Indian Issues: Key Federal Agencies' and the Smithsonian Institution's Efforts to Identify and Repatriate Indian Human Remains and Objects
Published: 2011-06-16T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The National Museum of the American Indian Act of 1989 (NMAI Act), as amended in 1996, generally requires the Smithsonian Institution to inventory and identify the origins of its Indian and Native Hawaiian human remains and objects placed with them (funerary objects) and repatriate them to culturally affiliated Indian tribes upon request. According to the Smithsonian, two of its museums--the American Indian and the Natural History Museums--have items that are subject to the NMAI Act. The Native American Graves Protection and Repatriation Act (NAGPRA), enacted in 1990, includes similar requirements for federal agencies and museums. The National NAGPRA office, within the Department of the Interior's National Park Service, facilitates the governmentwide implementation of NAGPRA. Each act requires the establishment of a committee to monitor and review repatriation activities. GAO's testimony is based on its July 2010 report on NAGPRA implementation (GAO-10-768) and its May 2011 report on Smithsonian repatriation (GAO-11-515). The testimony focuses on the extent to which key federal agencies have complied with NAGPRA's requirements and the extent to which the Smithsonian has fulfilled its repatriation requirements.
section_title: What GAO Found
paragraphs: GAO found that almost 20 years after NAGPRA was enacted, eight key federal agencies with significant historical collections--Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service and National Park Service; Agriculture's U.S. Forest Service; the U.S. Army Corps of Engineers; and the Tennessee Valley Authority--have not fully complied with the requirements of the act. All of the agencies acknowledged that they still have additional work to do and some have not fully complied with NAGPRA's requirement to publish notices of inventory completion for all of their culturally affiliated human remains and associated funerary objects in the Federal Register. In addition, GAO found two areas of concern with the National NAGPRA office's activities. First, National NAGPRA had developed a list of Indian tribes for the purposes of carrying out NAGPRA that was inconsistent with BIA's official list of federally recognized tribes and an Interior legal opinion. Second, National NAGPRA did not always screen nominations for NAGPRA Review Committee positions properly. GAO found that repatriations were generally not tracked or reported governmentwide. However, based on GAO's compilation of federal agencies' repatriation data, through September 30, 2009, federal agencies had repatriated 55 percent of the human remains and 68 percent of the associated funerary objects that had been published in notices of inventory completion. The relevant agencies agreed with the recommendations in both reports and GAO is making no new recommendations at this time.

section_title: Letter
paragraphs: I am pleased to be here today to participate in your hearing on federal  efforts to repatriate Indian and Native Hawaiian human remains and  certain cultural objects. Many federal agencies have acquired thousands of  Indian human remains, funerary objects, sacred objects, and objects of  cultural patrimony over hundreds of years. Similarly the Smithsonian  Institution has acquired its collections since its establishment in 1846.  These human remains and cultural objects have long been a concern for  many Indian tribes and Native Hawaiian communities, who have been  determined to provide an appropriate resting place for their ancestors. The  National Museum of the American Indian Act (NMAI Act) and the Native  American Graves Protection and Repatriation Act (NAGPRA) were  enacted, in 1989 and 1990 respectively, in part to address these concerns.  The acts generally require the Smithsonian Institution and federal agencies  to take certain actions to identify the Indian and Native Hawaiian human  remains and cultural objects in their collections, affiliate those remains  and objects to a tribe, and upon request repatriate the items to the tribes.
In July 2010, we reported on the implementation of NAGPRA by eight key  federal agencies with significant historical collections. These agencies  included the Department of the Interior’s Bureau of Indian Affairs (BIA),  Bureau of Land Management (BLM), Bureau of Reclamation (BOR),  U.S. Fish and Wildlife Service (FWS), and National Park Service (NPS); the  Department of Agriculture’s U.S. Forest Service; the U.S. Army Corps of  Engineers (Corps); and the Tennessee Valley Authority (TVA). In  May 2011, we reported on the Smithsonian Institution’s implementation of  the NMAI Act’s repatriation requirements as they relate to the collections  held by the National Museum of the American Indian and the National  Museum of Natural History. Our testimony today summarizes the findings  of both of these reports and also includes information on some recent  actions that the agencies have taken in response to the recommendations  we made in our reports. Both of these reports were performance audits  that were conducted in accordance with generally accepted government  auditing standards. A detailed description of our scope and methodology is  presented in each issued report.
subsections: section_title: Background
subsections: section_title: NAGPRA Requirements
paragraphs: NAGPRA requires federal agencies to (1) identify their Native American  human remains, funerary objects, sacred objects, and objects of cultural  patrimony, (2) try and determine if a cultural affiliation exists with a  present day Indian tribe or Native Hawaiian organization, and (3) generally  repatriate the culturally affiliated items to the applicable Indian tribe(s) or  Native Hawaiian organization(s) under the terms and conditions  prescribed in the act. NAGPRA covers five types of Native American  cultural items (see table 1).
NAGPRA’s requirements for federal agencies, museums, and the Secretary  of the Interior, particularly the ones most relevant to their historical  collections, which were the focus of our July 2010 report, include the  following:    Compile an inventory and establish cultural affiliation. Section 5 of  NAGPRA requires that each federal agency and museum compile an  inventory of any holdings or collections of Native American human  remains and associated funerary objects that are in its possession or  control. The act requires that the inventories be completed no later than  5 years after its enactment—by November 16, 1995—and in consultation  with tribal government officials, Native Hawaiian organization officials,  and traditional religious leaders. In the inventory, agencies and museums  are required to establish geographic and cultural affiliation to the extent  possible based on information in their possession. Cultural affiliation  denotes a relationship of shared group identity which can be reasonably  traced historically or prehistorically between a present day Indian tribe or  Native Hawaiian organization and an identifiable earlier group. Affiliating  NAGPRA items with a present day Indian tribe or Native Hawaiian  organization is the key to deciding to whom the human remains and  objects should be repatriated. If a cultural affiliation can be made, the act  requires that the agency or museum notify the affected Indian tribes or  Native Hawaiian organizations no later than 6 months after the completion  of the inventory. The agency or museum was also required to provide a  copy of each notice—known as a notice of inventory completion—to the  Secretary of the Interior for publication in the Federal Register. The items  for which no cultural affiliation can be made are referred to as culturally  unidentifiable.
Compile a summary of other NAGPRA items. Section 6 of NAGPRA  requires that each federal agency and museum prepare a written summary  of any holdings or collections of Native American unassociated funerary  objects, sacred objects, or objects of cultural patrimony in its possession  or control, based on the available information in their possession. The act  requires that the summaries be completed no later than 3 years after its  enactment—by November 16, 1993. Preparation of the summaries was to  be followed by federal agency consultation with tribal government  officials, Native Hawaiian organization officials, and traditional religious  leaders. After a valid claim is received by an agency or museum, and if the  other terms and conditions in the act are met, a notice of intent to  repatriate must be published in the Federal Register before any item  identified in a summary can be repatriated.
Repatriate culturally affiliated human remains and objects. Section 7 of  NAGPRA and its implementing regulations generally require that, upon the  request of an Indian tribe or Native Hawaiian organization, all culturally  affiliated NAGPRA items be returned to the applicable Indian tribe or  Native Hawaiian organization expeditiously—but no sooner than 30 days  after the applicable notice is published in the Federal Register—if the  terms and conditions prescribed in the act are met.
NAGPRA assigns certain duties to the Secretary of the Interior, which are  carried out by the National NAGPRA Program Office (National NAGPRA)  within NPS. In accordance with NAGPRA’s implementing regulations,  National NAGPRA has developed a list of Indian tribes and Native  Hawaiian organizations for the purposes of carrying out the act. The list is  comprised of federally recognized tribes, Native Hawaiian organizations,  and, at various points in the last 20 years, corporations established  pursuant to the Alaska Native Claims Settlement Act (ANCSA). Since the  enactment of two recognition laws in 1994, BIA has regularly published a  comprehensive list of recognized tribes—commonly referred to as the list  of federally recognized tribes—that federal agencies are supposed to use  to identify federally recognized tribes. The recognition of Alaska Native  entities eligible for the special programs and services provided by the  United States to Indians because of their status as Indians has been  controversial. Since a 1993 legal opinion by the Solicitor of the  Department of the Interior, BIA’s list of federally recognized tribes has  not included any ANCSA group, regional, urban, and village corporations.
Finally, NAGPRA requires the establishment of a committee to monitor  and review the implementation of inventory, identification and  repatriation activities under the act. Among other things, the Review  Committee is responsible for, upon request, reviewing and making findings  related to the identity or cultural affiliation of cultural items or the return  of such items and facilitating the resolution of any disputes among Indian  tribes, Native Hawaiian organizations, and federal agencies or museum  relating to the return of such items. We refer to these findings,  recommendations and facilitation of disputes that do not involve culturally  unidentifiable human remains simply as disputes; the Review Committee  also makes recommendations regarding the disposition of culturally  unidentifiable human remains. The NAGPRA Review Committee was  established in 1991.
section_title: NMAI Act Requirements
paragraphs: The NMAI Act sections 11 and 13 generally require the Smithsonian to  (1) inventory the Indian and Native Hawaiian human remains and funerary  objects in its possession or control, (2) identify the origins of the Indian  and Native Hawaiian human remains and funerary objects using the “best  available scientific and historical documentation,” and (3) upon request  repatriate them to lineal descendants or culturally affiliated Indian tribes  and Native Hawaiian organizations. As originally written, the act did not  set a deadline for the completion of these tasks, but amendments in 1996  added a June 1, 1998, deadline for the completion of inventories. The  1996 amendments also require the Smithsonian to prepare summaries for  unassociated funerary objects, sacred objects, and objects of cultural  patrimony by December 31, 1996.
The NMAI Act uses the same definitions as NAGPRA for unassociated  funerary objects, sacred objects, and objects of cultural patrimony, but  the NMAI Act does not define human remains and it does not use the term  associated funerary objects. Instead, the NMAI Act requires Indian  funerary objects—which it defines as objects that, as part of the death rite  or ceremony of a culture, are intentionally placed with individual human  remains, either at the time of death or later—to be included in inventories  and unassociated funerary objects to be included in summaries.
The Smithsonian has identified two museums that hold collections subject  to the NMAI Act: the National Museum of the American Indian and the  National Museum of Natural History. Final repatriation decisions for the  American Indian Museum are made by its Board of Trustees and the  Secretary of the Smithsonian has delegated responsibility for making final  repatriation decisions for the Natural History Museum to the  Smithsonian’s Under Secretary for Science.
According to Smithsonian officials, when new collections are acquired, the  Smithsonian assigns an identification number—referred to as a catalog  number—to each item or set of items at the time of the acquisition or, in  some cases, many years later. A single catalog number may include one or  more human bones, bone fragments, or objects, and it may include the  remains of one or more individuals. All of this information is stored in the  museums’ electronic catalog system, which is partly based on historical  paper card catalogs. Generally, each catalog number in the electronic  catalog system includes basic information on the item or set of items, such  as a brief description of the item, where the item was collected, and when  it was taken into the museum’s collection. Since the NMAI Act was  enacted, the Smithsonian has identified approximately 19,780 catalog  numbers that potentially include Indian human remains (about 19,150  within the Natural History Museum collections and about 630 within the  American Indian Museum collections). Finally, like NAGPRA, the NMAI  Act requires the establishment of a committee to monitor and review the  inventory, identification, and return of Indian human remains and cultural  objects. The Smithsonian Review Committee was established in 1990 for  this purpose.
section_title: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with NAGPRA
paragraphs: As we reported in July 2010, federal agencies have not yet fully complied  with all of the requirements of NAGPRA. Specifically, we found that while  the eight key federal agencies generally prepared their summaries and  inventories on time, they had not fully complied with other NAGPRA  requirements. In addition, we found that while the NAGPRA Review  Committee had conducted a number of activities to fulfill its  responsibilities under NAGPRA, its recommendations have had mixed  success. Furthermore, while National NAGPRA has taken several actions  to implement the act’s requirements, in some cases it has not effectively  carried out its responsibilities. Finally, although the key agencies have  repatriated many NAGPRA items, repatriation activity has generally not  been tracked or reported governmentwide.
subsections: section_title: Key Federal Agencies Have Not Fully Complied with NAGPRA for Their Historical Collections
paragraphs: The eight key federal agencies we reviewed in our July 2010 report  generally prepared their summaries and inventories by the statutory  deadlines, but the amount of work put into identifying their NAGPRA  items and the quality of the documents prepared varied widely. Of these  eight agencies, the Corps, the Forest Service, and NPS did the most  extensive work to identify their NAGPRA items, and therefore they had the  highest confidence level that they had identified all of them and included  them in the summaries and inventories that they prepared. In contrast,  relative to these agencies, we determined that BLM, BOR, and FWS were  moderately successful in identifying their NAGPRA items and including  them in their summaries and inventories, and BIA and TVA had done the  least amount of work. As a result, these five agencies had less confidence  that they had identified all of their NAGPRA items and included them in  summaries and inventories. In addition, not all of the culturally affiliated  human remains and associated funerary objects had been published in a  Federal Register notice as required. For example, at the time of our report,  BOR had culturally affiliated 76 human remains but had not published  them in a Federal Register notice. All of the agencies acknowledged that  they still have additional work to do and some had not fully complied with  NAGPRA’s requirement to publish notices of inventory completion for all  of their culturally affiliated human remains and associated funerary  objects in the Federal Register.
As a result of these findings, we recommended the agencies develop and  provide to Congress a needs assessment listing specific actions, resources,  and time needed to complete the inventories and summaries required by  NAGPRA. We further recommended that the agencies develop a timetable  for the expeditious publication in the Federal Register of notices of  inventory completion for all remaining Native American human remains  and associated funerary objects that have been culturally affiliated in  inventories. The Departments of Agriculture and the Interior and TVA  agreed with our recommendations. For example, Interior stated that this  effort is under way in most of its bureaus and that it is committed to  completing the process. It added that one of the greatest challenges to  completing summaries and inventories of all NAGPRA items is locating  collections and acquiring information from the facilities where the  collections are stored.
section_title: The NAGPRA Review Committee Has Monitored Compliance with NAGPRA Implementation and Made Recommendations with Mixed Success
paragraphs: We found that the NAGPRA Review Committee, to fulfill its  responsibilities under NAGPRA, had monitored federal agency and  museum compliance, made recommendations to improve implementation,  and assisted the Secretary in the development of regulations. As we  reported, the committee’s recommendations to facilitate the resolution of  disposition requests involving culturally unidentifiable human remains  have generally been implemented (52 of 61 requests has been fully  implemented). In disposition requests, parties generally agreed in advance  to their preferred manner of disposition and, in accordance with the  regulations, came to the committee to complete the process and obtain a  final recommendation from the Secretary. In contrast to the amicable  nature of disposition requests, disputes are generally contentious, and we  found that the NAGPRA Review Committee’s recommendations have had  a low implementation rate. Specifically, of the 12 disputes that we  reviewed, the committee’s recommendations were fully implemented for  1 dispute, partially implemented in 3 others, not implemented for 5, and  the status of 3 cases is unknown.
Moreover, we found that some actions recommended by the committee  exceeded NAGPRA’s scope, such as recommending repatriation of  culturally unidentifiable human remains to non-federally recognized Indian  groups. However, we found that the committee, National NAGPRA, and  Interior officials had since taken steps to address this issue.
section_title: National NAGPRA Has, in Some Cases, Not Effectively Carried Out Its Responsibilities
paragraphs: We reported that National NAGPRA had taken several actions to help the  Secretary carry out responsibilities under NAGPRA. For example, National  NAGPRA had published federal agency and museum notices in the Federal  Register; increasing this number in recent years, while reducing the  backlog of notices awaiting publication. Furthermore, it had administered  a NAGPRA grants program that from fiscal years 1994 through 2009  resulted in 628 grants awarded to Indian tribes, Native Hawaiian  organizations, and museums totaling $33 million. It had also administered  the nomination process for NAGPRA Review Committee members.
Overall, we found that most of the actions performed by National  NAGPRA were consistent with the act, but we identified concerns with a  few actions. Specifically, National NAGPRA had developed a list of Indian  tribes for the purposes of carrying out NAGPRA, but at various points in  the last 20 years the list had not been consistent with BIA’s policy or an  Interior Solicitor legal opinion analyzing the status of Alaska Native  villages as Indian tribes. As a result, we recommended that National  NAGPRA, in conjunction with Interior’s Office of the Solicitor, reassess  whether ANCSA corporations should be considered as eligible entities for  the purposes of carrying out NAGPRA. Interior agreed with this  recommendation and, after our report was issued, Interior’s Office of the  Solicitor issued a memorandum in March 2011 stating that NAGPRA  clearly does not include Alaska regional and village corporations within its  definition of Indian tribes and that the legislative history confirms that this  was an intentional omission on the part of Congress. The memorandum  also states that while the National NAGPRA Program’s list of Indian tribes  for purposes of NAGPRA must not include ANCSA regional and village  corporations, National NAGPRA is currently bound by its regulatory  definition of Indian tribe that contradicts the statutory definition by  including ANCSA corporations. Because of this, the Solicitor suggests that  the regulatory definition be changed as soon as feasible, followed by a  corresponding change in the list.
We also found that National NAGPRA did not always properly screen  nominations for the NAGPRA Review Committee and, in 2004, 2005, and  2006, inappropriately recruited nominees for the committee, in one case  recommending the nominee to the Secretary for appointment. As a result,  we recommended that the Secretary of the Interior direct National  NAGPRA to strictly adhere to the nomination process prescribed in the act  and, working with Interior’s Office of the Solicitor as appropriate, ensure  that all NAGPRA Review Committee nominations are properly screened to  confirm that the nominees and nominating entities meet statutory  requirements. Interior agreed with this recommendation, stating that the  committee nomination procedures were revised in 2008 to ensure full  transparency and that it will ask the Solicitor’s Office to review these  procedures.
section_title: Repatriations Are Not Tracked or Reported Governmentwide, but According to Data Collected by GAO, Many NAGPRA Items Have Been Repatriated
paragraphs: In July 2010 we reported that while agencies are required to permanently  document their repatriation activities, they are not required to compile and  report that information to anyone. Of the federal agencies that have  published notices of inventory completion, we determined that only three  have tracked and compiled agencywide data on their repatriations—the  Forest Service, NPS, and the Corps. These three agencies, however, along  with other federal agencies that have published notices of inventory  completion, do not regularly report comprehensive data on their  repatriations to National NAGPRA, the NAGPRA Review Committee, or  Congress. Through data provided by these three agencies, along with our  survey of other federal agencies, we found that federal agencies had  repatriated a total of 55 percent of human remains and 68 percent of  associated funerary objects that had been published in notices of  inventory completion as of September 30, 2009. Agency officials identified  several reasons why some human remains and associated funerary objects  had not been repatriated, including the lack of repatriation requests from  culturally affiliated entities, repatriation requests from disputing parties, a  lack of reburial sites, and a lack of financial resources to complete the  repatriation. Federal agencies had also published 78 notices of intent to  repatriate that covered 34,234 unassociated funerary objects, sacred  objects, or objects of cultural patrimony.
Due to a lack of governmentwide reporting, we recommended the  Secretaries of Agriculture, Defense, and the Interior and the Chief  Executive Officer of the Tennessee Valley Authority direct their cultural  resource management programs to report their repatriation data to  National NAGPRA on a regular basis, but no less than annually, for each  notice of inventory completion they have or will publish. Furthermore, we  recommended that National NAGPRA make this information readily  available to Indian tribes and Native Hawaiian organizations and that the  NAGPRA Review Committee publish the information in its annual report  to Congress. The Departments of Agriculture and the Interior and TVA  agreed with this recommendation, and Interior stated that its agencies will  work toward completing an annual report beginning in 2011.
section_title: The Smithsonian Still Has Much Work to Do to Identify and Repatriate Indian Human Remains and Objects
paragraphs: In our May 2011 report we found that the Smithsonian Institution still had  much work remaining with regard to the repatriation activities required by  the NMAI Act. Specifically, we found that while the American Indian and  Natural History Museums generally prepared summaries and inventories  within the statutory deadlines the process that the Smithsonian relies on is  lengthy and resource intensive. Consequently, after more than 2 decades,  the museums have offered to repatriate the Indian human remains in only  about one-third of the catalog numbers identified as possibly including  such remains since the act was passed. In addition, we found that the  Smithsonian established a Review Committee to meet the statutory  requirements, but limited its oversight of repatriation activities. Finally, we  found that while the Smithsonian has repatriated most of the human  remains and many of the objects that it has offered for repatriation, it has  no policy on how to address items that are culturally unidentifiable.
subsections: section_title: Since 1989, the Smithsonian Has Prepared Required Summaries and Inventories and Has Offered to Repatriate about One-Third of Its Indian Human Remains
paragraphs: We found that while the American Indian and Natural History Museums  had generally prepared summaries and inventories within the deadlines  established in the NMAI Act, their inventories and the process they used to  prepare them have raised questions about their compliance with some of  the act’s statutory requirements. The first question was the extent to which  the museums prepared their inventories in consultation and cooperation  with traditional Indian religious leaders and government officials of Indian  tribes, as required by the NMAI Act. Section 11 of the act directs the  Secretary of the Smithsonian, in consultation and cooperation with  traditional Indian religious leaders and government officials of Indian  tribes, to inventory the Indian human remains and funerary objects in the  possession or control of the Smithsonian and, using the best available  scientific and historical documentation, identify the origins of such  remains and objects. However, the Smithsonian generally began the  consultation process with Indian tribes after the inventories from both  museums were distributed. The Smithsonian maintains that it is in full  compliance with the statutory requirements for preparing inventories and  that section 11 does not require that consultation occur prior to the  inventory being completed.
The second question is the extent to which the Natural History Museum’s  inventories—which were finalized after the 1996 amendments—identified  geographic and cultural affiliations to the extent practicable based on  available information held by the Smithsonian, as required by the  amendments. The museum’s inventories generally identified geographic  and cultural affiliations only where such information was readily available  in the museum’s electronic catalog. However, the Smithsonian states that  it does not interpret section 11 as necessarily requiring that the inventory  and identification process to occur simultaneously, and therefore it has  adopted a two-step process to fulfill section 11’s requirements. The  legislative history of the 1996 amendments provides little clear guidance  concerning the meaning of section 11. However, we also found that the  two-step process that the Smithsonian has adopted is a lengthy and  resource-intensive one and that, at the pace that the Smithsonian is  applying this process, it will take several more decades to complete this  effort.
As a result of the identification and inventory process the Smithsonian is  using, since the passage of the NMAI Act in 1989 through December 2010,  the Smithsonian estimates that it has offered to repatriate approximately  one-third of the estimated 19,780 catalog numbers identified as possibly  including Indian human remains. The American Indian Museum had  offered to repatriate human remains in about 40 percent (about 250) of its  estimated 630 catalog numbers. The Natural History Museum had offered  to repatriate human remains in about 25 percent (about 5,040) of its  estimated 19,150 catalog numbers containing Indian human remains. In  some cases, through this process, the Smithsonian did not offer to  repatriate human remains and objects because it determined that they  could not be culturally affiliated with a tribe. The congressional committee  reports accompanying the 1989 act indicate that the Smithsonian  estimated that the identification and inventory of Indian human remains as  well as notification of affected tribes and return of the remains and  funerary objects would take 5 years. However, more than 21 years later,  these efforts are still under way. In light of this slow progress, we  suggested that Congress may wish to consider ways to expedite the  Smithsonian’s repatriation process including, but not limited to, directing  the Smithsonian to make cultural affiliation determinations as efficiently  and effectively as possible.
section_title: The Smithsonian Review Committee’s Oversight and Reporting Are Limited
paragraphs: In May 2011, we reported that the Smithsonian Review Committee had  conducted numerous activities to implement the special committee  provisions in the NMAI Act, but its oversight and reporting activities have  been limited. For example, we found that contrary to the NMAI Act, the  committee does not monitor and review the American Indian Museum’s  inventory, identification, and repatriation activities, although it does  monitor and review the Natural History Museum’s inventory,  identification, and repatriation activities. Although the law does not limit  the applicability of the Smithsonian Review Committee to the Natural  History Museum, the Secretary established a committee to meet this  requirement in 1990 that oversees only the Natural History Museum’s  repatriation activities and is housed within that museum. Although the  Smithsonian believes Congress intended to limit the committee’s  jurisdiction to the Natural History Museum, the statutory language and its  legislative history do not support that view. The Smithsonian provided  several reasons to support this contention but, as we reported in May 2011,  these reasons are unpersuasive. Therefore, we recommended that the  Smithsonian’s Board of Regents direct the Secretary of the Smithsonian to  expand the Smithsonian Review Committee’s jurisdiction to include the  American Indian Museum, as required by the NMAI Act, to improve  oversight of Smithsonian repatriation activities. With this expanded role  for the committee, we further recommended that the Board of Regents and  the Secretary should consider where the most appropriate location for the  Smithsonian Review Committee should be within the Smithsonian’s  organizational structure. The Smithsonian agreed with this  recommendation, stating that the advisory nature of the committee could  be expanded to include consultation with the American Indian Museum.
In our May 2011 report, we also found that neither the Smithsonian nor the  Smithsonian Review Committee submits reports to Congress on the  progress of repatriation activities at the Smithsonian. Although section 12  of the NMAI Act requires the Secretary, at the conclusion of the work of  the committee, to so certify by report to Congress, there is no annual  reporting requirement similar to the one required for the NAGPRA Review  Committee. As we stated earlier, in 1989, it was estimated that the  Smithsonian Review Committee would conclude its work in about 5 years  and cease to exist at the end of fiscal year 1995. Yet the committee’s  monitoring and review of repatriation activities at the Natural History  Museum has been ongoing since the committee was established in 1990.  As a result, we recommended that the Board of Regents, through the  Secretary, direct the Smithsonian Review Committee to report annually to  Congress on the Smithsonian’s implementation of its repatriation  requirements in the NMAI Act. The Smithsonian agreed with this  recommendation, stating that it will submit, on a voluntary basis, annual  reports to Congress. The Smithsonian further stated that although the  format and presentation are matters to be discussed internally, it intends  to use the National NAGPRA report as a guide and framework for its  discussion and report.
Finally, during our review of the Smithsonian Review Committee activities  we determined that no independent administrative appeals process exists  to challenge the Smithsonian’s cultural affiliation and repatriation  decisions, in the event of a dispute. As a result, we recommended that the  Board of Regents establish an independent administrative appeals process  for Indian tribes and Native Hawaiian organizations to appeal decisions to  either the Board of Regents or another entity that can make binding  decisions for the Smithsonian Institution to provide tribes with an  opportunity to appeal cultural affiliation and repatriation decisions made  by the Secretary and the American Indian Museum’s Board of Trustees.  The Smithsonian agreed with this recommendation, stating that it will  review its dispute resolution procedures, with the understanding that the  goal is to ensure that claimants have proper avenues to seek redress from  Smithsonian repatriation decisions, including a process for the review of  final management determinations.
section_title: Most Human Remains and Many Objects Offered for Repatriation Have Been Repatriated, but the Smithsonian Has No Policy on Culturally Unidentifiable Items
paragraphs: In May 2011 we reported that the Smithsonian estimates that, of the items  it has offered for repatriation, as of December 31, 2010, it has repatriated  about three-quarters (4,330 out of 5,980) of the Indian human remains,  about half (99,550 out of 212,220) of the funerary objects, and nearly all  (1,140 out of 1,240) sacred objects and objects of cultural patrimony. Some  items have not been repatriated for a variety of reasons, including tribes’  lack of resources, cultural beliefs, and tribal government issues.
In addition, we found that, in the inventory and identification process, the  Smithsonian determined that some human remains and funerary objects  were culturally unidentifiable. In some of those cases it did not offer to  repatriate the items and it does not have a policy on how to undertake the  ultimate disposition of such items. Specifically, our report found that  according to Natural History Museum officials about 340 human remains  and about 310 funerary objects are culturally unidentifiable. The NMAI Act  does not discuss how the Smithsonian should handle human remains and  objects that cannot be culturally affiliated, and neither museum’s  repatriation policies describe how they will handle such items. In contrast,  a recent NAGPRA regulation that took effect in May 2010 requires, among  other things, federal agencies and museums to consult with federally  recognized Indian tribes and Native Hawaiian organizations from whose  tribal or aboriginal lands the remains were removed before offering to  transfer control of the culturally unidentifiable human remains. Although  Smithsonian officials told us that the Smithsonian generally looks to  NAGPRA and the NAGPRA regulations as a guide to its repatriation  process, where appropriate, in a May 2010 letter commenting on the  NAGPRA regulation on disposition of culturally unidentifiable remains, the  Directors of the American Indian and Natural History Museums cited  overall disagreement with the regulation, suggesting that it “favors speed  and efficiency in making these dispositions at the expense of accuracy.”  Nevertheless, in our May 2011 report, we recommended that the  Smithsonian’s Board of Regents direct the Secretary and the American  Indian Museum’s Board of Trustees to develop policies for the Natural  History and American Indian Museums for the handling of items in their  collections that cannot be culturally affiliated to provide for a clear and  transparent repatriation process. The Smithsonian agreed with this  recommendation, stating that both the American Indian and Natural  History Museums, in the interests of transparency, are committed to  developing policies in this regard and that such policies will give guidance  to Native communities and the public as to how the Smithsonian will  handle and treat such remains.
In conclusion, Chairman Akaka, Vice Chairman Barrasso, and Members of  the Committee, our two studies clearly show that while federal agencies  and the Smithsonian have made progress in identifying and repatriating  thousands of Indian human remains and objects, after 2 decades of effort,  much work still remains to be done to address the goals of both NAGPRA  and the NMAI Act. In this context, we believe that it is imperative for the  agencies to implement our recommendations to ensure that the  requirements of both acts are met and that the processes they employ to  fulfill the requirements are both efficient and effective.
This concludes my prepared statement. I would be pleased to answer any  questions that you may have at this time.
section_title: GAO Contacts and Acknowledgments
paragraphs: For further information about this testimony, please contact Anu K. Mittal  at (202) 512-3841 or mittala@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this statement. Jeffery D. Malcolm, Assistant Director; Mark Keenan;  and Jeanette Soares also made key contributions to this statement. In  addition, Allison Bawden, Pamela Davidson, Emily Hanawalt, Cheryl  Harris, Catherine Hurley, Rich Johnson, Sandra Kerr, Jill Lacey, Anita Lee,  Ruben Montes de Oca, David Schneider, John Scott, Ben Shouse, and  Maria Soriano also made key contributions to the reports on which this  statement is based.
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