Both pieces of legislation would add an additional requirement in instances where Native American human remains are intentionally excavated or removed for purposes of study by requiring written consent from lineal descendants, if known or readily ascertainable, or each appropriate Indian tribe or Native Hawaiian organization. The amendments also require timely notification of Indian tribes and Native Hawaiian organizations when human remains are inadvertently discovered on federal land.
Two additional sections have been added to S 110 and HR 749 that were not included in last year's bills. One extends the responsibilities of the NAGPRA Review Committee to make recommendations concerning the disposition of associated funerary objects that are culturally unidentifiable; given that the Department of the Interior would likely construe this clause as authorization to regulate the disposition of such funerary objects (a view contested by SAA and many museums), this seemingly innocuous change could have major implications. The other new section authorizes the secretary of the Interior to use NAGPRA fines in furthering the law's enforcement.
Below is the text of SAA's letter to Rep. Abercrombie expressing some concerns about the proposed legislation.
The Honorable Neil Abercrombie
Dear Representative Abercrombie:
The Society for American Archaeology (SAA) wishes to take this opportunity to
comment on a bill that was introduced by you. This bill is HR 749--proposed
amendments to the Native American Graves Protection and Repatriation Act (25
U.S.C. 3001) (NAGPRA). With over 6,000 lay and professional members, SAA is the
largest organization devoted to the study of the archaeology of the Americas.
SAA supports Native American and Native Hawaiian rights with respect to
affiliated ancestral human remains and cultural items, and has worked closely
with Native American groups and members of Congress to obtain passage of the
current version of NAGPRA.
SAA agrees that clarification of certain components of NAGPRA is desirable. SAA
believes, however, that HR 749 as currently written is much more than a
clarification, and that the four individual changes proposed by HR 749 need to
be considered separately. We have detailed our arguments in an attachment to
this letter; a brief summary appears below.
The first change-- HR 749 Section 1(a)--requires written consent by
lineal descendants or appropriate tribes before the excavation of human remains
on federal land. Although we recognize that some federal agencies have not
followed the letter or the spirit of the law, particularly with regard to
consultation, the proposed change will create many more problems than it
solves. As currently worded, this amendment will transform NAGPRA into a
"project stopper"--a law that, simply by virtue of the practical difficulty of
gaining written consent from all concerned individuals and groups, will stop
many kinds of economic development and management activities on federal land.
In order to understand why this is so, one must recognize that virtually all
archaeological excavation of Native American graves on federal land is done in
the context of construction or land-management activities that will destroy or
damage the graves. These archaeological excavations are a direct consequence of
the way in which the National Historic Preservation Act (16 U.S.C. 470) is
applied when archaeological sites are impacted by federal agency activities or
by economic development projects done under federal permit. We believe that
such a change would not be good public policy and that the backlash resulting
from project stoppage would harm the broader interests of native peoples and of
historic preservation. SAA recommends withdrawing this proposed change.
The second change-- 1(b)--requires that when there are inadvertent
discoveries of human remains or cultural items on federal land that appropriate
tribes are notified in a timely way. It also makes clear that, once made,
inadvertent discoveries are to be treated in the same manner as intentional
excavations, with respect to ownership, removal, and consultation with tribes.
SAA strongly supports the proposed changes (with minor rewording) as
appropriate clarifications of NAGPRA's intent.
The third change-- 1(c)--extends the responsibilities of the NAGPRA
Review Committee by asking it to compile an inventory of funerary objects
associated with culturally unidentifiable human remains and by asking it to
include these funerary objects in their recommendations concerning the
disposition of culturally unidentifiable remains. SAA believes this is a
significant extension of the NAGPRA through a paragraph in the law whose
interpretation is already contested. SAA believes that the Review Committee
already has before it a tremendous amount of important work and recommends a
substitute amendment that would eliminate the amended paragraph [Section
8(c)(5)] from NAGPRA.
The fourth change-- 1(d)--directs the Secretary of the Interior to use
NAGPRA penalties for further enforcement of NAGPRA, permits payment of rewards
for information relating to NAGPRA enforcement, and allows payment of
restitution to aggrieved parties rather than the collection of penalties. SAA
strongly supports the proposed changes in order to enhance the enforcement of
NAGPRA, but suggests a minor rewording of one paragraph.
SAA believes HR 749 has important implications that need to be further
understood before it is considered by the House. We therefore recommend the
changes outlined here and suggest that the House Resources Committee convene a
hearing to take testimony from federal agencies, state historic preservation
officers, private businesses operating on public lands, archaeological
organizations, and Native American and Native Hawaiian groups. SAA would be
pleased to consult with you on draft language that would avoid the problems it
sees with the present version. SAA thanks you for your attention and looks
forward to your response.
Sincerely,
April 21, 1997
U.S. House of Representatives
Washington, D.C. 20515
Vin Steponaitis, PhD
President
Hearings have not yet been scheduled and meetings between SAA and Hill staff are currently underway. If you would like a section-by-section analysis of the bills, please contact me at SAA headquarters. The complete text of the S 110 amendments along with a detailed, section-by-section analysis can be found at SAA's web site (www.saa.org).
Donald Forsyth Craib is manager of government affairs and counsel of SAA.