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NATIVE AMERICAN GRAVES 

PROTECTION AND 

REPATRIATION ACT (NAGPRA) 

OVERSIGHT HEARING 

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

Wednesday, October 7, 2009 

Serial No. 111-38 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

Committee address: http://resourcescommittee.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL, II, West Virginia, Chairman 

DOC HASTINGS, Washington, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Frank Pallone, Jr., New Jersey 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

Gregorio Sablan, Northern Marianas 

Martin T. Heinrich, New Mexico 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Donna M. Christensen, Virgin Islands 

Diana DeGette, Colorado 

Ron Kind, Wisconsin 

Lois Capps, California 

Jay Inslee, Washington 

Joe Baca, California 

Stephanie Herseth Sandlin, South Dakota 

John P. Sarbanes, Maryland 

Carol Shea-Porter, New Hampshire 

Niki Tsongas, Massachusetts 

Frank Kratovil, Jr., Maryland 

Pedro R. Pierluisi, Puerto Rico 

Don Young, Alaska 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Jeff Flake, Arizona 

Henry E. Brown, Jr., South Carolina 

Cathy McMorris Rodgers, Washington 

Louie Gohmert, Texas 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Doug Lamborn, Colorado 

Adrian Smith, Nebraska 

Robert J. Wittman, Virginia 

Paul C. Broun, Georgia 

John Fleming, Louisiana 

Mike Coffman, Colorado 

Jason Chaffetz, Utah 

Cynthia M. Lummis, Wyoming 

Tom McClintock, California 

Bill Cassidy, Louisiana 

James H. Zoia, Chief of Staff 

Rick Healy, Chief Counsel 

Todd Young, Republican Chief of Staff 

Lisa Pittman, Republican Chief Counsel 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, October 7, 2009 ....................................................... 1 

Statement of Members: 

Hastings, Hon. Doc, a Representative in Congress from the State of 

Washington .................................................................................................... 2 

Kildee, Hon. Dale, a Representative in Congress from the State of 

Michigan ........................................................................................................ 9 

Rahall, Hon. Nick J., II, a Representative in Congress from the State 

of West Virginia ............................................................................................ 1 

Prepared statement of ............................................................................... 2 

Statement of Witnesses: 

Bruning, Susan B., Chair, Committee on Repatriation, Society for 

American Archaeology, Southlake, Texas ................................................... 30 

Prepared statement of ............................................................................... 31 

Kippen, Colin, Former NAGPRA Review Committee Member, Honolulu, 

Hawaii ............................................................................................................ 33 

Prepared statement of ............................................................................... 35 

Kraus, D. Bambi, President, National Association of Tribal Historic 

Preservation Officers, Washington, D.C., on behalf of Chairman Reno 

Franklin ......................................................................................................... 17 

Prepared statement of ............................................................................... 18 

Shemayme Edwards, Hon. Brenda, Chairwoman, Caddo Nation of 

Oklahoma, Binger, Oklahoma ...................................................................... 11 

Prepared statement of ............................................................................... 13 

Titla, Steve, General Counsel, San Carlos Apache Tribe, San Carlos, 

Arizona, on behalf of Chairman Wendsler Nosie, Sr., San Carlos 

Apache Tribe ................................................................................................. 14 

Wenk, Dan, Deputy Director, Operations, National Park Service, U.S. 

Department of the Interior, Washington, D.C. ........................................... 3 

Prepared statement of ............................................................................... 4 

Additional materials supplied: 

Halealoha Ayau, Edward, Executive Director, Hui Ma ̄lama I Na ̄ Ku ̄puna 

O Hawai‘i Nei, ̄ Statement submitted for the record .................................. 48 

Nosie, Wendsler, Sr., Chairman, San Carlos Apache Tribe, San Carlos, 

Arizona, Statement submitted for the record ............................................. 15 

(1) 

OVERSIGHT HEARING ON ‘‘NATIVE AMERICAN 

GRAVES PROTECTION AND REPATRIATION 

ACT (NAGPRA)’’ 

Wednesday, October 7, 2009 

U.S. House of Representatives 

Committee on Natural Resources 

Washington, D.C. 

The Committee met, pursuant to call, at 10:05 a.m. in Room 

1324, Longworth House Office Building, Hon. Nick J. Rahall, II 

[Chairman of the Committee] presiding. 

Present: Representatives Rahall, Hastings, Kildee, Bordallo, 

Heinrich, Baca, Smith and Brown. 

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 

VIRGINIA 

The CHAIRMAN. The Committee on Natural Resources will come 

to order, please. This morning we meet to hear about the Administration’s goals for the Native American Graves Protection and Repatriation Act, or NAGPRA, and to explore possible improvements 

to the implementation of the program. NAGPRA sets up a process 

for the identification and repatriation of certain human remains, 

funerary objects, sacred objects and objects of cultural patrimony of 

Indian tribes and Native Hawaiian organizations. 

The human remains that are at issue are the ancestors of Native 

Americans, many of them warriors killed in battle. They deserve 

the same respect that we give to the human remains of our warriors of today. The Act directed museums and Federal agencies to 

complete an inventory of their culturally affiliated human remains 

and funerary objects and submit that inventory to NAGPRA by 

November of 1995 for publication in the Federal Register. 

Almost 15 years later, the Administration is still publishing 

these inventories. Recently, the Makah Tribe and the National 

Association of Tribal Historic Preservation Officers conducted a 

study of the implementation of NAGPRA. Following a recommendation of their report, Senator Dorgan and I requested a GAO study 

on Federal agency compliance with NAGPRA, as well as how appropriated funds are being used. As this study is underway, we will 

not be looking into these issues today. 

We will, however, be looking at the administration of the 

National NAGPRA Program by the National Park Service. This 

will include an examination of the data being collected, the systems 

in place, and the tools available to measure the success of the 

NAGPRA program. Based on the issues that I expect to come up 

today, we will need to ask ourselves if this program is receiving the 

attention that it deserves, and I hope today’s hearing will serve as 

an impetus to improve the program. 

With that, I do look forward to hearing about the Administration’s goals for NAGPRA and how this Committee can help ensure 

2 

the success of the program. Among those joining us this morning 

is Mr. Dan Wenk, the Deputy Director of the National Park Service. For the past several months, Mr. Wenk has been performing 

extra duty serving as Acting Director of the Park Service as well. 

So, I thank you for your service and I do look forward to your testimony, but before that, I will recognize the Ranking Member, the 

gentleman from Washington, Mr. Hastings. 

[The prepared statement of Mr. Rahall follows:] 

Statement of The Honorable Nick J. Rahall, II, Chairman, 

Committee on Natural Resources 

This morning we meet to hear about the Administration’s goals for the Native 

American Graves Protection and Repatriation Act, or NAGPRA, and to explore possible improvements to the implementation of the program. 

NAGPRA sets up a process for the identification and repatriation of certain 

human remains, funerary objects, sacred object, and objects of cultural patrimony 

of Indian tribes and Native Hawaiian organizations. The human remains that are 

at issue are the ancestors of Native Americans. Many of them warriors killed in battle. They deserve the same respect that we give to the human remains of our warriors of today. 

The Act directed museums and Federal agencies to compile an inventory of their 

culturally affiliated human remains and funerary objects and submit that inventory 

to the National NAGPRA program by November, 1995 for publication in the Federal 

Register. Almost 15 years later, the Administration is still publishing these inventories. 

Recently, the Makah Tribe and the National Association of Tribal Historic Preservation Officers conducted a study on the Federal agency implementation of 

NAGPRA. Following a recommendation of their report, Senator Dorgan and I requested a GAO. study on Federal agency compliance with NAGPRA as well as how 

appropriated funds are being used. As this study is underway, we will not be looking into these issues today. 

We will, however be looking at the administration of the National NAGPRA Program by the National Park Service. This will include an examination of the data 

being collected, the systems in place and the tools available to measure the success 

of the NAGPRA program. Based on the issues that I expect to come up today, we 

need to ask ourselves if this program is receiving the attention it deserves. I hope 

today’s hearing will serve as an impetus to improve the program. 

With that, I look forward to hearing about the Administration’s goals for 

NAGPRA and how this Committee can help ensure the success of the program. 

Among those joining us this morning is Mr. Dan Wenk, Deputy Director, of the 

National Park Service. For the past several months, Mr. Wenk has been performing 

extra duty serving as the Acting Director of the Park Service. I thank you for your 

service and look forward to your testimony when we are ready to begin. 

STATEMENT OF THE HONORABLE DOC HASTINGS, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

WASHINGTON 

Mr. HASTINGS. Thank you, Mr. Chairman. Thank you for scheduling this hearing today. Periodic oversight of laws that fall within 

this Committee’s jurisdiction, I think, is rarely a bad idea. When 

it comes to the Native American Graves Protection and Repatriation Act, it will be valuable, I think, for this Committee to hear 

how its implementation has occurred since its enactment in 1990. 

It is most important for museums and Federal agencies to repatriate human remains found on Federal or Indian lands in a 

respectful and dignified manner to the families or tribes to whom 

they are known to be related. 

To do otherwise would offend the inherent dignity of both the 

departed and the living. There is not a lot of public attention paid 

to the day-to-day work of inventorying and repatriating human 

3 

remains and cultural objects to families and tribes, notwithstanding how serious this work is. Ensuring the law is carried out 

appropriately and efficiently and with an eye on the application of 

sound science to identify remains and cultural objects correctly 

should be some of our chief goals. 

So, Mr. Chairman, once again, thank you for scheduling this 

hearing. I look forward to hearing the testimony of the witnesses. 

I yield back. 

The CHAIRMAN. Thank you, Doc. 

Mr. Wenk, the Deputy Director of the National Park Service, we 

welcome you to our first panel and you have the stage all to yourself. We do have your prepared testimony. It will be made part of 

the record as if actually read, and you may proceed as you desire. 

STATEMENT OF DAN WENK, DEPUTY DIRECTOR, 

NATIONAL PARK SERVICE, WASHINGTON, D.C. 

Mr. WENK. Thank you, Mr. Chairman, for this opportunity to 

appear before this Committee to present the Department of the 

Interior’s views on the implementation of the Native American 

Graves Protection and Repatriation Act, commonly known as 

NAGPRA. I will submit my full written statement for the record 

and summarize the Department’s views in my oral remarks. The 

Department of the Interior has had responsibility for the administration of NAGPRA since the Act was passed in 1990. 

In 2000, in order to better concentrate our efforts and serve the 

NAGPRA constituents, the National NAGPRA Program was separated from the National Park Service NAGPRA, and in 2004, both 

programs were separated from the National Park Service Archaeology Program. The National Park Service NAGPRA Program is 

located in Denver, near many tribes. The National Park Service 

NAGPRA Program works with and through the parks to consult 

with tribes, make decisions of cultural affiliation of human 

remains, and address claims to cultural items. 

The National Park Service has published many notices of inventory completion for human remains and notices of intent to repatriate on claims for cultural items. Consultation is ongoing for 

pending notices and we anticipate publication of these notices in 

this fiscal year. The National NAGPRA Program is administered by 

the National Park Service but operates as an omnibus program to 

facilitate the notices of publication of all Federal agencies and 

museums. 

The National NAGPRA Program maintains databases of the compliance documents submitted in the NAGPRA process, summaries, 

inventories and notices. It is the goal of the National NAGPRA Program to have all of those documents publicly accessible in databases by the end of this fiscal year. The National NAGPRA Program also provides staff support to the NAGPRA Review Committee and to the Assistant Secretary in the civil penalty process. 

It also administers a grants program to fund projects of tribes 

and museums and provides training across the country for constituents. The NAGPRA Grants Program had a 100 percent increase in 

grant applications in FY 2009. In FY 2009, 200 notices were published, bringing to 800 the number of notices published since 2004, 

out of a total of 2,000 notices published since 1992. There is a 

4 

minimal backlog of remaining notices where consultation is still 

ongoing. 

If a tribe is concerned that a Federal agency or museum is not 

making a factual determination which is preventing repatriation, 

they may bring a dispute to the Review Committee. If there is a 

complaint about compliance regarding a museum, an allegation of 

a civil penalty may be sent to the NPS Director using the template 

provided in the National NAGPRA website. The complaint will be 

investigated by National NAGPRA. 

These dispute resolution mechanisms are actively used by the 

tribes. The Native American Graves Protection and Repatriation 

Act established a fair process for resolving the repatriation of 

Native American human remains and collections and the claims of 

tribes to cultural items in control of the Federal agencies and 

museums. The Department of the Interior is pleased to administer 

NAGPRA programs in each of the Interior agencies and to support 

the work of the National NAGPRA Program. 

Mr. Chairman, that concludes my statement. I would be pleased 

to answer any questions that you or other members of the 

Committee may have. 

[The prepared statement of Mr. Wenk follows:] 

Statement of Dan Wenk, Deputy Director, Operations, 

National Park Service, 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. 

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

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

and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. 

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, thousands of Native American human remains, funerary objects, and 

other cultural items have been returned to tribes and Native Hawaiian organizations. Consultations between tribes, Native Hawaiian organizations, and federal 

agencies and museums, which occur as part of the NAGPRA process, result in better 

relations and have added to the body of knowledge of museum collections. 

NAGPRA does not change ownership of items. Rather it asks the question of to 

whom do these items rightfully belong. Permits, granted by federal agencies for scientific study, confer access to human remains and cultural items for the accumulation of data, but do not transfer possession to the permittee. 

Administration of NAGPRA 

The Secretary of the Interior is responsible for implementing many of the provisions in NAGPRA under the statute. The Secretary must provide guidance to museums and federal agencies to assist them with their compliance requirements. 

The National NAGPRA Program administered by the National Park Service conducts the following activities for the Secretary: 

• publishing in the Federal Register inventory and repatriation notices for museums and federal agencies that indicate their decision to transfer control of remains or objects to tribes, 

• creating and maintaining a database of Culturally Unidentifiable Human Remains, 

• making grants to assist museums, tribes, and Native Hawaiian organizations 

in consulting on the determination of cultural affiliation and identification of 

cultural items, and to provide funding for travel and ceremonies associated with 

bringing ancestors and items home, 

• providing support to the Assistant Secretary for Fish, Wildlife and Parks for investigating civil penalty allegations and preparing assessments of penalties on 

museums that fail to comply with provisions of the Act, 

5 

1 A summary is a description of Native American ethnographic items in a collection. Item by 

item inventories list human remains and their associated funerary objects. 2 ‘‘No summary required’’ means a museum or federal agency has no Native American cultural 

items. 3Large inventories may be reported in several different notices of inventory completion and 

be organized by a site or culture. Numerous notices may result from a single inventory. 

• establishing and providing support to the Native American Graves Protection 

and Repatriation Review Committee, which resolves disputes and aids repatriation, 

• providing technical assistance in those instances where there are excavations 

and discoveries of cultural items on federal and Indian lands, 

• drafting, promulgating, and implementing regulations, and 

• providing technical assistance through training, the web, and reports for the Review Committee, as well as supporting law enforcement investigations of illegal 

trafficking. 

The National Park Service also has compliance obligations for parks, separate 

from the National NAGPRA Program. 

Federal Agency and Museum NAGPRA Obligations 

Federal agencies and Indian tribes have NAGPRA responsibilities for the prompt 

disposition of Native American human remains and cultural items excavated or removed after November 16, 1990, when NAGPRA was passed. Notice of the disposition of NAGPRA items to tribes or lineal descendants is posted in newspapers, with 

copies sent to the National NAGPRA Program. To date, federal agencies have reported 85 dispositions. 

NAGPRA requires museums and federal agencies to prepare summaries of their 

collections that may contain Native American unassociated funerary objects, sacred 

objects, and objects of cultural patrimony. They must also prepare item-by-item inventories of Native American human remains, with their associated funerary objects. The summaries provide notice to tribes and Native Hawaiian organizations of 

items of interest in a collection and invite consultation. There have been 1,551 summaries 1 and 460 statements of no summary required 2 submitted to the National 

NAGPRA Program. As a result of the summaries, 475 notices of intent to repatriate 

cultural items claimed by a tribe have been published accounting for 144,163 funerary objects, 4,301 sacred objects, 948 objects of cultural patrimony, an additional 

822 objects that are both sacred and cultural patrimony and 292 undesignated 

items. Not all objects identified in a summary will meet a NAGPRA category or be 

subject to a claim. 

Inventories provide clear descriptions of the cultural affiliation of the Native 

American human remains of the museum or federal agency and are to be followed 

within six months with Federal Register publication of a Notice of Inventory Completion that establishes the rights of tribes and Native Hawaiian organizations to 

request repatriation. There have been 1,043 inventories submitted to the National 

NAGPRA Program and 1,287 notices of inventory completion published, accounting 

for 38,656 Native American human remains and one million funerary objects. 3

Consultation 

Consultation with tribes by museums and federal agencies is central to the 

NAGPRA process, whether the circumstances arise from collections or new discoveries. The National NAGPRA Program website includes maps of current tribal 

lands, treaty areas with tribes, and areas of tribal aboriginal occupancy. These maps 

assist museums and federal agencies in determining present-day tribes that may 

have an interest in items from an area, so that they may be included in consultation 

efforts. The Consultation Database lists names and addresses of tribal contacts that 

can also be used as a starting point for consultation. 

At the end of the NAGPRA consultation process, the museum or federal agency 

has the non-delegable duty to make a decision on cultural affiliation and to acknowledge and act on claims for cultural items. A NAGPRA inventory is the product of 

consultation. Museums that submitted inventories in 1995, but did not initially do 

consultation, have often gone back to consult with tribes on segments of the collection and update inventory decisions. NAGPRA grants are awarded for this purpose. 

There were 71 grant requests received this year for a total of $4.3 million in requests. The full $1.85 million available was awarded in 37 grants. From 1994-2009, 

619 NAGPRA grants were awarded to museums, tribes, and Native Hawaiian organizations, totaling over $33 million. 

6 

Database of Culturally Unidentifiable Native American Human Remains 

(CUI) 

Museums and federal agencies prepare two inventories under NAGPRA. Those individual remains for whom cultural affiliation can be determined are listed on one 

inventory. If information is lacking to make a reasonable determination, the individual remains are listed on the inventory of culturally unidentifiable Native American human remains, the CUI inventory. 

A public access database of CUI was launched in fall 2005 to assist in further consultation and identification. Currently there are the remains of 124,000 individuals 

listed on the database and 915,783 funerary objects associated with those remains. 

The number of CUI subsequently culturally identified, or transferred by a disposition to a requesting tribe, without cultural affiliation determination, is 8,136. Pending regulations will specify a process for disposition of CUI to tribes and Native Hawaiian organizations, without requiring requests for recommendations for disposition to be presented to the Review Committee which makes recommendations to the 

Secretary. Native Hawaiian organizations and federally recognized tribes can then 

take responsibility for care and reburial of the unidentified Native American remains removed from their graves. 

We hope to launch soon a public access database of the culturally affiliated inventories, so that tribes and concerned parties can cross-reference the CUI and affiliated databases to assist in further identification of currently unidentifiable remains. 

Inventories can be amended at any time to reflect updated and more complete decisions. A Notice of Inventory Completion must be published in the Federal Register 

for all culturally affiliated human remains and associated funerary objects. A recent 

report from the National NAGPRA Program found the remains of over 1,000 individuals for whom cultural affiliation had been decided, but who were not in published notices. 

Withdrawal of Notices 

Compliance with the law requires publication of a notice in the Federal Register 

of a Notice of Inventory Completion and not merely submission to National 

NAGPRA of a draft document. Failure of a museum or federal agency to provide 

permission to publish a notice following completion of an inventory halts the repatriation process for the remains of the individuals listed in the inventory. 

In spring 2004, there were over 300 drafts of notices 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. Beginning 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. At 

this time, there are less than two dozen older drafts, and all are in active preparation for publication. New incoming notices are published within weeks of receipt. In 

FY 2008, the number of notices almost doubled from prior years to 180 and almost 

200 notices have been published in FY 2009. The number of published notices is a 

reflection of the efforts of museums and federal agencies to consult with tribes and 

make decisions on cultural affiliation, repatriation of cultural items, and for disposition of the CUI. Abandoned drafts have been replaced with published notices. 

Civil Penalties 

NAGPRA allows for penalties to be assessed against museums that fail to comply 

with a number of aspects of the NAGPRA process. Regulations were promulgated 

in 1997 and, in 2006, the first NAGPRA civil penalties were pursued. To date 70 

investigations have been completed and those museums found in violation have 

come into compliance. 

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. If the remains are determined to be CUI, the federal agency or museum 

has determined that there is no federally recognized tribe or Native Hawaiian 

organization with which to consult on access or use. 

• Collections Audits: 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. The National 

NAGPRA Program does not have the authority to survey NAGPRA obligated 

entities to determine the number of human remains repatriated. Accounting for 

federal agency collections in non-federal repositories is an agency responsibility. 

A Government Accountability Office study of federal agency compliance is 

pending. 

7 

• NAGPRA only applies to those human remains and cultural items that a museum or federal agency determines are Native American. The U.S. Court of Appeals for the Ninth Circuit Court, in 2004, ruled that for remains to be deemed 

Native American there must be a general finding that the remains have a significant relationship to a presently existing tribe, people, or culture. This ruling 

has created confusion for museums and federal agencies that must make a 

threshold determination of Native American for ancient remains. 

This concludes my prepared remarks. I would be happy to answer any questions 

that you or other members of the Committee may have. 

The CHAIRMAN. Thank you very much, and as I said in my opening statement, I certainly commend the double duty that you are 

performing these days and the tremendous work that you do on behalf of our Park Service, as well as all of the staff at the National 

Park Service. Let me ask you one question about the Administration’s goals. What does the Administration hope to accomplish 

within the next year, and by the end of President Obama’s first 

term, with respect to this NAGPRA program? 

Mr. WENK. We have a number of goals that we hope to accomplish, and I think we are well on our way to doing so. First of all, 

we are looking to publish some new regulations. One of the regulations that we are looking to publish very soon is the regulation regarding culturally unidentifiable objects and human remains. That 

should be published, we hope, within the next, literally, few days 

or few weeks. We are scheduled to have a briefing with OMB on 

that, or we are setting up a schedule to brief OMB on that regulation very quickly. 

We are looking to complete on our website the inventory of Native American human remains for both the culturally affiliated and 

the culturally unidentifiable. We are working with the Native 

American tribes in terms of looking at the 300 notices that you 

have previously provided questions about. We have resolved, I believe, Mr. Chairman, about over 226 of those notices that were on 

hold at one time have now been published. We only have about 10 

percent of them left that are currently in active negotiation between the tribes and the museums or field offices of agencies to 

look at the repatriation. 

I think the biggest thing we are trying to do is we are trying to 

get to have a high level of transparency, that all of our databases 

are brought up to date, so that everyone has a full knowledge of 

what is out there and who controls what objects. 

The CHAIRMAN. So, it appears that after 15 years of inaction, finally we are beginning to see some action on certain aspects of the 

program? 

Mr. WENK. I believe that the action, Mr. Chairman, really 

started—I will say that prior to about 2004 we were not as active 

as we could have or should have been, and I think since 2004 we 

have seen significant progress. 

The CHAIRMAN. OK. Last week, the National Park Service informed the museums and Federal agencies that I had requested 

copies of withdrawn notices, but that notices which had been withdrawn because of a change in cultural affiliation would not be provided. The question is, who made the decision to not provide me 

with this information that I had requested in May, and what is the 

8 

rationale for that decision? I ask because I really do want this information. 

Mr. WENK. I believe that we are going to give you an exact accounting of each one of those 300 notices. I checked this morning, 

Mr. Chairman, and I was informed that it is not yet—the response, 

while it is awaiting signature, it has not yet been signed. I would 

say it should be to you in the next few days. Of those 300 notices, 

I will go back and say that 221 of them have been published. The 

remaining 79 of those notices, I could look at a matrix and go 

through them exactly, but a number of those will not be published 

because a determination has been—they have been taken care of 

in other notices. 

They were, if you will, double-counted, in terms of one notice 

was, an object had already been taken care of in another notice, so 

they were taken off the list. The only ones that have not been accounted for are the ones that we still are in active negotiation or 

still there is active negotiation going on between the museum and 

the tribe to come to a determination on those pieces, but we believe 

those are going to be taken care of in a very short order, and we 

believe you will get a very direct response, Mr. Chairman. 

The CHAIRMAN. So, you will provide me with those in which 

there was a change in cultural affiliation? 

Mr. WENK. I believe the answer is yes, we will. 

The CHAIRMAN. Thank you. I appreciate it. In May ’09, I requested copies of notices that had been withdrawn. Recently, the 

NPS staff informed a Review Committee and others that core functions had to cease as a result of this request. Do you think the 

NAGPRA office has sufficient staff if it is unable to comply with 

a four-month-old request without shutting down other operations? 

Mr. WENK. Mr. Chairman, I believe that the NAGPRA staff is 

providing as efficient service they can with the staffing that we 

have. 

The CHAIRMAN. Is that sufficient staff? 

Mr. WENK. Yes, Mr. Chairman, I will say it is sufficient staff. 

Shutting down that work was something that I have had discussions with the staff subsequent to that happening. I believe that we 

have a very active constituency that looks at our information, and 

I believe we are going to take steps so that will not happen again. 

We have reduced the backlog. I think we are very well poised to 

be able, with the staff we have, to provide the responses and information that is requested by tribes, by museums, and in fact by 

Congress. 

The CHAIRMAN. OK. Thank you. 

The gentleman from Washington, Mr. Hastings. 

Mr. HASTINGS. Thank you, Mr. Chairman. Mr. Wenk, you alluded 

to the CUI regulations that you hope to be, I guess, made public 

here very soon. There was some discussion on this two years ago 

in the last administration. Can you give me a sense of what these 

regulations are, if they differ from what they were two years ago? 

Mr. WENK. My sense is that the regulation is basically the same 

as that we have been trying to get out for the last two years. I understand there was an administrative problem when we thought 

we were going to be able to publish them about nine months ago 

that we had to overcome, and we had to go back through some of 

9 

the process, but my understanding is the regulation today is basically the same as it was when we were trying to get them out 

about nine months ago. 

Mr. HASTINGS. OK. Well, I know that we had some questions on 

that a couple years ago. Is it possible that you could brief my staff 

on that prior to that—at least to where you are right now? 

Mr. WENK. We would be very happy to come up and brief your 

staff, yes. 

Mr. HASTINGS. OK. Let us try to arrange that as quickly as possible if we could, OK? 

Mr. WENK. Yes. 

Mr. HASTINGS. All right. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. The gentleman from Michigan, the co-chair of 

the Native American Caucus in the Congress, Mr. Kildee. 

STATEMENT OF THE HONORABLE DALE E. KILDEE, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

MICHIGAN 

Mr. KILDEE. Thank you very much, Mr. Chairman. I am very 

happy that we are having this hearing. It is very important that 

the Federal government carry out its responsibility, I think both 

legal and moral responsibility, to make sure these sites are respected and cared for, protected, and I think the Federal government can set an example also for other levels of government. The 

city of Flint is probably one of the most dire cities in America. 

There are more people leaving each day. The city is about half 

the population it was 20 years ago. They are tearing more houses 

down than they are building it, and my nephew, who is familiar 

with my work down here on this bill and this legislation, was rebuilding one section of town and in demolishing, came across skeletal remains, and bingo, he set the land aside, stopped all demolition, all construction, and got hold of the Saginaw Chippewa 

Indians about 70 miles north of Flint. They came down and they 

identified these sites as Indian burial grounds with the various artifacts and everything that—the way of burial and everything. 

And here again, because my nephew, who is the Treasurer of the 

county and has jurisdiction over that, stopped permanently that 

area of about 3 acres from any further construction, fenced it off, 

and the Saginaw Chippewa, as joint partners, will be taking care 

over that property until a final decision is made, but that final decision will have to be concurred in by the tribe, and I think that 

attitude which I think we intended to permeate this bill is one that 

you, I am sure, feel is an obligation upon your agency to make sure 

that not just the technical adherence to the law, but the spirit. 

This law was written for a very important reason: respect for the 

first Americans. And so I want to work with you to make sure that 

in our oversight, we set a plan that will guarantee that respect. 

There are two things that are important. First of all is designation 

of these sites, and resources, and we have a responsibility in the 

Congress to make sure there are the resources for that. In the 

meantime, with whatever resources you have now, I commend you 

to do everything you can to make sure that the spirit in which this 

legislation, this mandate, was passed, be carried out, and I look 

10 

forward to working with you, and Mr. Chairman, I thank you for 

having this hearing. 

The CHAIRMAN. Thank you, Mr. Kildee. 

The gentlelady from Guam, Ms. Bordallo. 

Ms. BORDALLO. Thank you very much, Mr. Chairman. I have a 

question for Mr. Wenk, for the record. I wanted to ask if there have 

been any discussions at the Department of the Interior on the initiatives within the Native American Graves and Repatriation Act 

that considers the needs of the indigenous people of the territories, 

the U.S. territories. 

Mr. WENK. I have not personally been engaged in any discussions, and I am sorry that I can’t—I have to believe that there has 

been, but I can’t tell you that I have been personally, but I will provide information to you in terms of what discussions have been 

held. 

Ms. BORDALLO. Would there be anybody on your staff here that 

would have an answer? 

Mr. WENK. If I could ask Dr. Hunt. 

[Pause.] 

Mr. WENK. OK. We have a jurisdictional issue. The statute does 

not include the territories. 

Ms. BORDALLO. The statute does not include—— 

Mr. WENK. The statute does not include the territories. 

Ms. BORDALLO. Well, Mr. Chairman, I feel we should correct that 

in some way. The statute does not include the territories. 

The CHAIRMAN. It is my understanding we have never merged 

the two, but certainly we will look at it because you raise a valid 

point. 

Ms. BORDALLO. Very good. Thank you, Mr. Chairman. 

The CHAIRMAN. We have to look out for the territories. 

Ms. BORDALLO. I look forward to the inclusion of the territories. 

The CHAIRMAN. The gentleman from New Mexico, Mr. Heinrich. 

Mr. HEINRICH. Thank you, Mr. Chairman. 

Mr. Wenk, good to see you. I wanted to ask you a question that 

is a little outside of the scope of your testimony, but wanted to get 

your perspective. I was hoping you might be able to speak about 

any impact or role that NAGPRA has in protecting newly discovered gravesites and objects, not just collections that are already in 

museum or Federal agency collections, and what you think the National Park Service’s role in protecting newly discovered ancestral 

remains might be. 

Mr. WENK. There are requirements, is my understanding, under 

NAGPRA that were described earlier by your colleague, that notices are required to be published, that just as described earlier, 

that there are steps that are taken to ensure that those new discoveries are dealt with in a very expeditious manner. 

Mr. HEINRICH. Thank you. 

I will yield back the balance of my time, Chairman. 

The CHAIRMAN. OK. Mr. Wenk, thank you very much for being 

with us today and working with us. We appreciate it. 

Mr. WENK. Thank you, Mr. Chairman. 

The CHAIRMAN. Our next panel is composed of the following witnesses: The Honorable Brenda Shemayme Edwards, the Chairwoman of the Caddo Nation of Oklahoma, Binger Oklahoma, and 

11 

she is accompanied by Bobby Gonzalez, the NAGPRA coordinator; 

Mr. Steve Titla, the General Counsel of the San Carlos Apache 

Tribe, San Carlos, Arizona, accompanied by Mr. Kevin Parsi, of 

Titla & Parsi; Ms. D. Bambi Kraus, the President, National Association of Tribal Historic Preservation Officers, Washington, D.C.; 

Ms. Susan Bruning, the Chairwoman, the Repatriation Committee 

of the Society for American Archaeology, Southlake, Texas; and Mr. 

Colin Kippen, the former NAGPRA Review Committee member, 

Honolulu, Hawaii. 

Ladies and gentlemen, we welcome you to the Committee this 

morning. I apologize if I had some mispronunciations in there. We 

do have your prepared testimonies. They will be made part of the 

record as if actually read, and you may proceed in the order in 

which I introduced you. 

STATEMENT OF BRENDA SHEMAYME EDWARDS, 

CHAIRWOMAN, CADDO NATION OF OKLAHOMA 

Ms. SHEMAYME EDWARDS. Good morning. My name is Brenda 

Shemayme Edwards and I am the Chairwoman of the Caddo Nation of Oklahoma. I am here today to talk about funding issues we 

have with the Native American Graves Protection and Repatriation 

Act. The United States of America has a legal responsibility to its 

citizens and dependent Indian nations to ensure that its Federal 

laws are carried out. NAGPRA developed a systematic process in 

determining the rights of culturally affiliated—— 

The CHAIRMAN. Excuse me just a minute. Could you pull that 

mic a little closer and maybe make sure it is turned on? 

Ms. SHEMAYME EDWARDS. Can you hear me? 

The CHAIRMAN. Better, yes. 

Ms. SHEMAYME EDWARDS. Is that better? 

NAGPRA developed a systematic process in determining the 

rights of culturally affiliated descendants to certain Native American human remains and associated funerary objects, sacred objects 

and objects of cultural patrimony as defined by NAGPRA. However, 

little funding has been made available to tribal governments to fulfill basic consultations and repatriations with repositories which 

house these collections. The funding made available has been highly competitive through the NAGPRA Grant Program with the National Park Service. 

NAGPRA funding levels have remained basically the same since its inception. For the past 15 years, around $2 million per year 

have been made available. The funding is highly competitive with 

no basis in actual need. As such, a tribe with millions of dollars 

from casino revenue monies have the same chance of getting a 

grant as a tribe like us with no casino revenues and limited financial resources. In 1994, the NAGPRA Review Committee recommended that Congress set aside $10 million for the first year of 

funding. However, only $2.3 million was set aside. 

In 2008, funding levels were at their lowest at 101.58 million. 

The Caddo Nation of Oklahoma was one of the first tribes to submit and receive NAGPRA funding from the National Park Service 

in 1994. Southwest Arkansas, northwest Louisiana, eastern Oklahoma and northeast Texas have long been considered the Caddo 

homeland. Throughout every one of these states, and spread from 

12 

the East Coast to the West Coast, Caddo human remains and funerary items continue to be housed and stored on shelves. 

Our NAGPRA office has worked tirelessly over the past 14 years 

to identify and repatriate human remains and funerary objects 

from across the United States. Just recently, we submitted a proposal to the Department of the Interior with some of the issues 

that we have faced. Currently, we know of over 130 different museums, universities and repositories that hold collections of either 

human remains or funerary objects, along with unassociated funerary objects, sacred objects and objects of cultural patrimony. 

The reality is, if we were to receive a NAGPRA grant each and 

every year, it would be at least 130 years before all of our human 

remains, associated funerary objects, unassociated funerary objects, 

sacred objects and objects of cultural objects could be repatriated. 

We have recently been made aware that a large number of 

NAGPRA pending draft notices to be published in the Federal Register were pulled without consultation. We would like to know who 

is responsible for pulling these notices and why they were pulled. 

For well over a century, burials and cemeteries containing 

human remains and funerary objects, sacred objects and objects of 

cultural patrimony have been subjected to looting and collecting. 

Even today, there are numerous websites around on the internet 

that will buy, sell and trade Caddo funerary objects. There are also 

private museums that house and oftentimes buy, sell and trade 

Caddo funerary objects. 

In 2001, 21 Caddo funerary vessels were stolen from the Texas 

Archaeological Research Laboratory at the University of Texas in 

Austin. A $10,000 reward went out and the objects were eventually 

recovered. Five years later the University of Arkansas at Magnolia 

reported the theft of 26 Caddo funerary objects. These objects are 

being held at the university on behalf of Vicksburg District Corps 

of Engineers and were to be repatriated back to the Caddo Nation. 

Federal investigations are ongoing, but these funerary objects 

have not been recovered. There are a number of new Caddo museums being proposed across the homelands of the Caddo. They receive their funding through a variety of means; through investors, 

universities, loans and local banks, donations and grants using the 

Caddo collections that they have as leverage. Many of the repositories where Caddo human remains and funerary objects are 

housed also continue to receive funding for research projects related to these collections to create educational tools for the general 

public, yet our own Caddo museum has only one small exhibit 

space, one full-time employee, and no support staff. 

Last, it is sad for me to note that our ancestors continue to be 

regarded as merely natural resources instead of human beings. I 

am not aware of any other ethnical group who is subjected to this 

stereotype. I sincerely request that these important funding issues 

be addressed and corrected in such a way that the work that we 

have done in the past can continue on into the future. Repatriation 

is so very important for our people. 

The act itself is a show of love and respect for our ancestors. Repatriation is also a way for our children to learn about where we 

came from and who we are as a unique culture. On behalf of the 

Caddo Nation membership, past and present, I thank you. 

13 

[The prepared statement of Chairwoman Edwards follows:] 

Statement of The Honorable Brenda Shemayme Edwards, Chairwoman, 

Caddo Nation of Oklahoma, Binger, Oklahoma 

Good Morning. My name is Brenda Shemayme Edwards. I am the Chairwoman 

for the Caddo Nation of Oklahoma. I am here today to talk about funding issues 

we have with the Native American Graves Protection and Repatriation Act. 

The United States of America has a legal responsibility to its citizens and its dependent Indian nations to assure that its federal laws are carried out. NAGPRA developed a systematic process in determining the rights of culturally affiliated descendants to certain Native American human remains, associated funerary objects, 

unassociated funerary objects, sacred objects, and objects of cultural patrimony ( as 

defined by NAGPRA ). However, little funding has been made available to tribal 

governments to fulfill basic consultations and repatriations with repositories which 

house these collections. The funding made available has been highly competitive 

through the NAGPRA grants program with the National Park Service. 

NAGPRA funding levels have remained basically the same since its inception. For 

the past 15 years, around 2 million dollars per year has been available. The funding 

is highly competitive with no basis in actual need. As such, a tribe with millions 

of dollars from casino revenue monies has the same chance of getting a grant as 

a tribe like us, with no casino revenue and limited financial resources. In 1994, the 

Native American Graves Protection and Repatriation Review Committee recommended that Congress set-aside 10 million dollars for the first year of funding. 

However, only 2.3 million was set-aside. In 2008 funding levels were at their lowest 

at under $1.58 million. 

The Caddo Nation of Oklahoma was one of the first tribes to submit and receive 

NAGPRA funding from the National Park Service in 1994. Southwest Arkansas, 

northwest Louisiana, eastern Oklahoma, and northeast Texas have long been considered the Caddo homeland. Throughout every one of these states and spread from 

the east coast to the west coast, Caddo human remains and funerary items continue 

to be housed and stored on shelves. 

Our NAGPRA office has worked tirelessly over the past 14 years to identify and 

repatriate human remains and funerary objects from across the United States. Just 

recently we submitted a proposal to the Department of the Interior explaining some 

of the issues we have faced. 

Currently, we know of over 130 different museums, universities, and repositories 

that hold collections of either human remains or funerary objects, along with 

unassociated funerary objects, sacred objects, and objects of cultural patrimony. The 

reality is if we were to receive a NAGPRA grant each and every year, it would be 

at least 130 years before all of our human remains, associated funerary objects, 

unassociated funerary objects, sacred objects and objects of cultural patrimony could 

be repatriated. 

For well over a century, burials and cemeteries containing the human remains, 

associated funerary objects, unassociated funerary objects, sacred objects and objects 

of cultural patrimony have been subjected to looting and collecting. Even today, 

there are numerous websites found on the Internet that buy, sell, and trade Caddo 

funerary objects. There are also private museums that house (and oftentimes, buy, 

sell, and trade) Caddo funerary objects. 

In 2001, 21 Caddo funerary vessels were stolen from the Texas Archeological Research Laboratory at the University of Texas in Austin. A $10,000 dollar reward 

went out and the objects were eventually recovered. Five years later, the University 

of Arkansas at Magnolia reported the theft of 26 Caddo funerary objects. These objects were being held at the university on behalf of the Vicksburg District Corps of 

Engineers and were to be repatriated to the Caddo Nation. Federal investigations 

are ongoing but these funerary objects have not been recovered. 

We are in a conundrum. There are a number of new ‘‘Caddo’’ museums being proposed across the homelands of the Caddo. They receive their funding through a variety of means; investors, universities, loans with local banks, donations and grants 

using the Caddo collections they have as leverage. Many of the repositories where 

Caddo human remains and funerary objects are housed also continue to receive 

funding for research projects related to these collections to create educational tools 

for the general public, yet our own museum has only one small exhibit space, one 

full-time employee, and no support staff. 

Lastly, it is sad to note that our ancestors continue to be regarded as merely ‘‘natural resources’’ instead of human beings. I am not aware of any other ethnic group 

who is subjected to this stereotype. I sincerely request that these important funding 

issues be addressed and corrected in such a way that the work we have done in the 

14 

past can continue on in to the future. Repatriation is important for our people. The 

act itself is a show of love and respect for our ancestors. Repatriation is also a way 

for our children to learn about where we came from and who we are as a unique 

culture. Thank you. 

The CHAIRMAN. Thank you, Madam Chairwoman. 

Mr. Titla? 

STATEMENT OF STEVE TITLA, GENERAL COUNSEL, 

SAN CARLOS APACHE TRIBE, SAN CARLOS, ARIZONA 

Mr. TITLA. Good morning, Chairman, members of the Committee. 

Thank you for having this hearing on implementation of the 

NAGPRA act. The Arizona Apache tribes work on repatriation matters jointly through the Western Apache NAGPRA Working Group. 

These tribes are the San Carlos Apache Tribe, White Mountain 

Apache Tribe, Tonto Apache Tribe, and Apaches of the YavapaiApache Nation. Since 1996, the Working Group has repatriated 302 

sacred objects and objects of cultural patrimony from 20 institutions under NAGPRA, and another 38 objects from the Smithsonian. 

We currently await the return of another 154 objects in pending 

claims. The objects that we claim are vitally important and alive, 

belonging to holy beings whose power infuses them. These objects 

must be properly returned and ritually cared for, or we suffer dire 

consequences in the Apache people. In the great majority of our 

claims, museums have embraced the spirit of NAGPRA and have 

worked with us in open and in good faith to repatriate these items 

in the most appropriate and expedient manner. 

Most museums have acknowledged that they should never have 

held these objects in the first place. Traditional, responsible 

Apaches would never, now and in the past, willingly give up these 

items to a non-Apache for non-ritual use. Most of these objects 

were acquired, sometimes stolen, from Apache lands by museums 

at a time of extraordinary hardship, misery and injustice for 

Apache people. Some agents of museums took deliberate advantage 

of these conditions to get these items at the expense of Apaches. 

We believe that NAGPRA is a form of civil rights legislation, enacted as an attempt to right these past wrongs. For Apaches, righting these wrongs includes healing the damage caused by the alienation of our powerful objects and the circumstances which compelled that alienation. While the repatriation of these objects alone 

goes a long way in righting these wrongs, it does not fully facilitate 

healing for the Apache people. 

NAGPRA provides for further healing by allowing museums to 

state whether objects are sacred objects, objects of cultural patrimony, or a combination of these two. An acknowledgment that an 

item is an object of cultural patrimony is an admission that museums, at a minimum, have objects that are not rightfully their property, or at the maximum, that they were at least a party to wrongdoing. Such an admission will help appease the holy beings who 

were wronged so many years ago, and provides a measure of peace 

of mind to the Apache people. 

Currently, the Field Museum of Natural History in Chicago and 

the American Museum of Natural History in New York are attempting to remove the key element of justice from NAGPRA. 

15 

These museums have among the largest collections of sensitive 

Apache items and had agents who took egregious advantage of 

Apaches in order to acquire highly sensitive objects near the turn 

of the last century. These museums are refusing to classify Apache 

items specifically as sacred objects and objects of cultural patrimony as claimed in the notices of intent to repatriate in the Federal Register, or even to meaningfully discuss the issue with us. 

In addition, these museums refuse, as an alternative to 

classifying these objects, to admit to any wrongdoing in collecting 

the items or to apologize for their actions. They are legally justifying this position according to the current Park Service interpretation of NAGPRA. The Park Service allows museums to refer to 

items under notices of intent to repatriate as merely cultural items, 

as opposed to sacred objects and/or objects of cultural patrimony. 

We believe that this is a highly narrow and prejudicial view, interpretation of the law. This interpretation demeans our powerful 

objects and the holy people to whom they belong, which we cannot 

allow. This interpretation removes any obligations from museums 

to explain their positions. Compounding the problem is the fact 

that the NAGPRA Review Committee can only make advisory findings and recommendations. While the Working Group has won 

twice before the Review Committee in formal disputes with museums, the museums chose not to follow the committee’s recommendations. 

This, coupled with current Park Service interpretations of 

NAGPRA, has denied Apaches the full measure of the justice that 

NAGPRA is capable of providing. Chairman, it looks like I am out 

of time, but you have my statement. Thank you. 

[The prepared statement of Chairman Nosie follows:] 

Statement submitted for the record by Chairman Wendsler Nosie, Sr., 

San Carlos Apache Tribe 

The Arizona Apache Tribes work on repatriation matters jointly through the 

Western Apache NAGPRA Working Group (Working Group). These tribes are the 

San Carlos Apache Tribe, the White Mountain Apache Tribe, the Tonto Apache 

Tribe, and the Apaches of the Yavapai-Apache Nation. 

Since 1996 the Working Group has repatriated 302 sacred objects and objects of 

cultural patrimony from 20 institutions under NAGPRA, and another 38 objects 

from the Smithsonian. We currently await the return of another 154 objects in 

pending claims. 

The objects that we claim are vitally important and alive, belonging to Holy 

Beings whose power infuses them. These objects must be properly returned and ritually cared for, or we suffer dire consequences. 

In the great majority of our claims, museums have embraced the spirit of 

NAGPRA, and have worked with us in open, good faith to repatriate these items 

in the most appropriate and expedient manner. Most museums have acknowledged 

that they should never have held these objects in the first place. 

Traditional, responsible Apaches would never, now and in the past, willingly give 

up these items to a non-Apache for non-ritual use. Most of these objects were acquired, sometimes stolen, from Apache lands by museums at a time of extraordinary 

hardship, misery, and injustice for Apache people. Some agents of museums took deliberate advantage of these conditions to get these items, at the expense of Apaches. 

We believe that NAGPRA is civil rights legislation, enacted as an attempt to right 

these past wrongs. For Apaches, righting these wrongs includes healing the damage 

caused by the alienation of our powerful objects and the circumstances which compelled that alienation. While the repatriation of these objects alone goes a long way 

in righting these wrongs, it does not fully facilitate healing. NAGPRA provides for 

further healing by allowing museums, to state whether objects are sacred objects, 

objects of cultural patrimony, or combinations of these. An acknowledgement that 

an item is an object of cultural patrimony is an admission that museums, at a minVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
16 

imum, have objects that are not rightfully their property, or, at the maximum, that 

they were at least a party to wrongdoing. Such an admission helps appease the Holy 

Beings who were wronged so many years ago, and provides a measure of peace of 

mind to Apache communities. 

Currently the Field Museum of Natural History in Chicago and the American Museum of Natural History in New York are attempting to remove this key element 

of justice from NAGPRA. These museums have among the largest collections of sensitive Apache items, and had agents who took egregious advantage of Apaches in 

order to acquire highly sensitive objects near the turn of the last century. These museums are refusing to classify Apache items specifically as sacred objects and objects 

of cultural patrimony, as claimed, in the Notices of Intent to Repatriate in the Federal Register, or even to meaningfully discuss the issue with us. In addition, these 

museums refuse—as an alternative to classifying these objects—to admit to any 

wrongdoing in collecting the items or to apologize for their actions. They are legally 

justified in this position according to the current Park Service interpretation of 

NAGPRA. 

The Park Service allows museums to refer to items in their Notices of Intent to 

Repatriate as merely ‘‘cultural items’’, as opposed to ‘‘sacred objects’’ and/or ‘‘objects 

of cultural patrimony’’. We believe that this is a highly narrow and prejudiced interpretation of the law. This interpretation demeans our powerful objects and the Holy 

People to whom they belong, which we cannot allow. This interpretation removes 

any obligations from museums to explain their positions, while placing a burdensome onus of proof on tribes (often requiring tribes to reveal highly sensitive information publicly); as well as allowing museums to avoid any admission of wrongdoing. 

Compounding this problem is the fact that the NAGPRA Review Committee can 

only make advisory findings and recommendations. While the Working Group has 

won twice before the Review Committee in formal disputes with museums, the museums chose not to follow the Committee’s recommendations. This, coupled with current Park Service interpretations of NAGPRA, has denied Apaches the full measure 

of justice that NAGPRA is capable of providing. 

Additionally the Park Service has told us that the Review Committee cannot 

make a finding regarding a completed repatriation, and so now we must choose between repatriating objects as quickly as possible (as required by traditional guidelines), or seeking a measure of justice from the Review Committee. We strongly disagree with this interpretation of the law, and deeply resent the pain and confusion 

that this compromising interpretation has caused. 

These are not trivial matters to us, and we have recently made a request to the 

Secretary of the Interior to review these matters, and will be discussing these at 

the upcoming NCAI session. Our concerns could be resolved to a large degree by 

requiring museums to state whether claimed items are sacred objects and/or objects 

of cultural patrimony, when so claimed, and by giving more teeth to Review Committee recommendations. 

Of further concern is the increasing looting of archaeological artifacts from our 

reservations. Both Tribal members and outsiders are looting archaeological sites, 

our people driven by the shocking economic and social conditions within our community. 

It is nearly impossible to combat this problem under current financial constraints. 

Even though our Reservation consists of 1.8 million acres of Federal trust land, our 

cultural and natural resources management is funded at one-fourth to one-seventh 

the levels for comparable land, issues, and activities on the National Forests immediately adjacent to the Reservation. This seriously challenges our ability to sustain 

the economic development necessary to prevent the problem in the first place, or to 

combat it in the second. 

I very much hope that you look into these matters, and will be pleased to provide 

you with more information. 

Thank you for time and attention. 

The CHAIRMAN. Thank you. 

Ms. Kraus? 

17 

STATEMENT OF D. BAMBI KRAUS, PRESIDENT, NATIONAL 

ASSOCIATION OF TRIBAL HISTORIC PRESERVATION 

OFFICERS, WASHINGTON, D.C. 

Ms. KRAUS. Mr. Chairman and members of the Committee, 

thank you for the opportunity today to present testimony on the 

Native American Graves Protection and Repatriation Act. I am representing the National Association of Tribal Historic Preservation 

Officers. We are the only national Indian organization of tribal government officials who are committed to preserving, rejuvenating 

and protecting Native cultures and practices throughout the United 

States. 

NATHPO Chairman Reno Franklin is unable to be here today 

and he sends his regrets. Today’s hearing is about America’s living 

history, a uniquely American history, and how as Americans, we 

treat our dead, and how we treat the sacred cultural objects that 

play an important role in the living cultures of today. About 20 

years ago, Native and non-Native people worked together to craft 

the legislation known as NAGPRA. 

NATHPO acknowledges Congressman Mo Udall and Congressman George Miller of this Committee, along with Walter EchoHawk, Jack Trope and Jerry Flute, who, without their foresight 

and work, we wouldn’t have had NAGPRA in the first place. And 

you know, the bottom line in terms of NAGPRA is it is a Federal 

law. It is Federal Indian law and it was created for the benefit of 

Indian tribes and Native Hawaiians. In a few weeks, the 19th anniversary of the signing of the Act will occur, and it is that span 

of 19 years that I would like to discuss today, and even though 

NATHPO is not a well-funded organization, we devoted a substantial amount of our meager resources over the past three years to 

evaluate how the Federal agencies are complying with the law. 

It is out of a sense of duty and responsibility to both the living 

and the dead that we took on this task. We do it for Indian communities of today who are forgotten and neglected in the rural parts 

of Indian country, and we did it for our dead, for our ancestors who 

were never intended to be housed in Federal repositories and museums throughout the land, being used for scientific testing at the 

whim of the latest theory. 

A year ago, NATHPO released a national report on how Federal 

agencies are complying with the Act. We identified many challenges and barriers to success in Indian country. That report, done 

collaboratively by the Makah Tribe of Washington and NATHPO, 

was the first in-depth report of its kind, and we listed many recommendations on how to improve the process so that it serves its 

audience, Indian country, and this is a copy of the report. 

Among the—I am calling it the Makah report. Among the Makah 

report’s findings and recommendations for improvement are the following: provide adequate resources for Indian tribes, Native Hawaiian organizations and Federal agencies necessary to comply 

with the Act; improve both the quality and access to information 

in the NAGPRA process; develop and publish in the Federal Register a tribal consultation step-by-step process so that an open and 

transparent process is available to all; develop and offer appropriate training for Native people and Federal officials; improve the 

18 

content and guidelines on using the Culturally Unidentifiable Native American Inventories Database. 

So, that is just a short list of the recommendations we included 

in the report to improve the Act and how it is being implemented. 

I would like to comment specifically on the Culturally Unidentifiable Native American Inventories Database. In the legislative process that created NAGPRA, it was estimated that there were approximately 100,000 to 200,000 Native Americans who could be repatriated using this Act. It is with great sadness to report that 

after 19 years, two out of every three Native Americans of that estimated amount still have not been repatriated, and in fact, they 

are now listed as culturally unidentifiable, with little likelihood of 

being repatriated unless the system is improved. 

Again, two out of three Native Americans, over 123,000 Native 

Americans are now listed as culturally unidentifiable and they remain languishing on museum shelves, and just to give you an idea 

of what 123,000 people, known to be Native Americans, but 

123,000 people is roughly the size of Bellevue, Washington or New 

Haven, Connecticut or Topeka, Kansas. This indicates that there is 

much work to be done. NATHPO appreciates the Committee’s time 

today to hear about this important act. 

Since this hearing was announced and since NATHPO was listed 

as a witness, I have received numerous pleas from around the 

country, from Native people and tribal communities around the 

country, asking me to tell their story, asking NATHPO to tell their 

story and to tell someone about the struggle that they have in their 

own communities to try and implement this Act and to make it 

work for them and for their tribal communities. 

The people who have the most at stake, Native people who know 

their dead, who know their sacred objects and the stories that go 

along with those objects, may not be here today to testify for themselves, and they may not be here in person, but I have been asked 

to relay their thanks to the Committee for your ability to talk 

about something that is so important on a very local level. I will 

be happy to answer any questions the Committee may have for me 

at a later time. Thank you very much. 

[The prepared statement of Ms. Kraus follows:] 

Statement of D. Bambi Kraus, President, National Association of Tribal 

Historic Preservation Officers, on behalf of NATHPO Chairman Reno 

Franklin 

Good morning Mr. Chairman and members of the committee. Thank you for the 

opportunity to testify at this oversight hearing on the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001 et seq. NATHPO Chairman 

Reno Franklin sends his regrets as he is not able to be here in person, and thanks 

the committee for their time and attention to examining the status of a federal law 

that affects almost every Native person today. 

Background 

Today I am representing the National Association of Tribal Historic Preservation 

Officers (NATHPO). NATHPO is a national not-for-profit professional association of 

federally recognized Tribal government officials who are committed to preserving, 

rejuvenating, and supporting American Indian, Alaska Native, and Native Hawaiian 

cultures and practices. In 1998, the initial cohort of 12 officially recognized Tribal 

Historic Preservation Officers (THPOs) created NATHPO with the mission to preserve Native languages, arts, dances, music, oral traditions, and to support tribal 

museums, cultural centers, and libraries. 

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The number of Tribal Historic Preservation Officers (THPOs) continues to increase since they were first recognized in 1996 by the National Park Service, U.S. 

Department of the Interior. THPOs assume the role and responsibilities of the State 

Historic Preservation Officers on their respective Indian reservations and aboriginal 

lands from which their ancestors once lived and were laid to rest. In 2008, there 

are now 86 officially recognized THPOs and our organization’s membership has increased commensurately. NATHPO’s membership includes THPOs and tribal governments that support the mission and goals of our organization. 

THPOs are not just tasked with complying with the National Historic Preservation Act, they are often also the ‘‘NAGPRA representative’’ for their tribe. 

In addition to convening training workshops and national meetings, NATHPO has 

produced original research reports, including: ‘‘Federal Agency Implementation of 

the Native American Graves Protection and Repatriation Act’’ (2008); and ‘‘Tribal 

Consultation: Best Practices in Historic Preservation’’ (2005). 

I am familiar with the issues in today’s hearing based upon my work on repatriation issues while being employed at the National Association of Tribal Historic 

Preservation Officers, as well as prior professional employment at the National 

Indian Policy Center and the Smithsonian Institution’s National Museum of Natural 

History. Bambi Kraus is my English name, Yatxaakw is my Tlingit name. 

Why Was NAGPRA Created? 

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 to the theft of Native American human remains, funerary objects given 

to the deceased at burial, sacred objects of different types, and objects of cultural 

patrimony that belong to the collective Native community. 

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 (November 16, 1990). 

• Public Law 101-185, the National Museum of the American Indian Act (November 28, 1989; later amended in 1996 to include repatriation provisions) and 

NAGPRA has been at times terrifically successful at the local level. More often, 

it is exemplary of the experiences of many American Indians, Alaska Natives, and 

Native Hawaiians: though the Act was created for their benefit and to rectify a 

moral wrong, most Native people have been unable to realize the law’s potential. 

They have been forced to immediately learn a western process and bureaucratic language and to do so at the most personal and profound of times—at the time they 

must identify their dead and the sacred objects and cultural patrimony that have 

been removed from their communities. 

First In-Depth Review of How Federal Agencies are Implementing 

NAGPRA 

In 2006, the National Park Service National NAGPRA Program awarded a grant 

to the Makah Tribe to assess how the Act has worked over that time and whether 

there remain significant barriers to the effective implementation of the Act; the 

Tribe worked closely with NATHPO in its research and production. The resultant 

report focuses on Federal agency participation in and compliance with the Act, including such overarching issues as completing notices of inventory, determining cultural affiliation, developing and implementing agency policies on tribal consultation, 

and resources to assist the agency meet its responsibilities under the Act. 

The Makah-NATHPO Report, ‘‘Federal Agency Implementation of the Native 

American Graves Protection and Repatriation Act,’’ was the result of a two-year research project and was released in August 2008. The report is the work of five researchers who conducted original research for this report, analyzed existing public 

information, and conducted two national surveys to determine how the Act is being 

implemented around the country and how Federal agencies and Native Americans 

are working together to achieve the goals that the U.S. Congress established for the 

Act. The report was peer-reviewed by 11 individuals representing Indian tribes and 

NAGPRA practitioners, academics who work in this field, and federal agency officials. We are confident in the research, conclusions and recommendations that are 

presented in the 2008 report. 

This study was undertaken to prepare a substantive foundation for assessing Federal agency implementation of NAGPRA and where improvements might be made. 

The internal processes and effectiveness of the National Park Service (NPS) National NAGPRA Program or Park NAGPRA Program were not examined or evaluated. We are happy to report that several recommendations in the report have alVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
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ready been implemented or are underway in the year since the report was published. 

In brief, the research team examined a national process of consultation and information sharing that has led to individual success stories at the local level. It is clear 

from the work that went into the report that in the almost 20-year history of the 

Act, it has enabled some measure of success in the efforts of Native people to secure 

the repatriation of Native American human remains and cultural objects, but much 

work remains. 

Again, one of the main goals of the report was to identify where improvements 

might be made in the implementation of the Act and to present the information in 

terms of findings and recommendations. Attached to this written statement are the 

recommendations that were developed. For this morning’s hearing, I will highlight 

and discuss just a few. 

Report Recommendations 

The report recommendations were presented in two categories: general themes 

and specific recommendations. Summarizing the General Theme recommendations 

with a brief description are as follows: 

1. Knowledge of process and responsibilities: No full-time NAGPRA staff working 

at the Federal agency level; lacking a list of the NAGPRA contact person for 

each Federal agency; need and request for NAGPRA training 

2. Access to Information: burden has been place on Native people to determine 

where and if a Federal agency has Native American remains and cultural objects; withdrawal of pending Notices of Inventory Completion is a barrier and/ 

or challenge to Native people; identification of human remains and cultural objects as ‘‘culturally unidentifiable’’ that places those classified remains and objects beyond the reach of Native people 

3. Consultation: Federal agencies don’t know with whom to consult and Native 

people are not always welcomed when they seek to have a Federal agency engage in consultation 

4. Available Resources: Currently available resources fall far short of what is 

needed and Native governments and organizations are unable to maintain a 

robust NAGPRA program effort needed to assure protection of their cultural 

resources. Also, congressionally appropriated funds have NAGPRA grants to 

tribes and museums has decreased in the past five years. 

5. Standards: What constitutes correct information and who sets the standards 

for a Notice of Inventory Completion; when has a Federal agency complied with 

the Act per the notification process; how much evidence is necessary for an accurate determination of cultural affiliation; when are the remains of an ancestor considered to be ‘‘culturally unidentifiable;’’ no publicly available standards 

on ‘‘tribal consultation’’ and ‘‘cultural affiliation’’ 

6. Training: develop and offer online training and online instructional materials; 

develop user-friendly databases 

There are eight (8) specific recommendations as follows: 

1. Statutory: amend the definitions section of the Act 

2. Regulatory: Establish an inter-agency NAGPRA Implementation Council within the executive branch, possible the Office of Management and Budget, that 

would ensure and coordinate compliance, refer non-compliance and remedies 

for non-compliance with the Act, train federal officials, have a dispute resolution role, develop uniform NAGPRA consultation guidelines for all Federal 

agencies and publish in the Federal Register 

3. Oversight and Enforcement: 

a. issue and publish in the Federal Register the NAGPRA contacts and 

policies for each Federal agency; 

b. create a public database that lists each Federal agency repository for 

curation purposes, including location and contact information; 

c. demonstrate via publication in the Federal Register that consultation 

has occurred with an affected Native American/s; and 

d. revise and improve the Culturally Unidentifiable Native American Inventories Database (CUNAID) including the following: 

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i. improve database search functions 

ii. show documentation as to the pre-decisional consultation has occurred 

iii. establish an open and transparent process for why human remains and 

cultural objects meet the ‘‘compelling scientific interest’’ category 

iv. more frequent updates of the database 

v. Native American input in developing new information to be included in 

the database 

vi. Require additional information to be included in the database, such as 

description of study beyond counting and sorting, original location of 

burial site, full address of current location of human remains and objects; 

and title and detailed contact information of the office responsible for 

writing the database record 

4. General NAGPRA Program: develop a reporting system that demonstrations success 5. NAGPR Review Committee: develop a database of disposition case that have 

come before the Committee; publicize upcoming publications of Notice of Inventory Completion and a list of notices that are awaiting publication 

6. Memoranda of Agreement or Programmatic Agreements: develop a standard 

MOA or PA 

7. Adequate Funding for the Implementation of NAGPRA: appropriate adequate 

funding for Indian tribes, Native Hawaiian organizations, and Federal agencies, including training opportunities, and the Inter-Agency Council and additional responsibilities for the NPS 

8. Compliance Audits: request that the Government Accountability Office conduct 

an audit of Federal agency compliance with the Act; and the Inspector General 

of each Federal agency should investigate any non-compliance with the Act 

that his identified by the GAO audit. 

There was one section, Future Areas of Research, which recommended the 

following: 

1. Evaluate museum compliance with NAGPRA, similar to this Federal agency 

research 

2. Evaluate the role of the Smithsonian Institution in the repatriation process 

3. Evaluate the NPS National NAGPRA Program for efficiency, staffing levels 

and areas to improve 

4. Examines how the unassociated funerary objects have been dealt with in the 

repatriation process 

5. Examines how the Future Applicability (Sec. 10.13) provisions are being implemented 

6. Examine the background process that led a Federal agency to determine 

whether human remains and associated funerary objects was to be entered into 

the CUNAID, including the process used in working with and notifying tribes 

of the remains and objects. 

Are There Enough Resources? 

One of the issues that was studied and discussed in the 2008 report was whether 

or not there were adequate resources to comply with the Act. We sought input from 

both Federal agency officials and from representatives of Indian tribes and Native 

Hawaiian organizations. Our work determined that over the past 19 years, the repatriation process has evolved to be a time consuming and expensive endeavor and 

even then, the repatriation process does not ensure that remains or cultural objects 

will be repatriated. Two possible solutions are (1) to infuse the program with much 

more federal support; and/or (2) to improve the process. 

One of the major problems identified by the Makah-NATHPO study was the lack 

of Federal staff dedicated exclusively to carrying out compliance activities. The 2008 

report recommend that additional appropriations be made to ensure that each agency has adequate staff. Related to this, was the lack of training for Federal staff who 

are assigned responsibility for NAGPRA implementation. We recommend that additional funds be appropriated to ensure that Federal officials receive adequate training and staffing levels, which they have identified as a need. 

Since 1994, the U.S. Congress has appropriated funds for grants to museums and 

Indian tribes to carry out NAGPRA activities. Those funds have been inadequate 

to effectively address the mandates of the Act. Insufficient resources prevent Native 

Americans from maintaining robust NAGPRA programs and the needed effort to ensure protection and repatriation of a tribe’s cultural resources. NAGPRA grants to 

tribes and museums—which are one of the only sources of funding for Native Americans in the field of cultural preservation—have decreased in the past five years. An 

assessment of grants made between 1994 and 2007 indicate that proportionately 

fewer of the funds appropriated for this purpose are actually being allocated for 

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grants. We recommend an increase in the amount appropriated for grants, and that 

Congress ensure that these funds are only used for grants and not for administrative activities. If additional funds are needed for administrative activities, there is 

a separate line item to which additional funds could be made available. 

Are the Law and Regulations Adequate or is Work Needed? 

NAGPRA directs Federal agencies and museums to consult with Native governments and Native cultural practitioners in determining the cultural affiliation of 

human remains and other cultural items. Prior to passage of the Act, House Report 

101-877 defined the term ‘‘consultation,’’ but the Department of the Interior decided 

not to include a definition when it promulgated regulations. As a result, there has 

been a great deal of confusion as to what exactly is required. The 2008 report recommended that the Department of the Interior revise the current regulations to define consultation consistent with the language in the House Report or, if the Department declines to do so expeditiously, the Congress amend the Act to include a specific definition of consultation. 

NAGPRA directs each museum and Federal agency to complete an inventory of 

Native American human remains and associated funerary objects in their possession 

or control by 1995, with notification of cultural affiliation provided to the appropriate Indian tribe or Native Hawaiian organization by 1996. The Secretary of the 

Interior was directed to publish a copy of each notification in the Federal Register. 

Our research found that ten years later, a large number of these notices have still 

not been published and the human remains and associated funerary objects been 

not been listed on the culturally unidentifiable database, thus leaving them effectively hidden from the repatriation process. It is particularly disturbing that a number of these situations involve units of the National Park Service—the agency currently delegated by the Secretary of the Interior with the responsibility for implementing the Act. We recommend that, as for all federal programs, an open and 

transparent process needs to be instituted for the knowledge and use by all. 

Culturally Unidentifiable Native American Inventories Database 

NAGPRA directs the National NAGPR Review Committee to compile an inventory 

of culturally unidentifiable human remains that are in the possession or control of 

each museum or Federal agency. In 1990, the Congressional Budget Office estimated that the remains of about 100,000-200,000 Native American individuals were 

stored in the nation’s museums and Federal repositories. The National NAGPRA 

Program has reported that as of March 31, 2009, museums and Federal agencies 

had published 1,220 notices of inventory completion accounting for the remains of 

37,998 individuals and 985,788 associated funerary objects. To date, about 38,000 

ancestors have been returned using the NAGPRA cultural affiliation process—which 

is roughly 19% of 200,000—or the repatriation at a rate of about one percent (1%) 

per year. 

Our research for the 2008 report found that the current database does not accurately reflect the number of culturally unidentifiable human remains in the possession or control of Federal agencies. Further, the currently database does not provide 

adequate information about how to proceed if the database includes human remains 

of interest to an Indian tribe or Native Hawaiian organization. For example, there 

is currently no record of whether or not Native Americans have been contacted or 

consulted, there are no serial numbers or a way to determine which record is being 

referenced when seeking additional information, and there is no ‘‘user guide’’ for 

how to use the database. 

Based on our work for the 2008 report and in response to our members, NATHPO 

sponsored in August 2009 the first organized opportunity and open call for tribal 

representatives to come together to review and discuss the important information 

contained in the database. We provided the attendees with a copy of the database 

and a template to use for requesting additional information, which is their right by 

law. This was just a start in working with this important database and we hope 

to continue this initiative. Attached is the one-page summary of this database and 

the workshop. 

Conclusion 

NATHPO has been working to overcome historic practices and behavior toward 

Native people. We support local tribal efforts for control of their respective histories 

and culture. We support a tribal agenda that goes beyond merely educating and reacting to situations that are many times beyond our control. Native Americans have 

many reasons to be proud of their work in seeking the return of their ancestors and 

cultural objects and we hope that the Committee will continue supporting these 

local efforts and will have more opportunities to visit Indian country and hear from 

Native people on this important Act. 

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VIII. RECOMMENDATIONS [from the report, ‘‘Federal Agency Implementation of the NAGPRA’’] 

A. General Themes 

i. Knowledge of Process and Responsibilities 

One of the prominent issues that emerges from the results of both Federal agency 

surveys and the surveys of Native governments and organizations is the need for 

more training so that Federal agency personnel are aware of their agency’s responsibilities under the Act, museum personnel are aware of their museum’s responsibilVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 L:\DOCS\52756.TXT Hresour1 PsN: KATHY

52756.001.eps
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ities under the Act, and Native governments and organizations are aware of their 

rights and responsibilities under the Act. 

The survey results would suggest that within the Federal agencies, seldom is 

there a full-time employee whose principle assignment is to carry out the agency’s 

responsibilities under the Act. More often, if there is an employee who is tasked 

with assuring that the agency is in compliance with the mandates of the Act, that 

person’s first responsibility is to assure compliance with section 106 of the National 

Historic Preservation Act. A number of the Federal agencies responding to the survey indicated that the agency has a designated Federal historic preservation officer, 

who may or may not devote part of his or her time to NAGPRA duties. Several 

agency respondents reported that they were not certain who had NAGPRA responsibilities within their agency, and others placed the role of determining cultural affiliation in the hands of the National NAGPRA Program through the publication of 

Notices of Inventory Completion. 

It is perhaps thus not surprising that Native government and Native organization 

respondents reported that they have experienced difficulty in finding anyone within 

a Federal agency that can tell them with whom they should be addressing 

NAGPRA-related issues. Some Native governments report that when they contact 

Federal agencies with the objective of gaining an understanding of how the repatriation process works within that agency, there is no one who can tell them what the 

repatriation process entails or how to go about initiating a request for repatriation. 

ii. Access to Information 

No less important is the commonly-reported fact that unless a tribal government 

or Native organization has been contacted directly by a Federal agency or museum, 

they do not know how they would learn that a Federal agency or museum may have 

the human remains of their relatives, or associated funerary objects, sacred items 

or objects of cultural patrimony. 

Some tribes report having had to resort to relying upon anecdotal evidence or reports that someone has seen something in a museum that looks like it would have 

been associated with that tribe’s cultural and religious practices. Others have attempted to contact every Federal agency and every museum known to possess Native American collections. Such time-intensive, laborious and costly undertakings 

could have been rendered unnecessary if the policy and intent of the Act—namely 

to place the burden of reporting on those institutions that have possession of Native 

American collections—had been fully and effectively realized. 

As referenced above, the Act does provide for a system of notification, but the integrity of the notification process is only as sound as the information that is provided to the Interior Department. The Act does not address how the Department 

would go about determining whether other Federal agencies or museums may have 

Native American collections for which inventories and/or summaries have not been 

submitted. In late 2007, several museums and National Park units withdrew many 

pending Notices of Inventory Completion that would have publicly announced the 

existence of culturally-affiliated Native American human remains and associated funerary objects, and thereby further frustrated the efforts of Native people to identify 

where human remains and cultural objects could be found. 

In addition, it is well known that a common practice of agencies and museums 

is to err on the side of caution when the cultural affiliation of human remains or 

associated funerary objects cannot be definitively determined. In this context, caution is exercised by reporting that such remains or objects are culturally unaffiliated. While such caution is understandable, as discussed in Section III.C. of this report, the classification of remains or associated funerary objects as culturally-unidentifiable often has the effect of placing those remains or objects so classified beyond the reach of the Act’s preference for repatriation of Native American human 

remains and associated funerary objects. 

Native governments and organizations ask whether notice has been published in 

the Federal Register for all remains and associated funerary objects that have been 

reported as culturally unaffiliated, and apparently the answer is that they have not. 

Responses to tribal surveys as well as an in-depth analysis of the ‘‘Culturally Unidentifiable Native American Inventories Pilot Database,’’ maintained by the National NAGPRA Program Office and set forth in Section III.C. of this report would 

indicate that the database is difficult to use and has limited research and cross referencing capabilities. 

iii. Consultation 

As outlined earlier, NAGPRA contemplates and indeed directs that Federal agencies and museums consult with Native governments and Native cultural practitioners in determining the cultural affiliation of human remains and other objects 

and items within their respective Native American collections. Federal agencies inVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
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dicated that an element of their success in working with Native Americans in complying with the Act is that they know with whom to consult. 

The Act’s regulations also provide that consultation is to be carried out as part 

of the intentional excavation or inadvertent discovery of human remains or objects. 

Written plans of action must be the product of consultation, and when re-interments 

are to take place, consultation in how such re-interments or associated repatriations 

are to take place is also anticipated. 

Despite these statutory and regulatory requirements, a review of both Federal 

agency and Native survey responses suggests that Federal agency personnel often 

don’t know with whom they should be consulting, and Native governments are not 

always welcomed when they seek to have a Federal agency or a museum engage 

in consultation. In fact, survey results indicate that there is substantial room for 

improvement in the area of consultation. 

iv. Available Resources 

Tribal survey results suggest that Native Americans place a high value on the capacity to repatriate the remains of their relatives, ancestors, sacred objects and objects of cultural patrimony, but that the resources which are currently available to 

effect these repatriations fall far short of what is needed. And while the Congress 

has appropriated funds to support the NAGPRA program, overall, those funds have 

also been inadequate to effectively address the mandates of the Act. 

Insufficient resources also prevent Native governments and organizations from 

maintaining a robust NAGPRA program effort and retaining one or more people to 

assure protection of a tribe’s cultural resources. NAGPRA grants to tribes and museums has decreased in the past five years, and an assessment of grants made between 1994 and 2007 indicates that proportionately fewer of the funds appropriated 

for this purpose are actually being allocated for grants (see Appendix C). Clearly, 

Federally-appropriated resources have been insufficient to address the needs of the 

repatriation process. It is unknown what the total need for NAGPRA training is at 

all levels and for both Federal agencies and Native people. 

An examination of fiscal support at the Federal agency level may show parallel 

lack of support, both in terms of staff support and training for new and current staff 

tasked with the responsibility to comply with the Act. 

v. Standards 

Improving information sharing and establishing standards are important components of the repatriation process and the following remain unclear: • What constitutes correct information and who sets those standards; • What format is to be used for a Notice of Inventory Completion and when has 

a Federal agency or museum complied with the Act per the notification process; • How much evidence is necessary for an accurate determination of cultural 

affiliation; • When are the remains of an ancestor considered to be ‘‘culturally unidentifiable.’’ 

‘‘Tribal consultation’’ and ‘‘cultural affiliation’’ are not easily understood and 

agreed upon processes. There are also points in the process where exclusion from 

these two important steps prevents active engagement of an affected Indian tribe 

or Native Hawaiian organization. There are no publicly available standards on what 

constitutes meeting the requirement to consult with an affected Indian tribe or Native Hawaiian organization. Who sets these standards is also of concern. 

vi. Training and Technology 

Many of the challenges identified by the research, as well as other identified barriers to the effective implementation of the Act, could be addressed and possibly 

overcome through the provision of training for Federal agency, museum, and Native 

government and organization personnel. 

Federal agency survey responses suggest that those Federal agency personnel who 

are charged with carrying out NAGPRA responsibilities are frequently new or reassigned, so that while there may have been some training on the Act for those initially tasked with implementing the agency’s responsibilities, training has not been 

available to their successors. The same dynamic appears to be prevalent in Native 

communities, where the unmet need for training is further exacerbated by the lack 

of resources to gain access to training opportunities. 

However, with the widespread advent of technological tools, there are solutions 

that could be applied to address the need for more knowledge about the Act, to build 

the capacity for access to information, to facilitate consultation, and to enable expanded training opportunities. 

For instance, funds expended on travel of Federal agency personnel to training 

sites might be reallocated to the development of on-line instructional materials that 

would be accessible either directly or made available in CD and DVD formats. The 

development and maintenance of user-friendly databases hold the potential to greatVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
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ly expand the access by Native governments and organizations to inventory and 

summary information held by the Interior Department. Computer software programs that enable users with differing levels of security protection to have appropriate access to confidential or proprietary information foster both transparency and 

accountability. 

Most Native groups do not have the means to travel to regional hubs to take advantage of training opportunities where such opportunities exist, nor do they have 

the means to travel to the Nation’s capital to access data that is maintained in 

paper files. Federal agencies also lack the resources to send Federal agency personnel out to areas of Native America for the critical purpose of consultation that 

is required under the Act, or to send Federal agency personnel to training sessions 

that are held at considerable distances from their assigned duty stations. 

Many of the recommendations from both Federal agencies and Native groups can 

be achieved by building on-line, secure data systems that are accessible to the relevant users and their needs for information. Recent developments in computer software programs afford different users access to information that is compatible with 

statutory and regulatory requirements, while ensuring the security of proprietary 

and confidential materials. In this manner, Federal funding can be employed to 

maximize cost-effectiveness as well as to achieve both transparency and accountability. 

B. Specific Recommendations 

In a climate in which the funding of Federal programs can be anticipated to fall 

short of what is needed to assure full compliance with statutory and regulatory requirements, creative and cost-effective alternatives must be identified. 

1. Statutory 

Amend the ‘‘Definitions’’ section of NAGPRA to clarify application to human remains so that ‘‘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. 

2. Regulatory 

Establish an Inter-Agency NAGPRA Implementation Council within the Executive 

Branch (possibly the Office of Management and Budget) that would: 

a. Assure Compliance within each Federal Agency 

The Council should be vested with the authority to assure that each Federal agency with land management responsibilities or otherwise subject to the provisions of 

the Act is complying with the Act. The Council should identify instances in which 

creative approaches to compliance have proven to be effective for purposes of advising Federal agencies of useful models for compliance. 

b. Coordinate Compliance across all Federal Agencies 

The Council should also oversee coordination of Federal agency activity to assure 

compliance with the Act’s requirements across Federal agencies. The Council should 

maintain a database of compliance with NAGPRA across all Federal agencies including information on the compliance record of each Federal agency. 

c. Refer Non-Compliance and Remedies for Non-Compliance 

The Council should establish a mechanism for the referral of complaints concerning a Federal agency’s lack of compliance to the Inspector General of each Federal agency, and the Council should direct the National NAGPRA Program Office 

to publish relevant information on the referral process as well as information identifying the designated agent within each Federal agency with whom complaints 

should be filed in the Federal Register. The Council should also establish remedies 

for non-compliance with the statutory and regulatory requirements and the Council 

should direct the National NAGPRA Program Office to publish the remedies in the 

Federal Register. 

d. Train 

The Council, in coordination with the National NAGPRA Program within the National Park Service, should assure that all Federal agency personnel charged with 

responsibilities under the Act have the necessary training to effectively carry out 

their responsibilities under the Act. 

e. Dispute Resolution Role 

The Council should serve as a forum for the resolution of disputes amongst Federal agencies. 

27 

f. Uniform Consultation Guidelines 

Following direct, meaningful and pre-decisional consultation with Indian tribes, 

Alaska Native villages and Native Hawaiian organizations, the Council should develop a set of uniform NAGPRA consultation guidelines for all Federal agencies. The 

Council should direct the National NAGPRA Program Office to publish the consultation guidelines in the Federal Register. 

8. NAGPRA Regulations 

The Council shall develop and maintain one set of regulatory language for all provisions of the Act. 

3. Oversight and Enforcement of Statutory Requirements 

a. Training 

Establish a program to train Federal agency personnel who are assigned responsibility for NAGPRA implementation by each Federal agency including not only statutory and regulatory requirements but also requirements for pre-decisional consultation associated with cultural affiliation determinations and consultation associated 

with the publication of notices and with repatriation of cultural items as defined by 

the statute. 

i. As part of the training effort, Native people with extensive NAGPRA experience in representing their tribes or Native Hawaiian organizations at 

NAGPRA and other cultural resource consultations, need to become a part of 

the National NAGPRA Program’s training component. All official training 

held thus far (for Native people or for institutions) has been carried out by 

non-Native people, and while this training has provided some benefits, Native 

people report that there is still a significant need for education amongst Federal agency personnel when Native people seek to repatriate remains. High 

turnovers in NAGPRA-responsible staff at both the tribal and Federal levels 

also underscore the need for the permanent creation of a training team comprised of experienced Native NAGPRA representatives. 

ii. In consultation with Indian tribes, Alaska Native villages, and Native Hawaiian organizations, the National NAGPRA Program Office should develop training modules that are accessible through the Internet, or which can be made 

available to Native groups in compact disc or DVD format. 

b. Issue and Publish NAGPRA Contacts and Policies within each Federal Agency 

A policy for the implementation of NAGPRA’s statutory and regulatory requirements, including consultation requirements, should be promulgated by each Federal 

agency, and each Federal agency should submit its policy to the National NAGPRA 

Program Office for publication in the Federal Register. 

Create a database that would list each Federal agency repository, including its 

location and NAGPRA contact. 

c. Demonstrate Consultation with Native Americans 

The process that each agency proposes to follow for pre-decisional consultation associated with the determination of cultural affiliation of human remains and cultural items should be submitted to the National NAGPRA Program Office for publication in the Federal Register. 

d. ‘‘Culturally Unidentifiable Native American Inventories Pilot Database’’ 

i. The ‘‘Culturally Unidentifiable Native American Inventories Pilot Database’’ 

should be revised to enable access to information across all Federal agencies 

so that an inquiry as to whether any agency has human remains or cultural 

items from a particular area can be pursued without having to search the 

records of each Federal agency. 

ii. The National NAGPRA Program Office should require the submittal of information by Federal agencies documenting what pre-decisional consultation was 

undertaken to determine cultural affiliation of human remains and funerary 

objects listed in the database. 

iii. The National NAGPRA Program Office should require the submittal of information by the Federal agencies documenting that human remains or associated funerary objects that the Federal agencies seek to retain for purposes of 

scientific study to ensure that the agency has met the statutory standard of 

proving that there is a ‘‘compelling scientific interest’’ in the retention of the 

remains or funerary objects that are identified in the database. 

iv. The National NAGPRA Program Office should provide more frequent updates 

of the database, as well as other databases recommended in this report. The 

National NAGPRA Program Office should afford tribes and Native Hawaiian 

28 

organizations an opportunity to provide input in developing new questions for 

the database. 

v. The National NAGPRA Program Office should require the provision of uniform 

information to be contained in the database including: (1) a description of any 

study beyond counting, sorting, and original location of the burial of human 

remains or funerary objects, whether used to determine cultural affiliation or 

not, and whether or not the statute’s standard regarding extra-legal study had 

been met and by whom; (2) the full address of the current location of the culturally-unidentifiable human remains and associated funerary objects; (3) the 

title and detailed contact information of the office responsible for writing the 

database records for each Federal agency; and (4) the title and detailed contact 

information for each individual who is ultimately responsible for NAGPRA 

compliance for each Agency. 

4. General NAGPRA Program 

a. Inventory of Repatriation Process Data 

Under current practice, there is no reporting system in place by which Federal 

agencies, museums, Indian tribes or Native Hawaiian organizations can submit information about the actual repatriation of human remains, associated funerary objects, sacred objects, or objects of cultural patrimony. Accordingly, the Congress has 

no means of periodically assessing the effectiveness with which the Act’s goals are 

being implemented. 

i. Establish a process by which Federal agencies, museums, Indian tribes and 

Native Hawaiian organizations can submit electronic data to the National 

NAGPRA Program Office identifying the number of remains or objects that 

have been the subject of a completed repatriation. 

ii. Develop an inventory of all repatriations that have been completed under the 

authority of the Act, and establish a database to house repatriation information. The National NAGPRA Program Office should require signed statements 

from each Federal agency and institution that document the repatriation of 

human remains and cultural items. The inventory should also contain a 

record of the tribes or Native Hawaiian organizations that have received repatriated remains or cultural items under the authority of NAGPRA. Such a 

database should provide protection of proprietary information but should also 

enable access to the number of repatriations in each category (human remains, associated funerary objects, sacred objects, objects of cultural patrimony, unassociated funerary objects). 

5. NAGPR Review Committee 

a. The National NAGPRA Program Office, in consultation with the NAGPR Review Committee, should develop a database of all cases that have come before 

the Review Committee. Information in the database should identify which 

cases have been resolved, the manner in which they were resolved, and any 

outstanding cases that have yet to be resolved. 

b. The National NAGPRA Program Office should maintain an updated list of any 

upcoming publications of Notices of Inventory Completion on its website, along 

with a list of Notices that are awaiting publication. 

The National NAGPRA Program Office should maintain a database that contains 

information on the location of, as well as possession and control of, all Native American human remains, funerary objects, and other cultural items. 

6. Memoranda of Agreement or Programmatic Agreements 

The National NAGPRA Program Office, in consultation with Indian tribes, Alaska 

Native entities, Native Hawaiian organization, and Federal agencies, should develop 

a standard memorandum of agreement or a programmatic agreement that would 

provide for Native groups to assume stewardship of a site or human remains in the 

event of an inadvertent discovery of a Native burial on Federal lands. One example 

of a programmatic agreement is the 2004 Programmatic Agreement reached between 18 Missouri River Tribes, the Corps of Engineers, the National Trust for Historic Preservation, the Advisory Council on Historic Preservation, and the State Historic Preservation Officers for Montana, North Dakota and South Dakota and Nebraska. 

7. Adequate Funding for the Implementation of NAGPRA 

a. The Congress should appropriate adequate funding to assure the effective implementation of the Act at the tribal level. Many Native groups do not have 

the resources to secure training in repatriation under the Act, or the resources 

to carry out repatriation activities. In addition, many of the NAGPRA repVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
29 

resentatives at the tribal level are elderly, and the training of members of the 

younger generations is vital if the Act is to be effective implemented in the future. 

b. The Congress should also appropriate adequate funding to assure the effective 

implementation of the Act at the Federal level, including funding for the activities of the Inter-Agency Council and the additional responsibilities of the National NAGPRA Program Office recommended in this report. 

8. Compliance Audits 

a. The Congress should request that the Government Accountability Office (GAO) 

conduct an audit of Federal agency compliance with the statutory and regulatory requirements of NAGPRA for all relevant Federal agencies. Such an 

audit could include: 

i. The mechanisms each Federal agency employs for assuring that all 

human remains and cultural items in the possession or control of the 

agency have been reported to the National NPS NAGPRA Program Office, and the effectiveness of such mechanisms; 

ii. The means by which the National NPS NAGPRA Program Office determines that each Federal agency has fully complied with the mandates 

of the NAGPRA statute and regulations; 

iii. The identification of the Federal agency or program office within a Federal agency that is best equipped to provide information to the Congress on a regular basis of how many human remains and cultural 

items have been repatriated under the authority of the NAGPRA statute and regulations, as well as an assessment of the overall effectiveness with which the provisions of the Act have been implemented, as 

well as what barriers exist to the effective implementation of the Act; 

iv. The identification of an entity within the Executive branch that has 

the authority or can be vested with the authority to oversee and assure 

the compliance of each Federal agency with the NAGPRA statute and 

regulations; 

v. The identification of secure data system alternatives that would enhance public access to the data collected and maintained by the National NPS NAGPRA Program Office while still assuring the security 

and confidentiality of such data, including the identification of data system capacities to provide differing levels of access to confidential information; 

vi. The identification of the most cost-efficient manner of providing training to Federal agency employees charged with assuring compliance 

with the NAGPRA statute and regulations; 

vii. The identification of the most cost-efficient manner of providing training for Indian tribes, Alaska Native entities, and Native Hawaiian organizations on the NAGPRA statute and regulations; and 

viii. The identification of a reporting system that would enable the oversight entity within the Executive branch referenced in subparagraph 

iv of this paragraph to refer potential enforcement actions for failure 

to comply with the NAGPRA statute to the relevant law enforcement 

agency or agencies. 

b. The Inspector General of each Federal agency should investigate any non-compliance with the Act that is identified by the Government Accountability Office 

audit. 

C. Future Areas of Research (not listed in priority order) 

1. Evaluate museum compliance with NAGPRA, with the same goals as to how 

this research project was conducted. 

2. Evaluate the role of the Smithsonian Institution, including the intersections of 

National Park Service NAGPRA and the law governing the Smithsonian’s repatriation activities, and Federal agency collections that are now housed permanently or temporarily at the Smithsonian. 

3. Evaluate the NPS National NAGPRA Program for efficiency, staffing levels, 

and areas to improve 

4. Examine how unassociated funerary objects have been dealt with in the repatriation process. Research work on this project focused on cultural affiliation 

and associated funerary objects, and a thorough study of how objects became 

‘‘unassociated’’ or if there is means to hasten research time to associating these 

objects would be of benefit to the local Native community. 

5. Examine how the Future Applicability (§ 10.13) provisions are being implemented. 

30 

6. Examine the background process that led a Federal agency to determine 

whether human remains and associated funerary objects was to be entered into 

the ‘‘Culturally Unidentifiable Native American Inventories Pilot Database,’’ 

including the process used in working with and notifying tribes of the human 

remains and associated funerary objects. 

The CHAIRMAN. Thank you. 

Chairwoman Bruning? 

STATEMENT OF SUSAN B. BRUNING, CHAIRWOMAN, 

REPATRIATION COMMITTEE OF THE SOCIETY FOR 

AMERICAN ARCHAEOLOGY, SOUTHLAKE, TEXAS 

Ms. BRUNING. Good morning. Thank you, Mr. Chairman. My 

name is Susan Bruning. I am Chair of the Repatriation Committee 

for the Society for American Archaeology, and thank you as well 

to the Ranking Member Hastings and to the rest of the Committee 

for welcoming us here today. NAGPRA has accomplished a great 

deal over the past 19 years. Extensive repatriation of human remains and other cultural items from both museum collections and 

from recent excavations has occurred, and it continues to occur 

through much effort and collaborative work among tribes, museums and Federal agencies. 

NAGPRA has also led to innovative solutions for other disposition needs, and it has facilitated the forging of important and longlasting relationships among the parties involved. The Society believes that these successes are due to the fact that NAGPRA and 

the processes it creates are founded upon a carefully crafted balance among Native Americans, museums and scientists who are involved, and that the parties achieving these successes share mutual respect for the varied interests at stake and for the law that 

underpins these activities. 

The crux of NAGPRA is to enable Native American tribes to locate and determine appropriate resolutions for the future care and 

repose of ancestral human remains and important cultural items 

that have been removed from their places of origin. NAGPRA also 

facilitates opportunities to learn about the past, as tribal experts 

and scholars work together to investigate and understand relationships of shared group identity between the past and the present. 

The way in which Congress chose to operationalize this search 

for a reasonably close cultural relationship is through the concept 

of cultural affiliation. Cultural affiliation is the foundation upon 

which this balance of interests rests. It provides a mechanism that 

enables the descendant communities to obtain control over the disposition of their ancestral remains and important cultural items, 

where a reasonably traceable relationship to an earlier group can 

be established. 

Where such a relationship has not yet been established, the law 

enables the search for cultural affiliation to continue and it protects those items and information for the benefit of future generations. The Society has worked diligently to support a balanced and 

fair implementation of the Act with the explicit language and consistent with the legislative history, as well, of the law. In recent 

years, however, the Society has had and has expressed growing 

concern about imbalance in certain areas of the law’s implementation. 

31 

For instance, in the proposed rule drafted by the national 

NAGPRA office relating to disposition options for culturally unidentifiable human remains, the proposed regulation suggests that 

quick and complete removal of human remains from curatorial institutions is more important than allowing time for the parties to 

continue working together to seek knowledge and understandings 

about relationships of shared group identity. 

The Society supports processes that allow parties time and flexibility to work together without the pressure of arbitrary deadlines 

as they develop knowledge about cultural connections and develop 

options for caring for human remains and cultural objects that 

have been removed from their places of origin. Issues such as the 

need to check for toxic contaminants that are present in some 

curated items highlights the need for tribes, museums and scientists to work together thoroughly and thoughtfully. 

The best solutions are customized. They take time, they take resources, they take effort, and they take trust, and trust comes 

through relationship-building and ground-up collaboration among 

parties who work together to seek appropriate and well-informed 

solutions. The many productive relationships that have been established over nearly 20 years of joint effort among those with a diversity of interests is best served by ensuring that those implementing 

the law and any forthcoming changes to the law support the balance of interests that is built into NAGPRA. 

Those seeking to carry out the purposes and the spirit of 

NAGPRA need to work together with transparency of purpose and 

without arbitrary deadlines in order to achieve sound and respectful solutions. On behalf of the Society for American Archaeology, 

thank you for the opportunity to appear here today. I would be 

happy to answer any questions. 

[The prepared statement of Ms. Bruning follows:] 

Statement of Susan B. Bruning, Chair, Committee on Repatriation, 

Society for American Archaeology 

Mr. Chairman, the Society for American Archaeology thanks you, Ranking Member Hastings, and the Committee on Natural Resources for the opportunity to testify 

on the Native American Graves Protection and Repatriation Act (NAGPRA). 

The Society for American Archaeology is the leading organization of professional 

archaeologists in the United States. Since its founding in 1935, the Society has been 

dedicated to the research, interpretation, and protection of the archaeological heritage of the Americas. With more than 7,000 members, the Society represents professional archaeologists in colleges and universities, museums, government agencies, 

and the private sector. The Society has members in all 50 states, as well as many 

other nations around the world. 

The Society’s involvement with NAGPRA precedes the law’s enactment. It consulted extensively with and testified before Senate and House Committees to build 

a coalition of scientific and museum organizations and Native American groups that 

strongly supported NAGPRA’s enactment. Over the years, the Society has closely 

monitored the law’s implementation and provided input to the Department of the 

Interior, the NAGPRA Review Committee, and Congressional oversight panels. The 

Society is committed to supporting effective and timely implementation of NAGPRA. 

NAGPRA has accomplished a great deal over the past nineteen years. Extensive 

repatriation of human remains and other cultural items under NAGPRA, from both 

museum collections and recent excavations, has occurred and continues to occur 

through mutual agreements among tribes, museums, and Federal agencies. 

NAGPRA has resulted in many successful repatriations, has led to innovative solutions for other disposition needs, and has facilitated the forging of important and 

lasting relationships among tribal, museum, and scientific stakeholders. 

32 

The Society believes that these successes are due to the fact that NAGPRA and 

the processes it created are founded upon a carefully crafted balance among Native 

Americans, museums, and scientists. The compromises reflected in NAGPRA’s provisions were reached through extensive discussion among parties on all sides of the 

issue. Senator McCain’s remarks on the day of the Senate’s passage of NAGPRA 

make this clear: 

The passage of this legislation marks the end of a long process for many 

Indian tribes and museums. The subject of repatriation is charged with 

high emotions in both the Native American community and the museum 

community. I believe this bill represents a true compromise.... In the end, 

each party had to give a little in order to strike a true balance and to resolve these very difficult and emotional issues. (Congressional Record, October 26, 1990, 17173). 

Administration of the processes established by the statute is carried out by the 

National Park Service’s (NPS) National NAGPRA Program, with guidance and recommendations from the NAGPRA Review Committee. Over the years, the Society 

has worked with NPS on NAGPRA issues by submitting comments on proposed 

rules, frequently appearing before the Review Committee, nominating persons to 

serve as scientific members of the Review Committee, and consulting with National 

NAGPRA staff. 

The Society has worked diligently to support a balanced and fair implementation 

of the Act, consistent with the explicit language and the legislative history of the 

Act. In recent years, however, the Society has had, and has expressed, growing concerns about imbalance in certain areas of the law’s implementation. The Society believes that it is critical that the actions and policies of the National NAGPRA office 

and the NAGPRA Review Committee reflect an increased effort to acknowledge and 

accommodate the diversity of interests at stake, particularly in light of the forthcoming actions by the Department of the Interior in addressing the issues of unclaimed cultural items and culturally unidentifiable human remains. 

In 2007, during consultations with National NAGPRA and other parties regarding 

proposed regulations on unclaimed cultural items, the Society highlighted four key 

points: 

1. Balance: NAGPRA presents a carefully constructed balance among the legitimate interests of diverse parties, including lineal descendants, Indian tribes 

and Native Hawaiian organizations, scientific and museum communities, and 

the public at large. 

2. Human remains: Human remains should be treated with dignity and respect 

at all times. 

3. Documentation: Cultural items should be documented in accordance with professional standards in order to contribute to the process of accurately identifying parties entitled to exercise rights under NAGPRA and as a responsibility 

to all Americans’ interest in our nation’s past. 

4. Consistency with Law and Policy: NAGPRA regulations must be consistent 

with the statute and with other applicable law. 

In the statute, the NAGPRA Review Committee was charged with ‘‘recommending 

specific actions for developing a process for disposition’’ of culturally unidentifiable 

human remains (25 U.S.C. 3006 (c)(5)). In its 1999 Draft Principles of Agreement 

Regarding the Disposition of Culturally Unidentifiable Human Remains, the 

NAGPRA Review Committee acknowledged that ‘‘a fundamental tension exists within the statute between the legitimate and long denied need to return control over 

ancestral remains and funerary objects to Native people, and the legitimate public 

interest in the educational, historical and scientific information conveyed by those 

remains and objects.’’ (64 Fed. Reg. 145 (July 29, 1999)). 

In its 2008 comments on the proposed regulations regarding the disposition of culturally unidentifiable human remains (79 Fed. Reg. 58582 (October 16, 2007)), the 

Society highlighted four key points: 

1. NAGPRA strikes a carefully crafted balance between the legitimate interests 

of tribes to care for their ancestors and the legitimate interests of scientific and 

scholarly efforts to contribute to knowledge about the human past. 

2. Cultural affiliation is the foundation upon which this balance of interests rests. 

It provides a mechanism that enables descendant communities to obtain control over the disposition of their ancestral remains and important cultural 

items where a reasonably traceable relationship to an earlier group may be established, it respects the interests of the larger public to learn about humanity’s shared past, and where such relationship has not yet been demonstrated 

it preserves certain cultural items and information for the benefit of future 

generations. 

33 

3. The Society led the scientific community in developing the compromise that 

NAGPRA embodies and it has consistently supported the law’s implementation 

in a manner consistent therewith. 

4. NAGPRA has led to productive new relationships among tribes, museums, and 

archaeologists through much effort and relationship-building over the last 19 

years. 

The leading stewards of the NAGPRA process on the national level are the 

NAGPRA Review Committee and the National NAGPRA office. The Society supports 

their roles in carrying out the responsibilities enumerated in the Act (25 U.S.C. 

3006 (c)). The law requires the Secretary of the Interior to appoint members to the 

Review Committee in a manner that supports the balance of interests at stake. The 

statute established its Review Committee in recognition that these were difficult 

issues requiring diverse perspectives. The National NAGPRA office, as the entity 

implementing the day-to-day activities of NAGPRA, has a responsibility of neutrality toward the diverse perspectives on NAGPRA, including those in the museum, 

educational, and scientific communities, as it carries out its duties. 

Despite the safeguards built into the law, the Society believes there has been a 

serious erosion of the critical balance of interests represented in the law. For instance, in the proposed rule drafted by the National NAGPRA Office, the pivotal 

role of ‘‘cultural affiliation’’ as a cornerstone of the law is effectively discarded. The 

law requires ‘‘cultural affiliation’’ to be demonstrated by evidence before arriving at 

determinations about appropriate allocation of decision-making authority. All such 

evidence, whether provided by tribes, archaeologists, or other researchers, must be 

considered as parties work toward determinations of cultural affiliation. This process takes effort, it takes resources, and it takes time. These proposed regulations 

suggest that the quick and complete removal of human remains from curatorial institutions—a mandate that is neither explicit nor implicit in the Act—is more important than allowing time for parties to work together to seek knowledge and understandings about relationships of ‘‘shared group identity’’—the cornerstone of ‘‘cultural affiliation’’—and to develop options for caring for remains and cultural objects. 

The Society encourages those overseeing the National NAGPRA office to use diligence in ensuring that all activities, including those relating to funding, enforcement, dispute resolution, and ‘‘cultural affiliation,’’ are conducted with utmost transparency and in a manner consistent with the statute and respectful of the balance 

embodied in the law and the diversity of stakeholder interests. Those vested with 

responsibility for implementing NAGPRA should seek to do so in a manner that is 

respectful of the diversity and importance of tribal concerns not only for appropriate 

treatment of their ancestral human remains and cultural items but also for the appropriate treatment of culturally unidentifiable human remains. This is of paramount importance. It is also critical that those same stewards of the NAGPRA process seek to carry out their responsibilities in a manner that is respectful of scholarly 

research and appropriate scientific inquiry as tools that assist in determining ‘‘cultural affiliation’’ and in understanding aspects of the broader human past. A great 

many tribes, museums, agencies, and archaeologists have developed successful 

working relationships grounded in mutual respect and collaborative research, in 

their efforts to determine ‘‘cultural affiliation’’ and to craft solutions to NAGPRA 

issues and to larger issues relating to the management of cultural heritage. 

As the leading professional society of archaeologists in the United States, the Society for American Archaeology will continue to support these goals. The many productive relationships that have been established over nearly twenty years of joint 

effort among those with a diversity of interests would be best served by ensuring 

that any forthcoming changes to the law support the balance of interests built into 

the law and the ability of all parties to work together toward sound and respectful 

solutions. 

On behalf of the Society for American Archaeology, thank you for the opportunity 

to provide the Committee with its perspectives. 

The CHAIRMAN. Thank you. 

Mr. Kippen? 

STATEMENT OF COLIN KIPPEN, FORMER NAGPRA REVIEW 

COMMITTEE MEMBER, HONOLULU, HAWAII 

Mr. KIPPEN. Aloha. Aloha, Chairman Rahall, Ranking Member 

Hastings, and other members of the House Resources Committee. 

Aloha also to your staff, to my fellow testifiers and those who are 

34 

listening today to our words. I am Colin Kippen and I am testifying 

before the House Resources Committee as a private citizen. I 

served on the NAGPRA Committee for four years and I recently cycled off that committee. 

I am the first and only Native Hawaiian ever to have served on 

that committee. I come before you today with three very simple 

messages to send. The first is that NAGPRA is an incredibly complex and technical piece of legislation that was constructed around 

a very simple human ideal; to respect the human rights of Native 

people to possess and care for the remains and cultural property 

of their ancestors. It was intended to change the status quo, the 

status quo of where human remains and cultural property belonging to Native people sat on museum shelves, sat in boxes, and basically were not in the possession and care of the people who own 

them. 

This process is extremely complex and technical. It is a process 

that will not move forward unless there is capacity to change the 

status quo. In my comments that I have written, I have pointed out 

to you that I think that the place we need to begin these conversations is to ask what it is that the Native people need to be able 

to make this process work, because if the process doesn’t work for 

them, then the harm continues unabated, and so, what I believe we 

need, which has been already mentioned to you on this Committee, 

is we need resources. 

We need to build the capacity, but as we build that capacity, we 

need to be sure that the capacity that we build is aligned to the 

people that we are trying to serve, and in this case, the people that 

we are trying to serve are the Native people. I have, in my testimony, listed a series of things that are recommendations that I 

think can be done. I would expect that these changes would be 

done in such a way that they would be aligned and of relevance to 

the people that we are trying to assist, that is, Native Americans. 

Capacity also needs to be built for museums and Federal institutions, and there is now ongoing, to my understanding, a government accountability report that will address that. There is a second 

point that I would like to make, and that is this. We have yet to 

define what success looks like under this NAGPRA program, and 

if you have not defined success, then how is it you will know when 

you have arrived there? I believe that what we need is a clear metric of what success means, so that all will be able to judge their 

performance against it. 

Once you have a clear metric, what then happens is that the 

agencies responsible for implementing NAGPRA will have a benchmark against which they will be measured, and when you, at your 

discretion, have oversight hearings, you will have a way to measure 

whether they are making progress. Presently, there is no metric. 

Presently, the system is one that is not working well. Finally, the 

third point I would like to make is an issue about the Review Committee. 

The Review Committee has a number of responsibilities that 

range from fact-finding to what I consider policy recommendation 

making. That is a huge set of functions, and to my way of thinking, 

the NAGPRA Review Committee simply does not have the time or 

the resources to do the work to which it has been assigned. For exVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6602 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
35 

ample, at most of our meetings, when we show up for the meetings, 

we have binders that are this thick, double-sided, and we have two 

days to go through our agenda, and what this information primarily relates to are disputes or for requests regarding culturally 

unidentified human remains and cultural items. 

This is fact-finding, this is very detailed, and it is very technical 

in nature. Because all of our time is consumed with doing that, we 

don’t have time to do the other work, which is to see whether or 

not the system is working and how to assist the staff and how to 

set the kinds of priorities and plans that will allow us to manage 

this program in a better way. I thank you for the time, I thank you 

for the opportunity, and I thank you for listening. 

[The prepared statement of Mr. Kippen follows:] 

Statement of Colin Kippen, Former NAGPRA Review Committee Member, 

Honolulu, Hawaii 

Aloha Chairman Rahall and members of the House Resources Committee. 

I am Colin Kippen and am testifying before the House Resources Committee as 

a private citizen. 

I am a former member of the NAGPRA Review Committee, having recently completed a four-year term on that Committee as its 7th member—having been nominated for appointment by the unanimous recommendation of the scientific, museum, 

and Native religious members of the Review Committee and appointed by the Secretary of the Interior. I am the first Native Hawaiian to ever have been appointed 

to serve on this Committee. I was honored to serve at the last meeting as the Chair 

of the Committee after being unanimously selected by the members then present before my term expired. I am presently employed as the Executive Director of the Native Hawaiian Education Council in Hawaii, am a lawyer, former prosecutor, former 

tribal judge, and former Senior Counsel to the Senate Committee on Indian Affairs. 

The testimony and reflections I offer the Committee are my own, and I have come 

here today from Hawaii on my own accord and at my own expense to help in the 

important work you do. 

The Native American Graves Protection and Repatriation Act is a statute intended to remedy a history of the desecration, taking, theft, wrongful possession, 

and trafficking in the human remains and cultural items of Natives as defined in 

the statute. It constitutes human rights and Indian legislation that was long overdue when Congress passed it in 1990, and when the President signed it on November 16th of that year. The pain, trauma, and anguish caused to present-day Native 

people by the actions which this statute was created to address can never be forgotten. It is the polestar that guides the process by which we must navigate our way 

through this statute and by which we must give meaning to the words and phrases 

chosen by the Congress. 

My comments today are focused on some of the institutional and systemic issues 

I have observed while on the Review Committee. My view is definitely affected by 

my status as the 7th member of the Committee appointed as the consensus member. 

It is also affected by the fact that I am Native Hawaiian and that I have worked 

and lived in both Indian and Native Hawaiian communities. It is my hope that I 

will be able to paint a clear picture of what I have seen and what we can improve 

upon so that this law will be better implemented. 

Do Native people have the capacity and knowledge to effectively participate in the NAGPRA process? 

NAGPRA is an incredibly complex and technical piece of legislation that is constructed around a simple human ideal—respecting the human rights of Native people to possess and care for the remains and cultural property of their ancestors. The 

NAGPRA process—the laws, regulations, internal processes, and data systems—are 

full of minutiae and difficult to understand. After working with NAGPRA for years, 

I still struggle to find my way through the statute and regulations. 

The NAGPRA process assumes Native people understand the law and regulations, 

know how to access, read, and search the on line NAGPRA data bases, know how 

to read and respond to the notices in the Federal register, know the consultation 

requirements and how to assure that proper consultation happens, and have the resources to travel around the country and call for the return of their ancestors or 

cultural items from museums and Federal agencies. 

36 

This is a false assumption, in part because the NAGPRA process we have created 

is antithetical and disrespectful to traditional native beliefs—and because we have 

not sufficiently given Natives access to the training and resources they need to effectively advocate for themselves, their ancestors, and their cultural items. We must 

invest heavily in training and building the capacity of Native people if we want to 

see the system work better. And, the training we provide must be in a cultural context they understand and delivered by trainers and teachers who are able to bridge 

the cultural divide between an extremely legalistic, hyper-technical, and foreign administrative process and their traditional cultures and beliefs. 

I have seen time and again the trauma and pain displayed in the faces of those 

Native people who come forward to address the Review Committee about the return 

of their ancestors, and how the systems we have designed, the words we use, and 

the way we do things are hurtful to them. We can do a better job of reducing barriers to Native’s participation in this process, in building bridges with them, and 

in translating and interpreting these rules so they are understood. We can do better, 

and we must. 

What does success for NAGPRA look like, and why should we care? 

A good deal of the work we did in the four years I was on the Review Committee 

had to do with resolving disputes and making factual determinations about culturally unidentified human remains or cultural items. The individual case material 

we were provided was voluminous, technical, and detailed. While this is important 

work, our focus on the details prevented us from seeing a bigger picture, so that 

we never got to the really important work of understanding how to assess our 

progress to date, how to build a metric to track our results, and how to create systems of measurement to increase the traction of this law. 

Over 124,000 human remains and over 915,000 cultural items are now classified 

as culturally unidentified. They represent 721 museums and Federal agencies. Is 

this what we would have predicted would have been our story of success 19 years 

after this law was passed? 

NAGPRA was created to remedy the harm, degradation and disrespect to Native 

people as regards their human remains and cultural items and so we must ask Native people to tell us what their measure of success is under this law. We must ask 

them to help us create the metrics to track and measure our collective actions. We 

must ask them how these systems can be improved. And we must recast the Federal 

agency responsible for administering this Act to create systems, measures, and reports that are simple, clear, and understandable and that are tied to frequent and 

regular Congressional oversight. We must also engage other NAGPRA stakeholders 

in this metric setting process as well, so all are clear on what success under 

NAGPRA means. If what gets measured is what gets done, then we need to get busy 

creating the right measures to get us to our goal. 

This has not happened to date for a number of reasons. The Review Committee 

is ill equipped to do this work given existing demands on their limited committee 

time and their expertise as subject matter experts rather than people experienced 

in creating and managing institutional change in a decentralized NAGPRA process 

potentially touching all museums, all Federal agencies, and all Native people. The 

Congress is a busy policy body that operates on a political triage system without 

a metric to gauge the success of this program on an ongoing and routine basis. The 

National NAGPRA program is consumed with implementing the present system 

which has evolved over time—and lacks the resources, authority, or clear policy 

focus to make the changes suggested. 

I have hope though, that we can make the changes needed. I ask this Committee 

to send a clear message to the Administration that you expect a metric be created 

and used in a way that directly aligns with the reasons for which NAGPRA was 

created and which includes the views of the Native people for whom this statute 

was created. I also ask that this information immediately be collected and digested, 

so that improvements to the program may be made. I finally ask that this metric 

be used by the Congress to gauge how we are doing and whether or not we are getting closer to meeting the intent of this Act. 

Does the Review Committee have the authority to accomplish its policy 

and fact finding responsibilities? 

The NAGPRA Review committee was created to accomplish a number of functions 

that run the gamut from case-specific factual determinations to policy evaluations 

to consulting with the Secretary to create administrative regulations. The NAGPRA 

staff set the agenda and determine what issues will receive priority and occupy the 

Review Committee’s attention. It has been my experience that the NAGPRA Staff 

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37 

tion, without clear a priori guidance being provided to the Review Committee as to 

the limits and scope of the Review Committee’s discretion. 

This is a waste of effort and is an example of the Committee having responsibilities without the authority to carry them out. An example is recommendations made 

by the Review Committee on January 8, 2008 with respect to 43 CFR 10.11 Disposition of Culturally Unidentified Human Remains and Associated Funerary Objects. 

A year and nine months later, the Review Committee is in the dark as to whether 

their unanimous recommendations will be acted upon. 

Members of the Review Committee have also requested information from NPS 

NAGPRA about issues that arise in the normal course of business without any clear 

guidance as to whether these requests for information will be honored. Almost two 

years ago I requested information about NPS National NAGPRA Program’s plan to 

‘‘withdraw’’ numerous notices of inventory completion that had been submitted for 

publication in the Federal Register by museums and Federal agencies but had been 

languishing unpublished in the NPS NAGPRA office for over a decade. If the national NAGPRA policy is to foster notice and awareness amongst Native people by 

publishing the notices received by the NPS NAGPRA program from museums and 

Federal agencies, then how is that purpose served by giving these museums and 

agencies the ability to now rescind these notices after all these years? 

While the information requested would have helped me to better discharge my Review Committee duties of ‘‘monitoring the inventory and identification process under 

sections 5 and 6 of this Act’’, I am resigned to the fact that I will never know the 

details of NPS NAGPRA’s decision. Had I been able to review and evaluate the information requested, I believe our Review Committee would have been able to discuss the matter and render a policy recommendation that could have clarified the 

administrative process as well as reassuring the public about the fidelity of NPS 

NAGPRA’s compliance with both the letter and the spirit of NAGPRA. 

Recommendations. 

The thrust of my comments have been directed at creating a set of systemic 

changes which I believe would help us to move this program forward in a tangible 

and measurable way. I recommend as follows: 

Training and Capacity Building. 

• Assess the barriers to Native participation in NAGPRA, report upon it, and formulate a plan to address it. 

• Increase the capacity of Natives to participate in NAGPRA by immediately increasing comprehensive NAGPRA training and increased funding opportunities. 

• Assure that all training provided is delivered in a culturally appropriate manner by trainers with a proven track record of being able to effectively teach in 

various Native communities. 

• Assess and evaluate the effectiveness of the training provided, report these results, and use them to reassess and redesign training and funding opportunities 

delivered. 

• Create a similar process to address similar issues for museums and Federal 

agencies and repeat the above process for them as well. 

• Schedule routine and frequent Congressional oversight hearings on this issue 

with the expectation that a set of clear metrics and data collected within those 

metrics will be presented by NPS National NAGPRA to the Congress. Use this 

metric to measure agency performance. 

• Fund these improvements. 

Defining What Success Means Under NAGPRA. 

• Engage Natives in defining a clear and understandable metric of what success 

looks like under NAGPRA. Engage other stakeholders in the process, too. 

• Create a system of indicators and measures aligned with the purposes of 

NAGPRA to be used by NPS National NAGPRA. 

• Use these indicators (and the data collected thereunder) to define existing barriers to success, to measure agency performance, to capture best practices, and 

to make improvements in program administration. 

• Schedule routine and frequent Congressional oversight hearings on this issue 

with the expectation that a set of clear metrics and data collected within those 

metrics will be presented by NPS National NAGPRA to the Congress. Use this 

metric to measure agency performance. 

• Fund these improvements. 

Assess the role of the Review Committee in accomplishing the effective implementation of NAGPRA. 

• Clarify Review Committee authority vis-a-vis NPS National NAGPRA to receive 

data and have their recommendations implemented by NPS National NAGPRA. 

38 

• Assess the Review Committee’s ability to discharge each of its responsibilities 

under NAGPRA in terms of the Review Committee’s access to clear and understandable information, its Committee expertise in addressing each of those 

items, and the resources (time, information, and funding) able to be brought to 

bear for each of these items. 

• Define metrics to measure and track Review Committee performance in accomplishing its goals and objectives. 

• Fund these improvements. 

The CHAIRMAN. Thank all of you for your excellent testimony 

today. Let me begin my first question with Chairwoman Shemayme 

Edwards. What types of expenses are required in order to repatriate human remains and cultural objects? 

Ms. SHEMAYME EDWARDS. I would like to be able to direct that 

to my NAGPRA coordinator. He can better give you information. 

The CHAIRMAN. Sure. Please give us your name and title so we 

will have it for the record, please. 

Mr. GONZALEZ. My name is Bobby Gonzalez. I am the NAGPRA 

Coordinator for the Caddo Nation, Mr. Chairman. The history of 

the funding for the Caddo, there are two types of NAGPRA grants. 

One is considered a consultation/documentation grant and the larger of the rewards. Just a year ago, you know, we were able to receive a $75,000 NAGPRA grant. They are up to 90,000 per year. 

The other is a repatriation grant up to 15,000, and it is specifically 

for going and getting collections from universities, museums or repositories, and it pays the costs for mileage, per diem and hotel, 

etc. 

We have submitted a NAGPRA grant basically every year since 

the funding program and we have been very lucky to receive eight 

out of thirteen NAGPRA grants since the inception of NAGPRA. 

We have received several small repatriation grants to repatriate 

objects from Louisiana State University. However, the funding 

level, it takes around 130,000 a year to operate our office, and to 

answer your question, we have thousands of human remains on the 

shelves from the East Coast to the West Coast, and if you don’t receive a NAGPRA grant, we still have the issues of dealing with repatriation every day, and so there lies a problem there. 

The CHAIRMAN. Do the museums and Federal agencies consult 

with you on how the items are kept until repatriation can occur? 

Mr. GONZALEZ. Yes and no. There are museums, Federal agencies and universities that consult with us under the rules and regulations in the Act, and there are those that do not. A lot of the inventories and summaries, they do not consult on drafting those inventories and those summaries. They do not consult on the drafting 

of the publication of the notices of those inventories and summaries 

that are going to eventually be published in the Federal Register. 

The CHAIRMAN. Do they allow you access to the cultural objects 

for cultural purposes? 

Mr. GONZALEZ. Yes and no. It depends on where you are at and 

who is asking and what state you are in. They do allow access, a 

lot of times they do not. They sometimes don’t allow you access to 

the information that surrounds a collection. We have been told at 

some universities, if you want the information, go to the local library and get it. 

39 

The CHAIRMAN. Let me ask Mr. Titla a question. You indicate 

that the Park Service interpretation of NAGPRA allows museums 

to refuse to admit to any wrongdoing. Will you provide more detail 

on what the Park Service has told the Working Group? Do you 

have that? 

Mr. TITLA. Yeah, I think that what the Park Service wanted to 

do was just to call these items cultural items rather than sacred 

items or cultural patrimony. We believe, the Apache Tribe, that if 

they were to call them cultural patrimony, this would afford the 

items full respect and a full description of the items that they have, 

and I think that with cultural patrimony, according to the Apache 

people, there would be no individual ownership of these items that 

were taken from the Apache people long ago, in the 1800s. 

A lot of them were taken in the late 1800s by the U.S. Cavalry 

or by missionaries or other people, agents of museums that came 

among the Apache people, and the items were taken or bought in 

some places by these people from medicine people or other people 

that conducted sacred ceremonies for the Apache people, and we 

feel that the items were not taken properly, and in order to give 

them their full respect and to help correct wrongdoing, we think 

that they should be identified as cultural patrimony or sacred 

items by the museums. 

The CHAIRMAN. OK. I have a couple more questions for the others on the second round. Let me go to the gentleman from Washington, Mr. Hastings. 

Mr. HASTINGS. Thank you, Mr. Chairman. I have a question for 

Ms. Bruning. You heard Director Wenk say that the regulation is 

forthcoming on cultural affiliation, be any time, and you reference 

that in your testimony. Can you give me your thoughts on what 

you know about those regulations that are forthcoming? 

Ms. BRUNING. I will certainly try. I believe SAA submitted about 

40 pages of comments on the proposed regulation, so we have lots 

of thoughts. I think our overriding concern is with the apparent 

push to, almost a first come first served approach to resolving the 

status of culturally unidentifiable human remains, and to move toward quick removal out of repositories as opposed to careful efforts 

to ensure that all possibility of achieving cultural affiliation has 

been accomplished before a resolution comes to pass on those that 

truly are unidentifiable, as opposed to perhaps presently unidentified, and my understanding personally from some of my work with 

Southwestern tribes as well as certainly members of SAA is that 

there is a lot of ongoing collaboration and effort to continue to look 

into connections of group identity and to understand thoroughly 

how both time and space and other elements, tribal knowledge, scientific knowledge, historical knowledge, can come to play to make 

sure that we honor the current descendants and their opportunity 

to take care of their ancestors, and that time limits are not the reason why they fail to have that opportunity. 

Mr. HASTINGS. Well, we look forward to those regulations and 

look forward to your response when you get a chance to see them. 

Ms. BRUNING. Certainly, we will be happy to give that. Thank 

you. 

Mr. HASTINGS. Thank you, Mr. Chairman. 

The CHAIRMAN. The gentleman from New Mexico, Mr. Heinrich? 

40 

Mr. HEINRICH. Thank you, Chairman. I wanted to ask Mr. 

Kippen real quickly what the standard of proof is for cultural affiliation and who bears that burden? 

Mr. KIPPEN. The burden of proof? 

Mr. HEINRICH. Yes. 

Mr. KIPPEN. What I will tell you is that if I am going to give you 

that answer, I will have to look at my materials and give it to you, 

and I want to make a point here. The point I want to make is that 

this is extremely complicated. I never work in the NAGPRA field 

without consulting the rules, and I do this because my memory, the 

system does not make inherent sense to most people, and so I am 

going to, I think, demonstrate my ignorance before this Committee, 

as an attorney, as a former judge, and as a former staffer of the 

Senate Committee on Indian Affairs, because this is extremely 

complicated. 

I never act—and I will look it up for you and I know I can give 

you the correct answer, but rather than do that in this situation, 

I am not going to, and the complexity of this law is a point that 

I want to emphasize. Because it is so complex, because it is so technical, it renders it almost impossible for the people who we want 

to serve, and the people that we want to serve in this case are the 

people who are harmed by the status quo, their difficulty in understanding this process is one of the huge issues that this Committee 

needs to address, and if I might just go on for a few seconds more— 

and the training that is offered and the way that we offer it, it 

needs to be aligned to the people we are trying to teach. 

I have one example to offer, and it is probably not the best. 

There is an organization now that has recently been hired to do the 

training for the National NAGPRA Program. It is the National 

Preservation Institute. Earlier this year they announced a grant. 

With the Federal money, they were going to train the Natives. 

They issued a notice. The notice went out to Indian tribes and 

Alaska Natives. They excluded Native Hawaiians. 

I called them a month later—well, actually, I called the staffer 

who is in charge of it for our national program. Approximately a 

month later, it was changed. If they don’t know, then what does 

that say about our national training program? It raises questions 

in my mind, and I raise those questions to the Committee and to 

our staffers. Thank you for the question. 

Mr. HEINRICH. Thank you, Mr. Kippen. 

Ms. Kraus, I wanted to ask you how common it is for multiple 

tribes to claim cultural affiliation with particular ancestral remains 

or sacred objects, and how NAGPRA, or how you handle claims 

that have multiple associations of cultural association. 

Ms. KRAUS. Well, let me state that in terms of the inventory 

process that you are talking about, the question you ask is so technical that only an expert NAGPRA person would actually know the 

answer to it, but the bottom line is that the tribes would have been 

consulted in the development of their notice of inventory completion that would have created cultural affiliation. So, it is not uncommon to have many tribes, in fact, our studies show that many 

tribes are willing to work together to repatriate human remains 

whether or not they are affiliated or unidentifiable. 

41 

So, in answer to your question, it is common and you know, there 

are many opportunities to do so. 

Mr. HEINRICH. So in terms of trying to, if there are multiple associations with one object, say, in terms of trying to repatriate that 

to the appropriate place, how do you balance the interests of multiple tribes here or is that just through a consultation process with 

all of those players? 

Ms. KRAUS. Well, many—but again, this is really getting into the 

minutiae, which is one of the challenges for Native people to implement the Act, but in terms of an object, many times an object is 

specific to a family. That is how you are proving cultural affiliation, 

and so there are stories that go along with an object or cultural 

patrimony, so there are very specific ways of determining who and 

what possibly that was affiliated with in the first place. 

Mr. HEINRICH. OK. 

Ms. KRAUS. Do you want me to go on or is that—— 

Mr. HEINRICH. No, that is fine. Thank you. 

Mr. Chairman, I will yield back the balance of my time. 

The CHAIRMAN. The gentleman from California, Mr. Baca, is recognized. 

Mr. BACA. Thank you very much, Mr. Chairman. 

Mr. Kippen, you stated today the Tribe needs resources. Can you 

help us understand and share with us the type of resources that 

are needed specifically? 

Mr. KIPPEN. Yes, I think I can. Again, let us understand the status quo. The status quo is that this is an extremely decentralized 

problem that we are facing here. You have Natives from across the 

country. You have museums and Federal agencies that are in the 

possession and control of human remains and cultural items that 

are also across the country. I may be in Hawaii as a Native, and 

my remains may be in a museum in Florida, in Boston, you know, 

wherever, all across the country. 

So, the problem that you are facing is how to figure out how to 

build a system where it all comes together, and so the question 

really is about capacity. How is it that we create a system that enables museums and Federal agencies to report in such a way, in 

an understandable way, in a clear way, that the message gets out 

to people across the country? Now, that is extremely difficult. I 

think what you really need is you need to improve the database 

that you now have online, and what I mean here, that it needs to 

not only be really high-tech, but it also has to be high-touch, in the 

sense that people understand it, in the sense that it is accessible, 

in the sense that you and your staff could go online right now and 

find out where remains are that you believe are in an institution 

across the country. 

I challenge all of you to go onto that website and to figure out 

whether or not you could find, if you were a detective, whether you 

could find where those remains are, and so that is why I say this 

is a capacity problem. It is a technology problem, it is a training 

problem, and as Ms. Bruning said, it is about building relationships. If I might just one more, one more part of this conversation, 

you need to have a metric to measure whether or not the capacity 

that you are building is actually being built. 

42 

You need to have a metric to understand whether or not those 

relationships are being improved. You need to have a metric to 

measure whether or not that data system is working for the people 

who have to use it. Remember this. If we don’t change the status 

quo, the remains and the sacred items and the cultural items and 

the funerary objects and the items of cultural patrimony stay 

where they are. So, this is a question not only about funding, it is 

a question about coming up with a metric, it is a question about 

management, it is a question about building a better system, and 

it is a question about doing that now. Thank you. 

Mr. BACA. If I may follow up, in reference to a metric that could 

be developed, you know, it is nice that you can develop a metric, 

but if you don’t have bodies or people who sit on the committee, 

and this is a question for all of you, do you think there is adequate 

representation in terms of the committee that reviews in making 

these kind of decisions, from Native Americans? Any one of you? 

Ms. KRAUS. Because it is my nature to always try and help an 

answer, could you restate your question again, because I think— 

are you talking about the Review Committee? 

Mr. BACA. Do you think there is adequate representation, or does 

there need to be additional bodies or people put on a commission 

review to make sure that you have the kind of individuals that represent Native Americans to make sure that when you deal with 

metrics, that somebody is sensitive, that it comes to funding or it 

comes to burial lands, it comes to anything else, is that you have 

a voice at the table? Do you have adequate voices at those tables 

right now? 

Ms. KRAUS. I will try and explain that I believe people are talking about the National NAGPRA Review Committee, and that is 

set by law, the membership, seven members. The staff of the Department of the Interior, which has been delegated to the National 

Park Service, do most of the work, and to answer part of the question is I believe that without any Native Americans working in the 

office, there are currently none, that is an inherent weakness in 

the program. As to the Review Committee—— 

Mr. BACA. Could you repeat that again? There are how many? 

Ms. KRAUS. Zero. 

Mr. BACA. How many? Zero. 

Ms. KRAUS. In the history of the Act, in the history of the implementation at the National Park Service, I believe there has only 

been one Native American who has worked there. They have a Canadian Indian right now, fabulous person, but it is Indian law. It 

was created for the benefit of Indian tribes and Native Hawaiian 

organizations. 

Mr. BACA. Thank you. Anybody else want to attempt to answer 

that, or not? Or repeat the same thing, that you need representation? 

Mr. TITLA. Yes, Steve Titla from the San Carlos Apache for the 

Apache Working Group. We have been to four Review Committee 

hearings with the Review Committee, and I think that the Review 

Committee has done a good job, because they decided for us, because we were in the right. At any rate, I think that, as Mr. Colin 

Kippen indicated, he was a former committee member, and he said 

that two days before the hearing he would get a big binder of mateVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
43 

rials to go through and didn’t get adequate time to really review 

the material and find out the issues involved, and I think that that 

talks about too few committee members. 

What I would recommend is that there be more, perhaps double 

the committee members, and maybe have the committee members 

take care of regional issues. For example, we have Apache issues 

in Arizona and New Mexico, and perhaps you can have a regional 

committee member that will address that are only, and then have 

other committee members that will address Hawaii, the southeast 

United States, northeast United States, northwest United States, 

because there are so many tribes, and Hawaii included, that all the 

issues are different among the tribes, so that if you can have experts from regional areas that will address those respective tribes, 

then I think that you can get more work done and these people on 

the committee can understand the specific issues that would be involved with them. Thank you. 

Mr. BACA. Thank you very much. That is something for us to 

consider as far as regional areas for representation, to make sure 

that we have sensitive voices that will deal with the different perspectives. Let me ask this question of Chairwoman Brenda 

Shemayme Edwards. You mentioned the lack of funding and access 

to grants. Based on your experience, what type of training or outreach must be implemented to help tribes like the Caddo Nation 

of Oklahoma go through the NAGPRA process? 

Ms. SHEMAYME EDWARDS. Thank you for your question, and 

again, I would like to direct it to my NAGPRA coordinator, who 

works with these every day, but if I might take a minute of your 

time while Bobby is getting up here, I would like to offer to the 

NAGPRA Review Committee to come out to our tribe in Caddo Nation of Oklahoma, to come out, and they can accompany us on a 

repatriation so they can see hands-on the extent of what Bobby and 

my other two employees go through on a daily basis, so that maybe 

they could better understand our process, because each tribe, repatriation varies, and you know, there are 37 tribes in Oklahoma 

alone, and each tribe has their own process, and I think it would 

be beneficial to the Review Committee to come out and actually 

have hands-on experience with a repatriation. 

Mr. BACA. Thank you, Chairwoman. 

Bobby? 

Mr. GONZALEZ. Sir, could you repeat the question? 

Mr. BACA. Sure. Based on experience, what type of training or 

outreach must be implemented to help tribes like the Caddo Nation 

of Oklahoma go through the NAGPRA process? 

Mr. GONZALEZ. Sir, to be honest with you, to answer your question, I don’t think you could have anyone show us the process because it is real tedious work. We have been at it for a long time. 

We actually know how to look at these inventories and summaries. 

To answer your question, a lot of the tribes, like the 37 tribes in 

Oklahoma that are Federally recognized, most of them don’t receive 

Federal funds when it comes to NAGPRA grants, have ever repatriated remains, or even have an office. 

They are still in the dark a lot on how this NAGPRA process 

works. As far as the inventories and the summaries and the consultation, you really need to sit down with tribes and go over what 

44 

to look for in an inventory, what to look for in a summary, and how 

to tear that apart and actually look at the information that that 

institution or that university or that scientist is looking at that determines cultural affiliation, or how they came up with the definitions that fit the rules and the regulations. 

So, it is real tedious. I am going to give you one example. We 

have a collection right now that we are documenting. The human 

remains are split up in institutions across the United States. Louisiana State University has human remains. Louisiana State Exhibit Museum has the associated funerary objects that were once 

with those individuals at a known site on the Red River. However, 

the Smithsonian has skulls related to that same site, and also 

Northwestern State University in Natchitoches, Louisiana, has a 

baby burial and an eagle that is associated with that site. 

So, we have the burden to put this back together so we as a tribe 

can re-bury our ancestors closest to where they come from, and 

that is a whole other issue. So, to answer your question, when you 

find the answer, I would like to know the answer to that. Training 

needs to happen in Indian country. Where we are at in Oklahoma, 

we hardly see the training, and a lot of the repatriation Review 

Committee meetings happen in Hawaii or Florida or some other location, and some tribes like us don’t have the resources to travel 

and to get to listen to what is going on in the NAGPRA world. So, 

I hope that helps a little. 

Mr. BACA. Well, I think you have answered it by saying that 

there is lack of training, there isn’t the training that needs to be 

done, so that is an awareness on our part in terms of what needs 

to be done, and we can convey that, because you can’t do anything 

on the process unless you have the training in order to implement 

that process, and you need the funding and you need the sensitivity too, as well, in terms of making sure that we have bodies or 

people there as we look at funding because we know that out of 

sight, out of mind, when it comes to Native Americans, on all 

issues. 

Unless someone is, as I stated before, at the table and can address the issues that have been there from the past to current—— 

Mr. GONZALEZ. Sir, if I may? 

Mr. BACA. Yes. 

Mr. GONZALEZ. There are Natives across the U.S. and Native Hawaiians that are experts in this law, that can help provide the 

training and provide an avenue to help other tribes and institutions and museums and universities and Federal agencies on a better outcome and partnership and trust and relationship in getting 

this worked out. 

Mr. BACA. Thank you. I yield back the balance of my time, since 

I have no time. 

Mr. GONZALEZ. Thank you. 

The CHAIRMAN. Let me ask Ms. Kraus a question. The Makah 

Tribe study recommended that the National Park Service program 

develop a consultation policy. Why is this necessary? 

Ms. KRAUS. Well, thank you very much. Consultation is a bedrock of the Native American Graves Protection and Repatriation 

Act, and in our 11-plus years of work with how to implement tribal 

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cies have a policy on the fact that they must do tribal consultation, 

but they don’t have a protocol, a step-by-step process to follow in 

what it means to actually conduct tribal consultation. 

So, in other words, I know that I have to consult with the National Park Service, but there is no policy that says, this is the 

process, a letter comes from this official at this rank, to the tribe, 

and these people of the tribe, and then we sit down and participate 

in discussions. There is no such step-by-step protocol. Without that, 

it is my belief that you really don’t have tribal consultation. If you 

don’t have an up-front process that you understand, both parties, 

both sides have agreed to, that this is how we are going to negotiate and talk with each other, and if one side holds all the cards 

and doesn’t always say, this is how it is going to be done, this is 

when it is finished, this is the ultimate result that we are shooting 

for, I don’t believe it is an open and transparent process. 

The CHAIRMAN. Thank you. What is your understanding of the 

current process for publishing a notice of inventory completion? 

Ms. KRAUS. Well, the law stated that by 1995, Federal agencies 

and museums had to consult with Indian tribes and Native Hawaiian organizations to do this first broad wave of cultural affiliation 

discussions. That is tribal consultation in action right there. And 

by May 16, 1996, they were to notify in writing all Indian tribes 

and Native Hawaiian organizations that they had determined these 

cultural affiliations. 

A copy of that notice went to the National Park Service. The National Park Service is designated by law to publish the notice in 

the Federal Register, and I think just to point out, then this is 

where there is perhaps a weakness in the process, as there is no 

deadline for how long the Park Service can have one of these notices of inventory completion announcing cultural affiliation. There 

is no deadline on how long they have to publish it in the Federal 

Register. 

In our earlier comments and discussion points, you have heard 

mention of a backlog or, you know, there are 300 notices waiting, 

225, 79 notices. Those were all supposed to be submitted by May 

15, 1996, to the National Park Service. In the Makah report, we 

included a letter of one of these notices and it states that the National Park Service, the Grand Canyon National Park had affiliated human remains to about 10 tribes in the Southwest. 

They submitted that by law and they complied with the requirement to report it and they sent a copy to the National Park Service. The National Park Service had that pending notice of inventory 

completion for over 12 years when they decided to withdraw it in 

the year 2007, and I believe that 12 years is too long to have something waiting to be published in the Federal Register. 

The CHAIRMAN. Thank you. 

Ms. Bruning, your written testimony questions the transparency 

of the National NAGPRA office with respect to funding, enforcement and dispute resolution. Why do you think the National 

NAGPRA office is not transparent in these areas? 

Ms. BRUNING. I don’t think it is a matter of intentional lack of 

transparency as much as it is the difficulty of having access to accurate and open information as the process currently stands. Part 

of that may be a funding issue to be able to have the ability to deVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6602 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
46 

velop the website, make materials available. I think that certainly 

in the last five years as I have watched things unfold, there has 

been an increasing access and transparency to certain information, 

which has been wonderful, the databases for example. 

I think some of our concern is about understanding how decisions 

are made, whether it is decisions about assessing nominations for 

the Review Committee and selection process or whether it is decisions about how grants are assessed and granted and funding is allocated among parties. So from some of our constituents, and we 

certainly are not here representing museums or tribes, and they 

are the ones that are more involved in, for example, the grant-making process, but in terms of archaeologists who are working with 

both museums and tribes trying to move forward on repatriation, 

there are concerns about understanding how the process unfolds, 

how they can best proceed with accessing funding and information 

to address the repatriation concerns. 

The CHAIRMAN. The Review Committee recommended that the 

National Park Service consider the Review Committee’s recommendations made in 2000 for the proposed 10.11 regulations regarding the disposition of culturally unidentified human remains 

and associated funerary objects. Did your organization agree with 

the Review Committee’s recommendation? 

Ms. BRUNING. It is my understanding that SAA has been supportive of those recommendations, and particularly the idea of regional solutions and working, rather than trying to come up with 

a single one-size-fits-all solution, my recollection is that the Review 

Committee advocated for more customized, careful, regional discussions to come up with proposed solutions, and certainly SAA would 

support that approach in preference to some of the structures we 

see in the most recently proposed regulations. 

The CHAIRMAN. OK. Mr. Kippen, in your opinion, what do you 

think the state of the NAGPRA data is, and why is accurate data 

so important? 

Mr. KIPPEN. My opinion is that the state of the data could be 

much improved. I also think that the accessibility to the data, the 

understandability of the data could be much improved, and the reason I think data is absolutely crucial is because we want as a best 

practice to make decisions based on data and information, and 

when we make decisions, we want to base those decisions upon accurate data and information. So, if you don’t have accurate data, 

or if you don’t have data, or if you can’t access the data, then you 

really don’t know what it is, how you are doing, and I think that 

is absolutely crucial. 

It is crucial, I think, for this Committee, because you are sitting 

at 30,000 feet trying to look down and understand what it is you 

can do to make this work better. You have the staff at the National 

NAGPRA who are actually on the ground, but what we need is we 

need that intermediate piece where we have a set of clear goals, 

clear metrics which will help you to do your work and will help 

them as well, so that when they come and report to you on, I hope, 

a frequent basis, that when they do report, that you are able to see 

that they are making progress on these issues having to do with 

accessibility to information, on issues having to do with their 

knowledge and their capacity to work the process, on the museums 

47 

and the Federal agencies’ understanding of the process and how 

they are doing with respect to their collections and the items and 

the remains that they are holding. 

So, the whole system is dependent upon data, and I think the 

way that you make it all work is to be clear at a higher level about 

what it is we are going to measure them against, because really, 

what gets measured is what gets done, so you need a measure. 

Now, I want to just add one thing. There is a measure that I know 

has been addressed. It was addressed by Mr. Wenk when he testified. It was also addressed by some of the people on this Committee, on this panel, and that was, and I will tell you what it is, 

the metric was the number of inventories in the backlog. That was 

a metric. 

High number of—big backlog before. Now we have a little backlog. Well, there are a number of strategies that one could implement to take the backlog from a big backlog to a little backlog. I 

am not really clear what that strategy was, but I do know that notices were sent back. Notices were sent back and not published by 

the National NAGPRA office, and in my opinion, that is not a strategy that works for me. I would say that if you are going to be sending back notices to be able to reduce your backlog, there needs to 

be an inquiry into that, and I think, and I will assume that that 

was what your office has been attempting to do, to understand how 

we went from big backlog to little backlog and what was the process by which we got there. 

I will say that some of the members, myself, I did ask questions 

about this over two years ago because under the law, 5, 6 and 7, 

this Committee is supposed to oversee that whole process, and 

again, without data and information, how do you make a good decision? So, it is clear—data is absolutely the touchstone. It is the 

polestar. It is the star that we need to be driving toward all the 

time so that we can make the best decisions. 

The CHAIRMAN. Thank you. 

The gentleman from Washington? 

Mr. HASTINGS. I just want to thank the witnesses here. I found 

this kind of a fascinating discussion, so I want to thank all of you 

for being here. Thank you very much, and Mr. Chairman, thank 

you for having a hearing on this. As I mentioned in my opening 

statement, it is rarely a bad idea to review those areas where we 

are responsible, so I thank you for that. 

The CHAIRMAN. No further business? Any concluding comments 

by the witnesses? I will give you that opportunity. Yes, ma’am? Ms. 

Kraus. 

Ms. KRAUS. Well, I would like to, again, NATHPO works with 

tribes around the country and we don’t have a lot of wealthy tribes 

that are members and, you know, in terms of thinking about today’s hearing and, you know, why do they care so much about this 

Act, you know, how can they be part of it, how can they take advantage of this, because it is for their benefit. They have a lot of 

personal reasons for wanting to repatriate items. This is a repatriated item I am wearing today. I wore it on purpose, and you have 

no idea how important this is for me to wear, no idea how important it is for some little old lady in Kake, Alaska, to know that I 

am wearing this today. 

48 

And so, in terms of this Act and how it has become such a technical, lengthy process, and how Native people were forced to just 

go from zero to 60 and accelerate it to the point where we knew 

the process, we could learn it and we will make it work for us, 

thank goodness some tribes were able to make the process work for 

them. Unfortunately, I think a lot of tribes aren’t able to make it 

work for them. They are the small tribes, the tribes that don’t have 

capacity. 

I think Caddo Nation has made a pretty compelling case that 

they just don’t have the staff, they don’t have a casino, economic 

development in Indian country is incredible unemployment that 

continues to be ignored, 50 percent unemployment, 80 percent unemployment. So, how does NAGPRA work for those who can’t afford a person to do NAGPRA? You know, we have now watched— 

tribes have to hire lawyers to get some of their items back, to get 

some of their human remains back. 

Not every tribe can afford to hire a lawyer to do this. So, I guess 

my plea is that the Act is working for some tribes, but unless you 

have access to a lot of resources, this is just not really serving the 

audience that it was intended, and so I appreciate all your help 

that you can do on this Act. Thank you very much. 

The CHAIRMAN. Beautiful comments. You couldn’t have described 

our goal better. 

Any further comments from the panel? Anybody? Yes, sir. 

Mr. KIPPEN. I would just like to again say that I think the issues 

that face the implementation of this Act are systemic and that you 

need to have a systemic approach to how you are going to address 

them, and to the extent that we are clear in what those benchmarks are, what those measures are, what those metrics are, I 

think that we could improve it, and I think it will greatly improve 

your ability as an oversight committee to get the kinds of answers 

you need to be able to make the Act better. 

The other thing I want to say is I want to be absolutely clear 

that I think part of the objective in my coming today is to send a 

message to the Administration that they need to put some time 

and some energy and some resources into helping create these systemic improvements and these metrics, so that at the end of the 

day, you will, and all of us will be able to make sure that this Act 

is moving forward. Thank you for your time and for listening. 

The CHAIRMAN. Thank you. Again, thank the witnesses for being 

with us today. No further business, the Committee stands adjourned. 

[Whereupon, at 11:35 a.m., the Committee was adjourned. 

[A statement submitted for the record by Mr. Edward Halealoha 

Ayau, Executive Director, Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i 

Nei, ̄ follows:] 

Statement submitted for the record by Edward Halealoha Ayau, 

Executive Director, Hui Ma ̄lama I Na ̄ Ku ̄ puna O Hawai‘i Nei 

Aloha no ̄ e Mr. Chairman and members of this committee. I am the Executive Director of Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei, a Native Hawaiian Organization 

specifically identified in the Native American Graves Protection and Repatriation 

Act (‘‘NAGPRA’’) as having expertise in burial matters and authorized to conduct 

49 

repatriation of ancestral Hawaiian remains, their funerary objects, sacred objects 

and cultural patrimony. Pursuant to NAGPRA, we have conducted extensive repatriations with U.S. museums and federal agencies, state agencies, private individuals, and with foreign museums pursuant to our international human right and responsibility to care for our ku ̄puna or ancestors (see Attachment A). 

In addition, we have appeared before the NAGPRA Review Committee on several 

occasions to resolve issues arising under this law, applied for and received NAGPRA 

grants to conduct repatriation and to document information from museums, and 

have filed failure to comply allegations against museums who we believed are in violation of NAGPRA. We have provided testimony several times on NAGPRA and 

again provide the following observations and recommendations in the hopes that a 

most important law and its implementation can be further strengthened. 

The following are several issues and concerns that we wish to raise for the Committee’s understanding of some of the challenges we continue to face 19 years after 

the enactment of NAGPRA: 

1. The National NAGPRA Program must improve its ability to update the 

Native American Consultation Database in a timely fashion and not 

treat requests for such as complaints. 

On May 4, 2009, we emailed the National NAGPRA Program requesting to update 

our contact information on the Native American Consultation Database (NACD) and 

were assured they would do so (Attachment B). We learned that we had been left 

out of a NAGPRA repatriation as a result of Oregon State University (OSU) relying 

on the outdated information to attempt to contact us and conduct consultation. 

When we failed to respond, OSU proceeded without us. We learned of the pending 

repatriation effort from the Office of Hawaiian Affairs and later confirmed with Dr. 

David McMurray at OSU that the letter had been sent to the organization address 

as provided on the NACD. We again urged the National NAGPRA Program to update our information (Attachment C) and further requested that the contact information for all Native Hawaiian organizations be updated as the information for the 

Hawai‘i Island Burial Council, Maui/La ̄na‘i Islands Burial Council, Molokai Island 

Burial Council, O‘ahu Island Burial Council and Kaua‘i/Ni‘ihau Islands Burial 

Council were also incorrect (Attachment D). 

We have tried over the past 5 months to have the information updated. However, 

for reasons unknown to us, it has not happened. If you check the NACD right now, 

you will see the name of Kunani Nihipali and a Kailua address (Attachment E). 

This information has been outdated since November 2004. We were unaware of this 

since on November 7, 2004 we informed federal agencies, museums we were actively 

consulting and the National NAGPRA Program of a change in our leadership and 

contact information. 

Most troubling throughout this effort has been the communication with National 

NAGPRA to update our contact information. After the OSU incident, the U.S. Air 

Force in Hawai‘i relied on the same outdated information to attempt to send us important information. Of course, we did not receive it. After we learned of this breakdown, we again urged the National NAGPRA Program to update our information 

(Attachment F). The address used by the Air Force was the exact one on the NACD 

database. However, the National NAGPRA Program did not believe the problem was 

caused by the NACD even though that is the only place where this outdated contact 

information exists publicly (Attachment G). We are also advised to contact the BIA 

to be included in their database which we did only to find out their database is only 

for federally-recognized Indian tribes (Attachment H). 

When we attempted to clarify our intentions (and not ‘‘complain’’ as interpreted 

by the National NAGPRA Program), we were instructed to contact the Office of Hawaiian Relations (OHR) to get on their list of Hawaiian organizations which we did 

(Attachment I). The National NAGPRA Program has since added a link to the OHR 

web page. However, when we checked recently, our contact information was no 

longer on the OHR database either (Attachment J). 

The end result is if you are a museum or federal agency attempting to contact 

our organization and you go to the NACD, you will obtain erroneous contact information for Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei. If you happen to notice the 

6-point font reference to the OHR website and link to their database, you won’t find 

any contact information for us either. We requested National NAGPRA to again update our information (Attachment K). 

We have taken the time to explain in detail how much time and effort it has 

taken to update our contact information with the end result being that erroneous 

information is still contained on the primary federal database for consultation and 

that for all we know we are not being consulted on other relevant matters to 

NAGPRA for reasons beyond our control. 

50 

The inability to update the NACD in a timely fashion has undermined our ability 

to conduct consultation and repatriation of our ancestor’s remains in one instance 

and failed to provide us with timely information in a consultation involving a federal agency in another. Moreover, the discourse over the clarification of these issues 

seems to indicate a deeper problem with National NAGPRA (see Attachment L) and 

our organization. 

We recommend efforts be undertaken to improve the ability and manner by which 

the NACD is able to be updated with real time information otherwise its use undermines the very purpose for which it was created. We also do not believe that merely 

linking to another website necessarily guarantees that accurate contact information 

will be provided for Native Hawaiian Organizations especially when misleading information continues to be found on the primary database for contact information 

and the linked database experiences problems. At this point it may be best that the 

NACD delete our contact information entirely as it would be better not to have any 

information than to have misleading information. 

2. The National NAGPRA Program needs to increase its capabilities to 

investigation failure to comply allegations. 

By letter dated March 2, 2004, Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei filed allegations of failure to comply with NAGPRA against the Bernice Pauahi Bishop Museum asking the National Park Service to, ‘‘initiate proceedings against the Bishop 

Museum, as provided in 43 CFR § 10.12 for failing to comply with the requirements 

of NAGPRA, specifically, for refusing to repatriate human remains and funerary objects to a culturally affiliated Native Hawaiian organization. We assert that Dr. 

Brown’s refusal to repatriate constitutes an instance in which the Secretary of the 

Interior is authorized to assess a civil penalty.’’ Over the next four and a half years, 

we emailed and telephoned several requests for updates urging National NAGPRA 

to investigate. 

Six months before the 5-year statute of limitations period was about to expire, we 

received a copy of a letter from the NPS Assistant Secretary for Fish and Wildlife 

and Parks to the Director of the Bernice Pauahi Bishop Museum substantiating 3 

violations of NAGPRA involving human remains (Attachment M) and a second letter 

with the same date substantiating 2 violations of NAGPRA involving the 

unassociated funerary objects (see Attachment N). 

Although we are pleased with the outcome, the amount of time it took to complete 

indicates a need for additional investigators or as was recommended in the testimony of April 20, 1999 by Dr. Sherry Hutt before the Senate Indian Affairs Committee conducting a NAGPRA oversight hearing, the funding by congress of a federal prosecutor ‘‘to evaluate and pursue sanctions for violations of the act under the 

civil penalties provision (25 USC 3007).’’ 

Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei has since filed 3 additional failure to 

comply complaints against museums with several allegations in preparation. We are 

concerned that with the increase in workload and the availability of a single investigator for the entire National NAGPRA Program, the potential for failing to meet 

the 5 year SOL period is increased. Congress needs to act to fund additional investigators to assist the National NAGPRA Program to effectively address failure to 

comply allegations. Without this important function, there is no meaningful way to 

monitor museum compliance and even if successful, the amount of time involved 

further exacerbates the difficulty and pain associated with correcting historic 

wrongs against native people and their cultural property which NAGPRA was intended to lawfully and efficiently address. 

3. Diversion of NAGPRA grant appropriations by the National NAGPRA 

Program from grant awards undermines tribal and Hawaiian organization’s ability to conduct important work under the law. 

Our review of the 2007 Makah/NATHPO Report indicated that a substantial 

amount of federal appropriates earmarked for the NAGPRA Grant Program was not 

utilized for that purpose and instead diverted for other uses (Attachment O). We 

would like to go on record as stating that we find this practice to by troublesome 

especially, since a proposal we submitted to update a NAGPRA cultural items database for use by Native Hawaiian families and organizations was denied funding by 

the National NAGPRA Program. The purpose of the database was to provide a single source for cultural items identified by museums and federal agencies that have 

the potential for repatriation under NAGPRA. We intended this database as a tool 

to assist our Hawaiian community in identifying the types of cultural items, how 

they were acquired, when and by whom, and the museums that families and organizations can contact to pursue any relevant claims. We believe such a project is worVerDate Nov 24 2008 14:46 Nov 06, 2009 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 L:\DOCS\52756.TXT Hresour1 PsN: KATHY
51 

thy of federal appropriations and that similar projects should be the only use for 

such federal appropriations. 

4. Congress should inquire about the information placed on the Culturally 

Unidentifiable Native American Inventories Database for Native 

Hawaiians 

Attached please find a print out of the Culturally Unidentifiable Native American 

Inventories Database for Hawai‘i (Attachment P). Notably, it lists Oregon State University as an institution when human remains representing a minimum of 5 individuals for whom cultural affiliation is unknown. The notes from the database were 

recently removed. This is the same institution that Hui Ma ̄lama I Na ̄ Ku ̄puna O 

Hawai‘i Nei was not able to consult with due to the notification problems explained 

under # 1 above. We were not aware that there are 5 individuals whose ethnicity 

is unknown, nor do we have any idea why this information is on this particular 

database and why explanatory information that was on it previously was removed. 

5. Congress should investigate the practice of withdrawing notices by museums and the extent such practice is facilitated by the National 

NAGPRA Program to the extent that the end result is a failure to comply 

with NAGPRA by the museum for which it may be assessed civil penalties by the Secretary of the Interior 

This concern is by far the most serious and in our opinion warrants an investigation into the practice for the reason stated in our heading. In 2004, we were sent 

copies of 7 letters (all dated Dec 13 2004) from the Manager of the National 

NAGPRA Program to the Director of the Bernice Pauahi Bishop Museum acknowledging the museum’s request to withdraw from publication in the Federal Register 

the following (Attachment Q): 

• notice of intent to repatriate 86 unassociated funerary objects from the Kona 

District, Island of Hawai‘i (N0741); 

• notice of intent to repatriate 2 unassociated funerary objects from the Puna District, Island of Hawai‘i (N0742); 

• notice of intent to repatriate 5 unassociated funerary objects from the Kohala 

District, Island of Hawai‘i (N0739); 

• notice of intent to repatriate 43 unassociated funerary objects from Honomalino, 

Waipi‘o Valley, and Kahala, Island of Hawai‘i (N0264); 

• notice of intent to repatriate 16 unassociated funerary objects from the 

Hamakua District, Island of Hawai‘i (N0736); 

• notice of intent to repatriate 110 unassociated funerary objects from the Island 

of Kaua‘i (N0688); 

• notice of intent to repatriate 230 unassociated funerary objects from Waimea, 

Kahala cemetery, Wailupe Valley, Niu, Kuli‘ou‘ou, La‘ie, Kane‘ohe, Island of 

O‘ahu (N0262); 

We were shocked and contacted the National NAGPRA Program to request information clarifying these matters (Attachment R). However, we did not receive a response. We then wrote the Bernice Pauahi Bishop Museum (letter dated February 

8 2005) requesting an explanation for the withdrawal of the seven notices of intent 

to repatriate a total of 492 moepu ̄ or unassociated funerary objects (Attachment S). 

The Bishop Museum responded by letter dated February 15, 2005 (Attachment T). 

Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei responded stating the following (Attachment U): 

‘‘Could I please be sent a listing of each of the seven notices, and which 

unassociated funerary objects the particular notice referred t, and the status of each 

in terms of the organization consulted with, their respective positions, and the 

issues the Bishop Museum sees as being outstanding for each particular set of 

moepu covered by the notice. 

‘‘I think the NAGPRA process would be much more smoother had the Bishop Museum provided this explanation to Native Hawaiian organizations, waited for responses as part of the consultation process, then decided whether to withdraw the 

notices or which ones to proceed with given that consultation that has already taken 

place. At least that way, interested Native Hawaiian organizations would have been 

consulted and apprised of the process the museum was deciding to take (and its concerns), rather than us finding out through the backhanded way of being copied on 

a confirmation letter. Don’t you think? Please advise.’’ 

To date the Bishop Museum has not provided any such response and therefore 

is not conducting any consultation on these repatriation matters. It is important to 

point out that some of these unassociated funerary objects are related to burial sites 

for which the human remains and funerary objects have been repatriated and reburied, e.g. the reference to Kahala Cemetery on O‘ahu, where all of the ancestral 

52 

remains and their funerary possessions were reburied in 2005. This is disturbing 

if we have to re-open reburial sites to include funerary objects that we were not informed of in the first instance. 

In addition, the National NAGPRA Program did nothing when the Bernice Pauahi 

Bishop Museum declared a year long moratorium on NAGPRA compliance during 

which time they withdrew 7 notices of intent to repatriate cultural items. Can a museum unilaterally opt out of NAGPRA compliance? The Bernice Pauahi Bishop Museum did under the directorship of Dr. William Brown. The museum only completed 

one repatriation during that time, refused to repatriate human remains and 

unassociated funerary objects from Molokai (for which allegations of failure to comply was lodged against the museum and for which the NPS determined the museum 

to be in violation of NAGPRA on 5 counts), overturned a decision to repatriate items 

of cultural patrimony (Kalaina Wawae which are sandstone slabs with human footprints and boot marks carved into them from the island of Molokai, and reversed 

a completed repatriation (Kawaihae Cave Complex). 

Furthermore, as recently as June 2008, the Bernice Pauahi Bishop Museum withdrew a notice for 3 sets of human remains with shared group identity to Hui 

Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei, Hawai‘i Island Burial Council and the Office 

of Hawaiian Affairs (Attachment V). Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei, 

Hawai‘i Island Burial Council and the Office of Hawaiian Affairs all submitted blanket repatriation requests to Bishop Museum in the past for human remains and funerary objects from the island of Hawai‘i and conducted the repatriation of all 

known Hawaiian remains and funerary objects from this island. This is especially 

troubling since NAGPRA provides a deadline of November 16, 1996 to inventory all 

Native Hawaiian human remains and to repatriate them upon request and Bishop 

Museum did not inventory these remains until now which means they are in violation of NAGPRA. 

The fact that the National NAGPRA Program facilitated the notice withdrawal 

(without prior consultation by the Bishop Museum with Native Hawaiian organizations including our organization) and by implication, facilitated the violation for 

which they (National NAGPRA Program) would be responsible for investigating 

when a failure to comply with NAGPRA allegation is lodged against Bishop Museum, is most troubling of all. How can this be? Such practice begs the question of 

who is responsible for assuring compliance when the NPS is content to allow museums to determine whether it should comply or not. The Bishop Museum has not 

conducted any consultation nor even notified Hui Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i 

Nei of this particular repatriation. We found out about it be being copied once again 

on the letter confirming/acknowledging the withdrawal. This is especially disturbing 

since we are 19 years into NAGPRA implementation and we seem to be regressing 

instead of progressing toward repatriation and reburial. 

By letter dated April 14 2009, Ma ̄lama I Na ̄ Ku ̄puna O Hawai‘i Nei requested a 

list of all NAGPRA inventories submitted to the National NAGPRA Program by the 

Bishop Museum (Attachment W). To date we have not received any response. We 

were able to develop a table listing withdrawn notices by the Bishop Museum dated 

June 19, 2009 (Attachment X). We understand this practice/problem exists on a national scale and urge Congress to investigate whether this practice is consistent 

with NAGPRA. For our organizations, it represents a regression in the repatriation 

process, has undermine consultation and efforts to complete repatriation. We believe 

these practices cause a museum to fail to comply with NAGPRA. 

Conclusion 

Mahalo (thank you) for the opportunity to comment on current NAGPRA implementation and to recommend steps that Congress can take to strengthen the process 

and improve the overall manner in which native people can repatriate and rebury 

their ancestral remains, funerary possessions, sacred objects and cultural patrimony. If there are any questions, please have your staff contact me at 622 

Wainaku Ave, Hilo, HI 96720, by calling 808.646.9015 or by email at 

Halealoha@wave.hicv.net. 

[NOTE: Attachments have been retained in the Committee’s official files.] 

Æ