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Donald Forsyth Craib

Sen. Daniel Inouye (D-Hawaii) and Rep. Neil Abercrombie (D-Hawaii) have introduced bills (S 110, HR 749) that would amend the Native American Graves Protection and Repatriation Act. S110 and HR 749 are similar to bills that both members introduced during last year's session of the 104th Congress.

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.

April 21, 1997

The Honorable Neil Abercrombie
U.S. House of Representatives
Washington, D.C. 20515

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.

Vin Steponaitis, PhD

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 (

Donald Forsyth Craib is manager of government affairs and counsel of SAA.

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