NAGPRA to agencies and employees who are 

not tribal members, who often do not have expertise in cultural resources issues and 

46

who do not, and cannot, know the meaning, importance and sacred nature of such 

items to the tribes. NAGPRA certainly attempted to incorporate tribes in many 

ways; however, the real world experience of tribes under NAGPRA demonstrates 

that these measures can fall short of their mark. Tribal interpretation of their resources must be given deference over non-tribal interpretation. 

Second, the definition of ‘‘Sacred objects’’ requires that these items have significance or function in the continued observance or renewal of such ceremony (25 USC 

§3001, Section 2(3)(C)). This threshold can be difficult to meet in California as the 

tribes in our state suffered some of the greatest genocidal efforts in North America 

at the hands of the federal and state governments and private citizens, which is further evidenced by the vast number of unrecognized tribes in the state. It is well documented that tribes were forbidden by laws, institutions and the larger community 

from practicing their religion or speaking their language for a significant length of 

time. As such, tribes are only in recent years in a position to revitalize their cultural 

practices and language, but sadly, many practices have been lost. This fact does not 

take away the significance and sacredness of items to the Tribe, however. 

One example of items the Tribe knows to be housed in a curatorial facility that 

we consider ‘‘ceremonial’’ or culturally significant, yet which is not used today is 

known as fire rock. This rock is gathered from one specific location on the MCBCP 

property known as To ́otakut (TOWT-ah-coot) which translates from Luisen ̃ o into 

English as ‘‘rock fire.’’ The resource is only derived from this single location and is 

unique because of its glowing quality. Although not everything is known at this time 

about this resource, what we do know through a combination of anthropological information as well as our place-name information is that it was important to the ancestors and utilized in a ceremonial nature. Because of its importance to the Tribe, 

we should be able to repatriate these items; however we are precluded from doing 

so because of the too narrow interpretation of ‘‘Sacred object’’ under NAGPRA. 

A further concern of the Tribe is that there are a number of cultural items that 

are never afforded the opportunity to be repatriated because they do not fall within 

any of the five categories under the NAGPRA. Examples of such resources would 

be those items used on a day to day basis by our ancestors or items that may not 

have a presently known religious, sacred or ceremonial importance. However, it is 

the belief of the Pechanga People that they were once the cultural property of tribes 

and tribal individuals and thus, the tribes should be afforded the ability to repatriate these items and/or have a more prominent role in the determination of their 

ultimate disposition. 

Further, because these items assist the Tribe in furthering its history and culture, 

we believe they are vital components to our People and deserve the same respect 

as those items which carry known religious and ceremonial significance. Additionally, this example demonstrates how what is ‘‘sacred’’ to one tribe varies and thus, 

it is possible there are over 560 tribal world views as to what is culturally important 

and which should be returned to tribes. As the law exists now, these items are left 

in both legal and spiritual limbo, which is neither the culturally or ethically appropriate result. 

Solution: Broadening the Definitions 

As this example demonstrates, there are several issues with the implementation 

of NAGPRA and how its definitions can be interpreted to prevent repatriation of 

certain items that we believe should be returned to tribes. One potential amendment we suggest is to provide guidance on how to determine what is ‘‘sacred,’’ which 

for the reasons expressed above must include tribal input. 

A second revision would include changes to the definition of ‘‘Sacred objects’’ to 

account for the historical atrocities and trauma suffered by the Nation’s Indian Peoples, which has resulted in a disconnection between traditional uses and contemporary tribal peoples. We suggest revising the definition of sacred objects to include 

such objects that while may not be used in the present day for whatever reason can 

still be returned to the Tribes and treated properly. We encourage the Committee 

to work with tribal governments to expand this definition in a way that would accommodate this situation. 

Finally, we suggest that the definition of ‘‘cultural items’’ be expanded to include 

cultural resources that are not covered by other definitions in NAGPRA. As we note 

above, it is the Pechanga Tribe’s belief that items not currently covered by the law 

may still be important to the Tribe. These resources were the cultural property of 

their ancestors. The Tribe is able to learn more and revitalize components of their 

history and culture that have been diminished or lost because of historical pressures 

and circumstances through the return and study of these items. In fact, the resources expended by the Tribe in cultural resource protection efforts have directly 

benefited the Tribe in numerous ways: We have been able to expand our knowledge 

47

of Luisen ̃ o language, history and cultural practices directly through the study and 

use of these objects and we continue to benefit by virtue of our efforts at ethnographic and other research. To deny the return of these items because they do not 

fit under a narrow interpretation of a definition contained in NAGPRA denies the 

tribes the right to protect and further their histories and cultural practices. 

b. Avoiding Repatriation 

Unfortunately, there is a clear example in California that highlights a plethora 

of issues with the implementation of NAGPRA. The problems confronting California 

Tribes implicates concerns for other tribes, including Pechanga, as the pressures for 

denying repatriation by large universities (and museums) are growing and we fear 

could be used for denial of future claims. In this example, there are issues with how 

the term ‘‘culturally affiliated’’ is being interpreted; how ‘‘culturally unidentifiable’’ 

is being used to avoid return of remains and cultural items; how science is valued 

more than tribal knowledge by faculty reviewers; how the make-up of state and 

campus NAGPRA review committees works to deny rightful repatriation claims by 

tribes; the lack of accountability for the often deplorable treatment of ancestral remains and associated cultural items by museums and institutions; and the absence 

of standard practices regarding such treatment and chain of custody issues. 

Example: The Case of the La Jolla Ancestors 

The repatriation of the ancestral human remains dug up from the University of 

California, San Diego (UCSD) campus in the mid-1970s in an archaeological excavation is an ongoing concern being actively pursued by the Kumeyaay Nation of San 

Diego County, California. Pechanga supports those efforts. The handling and treatment of those remains by archaeologists, scientists, museums and the University of 

California across 40 years, demonstrates many of the problems with how NAGPRA 

is being implemented today. Meanwhile, the University of California system continues to hold the remains and grave goods of many tribal ancestors, including those 

of the Luisen ̃ o People. This must change. 

In brief summary, the Kumeyaay made a claim for these ancestors many years 

ago: first by the Viejas Band of the Kumeyaay Nation around 1996 and then subsequently by the Kumeyaay Cultural Repatriation Committee (KCRC) around 2006. 

The mission of the KCRC is to protect and preserve ancestral remains, sacred lands, 

sacred objects and funerary objects under NAGPRA for today and future generations. KCRC is unique in that it is comprised of 12 Kumeyaay tribes of San Diego 

County: Barona, Campo, Cuyapaipe, Inja-Cosmit, Jamul, La Posta, Manzanita, 

Mesa Grande, San Pasqual, Santa Ysabel, Sycuan, and Viejas, all working together 

cooperatively to achieve their goal of repatriation. 

Initially, UCSD denied they even had collections that may be subject to NAGPRA. 

Finally, in or around 2006, the campus realized that it did in fact have possession 

of collections subject to NAGPRA, although it was not necessarily clear where they 

were located, due to the remains’ undocumented chain of custody. The journey of 

those remains from their final resting place to labs, museums and the Smithsonian, 

then back across the country to California—some in a Staples box, others in a 

Chicken Breast strip fritters box, clearly having not been properly curated, with 

some shellacked, others falling out of their un-bagged wrappings, others with fresh 

breaks and glued pieces—demonstrated a failure to handle these human beings and 

their belongings in a culturally appropriate manner, and which was unacceptable 

and disgraceful. 

Following the most recent claim by KCRC, UCSD convened a campus NAGPRA 

Working Group around 2007, not having appointed one before. As a result of this 

unfamiliarity and no guidelines to fall back upon, ultimately this Working Group, 

which exists today with the same composition, lacked balance: The Committee Chair 

is married to the scientist who originally dug up the graves and another scientist 

who participated in the original dig also sits on the Committee. No Committee members have specialized expertise in the burial or other cultural practices of the 

Kumeyaay; nor are there any tribal representatives, despite that request having 

been made by the Kumeyaay. 

Not surprisingly, that Working Group, stacked against repatriation of these ancestors from the start, issued a majority report in which they found that cultural 

affiliation could not be established, essentially because the remains, dating to approximately 9,500 years old, were ‘‘too old’’ to establish such affiliation in their view. 

However, as the Group’s minority report pointed out, this finding ignored the many 

lines of evidence that did support a finding of cultural affiliation, which evidence 

was accepted by a different UC campus in 2001 regarding other Kumeyaay claims 

from the same general area. 

48

Unfortunately, the UC system is set up such that campus recommendations flow 

to a system-wide NAGPRA Committee comprised of one appointee from each of the 

campuses with collections subject to the law. It should be noted that two Native 

Americans may be appointed to this committee by the UC Office of the President 

from nominations made by campuses. When the La Jolla remains were considered 

by this system-wide committee in 2011 for repatriation under the new CUI rule, one 

tribal member was from a non-federally recognized California tribe and the other 

from a federally-recognized tribe outside of California. Again, missing was the direct 

world-view and strong political voice of knowledgeable, federally-recognized California, tribes. This begs the question of why the committee did not seek to include 

members of federally recognized tribes in California and further, whether they made 

any attempt to do so. 

While the recommendations from this Committee were split, the notes from that 

meeting show that scientists, both within and external to the committee, were trying to put up new obstacles to the repatriation of these ancestors. These individuals 

were changing their arguments from ‘‘they are too old’’ to be Kumeyaay to ‘‘they are 

too old to be Native American.’’ However, by its own actions, UCSD has treated the 

human remains as Native American: UCSD submitted the human remains in its 

NAGPRA inventory in 2008, submitted that inventory to the UCSD NAGPRA Working Group, had several interactions with the NAGPRA Designated Federal Officer 

and met with the Kumeyaay, all demonstrating that UCSD continued to treat the 

remains as Native American. We understand no new evidence to the contrary was 

provided to the committee. 

It should also be noted that the UCSD property where the remains were excavated was designated a sanctified cemetery by the state Native American Heritage 

Commission in 2008 and listed on the National Register of Historic Places under 

Criterion D (archaeology) in 2008 and Criterion A (tribal values) in 2009. Moreover, 

subsequent research performed on the remains by a qualified researcher of native 

descent published in 2010, found evidence in the female ancestor of a tooth with 

prominent shoveling, a physical trait still present in modern day Native American 

populations. Further, KCRC has been recognized as the Most Likely Descendant 

under California state law to repatriate more recent bone found at the same UCSD 

site. The system-wide committee’s meeting notes do not indicate that it considered 

any of that information when debating whether the remains should be repatriated. 

Unfortunately, this situation raises more questions than answers. How much more 

demonstration of cultural linkage can a tribe provide? What is a reasonable effort 

to make a tribe demonstrate its cultural affiliation? How do we balance the ‘‘requirements’’ of science and the view of tribal peoples to come to a fair and just result? 

We hope that going forward, this Committee can assist us with finding clear and 

workable answers to these and many other questions raised by our testimony. 

Other arguments from scientists on the system-wide committee were that tribes 

from outside the Kumeyaay aboriginal territory may want to claim these so-called 

CUI remains. This argument was advanced even though the Kumeyaay territory 

was recognized by the State of California in 2002 via Assembly Joint Resolution 60, 

which proclaimed the territory stretched from the Pacific Ocean into the desert and 

down into Baja California, including the property at issue, and even though no other 

tribe has stepped forward over all these years to make such a claim. Why was there 

so much focus by elements of the committee on cultural affiliation when the remains 

were being considered for repatriation under the CUI rule? Again, this example 

raises concerns with NAGPRA itself and the new CUI rule as well. 

Just in the last month, the UC Office of the President, upon review of the systemwide committee’s decision, appropriately deferred to the campus’ determination regarding the remains’ Native American origin and authorized UCSD to continue to 

proceed under NAGPRA. If the campus elects to continue to follow NAGPRA, the 

UC President further listed certain ‘‘directions’’ and ‘‘recommendations’’ for how 

UCSD should accomplish this. 

The first item is for some ‘‘expert’’ to reanalyze whether the items found in the 

dig and listed on the draft inventory are really funerary objects (the Kumeyaay have 

consistently said they are). This perhaps illustrates the concern the Native American Rights Fund and others have expressed to the NPS during review of the CUI 

rule regarding the section that potentially allows for the the separation of grave 

goods from human remains. 

The UC President’s second recommendation is for the campus to revise its 

NAGPRA notice of inventory completion to acknowledge that given the old age of 

these remains, there is some division among ‘‘experts’’ on whether they meet the 

legal definition of Native American. That this would even be proposed in handling 

the repatriation under the CUI rule indicates the need for a technical fix to the 

NAGPRA definition of ‘‘Native American’’ so that tribes can be assured that sciVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 S:\DOCS\68066.TXT JACK
49

entists will not try and get a ‘‘second bite’’ at blocking repatriation—first denying 

cultural affiliation, then denying their ‘‘Indian-ness’’ at all—presumably so that 

these ancestors can continue to be treated as scientific property against the express 

legislative intent of NAGPRA and the expressed desires of tribal communities. 

The third and fourth recommendations by the UC President appear linked: if 

UCSD elects to consult more broadly with tribes outside of the aboriginal territory 

of the Kumeyaay, as suggested by scientists on the system-wide committee, AND 

if additional tribes are determined aboriginal to the La Jolla area, then UCSD 

would need to revise its inventory and provide additional notices. If there are no 

competing claims, then the campus would be authorized to dispose of them to the 

Kumeyaay. This recommendation, stemming from elements of the state-wide Working Group, to essentially re-open consultation seems to be from the old-school playbook of trying to divide Indians in the hope that they may fight amongst themselves 

and therefore make no progress either as individual tribes or collectively. Again, 

this is the same theme we see in our earlier and later examples with permitted 

projects and consultation wherein too much process aimed at putting the burden on 

tribes thwarts the spirit and intent of the NAGPRA. 

Meanwhile, it appears that the UC scientists, still unhappy about the original 

NAGPRA statute and its preponderance of the evidence standard, and perhaps even 

unhappier regarding the CUI rule, are taking their concerns to the media in a manner most offensive to tribal peoples: labeling tribal claimants as ‘‘lobbyists,’’ calling 

their religious beliefs ‘‘myths’’ and going as far as to say that in trying to repatriate 

these ancestors, ‘‘the University of California favors the ideology of a local American 

Indian group over the legitimacy of science.’’ They attack UC administrators who 

appear to be making legitimate efforts to finally repatriate the remains and grave 

goods under the new rule, including one administrator who was recently awarded 

the National Medal of Science by President Obama, in prominent publications such 

as Science. They essentially assert that the only legitimate way to place a claim 

under NAGPRA is by biological evidence, meaning, submitting the ancestor and the 

claimant to DNA analysis, what to them appears to be the only form of acceptable 

proof, of ‘‘scientific certainty’’—a standard that was expressly rejected in the promulgation NAGPRA. Efforts to avoid repatriation have gotten out of control in California and we urge the Committee to help ensure that such efforts stop. 

The degree of resistance to repatriation in some parts of the UC system is high, 

as demonstrated by the vocal opposition by certain faculty, many of whom have documented personal and professional conflicts of interest, but this only proves what 

tribes already knew: the need for a strong NAGPRA continues to be great. The need 

to make technical revisions to NAGPRA at its twenty year anniversary, to ensure 

that its original intent is being implemented in the field, also appears necessary. 

Solutions: Clarifications, Revisions and Adopting New Provisions 

To fix the issues outlined in the testimony and examples above, we respectfully 

recommend your Committee discuss the following improvements to NAGPRA and its 

implementation:

Clarifying ‘‘Native American’’ under NAGPRA: Making a technical amendment 

to the definition of ‘‘Native American’’ in NAGPRA, such as the ‘‘or was’’ fix 

(‘‘’’Native American’’ means of, or relating to, a tribe, people, or culture, that is 

or was indigenous to any geographic area that is now located within the boundaries of the United States’’) so that the letter of the law and spirit of NAGPRA 

regarding cultural affiliation can be more fully achieved.

Amend Culturally Unidentifiable Rule: Revision of section 10.11(c)(4) of the 

2010 NAGPRA CUI final rule that may allow for the separation of burial goods 

from human remains thereby allowing the holding repositories to keep these objects as their property. To allow these items to be separated from the ancestral 

remains is a spiritual violation of the highest order and should not be allowed.

Adopting Best Practices for Review Committees: The review of best practices for 

the population and operation of state and institutional NAGPRA review committees: If such formal committees are warranted, mandate parity and accommodation of the world view of knowledgeable tribal people, and meaningful penalties, such as the retraction of federal funding if the institutions are out of 

compliance. It is likely these committees are going to be in the spotlight more 

and more given the new CUI rule and that little guidance currently exists. This 

oversight hearing is an excellent opportunity to begin considering how we can 

strengthen NAGPRA and revise the CUI rule as needed. 

In addition, mandatory inclusion of Native Americans on these review committees should be explored. Preferably, these should include a tribal person from 

a tribe located in the region of the claimant tribe when possible. This will enVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 S:\DOCS\68066.TXT JACK
50

sure that the tribal world view is given parity with that of the scientific perspective. We urge the Committee to consider adopting such requirements as 

part of the best practices for these review committees.

Protection of Tribal Sacred Places: As has been discussed so often, we encourage 

the Committee to consider the possibility of Congress creating a cause of action 

to protect tribal sacred places, many of those which include items and places 

of cultural patrimony (such as Origin Areas), burials, grave goods and ceremonial items. Unless tribes can sustain lawsuits, it is unlikely that they can 

achieve a truly meaningful seat at federal, state and local negotiation tables. 

Moreover, if tribes are unable to save sites in the field, it only furthers the cycle 

of wrongs leading to laws like NAGPRA and creates additional repatriation 

issues, as discussed above.

Adopting Treatment Standards and Accountability Provisions: This example, 

and the others we touched on above, demonstrates the often deplorable conditions in which our tribal ancestors are kept by some Universities and curatorial 

facilities. Our ancestors deserve to be treated respectfully and with dignity until 

they are returned to their rightful tribal groups and laid to final rest once 

again. In addition to the best practice standards identified for the review committees, we urge the Committee to also consider adopting standards for the 

treatment of remains and cultural items still in the possession of these institutions, in consultation with tribes and other affected parties.

c. Cultural Patrimony 

Objects of cultural patrimony, which NAGPRA defines as objects that have ‘‘ongoing historical, traditional, or cultural importance central to’’ tribal groups is another 

area of the law which we urge the Committee to review. As the example below demonstrates, what should be considered cultural patrimony is changing as technology 

advances. 

Example: The Collision of Law and Intellectual Property 

Recently the Pechanga Tribe became aware that Luisen ̃ o traditional tribal songs 

held in a collection at the National Anthropology Archives Holding (‘‘NAA’’), an arm 

of the Smithsonian, were going to be digitized and made available to the public in 

this format. These songs were originally recorded as part of a project organized by 

the American Bureau of Ethnology wherein a federal government agency employed 

various anthropologists and ethnologists, including John P. Harrington (which focused on southern California) to document and record aspects of tribal culture 

throughout the United States. Pechanga did not learn of this action to digitize its 

ceremonial songs through an official communication by the federal institution. While 

the Tribe appreciates the transition and updating of certain data to current technological preferences, digitizing these songs without proper processes in place regarding the confidentiality and use of the songs violates the sanctity of tribal cultural 

property. 

Eventually, Pechanga was asked regarding our preferences for the treatment of 

these important resources by the NAA, but only because the Tribe proactively sent 

in written correspondence regarding our concerns. It was conveyed to the NAA that 

the Tribe’s position is that none of the songs should be digitized or distributed to 

the public because they concerned death and burial, but in particular there were 

three (3) songs that were highly private in nature because they concerned very sacred practices. Ultimately, the NAA decided to go ahead and digitize all of the songs 

into an MP3 format except those three (3) that we identified as being particularly 

sensitive—a result the Tribe considers to fall short of culturally appropriate treatment for these items of Cultural Patrimony. 

This is not a situation that is or will be unique to Pechanga. The project conducted by the American Bureau of Ethnology focused on tribes in various areas of 

North America and there are recordings concerning the culture of various tribes 

throughout the country in the holdings and presently available on the website database or through a public records request. It is our understanding that many tribal 

songs are available in a digital MP3 format, which can either be readily downloaded 

from a website or which can be sent to a requesting party for a fee. To our knowledge all of these actions were taken without appropriate consultation with the tribes 

to which this cultural property belongs. 

Solution: Contemporizing the Law 

This situation exemplifies the necessity to clarify the current law with regard to 

‘‘Items of Cultural Patrimony’’ as defined in NAGPRA to include not only physical 

objects, but also intellectual property like that described above. This is a critical 

point, as it often is the case that it is the song, belief or use of the item itself, and 

51

not necessarily its tangibility, that makes the object sacred. In addition, in the case 

of the Pechanga example, it seems as though these songs may not only be Items 

of Cultural Patrimony, but also Associated Funerary Objects. Thorough governmentto-government consultation concerning the nature of such intellectual property and 

repatriation of such items should be required under NAGPRA. When these songs 

were recorded by professional such as Harrington it was never the intent of the informants that they would be widely distributed for unknown uses. Many of these 

pieces of cultural property were held in private collections and only inadvertently 

were transferred to these public federal institutions subjecting them to categorization as public property. This is another serious gap in the law concerning tribal authority over their cultural properties and must be remedied as technology is quickly 

changing and these private and very culturally sensitive items are now more at risk 

of abuse and confidentiality violations. 

d. Complaint Process and Resources Issues 

While the Pechanga Tribe has not itself faced issues with the complaint process 

and how it is implemented, we are aware that there are simply too few resources 

to adequately address complaints coming before the National Review Committee. 

This is particularly daunting when we consider the kinds of cases that the Committee may be reviewing. Using the La Jolla example above under item (b), it is 

clear that these cases are very complex, with large amounts of documentation and 

varying forms of evidence. We understand that there is only one person to review 

all complaints regarding NAGPRA violations and that there is currently a backlog 

of such complaints. We respectfully suggest that the Committee seek information on 

how many complaints are outstanding, the length of time it takes to review and assess complaints and determine how many more resources (financial and personnel) 

are needed to ensure complaints are adequately reviewed and timely resolved. 

An additional concern is that the Review Committee only hears disputes at its 

quarterly meetings, which means that tribes have to wait months to have their matters addressed. In particularly complex cases, this could span over several meetings 

to ensure that tribes are able to present the Review Committee with all the available evidence. This further stalls the repatriation process and prevents our tribal 

ancestors and their belongings from appropriate and respectful treatment. 

In addition to assessing the state of the complaint process and the needs of the 

staff in resolving timely complaints involving compliance under NAGPRA, we further suggest that the Committee consider reviewing the National Review Committee’s needs. The information gathered will enable the Committee to have a solid understanding of the current needs and concerns not only of the tribes, but also of the 

Review Committee and associated staff. 

As all of the examples we provide herein demonstrate, working together to accomplish the goals of NAGPRA is an essential component to successful repatriation, 

treatment and consultation. The first step in this process is determining the needs 

of all parties and we believe the assessments suggested here will be a great stepping 

stone to bring us closer to achieving the policy goals of the law. 

e. Regional and Local Museum Compliance 

Much of the focus on NAGPRA has involved compliance and repatriation issues 

with larger museums and educational facilities. Yet, there is another set of museums, and potentially smaller educational facilities that are subject to NAGPRA yet 

have little or no funding to complete inventories and/or repatriate items to the culturally affiliated tribe. To compound this problem further, these smaller institutions 

are simply so understaffed and underfunded that they do not even have the resources to apply for grants to administer NAGPRA. As such, tribes are unaware 

(and in many cases, the facility itself may not even be aware) of what is in the collections of smaller museums that may be subject to NAGPRA’s repatriation provisions. 

In our experience, this means that our ancestors and their belongings are still sitting, forgotten, in boxes, on shelves and are subject to continued disrespect and ill 

treatment. The end result is that either these items will never be returned to their 

proper place or tribes themselves must expend significant resources to discover 

these collections, often catalogue and inventory them themselves and at their own 

expense and initiate the return of these items to a place of final rest and respect. 

Below is an example the Pechanga Tribe experienced recently and would like to 

share with the Committee to illustrate this real and largely invisible problem. 

Example: The ‘‘Lost’’ Collections 

In February and March of 2008, staff from the Pechanga Cultural Resources Department visited a local county museum to view the ‘‘Temeku’’ collection that was 

excavated in the early 1950s. This collection relates to one of the most significant 

52

cultural places of our Tribe, a village area on the National Register of Historic 

Places since 1973, and a part of the Luisen ̃ o Ancestral Origin Landscape. Staff confirmed that this particular museum did receive some federal grant money and as 

such, was subject to the provisions of NAGPRA. Sadly, our staff discovered that the 

collection had never been catalogued since the excavation, some nearly 60 years 

later. 

At the time our staff visited the museum, the collection was stored in 16 archival 

boxes that were packed solid to the brim. In addition, there were also some larger 

loose pieces that were stacked haphazardly on some shelves. When our staff began 

looking through the archival boxes, they found that the contents of all of the bags 

excavated from the unit levels had never been separated into their appropriate assemblages, i.e., lithics, pottery, and bone. Pechanga staff identified several pieces of 

what very likely appeared to be cremated human bones, that were mixed with 

lithics and other materials. Our staff completed a preliminary catalog at that time, 

which consisted of 1,122 bags of single and mixed artifacts. 

In February of 2010, tribal staff returned to the museum in order to do a comprehensive inventory and to separate the unit/level bags into their proper assemblages. This was completed in June 2010 with the help of four interns from a local 

college. It is important to note that the Tribe, at its own expense and utilizing its 

own over-extended resources assisted the museum in this regard even though this 

responsibility mandated by federal law falls on the museum. When the inventory 

was completed, there were a total of 6,644 artifact bags containing either single artifacts or multiple artifacts of the same assemblages from the same unit/level. 

The curator of the museum’s anthropology department was grateful to have the 

Tribe complete the inventory and sorting of the artifacts as they have always lacked 

the staff and funding to complete those tasks, even though required by NAGPRA. 

Further, because the staff had not been able to complete an inventory, they were 

unaware that they had human remains in the collection. 

We further discovered that this particular museum has nearly 150 collections 

from Luisen ̃ o sites in Riverside County that have never been catalogued. Over the 

next few years, the Tribe intends to work on inventorying and cataloguing these collections as well. Unfortunately, most of these collections are located in an offsite 

warehouse without any kind of climate control, which further endangers the human 

remains and cultural items in the possession of the museum. 

This is only one example, and the Tribe has grievous concerns that many more 

situations like this exist across the Nation. This threatens both the policy and intent 

of NAGPRA as small institutions do not even have the resources to apply for federal 

monies to complete inventories under NAGPRA. Which in turn results in either the 

remains of our ancestors and their belongings sitting in boxes, on shelves, in rooms 

lacking proper climate control continues the disrespectful treatment of these human 

beings. Testimony given before the House in 2009 by Brenda Shemayme Edwards, 

Chairwoman of the Caddo Nation of Oklahoma, reminded us all that these are not 

objects. These are people, human beings, deserving of respect and dignity. Sadly, 

under the current federal scheme, many of our ancestors are invisible and may 

never be returned home for proper treatment and back to a final resting place, 

which all of us deserve as a fundamental human right. 

Solution: Increased Funding and Access to Funding 

While NAGPRA does provide funding for museums to complete inventories of 

their collections, the above example demonstrates how difficult it can be for small, 

underfunded museums to actually comply with the law. The first step to addressing 

this problem (which the Tribe suspects is a prevalent one) is to identify those museums who fall under NAGPRA and who have not completed inventories. Certainly, 

if an institution received federal funds there should be a record of that and these 

facilities can be identified through auditing those records. 

Once smaller institutions are identified, additional technical assistance should be 

provided so that staff can submit grant requests. This will assist these facilities in 

retaining additional staff to catalog and inventory collections that presently sit unknown, in boxes and sometimes under terrible conditions and can then ultimately 

be returned to their people and a final place of rest. Without additional funding, 

these ancestors and cultural items will remain lost, or as the case with Pechanga, 

tribes will have to expend their own limited resources to fulfill the duties of the institution and remedy a problem that is not of our creation. We do not believe either 

result comports with the spirit, intent and policy of NAGPRA. 

f. Unrecognized Tribes and NAGPRA 

Federal laws such as NAGPRA that offer protections to the Nation’s Indian Tribes 

do so because of the unique government to government relationship that exists beVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00056 Fmt 6633 Sfmt 6621 S:\DOCS\68066.TXT JACK
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tween Tribes and the federal government. Pechanga intimately understands the 

plight of the many unrecognized tribes across the United States, especially because 

of the historical situation in California described earlier in this testimony. Unfortunately, the Tribe has at times found itself in the uncomfortable position of being 

placed in the middle of the distinctive challenges in which non-federally recognized 

tribes find themselves with respect to NAGPRA. 

We understand that the National NAGPRA Review Committee has determined 

that in some instances, the involvement of unrecognized tribes may provide additional information not otherwise available to the Committee. Further, the Committee has determined that in some situations, repatriation of human remains and 

cultural items may be effected to such tribes. In fact, unrecognized tribes are occasionally listed on the Federal Register notice for the completion of an inventory and 

may submit claims for repatriation of items. Additionally, we have encountered federal agencies inviting unrecognized tribes to participate in consultation on projects 

and instances were inadvertent finds of human remains have occurred. While alone 

not problematic, the inclusion of such groups poses unique challenges to the recognized tribes that are rarely discussed. 

With respect to repatriation, we have not yet faced a situation where the Tribe 

sought the return of human remains and cultural items and were confronted with 

a competing claim by an unrecognized tribe. However, we see that this could be an 

obstacle, particularly in California where there are over 50 unrecognized tribes. It 

is unclear how the National NAGPRA Review Committee would handle a situation 

where there were such competing claims because their discretion to involve unrecognized tribes is not governed by the statute or its regulations. As such, if the Review 

Committee intends to continue efforts to involve and repatriate to such tribes, there 

needs to be some governing process that would address competing claims from recognized tribes. 

Furthermore, Pechanga has been requested on numerous occasions by non-recognized tribes, institutions and agencies to facilitate or ‘‘sponsor’’ repatriation of collections that are either culturally affiliated with a non-recognized tribe or categorized 

as culturally unidentifiable. This puts the Tribe in an awkward position of responsibility that is unreasonable—spiritually, culturally and politically. Although the 

Tribe has the resources and expertise to assist in this regard—which is why we 

have been called upon to do so—the Tribe cannot validate or take a position on the 

cultural affiliation or existence of a non-recognized tribe. These sorts of requests and 

situations have vast implications beyond the repatriation effort at hand and can be 

used for purposes other than the protection of human remains and cultural items 

under NAGPRA. 

Although Pechanga does not want to see any cultural resources left orphaned and 

un-repatriated, we are of the position that it was never the intent of this federal 

law to place additional burdens on recognized tribes because of the problem of unrecognized tribes created by the Federal Government. We often find ourselves in 

uninvited situations which force us, a federally recognized tribe, to take positions 

with great political repercussions and further potentially causing great divide in our 

tribal communities, both recognized and not. We should not be asked to make determinations as to the validity or the ability of a non-recognized tribe to handle such 

repatriation or cultural resources management issues, but unfortunately this gap in 

the law has resulted in just that situation. 

One issue the Tribe was recently confronted with involves the inclusion of unrecognized tribes in consultation processes with federal agencies and their participation 

in monitoring and the treatment of remains and cultural items discovered through 

intentional excavation and inadvertent discoveries. In recent months, it has become 

known to Pechanga that projects on MCBCP have included participation by unrecognized Tribes, to the exclusion of Pechanga and other federally recognized tribes 

whose ancestral territory encompasses the Base. 

This poses several issues, one being that group consultation is generally not considered government-to-government consultation and violates not only NAGPRA, but 

other federal laws such as the National Historic Preservation Act. The second issue 

these ‘‘group’’ consultations create is that the information we share is not confidential and so the Tribe has to choose whether to offer the information we have in this 

setting, or expend further resources to attend another individual meeting with appropriate staff. Fortunately, MCBCP has been willing to also meet with Pechanga 

tribal representatives on an individual basis in addition to the group consultation, 

but the Base is nevertheless still conducting the ‘‘group’’ consultations. We note as 

well that in our experience, other state and local agencies conduct similar consultations, which raises the same implications. 

Secondly, as you are aware, NAGPRA requires the agency to consult with federally recognized tribes who are or may be culturally affiliated to the remains and 

54

items. The inclusion of non-recognized tribes during these consultations necessarily 

forces the recognized tribes to work with and validate or invalidate and oppose the 

positions of non-recognized tribal groups. The non-recognized tribes are allowed to 

offer treatment and disposition preferences that may or may not be congruent with 

those of the federally recognized tribes. Again, this situation places federally recognized tribes in the position of either having to forgo their own treatment preferences 

in favor of those made by non-recognized tribes and/or potentially pitting tribes 

against one another. Neither outcome is fair for the tribes and certainly creates difficulties for federal agencies responsible for completing consultation and determining the treatment and disposition of remains and cultural items. 

As mentioned above, a further consideration is that, unfortunately, given their 

status as non-recognized tribes, it is unclear whether such tribes have the resources 

and infrastructure in place to repatriate and act as caretaker for these items. This 

is illustrated by the requests from such groups for Pechanga to act as an ‘‘umbrella’’ 

or facilitator for repatriation efforts. 

Further complicating this landscape is that the Pechanga Tribe has been asked 

by federal agencies to ‘‘umbrella’’ or support unrecognized tribes in monitoring efforts. Unfortunately, the Tribe was asked to do this during a group consultation in 

front of other recognized and unrecognized tribes. This request places the Tribe in 

a very awkward position and because of the Tribe’s sovereign status, we do not believe the request should have been made by the agency. Again, while we understand 

that federal agencies wish to include these groups because they may have information, we believe that consultation with federal agencies should be between individual recognized tribes and that agency. This issue points to another reason why 

a definition of consultation and guidelines would be helpful to agencies who find 

themselves in a region where both recognized and non-recognized tribes are located. 

Again, it is unjust for a law that is supposed to be aimed at upholding basic 

human and tribal rights to force tribes into a situation where they are potentially 

pitted against one another and ask them to assume unrequested responsibilities 

which can implicate a tribe’s cultural and political positions. Moreover, recognized 

tribes should not be put in a position of commenting on and/or validating a nonrecognized tribe’s political situation as a tribal entity. 

Solution: Defining Consultation 

As these issues demonstrate, the Committee should embark on specifically defining Indian tribes so that it is clear which tribes can participate and how they will 

participate without forcing tribes to become involved in the political and private 

business of other tribes. Another suggestion to addressing this issue would be to add 

in a definition of ‘‘consultation’’ to NAGPRA and its governing regulations. We respectfully refer the Committee to the consultation suggestion under item (a), above. 

We believe that adopting a definition of consultation and preparing guidelines or 

protocols will help alleviate concerns regarding proper and meaningful consultation 

between tribal governments and federal agencies and institutions subject to 

NAGPRA. 

III. Implications of the United Nations Declaration on the Rights of

Indigenous Peoples on NAGPRA 

In addition to the concerns expressed by the Pechanga Tribe in this testimony, 

we further see that issues arising under NAGPRA implicate the United Nation’s 

Declaration on the Rights of Indigenous Peoples. Because the United States has announced its support for the Declaration, and earlier this month this Committee considered the domestic implications of the declaration on the rights of indigenous peoples, this is a timely consideration for the Committee. NAGPRA has always been 

considered human rights legislation and in turn, is certainly legislation which intended to protect the rights of tribal peoples in the United States with regard to 

the return and treatment of their ancestors and cultural resources.

Of particular relevancy are Articles 11 and 12 of the Declaration. Specifically:

Article 11:

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop 

the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and 

visual and performing arts and literature.

2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken 

55

without their free, prior and informed consent or in violation of their laws, 

traditions and customs.

Article 12:

1. Indigenous peoples have the right to manifest, practise, develop and teach 

their spiritual and religious traditions, customs and ceremonies; the right to 

maintain, protect, and have access in privacy to their religious and cultural 

sites; the right to the use and control of their ceremonial objects; and the right 

to the repatriation of their human remains.

2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

These provisions implicate many of the issues raised in our testimony, as well as 

testimony provided by others to the House during the 2009 hearings. In addition 

to the suggestions we have provided on how to begin remedying the gaps and shortcomings of NAGPRA, we urge the Committee to think about how clarifications, revisions, amendments and implementing regulations can be drafted to not only address 

concerns raised by tribes, but to also acknowledge these provisions of the Declaration. In so doing, we believe that the Committee will find a respectful and culturally 

sensitive balance that weighs the interests of all parties that work together on a 

daily basis to affect the policy goals, intent and letter of NAGPRA. 

IV. CONCLUSION 

Chairman and members of this Committee, on behalf of the Pechanga People, we 

extend our appreciation for this opportunity to testify on achieving the policy goals 

of NAGPRA. Respecting and protecting our tribal ancestors, their grave goods and 

final place of rest is so important to all of Indian Country. We support NAGPRA, 

and also support strengthening NAGPRA, so it can better meet the needs of all 

Tribal People. In addition, as the recent GAO report indicates, repatriation efforts 

at the Smithsonian raise many of the same implications and issues presented in our 

testimony regarding NAGPRA. We urge the Committee to also consider fixes for the 

repatriation process under the NMAI Act of 1989. 

In addition to the concerns we have expressed above, the Pechanga Tribe, based 

on its own experience in trying to protect the Luisen ̃ o Ancestral Origin Landscape 

from Granite Construction’s proposed Liberty Quarry, and from its conversations 

with so many other Tribal Leaders across California and elsewhere, respectfully 

urges this Committee to hold Oversight Hearings on the protection of Tribal Sacred 

Places at its earliest opportunity. There is much unfinished business and a real 

sense of urgency to preserve what remains of our sacred areas for Our People. 

I am happy to answer any questions whenever the time is appropriate. Thank 

you.

The CHAIRMAN. Thank you, Mr. Macarro. 

Mr. Wright, will you please proceed with your testimony? 

STATEMENT OF HON. MERVIN WRIGHT, JR., VICE CHAIRMAN, 

PYRAMID LAKE PAIUTE TRIBE 

Mr. WRIGHT. Thank you, Mr. Chairman. 

First, I would like to thank the Committee for inviting each of 

us here to testify, all to discuss how NAGPRA ought to be interpreted to protect cultural rights. Second, I will highlight a few 

things gone wrong with implementing NAGPRA. And third, I will 

point out three key issues to correct the problems with implementing NAGPRA. 

Congress intended actual repatriation as the foundation of the 

law as it recognizes and respects the sanctity of burial practices of 

native societies and people. To evaluate the statute is to take into 

account the values, cultural societies, and to accept the responsibility to respect our ancestral past. 

NAGPRA is one of the very few Federal laws that affirmatively 

protects native culture, tradition and practices, and is one of only 

56

two repatriation laws that respects our traditional practices governing life passages. 

NAGPRA was intended for equal protection for native peoples 

and to make a place at the decision table for native peoples. Native 

people are human beings with human rights, including the right to 

be buried and to stay buried. NAGPRA recognizes that right. 

Traditional burials or funerals are communal and maintains 

principles to honorable memorialize and respect the lives of individuals. This is the foundation for sacredness that connects the land 

to native peoples and to our relatives. The ability to connect common traditional principles to the philosophical network of a legal 

bureaucracy rests upon officials that can digest the tenets of tribal 

and Federal laws. 

The failure of museums and agencies to comply with NAGPRA 

demonstrates that noncompliance is not a priority of the Federal 

Government. The merits of consultation have not provided meaningful exchange resulting in mutual decisions for parties to experience equal satisfaction. 

This is a disconnected attribute creating the disguise of impossibility for successful repatriation. The lack of action is present because authorities that govern specific responsibility condone noncompliance. At one point, the NAGPRA Office was going to promulgate a rule that all culturally unidentified human remains were the 

property of the holding repositories. Although the NAGPRA law 

has a place for oral traditions, the bureaucracy has convoluted the 

procedures to involve so much unsupported hypothesis that the 

term becomes a complicated network of reality in the minds of Federal officials. 

Theories are tested by experiment, while traditional insights are 

concluded by experience. No deceased person or no one who was responsible for burial rites in the early stages of this Country has 

ever given consent to disturb and desecrate burials with the purpose of permanent removal. Tribal nations have relied upon oral 

traditions as it is real to acknowledge our existence today. 

The trace steps back in time are supported by the cultural continuity since time immemorial. There is a small, but powerful 

group of non-native scientists who are trying to prove that non-natives were here before native people and our ancestors and lands 

are really theirs. That wrongheaded notion is behind the current 

effort to hold onto what could be their evidence. 

Nature and the exact science of our age is more about the method of questioning. What is not known will be phrased in a question 

so eloquent that it will become conclusive. The term culturally unidentified is a problematic situation. Unfortunately, the interim 

rule issued on March 15, 2010 fails to accomplish the goal of Native American repatriation. 

The traditional burial is inclusive of everything in the funerary 

process, as well as everything in the ground or in caves or on scaffolds at the site. The Department of Interior conducted horse trading with the rule. In the end, the tribes could receive the human 

remains, while the museums keep the funerary objects which they 

can sell, trade, or deal away irrespective of the policy goals of repatriation laws. 

57

It creates a public policy that grave robbing of objects is acceptable. It conflicts with longstanding principles of property law. It 

suggests there is a different right of possession for objects and the 

people that were unearthed together. 

The Native American definition is also troublesome. The definitional term is interpreted to mean that anything older than 1776 

is not Native American. The policy of NAGPRA for native peoples 

is inclusive for timeframes prior to 1776. Our history becomes prehistory and pre-Columbian. 

The technical amendment to the law was proposed in the past 

only to be held up by previous Administrations in three sessions of 

Congress. The Administration has not expressed opposition, but 

has yet to release its position on the technical amendment. It is 

reasonable, logical and rational. I urge the Committee to ask the 

Administration’s view on the technical amendment and to get past 

the stalemate. 

Native peoples are the only peoples in the United States that do 

not have a door to the courthouse to protect our sacred sites. The 

United States must ensure that all people, including native peoples, are treated equally under its laws and enact a statute creating a right of action for Native Americans to protect our sacred 

places. 

The United States is being asked to assist and support American 

citizens seeking equal protection and fair application of its laws. 

We do not understand why we are being denied. Together, we can 

move forward in a right direction if we keep our eyes on the policy 

goals. 

Thank you. 

[The prepared statement of Mr. Wright follows:]

58

PREPARED STATEMENT OF HON. MERVIN WRIGHT, JR., VICE CHAIRMAN, PYRAMID

LAKE PAIUTE TRIBE


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The CHAIRMAN. Thank you very much, Mr. Wright, for your testimony. 

Mr. Isham, will you please proceed with your testimony? 


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STATEMENT OF TED ISHAM, CULTURAL PRESERVATION

MANAGER/TRIBAL HISTORICAL PRESERVATION OFFICER, 

MUSCOGEE (CREEK) NATION 

Mr. ISHAM. Thank you. 

[Greeting in native language]. I am Ted Isham, Wind Clan of the 

Hillabee Canadian Ceremonial Grounds. I am a citizen of the 

Muscogee Creek Nation and also work for the tribe. As you mentioned, I am the THPO for the tribe. I was a previous curator of 

our tribal museum, the Creek Council House Museum. And I am 

also the language instructor for Oklahoma State University there. 

I bring greetings to you from our leaders [greeting in native language]. And I thank you for this opportunity to discuss repatriation 

and cultural preservation issues. 

[Phrase in native language] I ask at this time that my written 

statement be entered into the record. 

The CHAIRMAN. It will be included. 

Mr. ISHAM. My testimony focuses today on Public Law 101–601, 

the Native American Graves Protection and Repatriation Act, and 

Public Law 101–185, the National Museum of the American Indian 

Act, which includes repatriation provisions for the entire Smithsonian Institutions. 

The Muscogee Creek Nation believes that the Native American 

Graves and Repatriation Act, NAGPRA, was and is designed as a 

Native American human rights law, an effort to right an inherently 

wrong, basic wrong. NAGPRA was enacted in response to accounts 

that spanned many generations. These accounts document a spectrum of actions from harvesting of human remains to disinterments 

and theft of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony that belong to a collective native community that includes families, clans, societies, 

longhouses, ceremonial grounds and other moieties. 

The current reality of repatriation in America is that native nations carry almost the full burden of proof in making claims of repatriation with Federal agencies and with the Smithsonian Institution. This was not the intent of either Federal law. The basic 

premise that surrounds the repatriation process is the concept of 

meaningful consultation. This concept is not being embraced, much 

less practiced in a uniform manner, by Federal agencies, museums 

and educational institutions in the realm of repatriating our Native 

American ancestors and cultural objects. 

This remains a stumbling block to the achievement of the goals 

of NAGPRA. I have two examples of this, and one is with the Tennessee Valley Authority, which has been mentioned in the GAO report. They have had a history of lack of tribal consultation and no 

cultural affiliations of some of their collections. As a result, they 

have 8,368 culturally unidentified human remains in their collections, and this listing was done without tribal consultation, adding 

to decades of this process of the repatriation. 

And the second one I want to mention is the Sam Noble Museum 

in Oklahoma, with their withdrawal of cultural affiliation status 

without tribal consultation of 3,889 human remains, also adding 

decades to the process of repatriating those. 

Today, there is an extraordinary hardship put upon Indian nations because of how NAGPRA has been implemented by non-naVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00072 Fmt 6633 Sfmt 6601 S:\DOCS\68066.TXT JACK
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tive people. Additionally, the lack of funding, staffing and specific 

Western and museum expertise further exacerbates the situation 

and put Indian Country further behind. The sheer number alone 

of Native American ancestor remains that have been disturbed 

must be addressed. 

The GAO report states that it may take several decades for the 

Smithsonian to complete their work. And it also appears that repatriation using NAGPRA may take possibly hundreds of years to 

work through this process unless changes are made to the implementation. 

What has gone wrong? Why is this taking so long? In looking at 

these charts, you will see that after 20 years of implementing the 

Act using NAGPRA process, 180,168 Native Americans have been 

identified by museums and Federal agencies in their collections. 

Unfortunately, one-quarter of this amount, approximately 53,843 

have been culturally affiliated. The remaining 126,325 Native 

Americans remain in Federal museum repositories and are now referred to as culturally unidentifiable. The common term is CUI. 

Because these Native Americans have been given this designation, the burden is now on the native tribes and Native Hawaiian 

organizations to conduct the research as to possible affiliation and 

then submit a request for all information on that entry and then 

to start that repatriation process. 

In looking at the chart that demonstrates the Smithsonian, the 

second chart that we have, we see that there is approximately the 

same amount of affiliated remains, about one-quarter of all Native 

American remains that have been culturally affiliated, and the repatriation process at the Smithsonian is the same as has been 

noted above. For a tribe to research and request more information 

about the culturally unidentifiable is an extensive and lengthy 

process. The burden is on the tribes to conduct this research and 

request process, and most simply do not have the resources to do 

this important work. 

In terms of solutions, the Muscogee Creek Nation and 12 other 

federally recognized Indian tribes that have combined membership 

of over 1 million tribal members deliberated in October 2010 and 

developed the resolution. After receiving the GAO report, 

NAGPRA, after almost 20 years, that no enforcement mechanisms 

exists to ensure NAGPRA compliance by Federal agencies. The full 

resolution is included in my testimony. 

We urge that the Congress review our recommendations and 

work with us to remove the challenges and barriers of the repatriation process. 

In terms of the GAO’s report, I will officially request that also 

Congress ask the GAO to finish their repatriation investigations by 

reviewing the museums also. 

I would like to thank the other 117 THPOs, Tribal Historic Preservation Officers, for their work and dedication. And I would also 

like to thank the National Association of Tribal Historical Preservation for all their hard work and support in this area. 

In closing, Lisa Larue from the United Keetowah Band of Cherokees in Oklahoma recently said these words at a recent gathering 

in Norman, Oklahoma, ‘‘It is a shame that some of our ancestors 

70

have been in boxes and on shelves for a longer time than they have 

walked on this Earth.’’

I would be happy to answer any questions that you have. Thank 

you. [phrase in native language]. 

[The prepared statement of Mr. Isham follows:]

PREPARED STATEMENT OF TED ISHAM, CULTURAL PRESERVATION MANAGER/TRIBAL

HISTORICAL PRESERVATION OFFICER, MUSCOGEE (CREEK) NATION

I am Ted Isham of the Wind Clan and of the Hillabee Canadian Ceremonial 

Grounds, Muscogee (Creek) Nation citizen and live in Okmulgee, Oklahoma and I 

also work for the Muscogee (Creek) Nation. My title is Manager of the Cultural 

Preservation Office and Tribal Historic Preservation Officer (THPO). My previous 

job was Curator of the Creek Council House Museum in Oklahoma so I am very 

familiar with museum practices. I am also the language instructor of Muscogee at 

the Oklahoma State University. 

I bring you greetings from our Nation’s leaders. 

The Muscogee (Creek) Nation believes that the Native American Graves Protection and Repatriation Act (NAGPRA), enacted in 1990, was and is designed as a Native American human rights law—an effort to right an inherently basic wrong. 

NAGPRA was enacted in response to accounts that span many generations over the 

significant portion of two centuries. These accounts document a spectrum of actions 

from harvesting Human Remains from the battlefield to disinterment of existing 

graves and theft of Native American Human Remains, Funerary Objects interred 

with the deceased at burial, Sacred Objects of different types, and objects of Cultural Patrimony that belong to the collective Native community—families, clans, societies, longhouses, ceremonial grounds and other moieties. Within a few years time, 

two public laws were enacted that forever changed how Native Americans are 

viewed today:

• Public Law 101–601, the Native American Graves Protection and Repatriation 

Act (NAGPRA), enacted November 16, 1990).

• Public Law 101–185, the National Museum of the American Indian Act that includes repatriation provisions for the entire Smithsonian Institution, enacted 

November 28, 1989; amended 1996.

A basic universal human right is to express and carry out self-hood as deemed 

appropriate by the people themselves. The policy goal of NAGPRA is to treat our 

people as human beings with inalienable rights, rather than as archeological resources of the Federal government and private academics. In death, our ancestors 

were sent on a journey that has no boundaries of time and the disruption of that 

journey has no concept in our minds, beliefs, and culture, the same as if your relatives are buried today, the expectation is that their journey will not be interrupted. 

NAGPRA was intended to stop and provide a remedy for the disruption of Ancestral Remains. We find the implementation of the law has many areas of conflict 

with the policy goals, such as ideas of ‘‘control’’ and ‘‘ownership’’ of human remains; 

problems with funding to get the job accomplished; and new objectionable actions 

on top of the egregious actions that the law was intended to remedy. 

The intent of the law is clear—to respect and recognize Native rights, histories, 

traditions, cultural context and voice—and there are a great many people who abide 

by the intent of the law. There are others who are scofflaws and who are trying to 

dehumanize us again in the way that they choose to ignore this important federal 

Indian law. Some repositories and scientists seem to view their collecting interests 

as trumping the moral and ethical interests that made NAGPRA such a far-reaching 

landmark federal policy. We still battle to help our Ancestors find their way home 

and we ask you for your continued support help us implement the law as it was 

envisioned. The Muscogee (Creek) Nation is grateful for the opportunity to come 

here today to bring these points to your attention. 

NAGPRA is intended to alleviate situations brought on by the European and 

Euro-American tradition of collecting the ‘‘other.’’ The current reality of repatriation 

in America is that the Native nations carry almost the full burden of proof in making claims of repatriation with Federal agencies and with the Smithsonian Institution. This was not the intent of NAGPRA and I don’t believe that this was the intent of Congress with the Smithsonian. This places an extraordinary hardship on 

many nations due to lack of funding, staffing, and expertise, among other reasons. 

The sheer number of ancestral remains that have been disturbed must be addressed. The Government Accountability Office (GAO) states that it may take sevVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 S:\DOCS\68066.TXT JACK
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eral decades for the Smithsonian to complete their work (GAO–11–515). It also appears that repatriations using NAGPRA may take possibly hundreds of years to 

work through the process unless changes are made to the implementation of the act. 

Federal Agency Example of How NAGPRA is not Meeting its Congressional 

Mandate 

With the release of the GAO report on the federal agencies’ compliance with the 

NAGPRA law, NAGPRA—After Almost Twenty Years, Key Federal Agencies Still 

Have Not Fully Complied with the Act (GAO–10–768), one of the largest holders of 

Human Remains and Associated Funerary Objects, the Tennessee Valley Authority 

(TVA), is just now coming to realize that it, too, must consult in earnest with the 

tribes after ignoring this responsibility for the past 20 years. The vast majority of 

the collection that the TVA has accumulated comes from the southeastern United 

States, the original homelands of our Muscogee (Creek) Nation and related peoples. 

The TVA has classified almost all of the 8,368 Native American remains in its control as unaffiliated, without conducting proper tribal consultation to reach that decision. The Muscogee (Creek) Nation is one of the Indigenous peoples who lived in 

the region for at least 1,000 years, according to oral tradition and physical evidence. 

The likelihood that these Native American human remains and associated funerary 

objects can be culturally affiliated to our tribe is very high. The proclivity of the 

TVA to utilize archaeologists who seemingly make cultural affiliations or un-affiliations without tribal consultation as required by law makes the repatriation process 

very difficult for the tribes to complete. 

The Tennessee Valley Authority (TVA) manages 293,000 acres and 11,000 miles 

of public shoreline in the Tennessee Valley. According to the agency Website, TVA 

Cultural Resources staff consult regularly with 18 federally recognized tribes. No 

Notices of Inventory Completion and no Notices of Intended Disposition have been 

submitted to the National NAGPRA office to date. A minimum of 8,368 Native 

American human remains and 20,870 affiliated funerary objects are curated at various museums, including the Alabama State Museum of Natural History, University 

of Alabama, and at the Frank H. McClung Museum, and the University of Tennessee-Knoxville. Other repositories have not been identified. 

Relied on repositories to compile and submit inventory and summary documents.

TVA relied on its own records and those of its repositories to identify the locations 

of its archeological collections. TVA generally relied on repositories in possession of 

its collections to compile the agency’s summaries and inventories. The repositories 

prepared these documents more than 10 years ago. For TVA’s collections at the University of Alabama, TVA has not conducted specific consultations on cultural affiliations. As a result, TVA considers its inventories to be preliminary since the required consultations have not yet occurred. 

Lacks compliance data and faces other challenges. According to TVA’s NAGPRA 

coordinator, a database of TVA’s NAGPRA collections is being developed. TVA cultural resources management staff stated that due to gaps in communications, a lack 

of consultations, and other challenges, TVA has not been able to establish final cultural affiliations for any of the NAGPRA items in its historical collections. In addition, for NAGPRA items that were excavated during the course of TVA projects several decades ago, some ambiguity may exist as to which entity—TVA or the museum 

that curates the items—has legal control over the items, according to TVA. 

Museum Example of How NAGPRA is not Meeting its Congressional

Mandate 

All museums and Federal agencies were required to complete inventories of Native American human remains and associated funerary objects in their collections 

by November 16, 1995, and notify all culturally affiliated Indian tribes and Native 

Hawaiian organizations by May 16, 1996. A copy of each notification was to be sent 

to the National Park Service, which was to publish the notice in the Federal Register. The repatriation process cannot move forward without publication of the notice. In 1996, the Sam Noble Oklahoma Museum of Natural History in Norman submitted its notices and several were published. However, the remaining notices—accounting for the remains of 3,889 Native American individuals and 18,296 associated funerary objects—were withdrawn from the publication process on November 

8, 2007, by a decision made by the National Park Service and the Sam Noble Museum. The affiliated Indian tribes were not consulted on this decision and these 

3,889 Native Americans are not only no longer ‘‘affiliated,’’ they are no longer on 

any list and in fact have ‘‘disappeared.’’ These Native American ancestors remain 

on the museum’s shelves, unable to proceed on their journey until the museum and 

the National Park Service publish the required notifications in the Federal Register 

or at the least, they classify them as culturally unidentifiable. 

72

The basic premise that surrounds the repatriation process is the concept of meaningful consultation. We believe that even with President Obama’s November 2009 

direction for each agency to engage in meaningful tribal consultation, this concept 

is not being embraced, much less practiced in a uniform manner by federal agencies, 

museums and educational institutions in the realm of repatriating our Native American ancestors and cultural objects. This remains a stumbling block to the achievement of the goals of NAGPRA. We are not at the table at the important decisionmaking stages and we need to be included. The federal and federally-assisted entities do not have the historical, traditional knowledge that we have, no matter how 

much they think they know about us. We are the only ones who can represent our 

interests and those of our relatives. The TVA, other Federal agencies, and museums 

discount our oral history and our traditions, as well as our cultural, historical, linguistic, geographical and other ways that we are related to and affiliated with other 

Native nations, tribes, tribal towns, confederacies and peoples. Even when they are 

aware of this unique knowledge, we are still excluded from important parts of the 

processes affecting NAGPRA and as a result, our voices are not heard. As a result, 

over 126,000 of our Ancestors are being described as culturally unidentifiable and 

are being held like prisoners of war, locked away in universities, agencies, historical 

societies and other repositories, and federal monies assist them in this warehousing 

of Human Remains. This is the opposite of the policy goal of NAGPRA. 

The National NAGPRA Program office and others claim that there is no clear direction for who is in ‘‘control’’ of the Human Remains and Associated Funerary Objects that were disturbed and ‘‘collected’’ by actions of TVA and other agencies and 

repositories. The entity that is curating and completing the collection work makes 

its own case for claiming ‘‘control’’ of Human Remains and Associated Funerary Objects. This reverses the NAGPRA policy goal and is best seen in the recent federal 

rule that separates the Associated Funerary Objects from the Human Remains and 

‘‘gives’’ the Associated Funerary Objects to the holding repositories, thus stealing 

from the deceased Native people once again. The Associated Funerary Objects belong to our Ancestors and Relatives. They are not the property of the federal government. The federal agencies do not have the right to ‘‘give’’ them to another entity. 

The repositories do not have the right to accept the Associated Funerary Objects or 

to keep them or to study them or to deal them away to others. Just because the 

repositories robbed graves or paid the grave robbers or received the grave robbers’ 

contraband through third or fourth parties, the repositories have no clean title or 

claim to the treasures of our Ancestors and Relatives. 

Administrative Remedy 

The policy goal of NAGPRA is that the Associated Funerary Objects would be returned to their respective Native American communities. We ask the Committee to 

urge the Administration to amend the rule on culturally unidentified Human Remains issued on March 15, 2010, so that the Human Remains are repatriated with 

their Associated Funerary Objects subject to repatriation processes. (Attached is the 

National Congress of American Indians resolution of November 2010, Opposition to 

the New Rule on Funerary Objects Associated with Culturally Unidentified Human 

Remains, which we endorse.) To be perfectly clear, we oppose the rule to the extent 

that it does not mandate the return of our Associated Funerary Objects. We want 

any and all implementation of section 10.11 (c) (4) of the rule to cease, and for that 

portion of the rule to be revised. The Associated Funerary Objects are the primary 

means of identifying the unidentified Human Remains—and the policy goal of that 

section of NAGPRA is to identify what the repositories claim as unidentifiable 

Human Remains. We are deeply concerned that the Associate Funerary Objects will 

be further separated from the Human Remains, making their identification even 

more difficult, if not impossible. Revision of the rule on Associated Funerary Objects 

would be consistent with the NAGPRA policy. The Administration claims that Congress did not make its intentions clear and that it cannot act without further guidance from Congress. We believe that Congress made itself clear in setting the 

NAGPRA policy goals, that the Department of the Interior through the National 

NAGPRA Program office substituted its judgment for that of Congress and that the 

Administration can revise the rule now and does not need to wait for Congress. 

The lack of a publicly available and agreed upon tribal consultation policy and 

protocol for repatriation purposes remains a stumbling block to the achievement of 

the goals of NAGPRA. Consultation is a bedrock of the repatriation process and 

there needs to be consultation guidelines for the full range of Native cultural rights. 

Consultation with full participation of the tribes at all levels of the notification process is the only way to insure success of the repatriation. 

73

Legislative Remedy 

A technical clarification is needed in the legal definition of ‘‘Native American’’ by 

enacting the ‘‘or was’’ amendment that the Committee has recommended several 

times. Without the regulatory change and the technical amendment, we are impeded in our efforts to conduct repatriations and the institutions will continue to 

hold and ‘‘study’’ our Ancestors and Associated Funerary Objects. This and other 

such blocking mechanisms make it very difficult for any tribe to complete the 

NAGPRA process. Attached are two resolutions of the National Congress of American Indians, which address these issues. 

Recommended Solutions for Federal Agency Compliance with NAGPRA 

In October 2010 and in preparation for the 20th anniversary of the signing of the 

NAGPRA, the Oklahoma Coalition of Tribes (OCoT), a newly formed organization 

of tribes representing one million Native Americans primarily from Oklahoma, developed and issued a resolution for Secretary of Interior Ken Salazar that lists the 

shortcoming of NAGPRA and recommends how to improve the process. The following resolution was also delivered to the National NAGPR Review Committee in 

November 2010. 

RESOLUTION OF A COALITION OF AUTHORIZED REPRESENTATIVES OF OKLAHOMA AND

SOUTHERN INDIAN TRIBES ON THE 20TH ANNIVERSARY OF THE NATIVE AMERICAN

GRAVES PROTECTION AND REPATRIATION ACT

WHEREAS: In recognition of the 20th anniversary of the signing of the Native 

American Graves Protection and Repatriation Act, authorized representatives from 

the federally recognized Choctaw Nation of Oklahoma, Chickasaw Nation, Caddo 

Nation, Osage Nation, Seminole Nation of Oklahoma, United Keetoowah Band of 

Cherokee Indians in Oklahoma, Quapaw Tribe of Oklahoma, Jena Band of Choctaw 

Indians, Kaw Nation, Absentee Shawnee, Sac and Fox Nation, and Muscogee 

(Creek) Nation, and the Citizen Band of Potawatomi Indians, representing over 

1,000,000 tribal members, met in Durant, Oklahoma, on October 26–27, 2010, to 

discuss NAGPRA; and 

WHEREAS: The authorized tribal representatives submit this resolution to the 

Secretary of the Interior; and 

WHEREAS: As experienced by the above Indian tribes and documented in the recent Government Accountability Office (GAO) report, NAGPRA—After Almost Twenty Years, Key Federal Agencies Still Have Not Fully Complied with the Act, no en- forcement mechanism exists to ensure NAGPRA compliance by federal agencies; and 

WHEREAS: As experienced by the above Indian tribes and documented in the recent GAO report, federal agency representatives report that NAGPRA is a low priority within their agency; and 

WHEREAS: As documented in the recent GAO report, the National NAGPRA Program has not effectively carried out its responsibilities; and 

WHEREAS: As experienced by the above Indian tribes and documented in the recent GAO report, key federal agencies are still out of compliance with NAGPRA and 

have not published Notices of Inventory Completion in the Federal Register; and 

WHEREAS: As documented in the recent GAO report, a lack of transparency and 

objectivity exists in the actions of the National NAGPRA Program and the Review 

Committee; and 

WHEREAS: As experienced by the above Indian tribes and documented in the recent GAO report, civil penalty allegations against museums have increased dramatically over the past three years; and 

WHEREAS: At the current rate of the NAGPRA process it will require some Indian tribes (e.g. Caddo Nation) more than a century to repatriate their known culturally affiliated human remains, associated funerary objects, sacred objects, and 

items of cultural patrimony; and 

WHEREAS: According to the National Park Service’s online databases, the number of currently reported Culturally Unidentifiable Human Remains and Associated 

Funerary Objects is approximately four times more than the number of currently 

reported Culturally Affiliated Human Remains and Associated Funerary Objects; 

and 

WHEREAS: The above Indian tribes agree that the NAGPRA and repatriation 

processes are unacceptably slow and burdensome in their present form. 

THEREFORE: The respective federally recognized Indian tribes listed above request the following steps to improve the NAGPRA process:

A)An ombudsman be appointed to work with the Indian tribes and federal agencies to facilitate timely NAGPRA compliance and that four full-time NAGPRA 

investigators be employed within the Department of the Interior to ensure 

74

that museums, universities, and institutions that receive federal funds comply with NAGPRA; and

B) Seek to improve NAGPRA compliance by increasing the civil penalty 

amounts; and

C) Federal agencies, in consultation with Indian tribes, shall locate and secure 

reburial sites on federally protected land to be used by Indian tribes for the 

reburial of human remains and objects repatriated through the NAGPRA 

process; and

D) NAGPRA Grants shall support projects that involve consultation with museums, universities, and institutions that receive federal funds and hold federal collections; and

E) Indian tribes be provided with a copy of information that federal agencies 

submit to the National Park Service for inclusion in the Culturally Unidentifiable Native American Inventory Database, thus creating a process for directly sharing information with Indian tribes; and

F) Develop a NAGPRA tribal consultation policy for sharing information among 

Indian tribes, federal agencies, museums, universities, and institutions that 

receive federal funds that would include, but is not limited to, NAGPRA Inventories, Summaries, archaeological reports, and other relevant data; and

G) The Department of Interior shall promulgate the remaining reserved section(s) of the NAGPRA regulations; and

H) Support NAGPRA at the level of at least $1 million for NAGPRA administra- tion, and $4 million exclusively for the NAGPRA grants to Indian tribes and 

museums; and

I) Federal agencies, museums, and institutions that receive federal funds shall 

participate in an annual consultation meeting with Indian tribes for the purpose of discussing policy-making, priority-setting, funding resources, and 

NAGPRA compliance, to be held in Oklahoma, the home of 39 federally recognized Indian tribes

One of the tribal members of OCoT, Ms. Lisa Larue from the United Keetowah 

Band of Cherokees, recently said these words at one of recent gatherings in Norman, Oklahoma, ‘‘It is a shame that some of our ancestors have been in boxes and 

on shelves for a longer time than they have walked on this earth.’’ The message we 

want to send about not returning our ancestors to their spiritual journeys is a moral 

one. We urge that the Congress review our resolution’s recommendations and work 

with us to remove the challenges and barriers to the repatriation process. 

Cultural Preservation at the Muscogee (Creek) Nation 

In addition to my repatriation duties, I am also the newly designated Tribal Historic Preservation Officer (THPO) for our tribe. The Muscogee (Creek) Nation is the 

113th Indian tribe to acquire Sec. 101(d)(2) status as a THPO. The THPO program 

is in a funding crisis because the amount of federal funds for the program is not 

keeping pace with the number of tribes entering into the program. 

The Muscogee (Creek) Nation’s Office of Cultural Preservation had the honor and 

privilege to assist our sister tribe, the Choctaw Nation of Oklahoma, with its own 

efforts of repatriation by working together to assist in the return 124 Ancestors. The 

Choctaw Nation, as the lead tribe, in consultation with other related tribes and the 

NPS Natchez Trace National Parkway, completed the repatriation process and reburial of the ancestors to allow for the continuation of their journeys to the other 

world. As the related tribes all acknowledge, there is no ceremony for the reburials 

but for protection of self, one was agreed upon. This ceremony was not intended for 

the reburial process but for protection of the workers who handle the remains, dig 

the graves and walk on the burial ground, much as we have funeral ceremonies in 

modern times. It was the intertribal collaboration that allowed the use of each of 

our combined traditions to ‘‘invent’’ new ceremony, to show respect for our relatives. 

It did not matter that the Human Remains and Associated Funerary Objects belonged to the Natchez people, we as related tribes, had all come to the agreement 

to allow one of the related tribes, in this case the Choctaw Nation, to make the 

claim and repatriate. It is important that a related nation return an Ancestor to 

his or her cultural context—in our case, to the earth in a respectful way. As with 

all our ceremonies, repatriations are private matters and no one outside of our traditions need to know the details of what we do. This is the case for our religions, 

cultures and ways of life, just as it is for non-Natives’ most personal and private 

family matters. 

To allow Ancestors to find their way home allows us today to Find Our Way 

Home. 

75

Mr. Chairman and Members of the Committee, allow us to find our way home. 

This is a responsibility that we choose—to have our select few NAGPRA Warriors 

take care of our ancestors’ remains in the attempt to rectify an injustice that has 

been perpetuated on the Native Peoples of the Americas. Please remove the barriers 

that stand in the way of fulfilling our responsibilities. 

We urge you to act upon our requests and the attached resolutions, in order to 

keep repatriation on its intended policy course and to return the federal agencies’ 

implementation of NAGPRA to the positive policy goals of our human rights law. 

76

Attachments


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The CHAIRMAN. Thank you very much, Mr. Isham. And so I have 

some questions for the three of you. 

Mr. Macarro, in regards to NAGPRA, how much credibility is 

traditional tribal knowledge given in comparison to science? 

Mr. MACARRO. Well, I think there is some, but in many ways it 

seems like NAGPRA sets up a fight between science and traditional knowledge. What is unfolding right now with what I referenced, the University of California San Diego battle with the 

Kumeyaay people and the tribal nations down there I think kind 

of exemplifies that. 

I don’t know if anybody else refers to this as the New La Jolla 

man, but they are really old bones, tens of thousands of years. The 

discovery of those bones happened I think when they were building 

the Chancellor’s residence there. And the discovery of those bones 

occurred before NAGPRA. 

And so the disposition of those bones has been in dispute. And 

adjacent to that location where those bones were found. Other 

bones were found more recently, in the last few years. Those bone 

were repatriated to one of the Kumeyaay tribes, no problem, no 

questions, done. 

The odd thing is that the same people that are arguing about the 

initial bones of antiquity, saying those need to be repatriated, too, 

those are the ones that had the other bones repatriated. So the 

only thing that is different is the discovery of these before 

NAGPRA came into existence. 

And that is where these committees and these archaeologists are 

saying these bones are so old we don’t know who they be yours, so 

we are going to hang onto them and there is no Federal law compelling us to hand them over to you. 

So never mind that there has been plenty of traditional knowledge and history applied to the situation. And we felt it was important in our testimony to highlight this because this is indicative, 

we think, of situations throughout with the University of California 

and the thousands of human remains that they retain. 

And that argument is an insidious one. These bones predate you 

as Indian people on this continent. That flies in the face of the core 

of our being. We know who we are. We know how we were created. 


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We know where we are from. And science isn’t going to tell us that 

that is not true. Yet science is saying that. 

And so using the application of this culturally identifiable rule 

allows them to say, okay, these don’t belong to you. They are so old 

we don’t know who they belong to. Therefore, they do not have to 

be repatriated and we can hang onto them generation after generation because somebody might want to study them in 150 years. 

The CHAIRMAN. Thank you. 

Mr. Wright, your testimony highlighted issues arising from the 

term culturally unidentifiable that directly impacted your people. 

What can Congress do to remedy this situation? 

Mr. WRIGHT. It needs to reverse the rule. As you can see, this 

chart shows or the chart previously showed 126,000 human remains are classified or categorized as culturally unidentified. 

When we first started raising a question about this term back in 

1998, it was reported that there were approximately 87,000 of 

these collections were categorized as culturally unidentified. Well, 

you can see that that number has almost doubled, and it will continue to increase, as we see it, because what is not known is what 

drives science is the intriguing value that is applied with the technology, with the ability to ask the question to the point where it 

is intelligence. 

And so the more questions that are being asked, the higher the 

intelligence is being raised with regard to scientific theory. And so 

eventually, we don’t see an end with the questioning because they 

don’t know. And as Mr. Macarro has indicated, all of these things 

that we know are in place, just as the 9,000-year-old collection out 

in the State of Nevada was known as the Spirit Cave collection. All 

of those items, the rabbit-skin blankets, the netting, the bark clothing, all of those things were used when John Fremont discovered 

Pyramid Lake back in 1844. 

So cultural continuity is what we call it, and that is what takes 

us back to the beginning of time. However, those things are being 

discounted by science, and I don’t understand the disconnection between what they are terming culturally unidentified or culturally 

unidentifiable to what we try to express in regard to our oral histories. 

The CHAIRMAN. Thank you, Mr. Wright. 

Mr. Isham, the GAO has confirmed twice already that two Federal laws enacted for the benefit of Native American lineal descendants and communities are not working. What resources are 

available or what should be available to assist tribes during the repatriation process? 

Mr. ISHAM. Thank you, Senator. The GAO reports that talk 

about those shortcomings for identifying the lineal descendancy 

and those 10 points of cultural affiliation should be realized that 

they are based on what is called the preponderance of the evidence. 

And when you stack those up and include things such as oral tradition, linguistic history, and what the people say, again, that is oral 

tradition, then those should have a larger weight in this, but they 

are treated as equal at this point. 

But we think implementation of it has not been treated equally 

and more evidence, more of the restriction is placed on the actual 

written history, so to speak. And of course, we all know as native 

84

people and oral traditions, much of who we are that we know, of 

where we come from, is part of the oral tradition. And we know 

that we have been in these places for thousands of years. 

And so those sorts of things have not been addressed and put as 

equal status. 

The CHAIRMAN. Thank you. 

Mr. Macarro, in your testimony, you encourage the Committee to 

protect tribal sacred places. Can we do so by amending existing 

laws? Or would new legislation be required? 

Mr. MACARRO. Well, if this is a wish list kind of question, it 

would be probably new laws. But I don’t know how this is going 

to be done because there are competing world views here that are 

in play. 

One of the fundamental problems is that so many of our sacred 

sites are off our reservations. They are off tribal lands, strictly 

speaking or legally speaking. We are fighting a proposed aggregate 

mine that would destroy part of our creation story just 650 yards 

off of our western boundary. And it is a mix of State land. It is a 

mix of privately held land. And this aggregate mine which may or 

may not be necessary would be there for 75 years. 

And in the end, it will come down to a political decision of a 

board of supervisors. And so it is a matter of persuasion. There is 

no law compelling them to vote for it or vote against it. And we 

hope, in the end, that the public health reasons alone will cause 

them to vote against it. 

But you have private property proponents who say, well, you 

can’t tell somebody what to do on their land. And of course, we like 

that argument when it is applied to us, certainly. So we understand that. But nonetheless, desecration or destruction of our sacred sites off-reservation, just because it is on somebody’s private 

land, doesn’t make it right. It is immoral. 

And I will continue to tell anybody that that is immoral. There 

is nothing right about destroying a sacred site just because you 

own it and you pay taxes on it. It doesn’t make it right. 

There should be some law in place that prevents those kind of 

destructions of sacred sites. In Southern California, many of our 

sacred sites happen to be hills, knolls or mountains, and they happen to be good sources of aggregate rock product, decomposed granite and things like that that people need to build roads or concrete 

for housing and curbing and the entire fueling of the housing industry, the construction industry comes from the things they destroy. 

So it is a conundrum. It is a tough one, but I don’t know what 

the solution is, if there is a solution in law or if it is just people 

come to some conclusion. One day they wake up and say, okay, we 

need to stop doing this. But it is wrong and it is immoral and 

maybe here in the United States we need laws to prevent people 

from doing wrong things. 

So I think both is probably the answer, fundamentally. We need 

to look at existing laws and tweak those where necessary to accomplish the goals that we can. And if there isn’t an existing law that 

would accomplish those goals, then a new one needs to be drafted. 

I think NAGPRA is probably a good goal. It went where no law 

went before in its goals and its loftiness and that kind of broadVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00088 Fmt 6633 Sfmt 6601 S:\DOCS\68066.TXT JACK
85

based, long-term thinking I think should be engaged in as well 

again. 

Thank you. 

The CHAIRMAN. Thank you very much. 

Mr. Wright, can you elaborate on how native peoples are barred 

from bringing suit to protect sacred sites and why that barrier does 

not exist for non-natives in the United States? 

Mr. WRIGHT. I think for the most part it has to do with the Federal Government’s intention to fund projects. It is also involving 

the Federal process to evaluate impacts, be it environmental; 

whether a private property owner or a State may initiate a process 

for constructing a project. And I am saying this in light of project 

development because it is usually those actions that impact sacred 

sites. And when those things happen, we are not given the opportunity to file for injunctions, have any ability to legally protect 

what we believe as sacred. 

Normally, what happens is we will be involved with a scoping 

process and an environmental review process to the point where we 

can express our concern about a site, but in return in response to 

the statements made to protect those sites, it is normally mitigated 

to the point where there will be minimal impacts, but we can never 

get to the point where there are zero impacts. 

And at times, we are reliant on bringing other organizations into 

a process of disputes on behalf of tribes because a lot of times, as 

was said earlier, these sites exist within our aboriginal territory, 

but not within a reservation boundary or ceded lands. 

And so a lot of times we have to go outside of the bounds, even 

to the point of trying to argue that we have a legitimate claim to 

these sites. Albeit the Indian Claims Commission map is always 

brought out and laid across the table to indicate that maybe we 

don’t have a right because this line is drawn on the map saying it 

is outside of the boundaries of your territory. 

Again, the legalities of regulatory criteria and regulatory compliance tends to restrict the ability to maneuver legally into a court 

system. 

The CHAIRMAN. Well, thank you very much, Mr. Wright. 

Mr. Isham, in order to achieve the goals of NAGPRA, and I am 

asking for your opinion. 

Mr. ISHAM. Okay. 

The CHAIRMAN. In your opinion, do you think amendments are 

necessary? 

Mr. ISHAM. Yes. I get confused on the law side of this. I am used 

to working in the actual trenches of doing this work. And yes, we 

are in favor of amendments to the law to help fix some things that 

are a problem with us. 

And one of the problems that we have is the definition between 

is and was in the law. Again, it relates to some of these ideas of 

antiquity and what is Native American and or what was Native 

American, and those legislative and administrative fixes that 

would help alleviate some of those things. 

The CHAIRMAN. Well, thank you. I think you know that it was 

in the 109th Congress that an amendment was proposed to redefine the definition of Native American in NAGPRA. And that 

86

amendment, however, was not passed. I thank you for mentioning 

that. Maybe we should go back and visit that again. 

I want to tell you and tell this third panel as well, thank you 

very much for your opinions and your responses, because this will 

help us try to put things together as we move to improve the system. And you can tell what I am trying to do is reach out to the 

tribes to find out your thoughts on the matter, rather than us looking at it from this side and saying, well, I think this is what they 

need. 

So we have to work together on this, and we would really appreciate your genuine feelings about this, so we can try to improve it. 

If we need amendments, okay, we try to do it. 

My feeling has always been legislation should be the last thing 

we should do. If we can do it administratively or policy-wise, that 

will benefit the people. 

But anyway, before we get to that point, we want to hear from 

you on what do you think, and this is what this hearing is all 

about. 

So I really appreciate you all taking your time to come and meet 

with us and informing us of how you feel about this. 

So it is important to remember that how we treat the dead 

speaks volumes about how we value living. 

And I want to thank our witnesses again for participating in today’s hearing. We want to work with you as this Committee considers amendments to NAGPRA and the NMAI Act as well. Your 

thoughtful input will help this Committee work to make sure that 

the road home (and for me when you say home, wow, coming from 

Hawaii, home means a lot, and for all of you, too, wherever you 

are. It has a deep meaning). 

So the road home is a timely journey, one that brings peace to 

the families and communities who live long for the dignity of their 

relations and life ways to be respected. 

And so we look forward to our working together to bring some 

of these about to improve the quality of life for the indigenous peoples of the United States of America. 

So the record will be open for two weeks. And again, mahalo, 

thank you very much for all of you, besides our witnesses, for coming and your interest in this area that this hearing is about. 

The hearing is adjourned. 

[Whereupon, at 4:25 p.m., the Committee was adjourned.] 

(87)

1 Haw. Const. art. XII, §5, Haw. Rev. Stat. § §10–1 to –16. 2 Haw. Rev. Stat §10–6(a)(4). 3 Id. §10–3(4). 4 104 STAT. 3049(11)(C). 

5 Haw. Rev. Stat. § §6E–43 to –43.6. 6 Haw. Adm. Rules §13–300–35. 

APPENDIX

PREPARED STATEMENT OF CLYDE W. NA ̄MU‘O, CHIEF EXECUTIVE OFFICER, OFFICE OF

HAWAIIAN AFFAIRS

Dear Mr. Chairman, Vice-Chairman and Members of the Committee: 

My name is Clyde W. Na ̄mu‘o, Chief Executive Officer of the Office of Hawaiian 

Affairs (OHA), a quasi-independent state agency, established under the constitution 

and laws of the state of Hawai‘i. 1 The statutory mandates for OHA include the following requirements: ‘‘[t]o advise and inform federal, state, and county officials 

about native Hawaiian and Hawaiian programs, and coordinate federal, state, and 

county activities relating to native Hawaiians and Hawaiians’’ 2 and ‘‘[a]ssessing the 

policies and practices of other agencies impacting on native Hawaiians and Hawaiians, and conducting advocacy efforts for native Hawaiians and Hawaiians.’’ 3 OHA 

is one of two organizations specifically cited as examples of Native Hawaiian Organizations (NHOs) within the Native American Graves Protection and Repatriation 

Act (NAGPRA). 4

Since its enactment in 1990, the NAGPRA has provided a process which has successfully repatriated ancestral remains and cultural objects to claimants for an appropriate final disposition. As the Office of Hawaiian Affairs (OHA) works to fulfill 

our statutory mandates to advocate for the Hawaiian people, we are honored to participate in the NAGPRA process by engaging in collaborative efforts which support 

lineal descendants and other NHOs to ensure our cherished iwi ku ̄puna (ancestral 

remains) and cultural objects are treated with the utmost respect. 

In Hawai‘i cases where lineal descendants cannot be ascertained, the NAGPRA 

allows for a broad range of NHOs, including individual family units to request repatriation. This proactive effort to be inclusive has resulted in some conflict as NHOs 

which meet the general requirements of the NAGPRA are put on the same level as 

those with demonstrated familial connections to or expertise in the care of iwi 

ku ̄puna or cultural objects. In certain cases there are fundamental conflicts between 

NHOs and federal agencies and institutions then encounter difficulties in determining which NHO has the closest cultural affiliation and repatriation is subsequently delayed. The Hawaiian community recognizes the results and impacts the 

external appearance of conflict has on the repatriation process and we are currently 

engaged in initial discussions which seek to foster broader internal agreement and 

understanding to ensure appropriate claimants step forward to request repatriation 

and fulfill familial or traditional responsibilities. 

The State of Hawai‘i has established island burial councils (councils) in order to 

implement state laws which determine the appropriate treatment of ancestral remains and associated burial goods which are under state jurisdiction. 5 The membership of each council includes representatives of each geographic region of an island 

who are selected from the Hawaiian community because of their demonstrated understanding and knowledge of the traditions, culture, customs and burial beliefs of 

our people. Councils participate in the NAGPRA process as NHO who give voice to 

individuals and families who are recognized as lineal or cultural descendants pursuant to Hawai‘i state law. 6

In certain cases, OHA has engaged in discussions with other NHOs which have 

resulted in agreement that all involved would move forward with a ‘‘joint request’’ 

for repatriation. To be clear, these are specific cases where there is no conflict between those involved and the commitment to work collaboratively to complete repatriation has been clearly expressed to the appropriate agency or institution. A ‘‘joint 

request’’ is primarily based on recognition that all involved have some level of reVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00091 Fmt 6601 Sfmt 6621 S:\DOCS\68066.TXT JACK
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7 25 USC §3005(e). 

sponsibility to see the repatriation completed successfully. Thus, no NHO can be 

seen, nor does any NHO want to be viewed as the ‘‘most appropriate claimant’’. Unfortunately, a federal agency or institution may view a ‘‘joint request’’ as a competing claim pursuant to the NAGPRA 7, resulting in the ancestral remains or cultural objects being retained until this apparent ‘‘dispute’’ is resolved. It is our hope 

that some federal guidance on the difference between a competing claim which does 

involve fundamental conflicts and disputes between NHOs and a ‘‘joint request’’ 

which is an expressed commitment between NHOs to work collaboratively can be 

developed in the future. 

The NAGPRA has been referenced during international repatriation efforts with 

institutions and agencies within countries which do not have laws that require the 

repatriation of ancestral remains and cultural items in their collections. OHA believes that the fact that the NAGPRA exists and has been successfully applied and 

completed in the United States of America has positively impacted international repatriation efforts and resulted in iwi ku ̄puna and cultural objects being returned 

home to Hawai’i from abroad. 

OHA believes that the NAGPRA process is of extreme importance to Native Hawaiians. Repatriation efforts can be complex and OHA is committed to encouraging 

and supporting the effective participation of Hawaiian communities, families and individuals in developing a framework which will build on the lessons of the past and 

guide the efforts of current and future generations to ensure that NAGPRA achieves 

the goals of its policies and provides an appropriate and respectful final disposition 

for our iwi ku ̄puna and cultural objects. 

I appreciate the opportunity to provide testimony on this very important issue to 

our Hawaiian people. 

PREPARED STATEMENT OF ELIZABETH S. MERRITT, DEPUTY GENERAL COUNSEL, 

NATIONAL TRUST FOR HISTORIC PRESERVATION

Dear Senator Akaka: 

The National Trust for Historic Preservation appreciates the opportunity to submit comments on the Native American Graves Protection and Repatriation Act 

(NAGPRA), Pub. L. No. 101–601, 25 U.S.C. § 3001 et seq., as a follow-up to the oversight hearing held by the Committee on June 16, 2011. 

I. Interests of the National Trust 

The National Trust has a long-standing interest in the preservation of our nation’s irreplaceable cultural resources. Congress chartered the National Trust for 

Historic Preservation in 1949 as a private nonprofit organization to ‘‘facilitate public 

participation’’ in historic preservation, and to further the purposes of federal historic 

preservation laws. 16 U.S.C. § § 461, 468. With the continued support of almost 

200,000 members nationwide, the National Trust has been involved in helping federal, state, and local agencies to effectively address and resolve issues affecting cultural resources for more than 60 years. In addition, the Chairman of the National 

Trust has been designated by Congress as a member of the Advisory Council on Historic Preservation, which is responsible for assisting other federal agencies in complying with Section 106 of the National Historic Preservation Act. See id. 

§ § 470i(a)(8), 470s. 

The National Trust has been actively involved for decades in efforts to protect cultural resources and traditional cultural properties. Many of our constituents are 

tribes and individuals involved in the repatriation of Native American human remains and cultural objects. The National Trust is particularly concerned about repatriation and the protection of burial sites given the prevalence of looting and vandalism that occurs on public lands and within traditional cultural properties. 

These and a variety of other threats facing traditional cultural properties have 

often placed some of the nation’s most critical sites on our annual list of America’s 

11 Most Endangered Historic Places, based on nominations from tribal members. 

Most recently, we included Bear Butte in South Dakota and the Greater Chaco 

Landscape in New Mexico on our just-announced 2011 List of America’s Most Endangered Historic Places, as well as P†gat in Guam, which was listed in 2010, and 

Mount Taylor in New Mexico, which was listed in 2009. 

The National Trust respectfully requests that you and the Committee consider the 

following recommendations: 

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II. Culturally Unidentifiable Human Remains and Associated Funerary

Objects 

In March 2010, regulations on ‘‘culturally unidentifiable human remains’’ were 

issued by the Department of the Interior. However, the regulations did not require 

the repatriation of funerary objects together with the human remains with which 

they were associated. The Department of the Interior’s policy was based on an interpretation of NAGPRA which assumes that the Department does not have the legal 

authority to require this. 

During the June 16, 2011 oversight hearing, the Honorable Mervin Wright, Vice 

Chairman of the Pyramid Lake Paiute Tribe, testified that the March 2010 rule 

failed to meet the policy goals of NAGPRA. He stated:

‘‘The traditional burial is inclusive of everything in a funerary process, as well 

as everything in the grounds or in caves or on scaffolds at the site . . . . In 

the end, the tribes could receive the human remains, while museums keep the 

funerary objects, which they can sell, trade, or deal away, irrespective of the 

policy goals of repatriation laws. It creates a public policy that grave robbing 

of objects is acceptable . . . .’’

Recommendation: Congress should clarify the intent of the statute through a technical correction to require the joint repatriation of culturally unidentifiable human 

remains together with associated funerary objects. The repatriation of culturally unidentifiable human remains—along with associated funerary objects—is consistent 

with NAGPRA and with Congressional intent. 

III. Ancient Remains 

NAGPRA defines ‘‘Native American’’ human remains as remains ‘‘of, or relating 

to, a tribe, people, or culture that is indigenous to the United States.’’ 25 U.S.C. 

§ 3001(9). In Bonnichsen v. U.S., 357 F.3d 962 (9th Cir. 2004), the Court ruled that 

Native American remains are only those that bear some relationship to a presently 

existing tribe, people, or culture.’’ The interpretation adopted by the court in the 

Bonnichsen decision would render ineffective numerous sections of the Act, such as 

25 U.S.C. § 3002(a)(2)(C) (claims based solely upon aboriginal occupation), and 25 

U.S.C. § 3006(c)(5) (disposition of culturally unaffiliated remains). 

Recommendation: Congress should clarify the intent of the statute through a technical correction to the definition of ‘‘Native American’’ so that the definition would 

read ‘‘of, or relating to, a tribe, people, or culture that is or was indigenous to the 

United States’’ (emphasis added). 

IV. Disposition of Unclaimed Cultural Items 

‘‘Unclaimed’’ cultural items have been defined by the National Park Service as 

‘‘Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony excavated or discovered on Federal or tribal lands after November 

16, 1990 and not claimed under section 3(a) of the Act (25 U.S.C. § 3002(a)).’’ In the 

final regulations, the Department responded to Comment 14 and stated, ‘‘[a] proposed rule regarding the disposition of unclaimed cultural items is currently under 

development (43 C.F.R. § 10.7).’’ 75 Fed. Reg. 12,382 (Mar. 15, 2010) (Native American Graves Protection and Repatriation Act Regulations—Disposition of Culturally 

Unidentifiable Human Remains).

Recommendation: The Committee should direct the National Park Service to provide Congress with more information on the proposed timeline for the rule regarding 

the disposition of unclaimed cultural items, and how soon the public will have an 

opportunity to comment on it. 

V. Increased Funding for NAGPRA Grants 

Despite contrary testimony by Ms. O’Dell from the Department of the Interior 

during the June 16 oversight hearing, NAGPRA grants are severely underfunded, 

particularly with regard to grants requested by indigenous peoples within the 

United States. Many of these prospective grantees lack the financial and staffing 

resources necessary to conduct consultations and repatriations. 

Recommendations: (A) Congress should provide additional funds for NAGPRA 

grants, repatriation, and technical assistance programs that will help advance the 

full implementation of NAGPRA and the repatriation process. Since there has been 

a steady increase in NAGPRA grant requests over the years, Congress should provide adequate funds to meet the growing need for NAGPRA consultation/documentation grants and NAGPRA repatriation grants to ensure timely and adequate compliance. 

(B) Congress should provide additional, separate funds for federal agencies so that 

these agencies seeking financial assistance for repatriations are not competing with 

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the tribes for already oversubscribed grant funds that should be exclusively for the 

tribes. 

VI. Oversight and Enforcement of Repatriation by Federal Agencies 

The GAO Report admonished several federal agencies for failing to complete inventories, provide notice of human remains and other cultural items to tribes, and 

repatriate such items. A second GAO report also documented the slow rate of repatriations by the Smithsonian museums. 

Recommendation: Congress should provide strong oversight of federal agencies, 

such as the Tennessee Valley Authority and the Smithsonian, to ensure that the 

agencies prioritize their repatriation programs and efforts. 

VII. International Repatriation 

An estimated 1 to 2 million human remains, funerary objects, sacred objects, and 

objects of cultural patrimony currently reside in international repositories. While 

the NAGPRA applies to federally funded institutions within the jurisdiction of the 

United States, it currently does not extend internationally. These ancestral remains 

and cultural objects left tribal lands through grave robbing, explorers, scientists, anthropological studies and archaeological excavations, war, and the sale and trade 

with U.S. institutions, such as the Smithsonian. Foreign collections continue to obtain items through markets that deal internationally in the trade of Native American human remains and cultural items, many of which could not legally be sold 

in the United States. 

In December of 2010, President Obama signed the U.N. Declaration on the Rights 

of Indigenous peoples, which supports the repatriation of human remains and cultural items:

Article 12. Indigenous peoples have the right to manifest, practice, develop and 

teach their spiritual and religious traditions, customs and ceremonies; the right 

to maintain, protect, and have access in privacy to their religious and cultural 

sites; the right to the use and control of their ceremonial objects; and the right 

to the repatriation of their human remains. 2. States shall seek to enable the 

access and/or repatriation of ceremonial objects and human remains in their 

possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Currently, only a few international repatriations have occurred from international 

repositories to tribes, who are often overwhelmed by the process due to lack of resources. Many of these international repatriations have taken an excessive amount 

of time, some upwards of 20 years, and others have been abandoned because of financial constraints and staffing limitations. 

Recommendations: (A) The Committee should investigate the growing need for 

international repatriation among tribes and assess international models for repatriation (for example, the Museum of New Zealand Te Papa Tongarewa and the Australian Government’s International Repatriation Program). 

(B) The Committee should develop legislation that would: (1) provide funds for indigenous communities in the United States to research, consult, and repatriate 

internationally; and (2) penalize the international exportation and trafficking of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. 

Thank you for the opportunity to provide testimony to the Senate Committee on 

Indian Affairs on these very important issues. 

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PREPARED STATEMENT OF JACK F. TROPE, EXECUTIVE DIRECTOR, ASSOCIATION ON

AMERICAN INDIAN AFFAIRS


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PREPARED STATEMENT OF JOHN W. MCCARTER, JR., PRESIDENT/CEO, FIELD MUSEUM

OF NATURAL HISTORY


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PREPARED STATEMENT OF LEO STEWART, INTERIM CHAIR, BOARD OF TRUSTEES, 

CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION


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PREPARED STATEMENT OF MATTHEW WESAW, CHAIRMAN, POKAGON BAND OF

POTAWATOMI INDIANS


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PREPARED STATEMENT OF GEORGE THOMPSON, MEKKO, OCEVPOFV CUKO RAKKO

(HICKORY GROUND CEREMONIAL GROUND) 

The Hickory Ground Tribal Town of the Muscogee (Creek) Nation appreciates the 

opportunity to submit this statement before the closing of the record on the hearing 

of the Native American Graves Protection and Repatriation Act (NAGPRA) on June 

16, 2011. The historic site of Hickory Ground near Wetumpka, Alabama is being 

threatened with destruction by development at the site. 

We are direct lineal descendants of the historic Ocevpofv Cuko Rakko (Hickory 

Ground Ceremonial Ground) etvlwa (Tribal Town), a constituent of the Muscogee 

Confederacy and present-day Muscogee (Creek) Nation of Oklahoma. The struggle 

to protect our ancestors and associated objects buried in our traditional aboriginal 

territory in Alabama is particularly difficult for ‘‘removed tribes’’ such as ourselves 

who are now located in eastern Oklahoma. 

While the Creek Nation is commonly referred to as a ‘‘tribe,’’ the term ‘‘confederacy’’ is historically and politically correct as is shown by the various treaties and 

Acts of Congress, judicial opinions and administrative rulings identifying it as a 

‘‘confederacy consisting of tribes, bands or towns.’’ Cf Cohen’s Handbook of Federal 

Indian Law 437, n.87(1941 Ed.). The Creek Nation Confederacy is believed to have 

existed in political form as early as 1540, according to John R. Swanton, The Social 

Significance of the Creek Confederacy Proceedings of the Nineteenth International 

Congress of Americanists 331 (Washington, DC) (Dec. 27–37, 1917). 

Hickory Ground Tribal Town is one of 44 original towns that were removed from 

homeland settlements in Alabama and Georgia during the removal era in the 

1830’s. Sixteen (16) towns still have an active fire with the ceremonies and social 

structure of the ancient towns being maintained today. 

In support for the leaders of the Ocevpofv Cuko Rakko, the Muscogee (Creek) Nation passed a law in 2006, NCA 06–185. It is titled ‘‘A Law of the Muscogee (Creek) 

Nation Clarifying the Position of the Muscogee (Creek) Nation on the Protection of 

the Muscogee Cultural and Historical Site of Hickory Ground near Wetumpka, Alabama and Authorizing a Special Appropriation for the Cost of Necessary Measures 

Required to Secure and Protect the Site and/or Cause Commercial and Gaming Activity to Cease. 

The Declaration of Policy for Muscogee (Creek) Nation is stated in this Act to:

A. Protect cultural sites, whether historic or pre-historic, within those lands occupied by peoples who became the constituent Tribal towns of the Muscogee 

Confederacy and

B. Protect the sanctity of all burials of Muscogee peoples, based upon the 

Muscogee common law that a burial is a permanent resting place for the dead.

In further support, the traditional leaders (Mekkos) signed a precedent setting 

document for modem times proclaiming unity among the signatory Tribal Towns to 

preserve our burial grounds, mounds and sacred sites, most located in Alabama, 

Georgia and Florida. (Attachment 1.) 

Cause of Action and Injunctive Relief 

In order to protect our burial grounds and grave goods, mounds and places of cultural patrimony, NAGPRA does not provide us with a right of action and injunctive 

relief when destruction and desecration of these sites occur. This is particularly difficult when the lineal descendants are far removed from its aboriginal territory. 

Moreover, the lineal descendants in traditional tribal towns are grassroots people 

hampered by little or no funding in order to aggressively monitor ancient sites and 

burials. 

The difficulty is when another Tribe moves into an area that is not its aboriginal 

area. At the Hickory Ground site the current tribal owner was given title under 

grants from the Alabama Historical Commission to preserve the historic site, but 

instead, conducted excavations removing human remains and storing funerary objects at a state University. Hickory Ground Tribal Town descendants are unable to 

require another Tribe to re-inter their ancestors with the correct funerary objects 

now stored at a University. Development of the site is ongoing. As of today, 56 remains that have been removed from graves are wrapped in newspapers and stored 

in buckets separated from their associated funerary objects. 

A right of action to seek injunctive relief is not available under NAGPRA. 

NAGPRA should be amended to facilitate original objectives of the law. 

Museum Compliance With Inventories 

Hickory Ground Tribal Town and Muscogee (Creek) Nation representatives have 

been unsuccessful in their attempts to work with the National NAGPRA Program 

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in their efforts to obtain an inventory of human remains and objects removed from 

Hickory Ground and in possession of a University under a contract from the local 

Tribe. 

According to NAGPRA and noted in the recent GAO Report, federal agencies and 

museums are required to compile an inventory of any holdings or collections of Native American human remains and associated funerary objects that are in its possession or control. Additionally, as noted by the GAO, NAGPRA requires these agencies 

and museums to prepare a written summary of any holdings or collections of Native 

American unassociated funerary objects, sacred objects, or objects of cultural patrimony in its possession or control, based on the available information in their possession. 

Hickory Ground Tribal Town members wish to protect the ancestors in a manner 

befitting the Town’s historical and cultural place of honor. This includes requiring 

burials to remain intact with all associated funerary objects. 

Under Tribal law NCA 06–185, the Nation particularly states in Section 1–102, 

Declaration of Policy:

’P. Burials are not real property, and the ownership of a burial does not transfer 

to the owner, possessor, lessor or lessee of real property or the mineral or subsurface interest in real property as does the ownership of a fossil, because a fossil is an artifact of nature and its location in real property is the result of natural forces, but a burial is a human structure which was intended from its beginning to never be disturbed.’’

This Tribal law reflects many similarities in United States common law that addresses human remains and the rights of landowners and lineal descendants. In our 

recent discussions with the National NAGPRA Program seeking clarification on the 

matter of human remains and property laws, it would appear that National 

NAGPRA’s interpretation is that of owner of the property is also owner of the graves 

on the real property. Among the purposes of NAGPRA was to account for and address those unique situations in Native American history that were not covered in 

the common laws such as forced removals and to provide equal protection for graves 

and religious rights protected under the First Amendment. 

NAGPRA defines ‘‘possession’’ as

‘‘having physical custody of human remains, funerary objects, sacred objects, or 

objects of cultural patrimony with a sufficient legal interest to lawfully treat the 

objects as part of its collection for purposes of these regulations. Generally, a 

museum or Federal agency would not be considered to have possession of 

human remains, funerary objects, sacred objects, or objects of cultural patrimony on loan from another individual, museum, or Federal agency’’ [43 CFR 

10.2 (a)(3)(i)]

As stated in the GAO Report NAGPRA defines a federal agency as any department, agency, or instrumentality of the United States, except the Smithsonian Institution, and defines a museum 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, except the Smithsonian Institution. Museums, archeological centers, laboratories or storage facilities 

that are managed by a university, college, museum, or other educational or scientific 

institution would be considered to be included in NAGPRA compliances. 

In the case of the Hickory Ground human remains and funerary materials that 

are at a state university that receives federal funding, it would seem that the 

thresholds for ‘‘possession’’ and ‘‘legal interest’’ have been met. Tenured professors 

and graduate students have published papers analyzing the human remains and archaeological material from the Hickory Ground site. We have not been consulted in 

any of these studies. 

Conclusion 

Without consultation with the proper tribal relations of the remains and funerary 

objects, the objectives of NAGPRA are ignored and the NAGPRA operations become 

dangerously close to a dumping operation. Like the sciences and the formalized archaeological and anthropological studies often associated with the study of Native 

peoples and often times funded through federal granting programs, we ask for due 

diligence, transparency, and accountability in the research. 

We are not requesting a formal repatriation. We do represent one of the challenges addressed in the GAO Report. Our current cultural practices (including ceremonial and burial) represent an unbroken heritage only interrupted by our forced 

removal from Alabama to Oklahoma. If we and other removed tribes continue to be 

divorced as stakeholders in the conversations involving our ancestral homelands and 

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ancestors and if this part of the historical record is not acknowledged or included 

in archaeological assessments, scholarly publications, and NAGPRA reporting, such 

exclusion does a disservice to the research involving the study and preservation of 

the archaeological record that is supposed to benefit everyone. Just like us, the 

small number of tribes who reside in areas once occupied by tribes removed to Oklahoma and elsewhere, represent a portion of the Native experience in the Southeast. 

To exclude any potential stakeholders or concerned communities from the consultation/research process calls into question the validity and thoroughness of the research and could result in skewed or revisionist history. 

Thank you for the opportunity to submit this statement for the record. 

Attachment 1

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PREPARED STATEMENT OF NATALIE A. LANDRETH, COUNSEL, WORKING GROUP ON

NATIVE AMERICAN CULTURALLY UNIDENTIFIED HUMAN REMAINS


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PREPARED STATEMENT OF RENO KEONI FRANKLIN, CHAIRMAN, NATIONAL

ASSOCIATION OF TRIBAL HISTORIC PRESERVATION OFFICERS


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PREPARED STATEMENT OF ROBERT W. TREPP, MEMBER, LOCA’POKV TRIBAL TOWN, BEAVER CLAN, AND MUSCOGEE (CREEK) NATION

Mr. Chairman, Mr. Vice-Chairman, and Members of the Committee: I am a member of Loca’pokv Tribal Town and its Beaver Clan, and an enrolled member of the 

Muscogee (Creek) Nation, a federally recognized tribe with a nation-to-nation relationship of long duration with the United States. The Muscogee Nation’s first Treaty 

with the United States was ratified in 1790, the last action which the U.S. Senate 

took when the U.S. Capitol was in New York City. In Article Ten of the 1866 Treaty 

between our two Nations, the United States recognizes the cultural rights of the 

Muscogee Nation and its citizens and guarantees them in perpetuity:

ARTICLE 10. 

The Creeks agree to such legislation as Congress and the President of the 

United States may deem necessary for the better administration of justice and 

the protection of the rights of person and property within the Indian territory: 

Provided, however, [That] said legislation shall not in any manner interfere 

with or annul their present tribal organization, rights, laws, privileges, and customs. 14 Stat. 785

Muscogee citizens respect the federal repatriation laws as human rights and civil 

rights, but also as treaty rights. 

I am a charter member of the Board of Directors of the Inter-Tribal Sacred Land 

Trust, a non-profit Tennessee corporation founded for the express purpose of protecting Native burials and cultural sites. I appeared before this Committee on July 

17, 2002, and testified regarding the protection of sites and burials in the southeastern United States. 

I would like to offer my full support to the ‘‘or was’’ amendment to NAGPRA, 

which is an essential technical amendment to restore the original intent of Congress 

in the statute regarding both the temporal and geographical definitions applied to 


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the jurisdiction established by law. I encourage the Congress to enact this provision 

immediately, as it is necessary for the administration of NAGPRA as first envisioned by this Committee and intended by Congress. I would also like to offer my 

support for either an administrative rule change or legislative action, which clarifies 

that, first, no human remains or associated funerary objects should be classified as 

‘‘culturally unidentifiable’’ without (a) full disclosure of all field notes and accession 

notes to any tribal government with a cultural affiliation or certain geographical relationship to the burial or object, and (b) the consent of the culturally affiliated tribal governing body(ies); and, second, that ‘‘culturally unidentifiable’’ objects found 

with human remains are not to be separated at any time or by any decision made 

under NAGPRA; and, third, that ‘‘culturally unidentifiable’’ objects not found in a 

burial context, or of an unknown context, be reviewed as above as possible ‘‘items 

of cultural patrimony,’’ giving full weight to the analysis of the culturally affiliated 

Tribe(s) or Nation(s) and its(their) traditional religious leaders. If necessary, I can 

provide additional analysis of the ways museums, colleges and federal agencies have 

used the phrase ‘‘culturally unidentifiable ‘‘ to avoid the pure intent of the law. The 

great majority of these human remains and associated funerary objects are unidentified, but not ‘‘unidentifiable.’’ Those which truly are unidentifiable are of no scientific value and should be repatriated to the Tribes and Nations in the region of 

‘‘discovery’’ for decent return to a natural environment. 

Holding repositories often apply another term, ‘‘culturally unaffiliated,’’ to a 

Tribe(s) or Nation(s), implying that it(they) do not have standing to repatriate people or objects because they are not culturally affiliated with the Tribe or Nation that 

no longer can speak for itself. This is a blatant misapplication of the law and misuse 

of a term that was intended to address the very circumstances involved when 

human remains and funerary items of the dead have no modern Tribe or Nation 

to make the repatriation application. NAGPRA intended for the living Tribe(s) or 

Nation(s) to speak for the dead as a culturally affiliate(s), related by geography or 

confederation or language or ceremony or any other aspect of cultural affiliation. Repatriations were done prior to repatriation law, and since, by culturally affiliated 

Tribes and Nations and by coalitions of culturally affiliated Tribes and Nations. 

When the holding repositories use ‘‘culturally unaffiliated’’ and other such terms, 

they usually do so in an effort to hold on to the people and objects in their possession by casting doubt on the Native identities and relationships, which often are a 

living part of oral histories and songs not necessarily known to the collections’ ‘‘experts.’’ Not only Muscogee oral history, but all current evidence from scientific study 

shows that the Muscogee confederacy is just that—a confederacy of tribes, large and 

small, which originated or moved into the southeast at different times and grew to 

share a common religion, common languages, and common cultural norms, only 

pressured into a common government by the powers of England, France and Spain. 

The academic terminology of ‘‘pre-Creek’’ or ‘‘pre-Muskoghean’’ or ‘‘pre-Columbian’’ 

or ‘‘pre-history’’ are fictions, as both traditional and scientific evidence show, and 

used by people who thwarted NAGPRA repatriations and receive federal monies to 

do so. This and other terminology such as ‘‘woodland’’ or ‘‘archaic’’ are feeble attempts to ignore our identity as a confederacy. I reject the efforts of academics and 

bureaucrats to re-define the culture and history of my own people for these limited 

purposes and in the face of clear and convincing evidence.

I further implore the Committee to enact a statutory right of action for Native 

American Tribes and Nations to defend our sacred places in court. As you well 

know, the U.S. Supreme Court opined in 1988 that we do not have such a door to 

the courts and that Congress would need to make a special law for this purpose. 

It is indeed unfortunate that no action has been taken in nearly a quarter-century. 

Justice delayed is justice denied, and this is a significant issue, not only to Native 

people, but to the audience of world opinion upon which the international reputation 

of the United States relies. The United States was quick to denounce the destruction of ancient monuments in Afghanistan, but places of great significance to Native 

people are destroyed frequently within America’s borders, and sometimes by federal 

agents and federal permission. 

Finally, I must raise an issue which I did not hear in earlier testimony. Because 

of the movement of tribes caused by colonization and western expansion (codified 

as federal policy in the Indian Removal Act of 1830), it is essential that no tribal 

government have the sole power to authorize the disturbance of the cultural site of 

another federally recognized Tribe or Nation without the prior consultation with 

that Tribe resulting in a mutually ratified Memorandum of Agreement enforceable 

in federal court. 

I recommend that the Committee instruct members of both the majority and minority staff to prepare a full bipartisan report to the Committee on this issue. One 

case study which should be included in that report is the almost complete physical 

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1Sealaska Report ANCSA Corporations and the Definition of ′′Tribe′′ 1999. An updated report 

is in the process of being finalized. 2Of this total, 1,600 objects were individual glass beads. 

destruction of the site at Hickory Ground outside Wetumpka, Alabama, by the 

Poarch Band to build facilities for gaming and for tobacco sales. This is a burial, 

ceremonial and historical site to which the Poarch Band has no cultural affiliation 

or historical relationship whatsoever. In fact, the Poarch Band sees themselves as 

historic ‘‘enemies’’ of the main—forcibly removed—body of Muscogee peoples. The 

Poarch Band secured this site—the last Capitol of the Muscogee Confederacy before 

removal—by using federal funds for its protection, and has defrauded the United 

States by its subsequent actions. They have treated burials with total disrespect. 

The sacred landscape of this historic site has been bulldozed and partly paved. The 

Poarch Band has disputed every effort by the Hickory Ground leaders and people 

(citizens of the Muscogee Nation in Oklahoma) to protect the site and its burials. 

While I am sure there are other sites where Tribes have cooperated in full respect 

for the culture of another people, this one case will clearly demonstrate the abuses 

which are not only possible, but easy to document sufficiently to the Committee that 

this type of situation can lead to events in total violation of the spirit and intent 

of NAGPRA, as well as religious freedom and historic preservation laws. 

I take great pride in being able to address this Committee again on behalf of the 

Muscogee people and, humbly, in the place of our traditional religious leaders, who 

are at the most important point in their annual ceremonial cycles and could not 

have testified at this time of year. 

PREPARED STATEMENT OF DR. ROSITA KAAHANI ́ WORL, VICE CHAIR, SEALASKA

CORPORATION

My name is Dr. Rosita Kaahanı ́ Worl. I serve as the Vice Chair of the Sealaska 

Corporation, a Native corporation created under the Alaska Native Claims Settlement Act of 1971 (ANCSA), and the President of the Sealaska Heritage Institute, 

located in Juneau, Alaska. 

I am also a member of the NAGPRA Review Committee, having served on the 

Committee for 11years. It is in that capacity as well as administering a NAGPRA 

program that I have had the opportunity to develop an in-depth understanding of 

how the Act has been implemented over the past 21 years, and to experience some 

of the challenges associated with the repatriation process that the Act authorizes. 

As the members of this Committee know, ANCSA was enacted to settle the aboriginal land claims of Alaska Natives. Through that Act, the Congress authorized 

the establishment of Alaska Native regional and village corporations as the instruments through which the Act’s objectives would be implemented. Since that time, 

Congress has enacted over 100 laws that define the ANCSA corporations as ‘‘Indian 

tribes’’ or define ANCSA lands as ‘‘Indian lands’’. 1

NAGPRA Grants 

ANCSA corporations have made significant contributions to the implementation 

of the NAGPRA, providing benefits to Alaska Native communities and contributing 

to the survival of Native cultures. Alaska Native corporations and Alaska Native 

tribes have participated nearly equally in the implementation of the Act. For instance, from 1998 through 2008, twelve Alaska Native corporations administered 

$2,294,194 in NAGPRA grants while seventeen Alaska Native tribes received 

$2,409,684 in NAGPRA grants during the same period. 

NAGPRA Repatriation Claims 

Fifteen Alaska Native corporations have made successful repatriation claims for 

1,730 cultural objects 2 and thirty-nine Alaska Native tribes have made successful 

repatriation claims for 526 cultural objects. 

NAGPRA Review Committee 

Three Alaska Natives have served on the NAGPRA Review Committee, and at 

least one such NAGPRA Review Committee member was nominated by an ANCSA 

corporation and the others were nominated by Alaska Native tribes. 

Alaska Native Corporations Contributions to NAGPRA 

The inclusion of Alaska Native corporations in NAGPRA has provided benefits to 

Native people throughout Alaska and the lower 48 States. Regional ANCSA corporations, like Sealaska Native Corporation, have used their NAGPRA grant funds to 

provide training for village corporations and tribes within their region to enhance 

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3Pub. L. No. 108-447, 118 Stat. 2809, Dec. 8, 2004. 

their understanding of the Act’s provisions and to build capacities to participate in 

the repatriation processes that the Act authorizes. ANCSA corporations have also 

dedicated their corporate funds to support NAGPRA activities. For instance, because 

NAGPRA grant funds are not available to support costs associated with dispute requests to the NAGPRA Review Committee, ANCSA corporations that have initiated 

such requests are bearing the costs of those activities. 

Some Alaska Native tribes have recently made decisions not to participate in 

NAGPRA because they do not have the resources to support ongoing NAGPRA programs without the benefit of NAGPRA grants and supplemental organizational 

funds. In these instances, tribal members have called upon ANCSA corporations to 

file their repatriation claims. Likewise, Alaska Natives, who do not live within communities represented by a tribal government have called on ANCSA Corporation to 

initiate their repatriation claims. 

During the time that I have served on the NAGPRA Review Committee, I and 

my fellow committee members have observed an ever-increasing escalation in costs 

associated with either making repatriation requests or seeking the committee’s review of disputes. The dispute resolution process is often lengthy and sometimes results in costly litigation if the review committee’s determination is not accepted by 

the parties to a dispute. In Alaska, the organized Native groups that are best able 

to make these now sizable investments in the return of Native remains and cultural 

items are the Alaska Native corporations. 

In addition, under the Alaska Native Claims Settlement Act, Alaska Native corporations are the statutorily-designated owners and managers of Native lands—they 

are thus the first entities to which federal agencies would typically turn in determining the cultural origins and affiliations of objects of cultural patrimony. And in 

a provision of Federal law enacted in 2004 and made applicable to all Federal agencies, Public Law 108–447 directs Federal agencies to consult with Alaska Native corporations. 3

In recent times, as a function of the Government Accountability Office’s findings, 

there has been some debate associated with the inclusion of Alaska Native corporations in the NAGPRA regulations, and the Interior Solicitor’s Office has opined that 

because the Congress employed similar terminology in the 1994 Federally-Recognized Tribes List Act and in the 1990 Native American Graves Protection and Repatriation Act, the definitions in one Act should constrain the interpretation and application of the earlier-enacted law. 

However, it is not only critically important but imperative that each Act be examined within the context of Federal policy and the objectives that the Congress 

sought to achieve in each Act. The 1990 enactment of the NAGPRA was built on 

the foundation of assuring that cultural properties would be the subject of the congressionally-authorized repatriation process—and that such properties would be returned to the rightful owners or keepers of objects of cultural patrimony. The Act 

had less to do with Native governance and more to do with Native cultures. That 

the cultural context was what informed congressional intent behind the Act is found 

in the unusual inclusion of traditional Native American religious leaders as it relates to sacred objects. 

In contrast, the 1994 Federally-Recognized Tribes List Act has its foundation in 

the government-to-government relationship between the United States government 

and tribal governments. The Act is intended to reflect the United States’ recognition 

of the sovereignty of Native governments, and to assure that all Native governments 

are treated equally under Federal law and policy. 

Thus to predicate the interpretation of a law enacted in 1990 on a retroactive application of a law enacted in 1994 that is based on a distinctly different policy foundation, leads to misinterpretation of Congress’ intent in wanting to assure that the 

repatriation policy was and is to apply to all Native people across the United States. 

Accordingly, I would urge the members of Senate Indian Affairs Committee to 

consider an amendment to the NAGPRA that provides the means for Alaska’s Native people to fully participate in the Act’s repatriation processes and to more effectively realize the goals of the Act. 

Another critical component of the Act requires museums to file summaries and 

inventories, and yet, we know of one museum in the Northwest area that sold its 

collection of cultural items that were subject to the NAGPRA without compiling a 

summary or inventory. We believe that the burden of proof should be on a museum 

to document that deaccessioned items are not subject to NAGPRA, as opposed to the 

position that has been taken by the National NAGPRA Program Office—which is 

that the burden of proof should be placed on tribes and Native organizations. 

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4 U.S. Government Accountability Office Report to Congressional Requesters, May 2011, entitled ′′Smithsonian Institution: Much Work Still Needed to Identify and Repatriate Indian 

Human Remains and Objects′′, GAO-11-515. 5 I.d., page one, GAO-11-515, Smithsonian Repatriation. 

Clearly, the policy of the Native American Graves Protection and Repatriation Act 

is to protect Native American human remains and objects of cultural patrimony and 

to assure that they are repatriated to their rightful owners. The Act does not authorize Indian tribes and Native organizations to act as unfunded law enforcement 

agents charged with detecting violations of the Act or noncompliance with the Act, 

nor does it assign the burden of proof to Native entities to police the actions of museums and document the origins of deaccessioned objects. 

Finally, the members of the Committee are aware that the National Museum of 

the American Indian Act (NMAI Act) was enacted into law in 1989—and thus while 

preceding the enactment of the NAGPRA, the NMAI Act includes provisions similar 

to, but not identical to the provisions of the NAGPRA which authorize the repatriation of human remains and cultural objects. Nonetheless, the Government Accountability Office has recently completed an examination of the Smithsonian Institution’s implementation of the repatriation provisions of the NMAI Act and found 

them lacking. 4

Native groups have also expressed concern that the NMAI Act has been interpreted by the Smithsonian Institution as applying only to Smithsonian’s Natural 

History Museum, the GAO concluded that ‘‘the statutory language and its legislative history do not support that view.’’ 5

As has been discussed in various forums on the NAGPRA, tribal commentators, 

as well as representatives of museums and scientific institutions, have expressed 

the view that the Congress should act to extend the provisions of the NAGPRA to 

all museums within the Smithsonian Institution. 

I thank the U.S. Senate Committee on Indian Affairs for affording concerned Native people the opportunity to share their views on the implementation of the Native 

American Graves Protection and Repatriation Act with the Committee and the Congress. 

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PREPARED STATEMENT OF THE SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY


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PREPARED STATEMENT OF WILLIAM F. LIMP, PH.D., PRESIDENT, SOCIETY FOR

AMERICAN ARCHAEOLOGY

Dear Chairman Akaka: 

Thank you for holding the hearing, ‘‘Finding Our Way Home: Achieving the Policy 

Goals of NAGPRA.’’ Implementation of the Native American Graves Protection and 

Repatriation Act is a very important issue for the Society for American Archaeology 

(SAA), which represents some 6,800 members who work in a range of settings, from 

academia to tribal governments. As an active supporter of the idea, passage and implementation of NAGPRA, and as one of the key organizations involved in drafting 

the original regulations, the SAA welcomes the opportunity to provide testimony on 

recent developments in the legislation that affect our members. Since passage of 

NAGPRA, the SAA has seen a considerable expansion of institutional and tribal collaborations as a direct outcome. This collaborative work continues to be a growing 

strength in archaeological investigations in the United States. NAGPRA has encourVerDate 0ct 09 2002 10:40 Nov 29, 2011 Jkt 068066 PO 00000 Frm 00139 Fmt 6601 Sfmt 6621 S:\DOCS\68066.TXT JACK

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aged active engagement among institutions, agencies, Native American tribes and 

Native Hawaiian organizations through consultation as outlined in the regulations. 

The regulations have led to the development of relationships of trust and mutual 

understanding of the law. 

Our understanding of this hearing’s purpose is that it will address issues that 

have emerged resulting from the recent Government Accountability Office reports 

on NAGPRA (GAO–10–768 July 28, 2010) and the Smithsonian Institution/NMAI 

(GAO–11–515 May 25, 2011), and implementation of the final regulations on the 

Disposition of Culturally Unidentifiable Native American Human Remains (43 CFR 

10.11). The SAA respectfully submits the following points of concern on these issues. 

We also note that the Society has provided detailed responses to the DOI (letter 

dated June 29, 2011) in response to their request for comments on the overall 

NAGPRA process. We have attached a copy of that letter for your reference. In particular we note that in these new regulations there are no contingencies under 

which a museum could hold culturally unaffiliated human remains, an oversight 

which we believe is in neither the public interest nor the interest of all stakeholders 

concerned.

1) We would like to express concerns about DOI’s response to federal, tribal, and 

public comments on the draft regulations of 43 CFR 10.11 that were submitted prior 

to the implementation of the final regulations in May 2010. While many comments 

were addressed in the published notice, very few appear to have had significant impact on the development of the regulations from their draft to final form. Additional 

written comments were solicited immediately prior to the implementation of the 

final regulations with assurances given by representatives of the National NAGPRA 

office that these comments would be used for future revisions and/or amendments 

to 43 FCR 10.11. Given the upcoming discretionary review of the full NAGPRA regulations, will these additional written comments be revisited as well? This issue is 

critical one for the Society and its membership because many points of this section 

of the regulations remain unclear, inconsistent with the original NAGPRA regulations, and potentially harmful to the positive relationships that have developed 

among Indian tribes, Native Hawaiian organizations, museums, and Federal agencies over the past 20 years.

2) Funding in the form of NAGPRA grants has not increased in proportion with 

the increase in compliance and disposition activities required to implement 43 CFR 

10 and particularly the new requirements of 43 CFR 10.11. Both tribes and institutions face an increased financial burden in conducting consultation, background 

study, and other associated activities. The GAO report supports our concern with 

funding shortfalls. For example, on page 28 of the GAO Report on NAGPRA, all 

Federal agencies identify lack of funding as the primary obstacle to compliance efforts. The U.S. Fish and Wildlife Service alone estimated that ‘‘it would cost $35 

million and take 28 years to properly review all of [their] collections for NAGPRA 

items.’’ Compliance requires qualified individuals, suitable facilities for maintaining 

inventoried human remains and cultural items, time to engage in thorough consultation efforts, and resources for the processes of repatriation and disposition. All 

of these activities require substantial funding. The Society recognizes the significance of the comments of Senator Murkowski during the hearing regarding best 

practices and agrees that there are ways that the overall process could be streamlined for museums as well as Federal agencies to facilitate compliance, but funding 

will still be necessary. NAGPRA grants are an important source for compliance efforts for tribes and museums, and the Society urges substantially increased funding 

for this vital program.

3) We are also strongly committed to the continuation of scientific investigations 

of archaeological objects and skeletal remains that help illuminate cultural affiliation, past lifeways, or other important topics. NAGPRA seeks to balance the rights 

of Native communities to reclaim remains of their ancestors with the public interest 

in preserving, documenting and understanding our shared past. But these interests 

often overlap, and the Society would like to draw the Senate’s attention to the importance of preservation of evidence of the past by museums, and the value of scientific investigations—when agreeable to all stakeholders concerned—in helping understand the past and advance the interests of Native communities, scholarly communities, and the general public alike.

4) GAO review of NAGPRA also examined the National NAGPRA Review Committee. The report identified concerns about inappropriate actions of the National 

NAGPRA Program in the appointment process of Review Committee members. In 

addition, the report notes that past appointees were unaware of how the appointments were made subsequent to the submission of nominees (GAO–10–768 July 28, 

2010, Page 48). The Society agrees with the GAO report findings that the actions 

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of the National NAGPRA Program and the lack of transparency in the appointment 

process undermines the confidence of those who would use the Review Committee 

to facilitate dispute resolutions and for findings of fact. It is important that the appointments be made with the goal of providing a balanced panel of individuals representing all concerned parties. The Society would ask what measures will be taken 

in order to ensure a balanced process?

5) The Society would like to draw attention to two key issues of concern pertaining to the Review Committee’s approach to the facilitation of disputes and findings of fact.

The fairness of the process. There is a wide perception that certain types of evidence and those who present them are not given equal treatment or value by 

the Committee. Representatives from both institutions and tribes perceive imbalances in time and attention accorded each side in disputes.

The weight given to the findings and recommendations of the Review Committee.

Misunderstandings and frustrations abound regarding how parties should interpret and act on the findings and recommendations of the Review Committee. 

The law is explicit that the committee’s decisions do not carry the weight of 

legal decisions and are strictly recommendations. Increasingly, however, those 

approaching the Review Committee for findings and recommendations either 

misinterpret the weight of findings and recommendations as carrying the 

weight of legal decisions or, conversely, want the Committee to be empowered 

to make findings that have the weight of legal decisions.

Overall, there is a lack of clarity on how the deliberations of the Committee are 

undertaken, and how parties who seek the guidance of the committee should respond to the Committee’s findings and recommendations. The SAA asks what can 

be done to make the process more transparent, in order to ensure that those requiring the use of the Committee as a neutral party in the facilitation of disputes and 

findings of fact can do so with the confidence that the process requires? 

In closing, the SAA wishes to underscore the continued need for maintaining consistency of process and balance in consultative relationships that have emerged in 

the implementation of NAGPRA. The concerns expressed reflect issues that pose potential hardships to all parties under the process outlined by the recent changes to 

NAGPRA and challenges to the continued success of achieving the policy goals originally established. 

Thank you very much for your time and consideration. 

Attachment

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RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DANIEL K. AKAKA TO

TED ISHAM

Question. What resources are available and what resources are needed by the 

tribes to do the work of NAGPRA?’’

Answer. Senator Akaka, I appreciate the question and as has been noted in my 

submitted written testimony, there are several areas of work to be done within 

NAGPRA to more effectively and efficiently repatriate the Ancestors that are in collections and on shelves. To allow these ancestors to continue their journey home is 

a moral duty that we all have. 

• There needs to be made available an ombudsman, to work with the Indian 

tribes and federal agencies to help facilitate the repatriation process.

• There needs to be four full-time NAGPRA investigators employed to insure compliance.

• Seek to improve NAGPRA compliance by increasing the civil penalty amounts.

• There needs to be located and secured reburial sites on federally protected 

lands.

• NAGPRA Grants shall support projects that involve consultation with museums, universities, and institutions that receive federal funds.

• Support NAGPRA at the level of at least one million dollars for NAGPRA administration, and four million dollars exclusively for the NAGPRA grants.

• Urge the Administration to amend the rule on culturally unidentified (CUI) 

Human Remains, so that Human Remains and their Associated Funerary Objects (AFO) are repatriated together.


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• Sponsor a legislative remedy by clarification of legal definition of ‘‘Native American’’ by enacting the ‘‘or was’’ amendment.

• Empower the GAO to continue investigations on the Museums for NAGPRA 

conpliance.

• The formation of coalitions to expedite the repatriation process needs to be 

given more weight when making a determination of cultural affinity to a group 

of Native Tribes.

From the Resolution passed by OCoT (the Oklahoma Coalition of Tribes)

A) An ombudsman be appointed to work with the Indian tribes and federal 

agencies to facilitate timely NAGPRA compliance and that four full-time 

NAGPRA investigators be employed within the Department of the Interior 

to ensure that museums, universities, and institutions that receive federal 

funds comply with NAGPRA; and

B) Seek to improve NAGPRA compliance by increasing the civil penalty 

amounts; and

C) Federal agencies, in consultation with Indian tribes, shall locate and secure 

reburial sites on federally protected land to be used by Indian tribes for the 

reburial of human remains and objects repatriated through the NAGPRA 

process; and

D) NAGPRA Grants shall support projects that involve consultation with museums, universities, and institutions that receive federal funds and hold federal collections; and

E) Indian tribes be provided with a copy of information that federal agencies 

submit to the National Park Service for inclusion in the Culturally Unidentifiable Native American Inventory Database, thus creating a process for directly sharing information with Indian tribes; and

F) Develop a NAGPRA tribal consultation policy for sharing information among 

Indian tribes, federal agencies, museums, universities, and institutions that 

receive federal funds that would include, but is not limited to, NAGPRA Inventories, Summaries, archaeological reports, and other relevant data; and

G) The Department of Interior shall promulgate the remaining reserved section(s) of the NAGPRA regulations; and

H) Support NAGPRA at the level of at least $1 million for NAGPRA administration, and $4 million exclusively for the NAGPRA grants to Indian tribes and 

museums; and

I) Federal agencies, museums, and institutions that receive federal funds shall 

participate in an annual consultation meeting with Indian tribes for the purpose of discussing policy-making, priority-setting, funding resources, and 

NAGPRA compliance, to be held in Oklahoma, the home of 39 federally recognized Indian tribes

Administrative Remedy 

The policy goal of NAGPRA is that the Associated Funerary Objects would be returned to their respective Native American communities. We ask the Committee to 

urge the Administration to amend the rule on culturally unidentified Human Remains issued on March 15, 2010, so that the Human Remains are repatriated with 

their Associated Funerary Objects. The Associated Funerary Objects are the primary means of identifying the unidentified Human Remains—and the policy goal 

of that section of NAGPRA is to identify what the repositories claim as unidentifiable Human Remains. We are deeply concerned that the Associate Funerary Objects 

will be further separated from the Human Remains, making their identification 

even more difficult, if not impossible. The Administration claims that Congress did 

not make its intentions clear and that it cannot act without further guidance from 

Congress. We believe that Congress made itself clear in setting the NAGPRA policy 

goals, that the Department of the Interior through the National NAGPRA Program 

office substituted its judgment for that of Congress and that the Administration can 

revise the rule now and does not need to wait for Congress. 

The lack of a publicly available and agreed upon tribal consultation policy and 

protocol for repatriation purposes remains a stumbling block to the achievement of 

the goals of NAGPRA. Consultation is a bedrock of the repatriation process and 

there needs to be consultation guidelines for the full range of Native cultural rights. 

Consultation with full participation of the tribes at all levels of the notification process is the only way to insure success of the repatriation. 

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Legislative Remedy 

A technical clarification is needed in the legal definition of ‘‘Native American’’ by 

enacting the ‘‘or was’’ amendment that the Committee has recommended several 

times. Without the regulatory change and the technical amendment, we are impeded in our efforts to conduct repatriations and the institutions will continue to 

hold and ‘‘study’’ our Ancestors and associated funerary objects. This and other such 

blocking mechanisms make it very difficult for any tribe to complete the NAGPRA 

process. 

Senator Akaka, I thank you for the time you and your Committee have given the 

Muscogee (Creek) Nation to weigh-in on this important issue. 

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RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. DANIEL K. AKAKA TO

KEVIN GOVER

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