<DOC> [109 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:22885.wais] S. Hrg. 109-297 NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT ======================================================================= HEARING BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION ON OVERSIGHT HEARING ON AMENDMENT TO THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT __________ JULY 28, 2005 WASHINGTON, DC U.S. GOVERNMENT PRINTING OFFICE 22-885 WASHINGTON : 2005 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800 Fax: (202) 512ÿ092250 Mail: Stop SSOP, Washington, DC 20402ÿ090001 COMMITTEE ON INDIAN AFFAIRS JOHN McCAIN, Arizona, Chairman BYRON L. DORGAN, North Dakota, Vice Chairman PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii CRAIG THOMAS, Wyoming KENT CONRAD, North Dakota GORDON SMITH, Oregon DANIEL K. AKAKA, Hawaii LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota MICHAEL D. CRAPO, Idaho MARIA CANTWELL, Washington RICHARD BURR, North Carolina TOM COBURN, M.D., Oklahoma Jeanne Bumpus, Majority Staff Director Sara G. Garland, Minority Staff Director (ii) C O N T E N T S ---------- Page Statements: Barran, Paula, attorney, Barran and Leibman, LLP............. 13 Bender, Paul, professor of law, Arizona State University College of Law............................................. 7 Diamond, Van Horn, Honolulu, HI.............................. 18 Dorgan, Hon. Byron L., U.S. Senator from North Dakota, vice chairman, Committee on Indian Affairs...................... 2 Echo-Hawk, Sr., Walter, senior staff attorney, Native American Rights Fund....................................... 9 Hoffman, Paul, deputy assistant secretary, Fish and Wildlife and Parks, Department of the Interior...................... 2 Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 2 Kintigh, Keith W., Society for American Archaeology.......... 17 Lambert, Patricia M., American Association of Physical Anthropologists, Utah State University..................... 11 McCain, Hon. John, U.S. Senator from Arizona, chairman, Committee on Indian Affairs................................ 1 Schneider, Alan L., director, Friends of America's Past...... 13 Appendix Prepared statements: Barran, Paula (with attachment).............................30, 101 Bender, Paul................................................. 109 Diamond, Van Horn (with attachment).......................... 122 Echo-Hawk, Sr., Walter (with attachment)..................... 129 Hillaire, Darrell, chairman, Lummi Indian Nation, State of Washington (with attachment)............................... 165 Hoffman, Paul................................................ 228 Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 27 Kintigh, Keith W............................................. 232 Lambert, Patricia M.......................................... 235 Minthorn, Armand, member, Board of Trustees, Confederated Tribe of the Umatilla Indian Reservation................... 237 Moses, Jr., Harvey, chairman, Confederated Tribes of the Colville Reservation....................................... 240 Schneider, Alan L. (with attachment)......................... 30 Trope, Jack, executive director, Association on American Indian Affairs (with attachment)........................... 98 Wright, Jr., Mervin, member, National Working Group on Culturally Unidentified Human Remains...................... 28 Additional material submitted for the record: American Journal of Public Health, letter to the editor...... 243 Dancey, Ph. D., William S., director, Licking County Archaeology and Landmarks Society, letter.................. 245 White, Ted, professor and member, U.S. National Academy of Science, letter............................................ 247 NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT ---------- THURSDAY, JULY 28, 2005 U.S. Senate, Committee on Indian Affairs, Washington, DC. The committee met, pursuant to notice, at 10:03 a.m. in room 485 Senate Russell Building, Hon. John McCain (chairman of the committee), presiding. Present: Senators McCain, Akaka, Dorgan, and Inouye. STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS The Chairman. Good morning. The oversight hearing today will address the Native American Graves Protection and Repatriation Act, specifically a proposed amendment to the National Graves Protection and Repatriation Act that was included in S. 536, a bill reported by the committee earlier this year. While other provisions in S. 536 have been acted on by the full Senate, no further action has been taken on the proposed amendment. The amendment, which many involved in the development of NAGPRA say is consistent with the original intent of the law, it would apply NAGPRA to certain human remains regardless of whether a connection can be established between those remains and a presently existing tribe. The proposed amendment, which was also reported out by this committee during the 108th Congress, and arose from litigation surrounding the discovery of a 9,200-year old skeleton known as the Kennewick Man, has generated considerable controversy in the scientific community. Regardless of whether they agree or disagree with the proposal, most scientists we have heard from objected to the committee not holding a hearing specifically on the amendment to seek the opinions of the range of stakeholders who participated in constructing the delicate compromise that is NAGPRA. I agree with these critics and stand corrected for not doing this earlier. I look forward to hearing from the witnesses who have joined us today. [Prepared statement of Senator McCain appears in appendix.] The Chairman. Senator Dorgan. STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS Senator Dorgan. Mr. Chairman, thank you very much. I think you well described the purpose of this hearing. These issues are really very important spiritual issues. Many of us have dealt with them in different ways with our individual tribes. We have passed Federal legislation that has been subject now to a court interpretation of some controversy. I appreciate the fact that you are holding this hearing. I note we have a Commerce Committee markup at the same time so I know we will have to juggle some of these pieces of testimony, but thank you very much for the hearing. The Chairman. Senator Inouye. STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII Senator Inouye. I would like to join my colleague in thanking you for holding this hearing. It promises to be a most interesting one. But as noted, we have many conflicts this morning and I find that I will have to be at another meeting, but may I have my statement made part of the record? The Chairman. Without objection. [Prepared statement of Senator Inouye appears in appendix.] The Chairman. Our first witness is Paul Hoffman, Deputy Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior. Welcome, Mr. Hoffman. Your complete statement and all written complete statements will be made part of the record. Thank you for coming this morning. This is not only a controversial issue, but in many ways a very fascinating one. Go ahead, Mr. Hoffman. STATEMENT OF PAUL HOFFMAN, DEPUTY ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR Mr. Hoffman. Yes, sir; thank you, Mr. Chairman. I am pleased to be here today and to have the opportunity to testify before your committee on behalf of the Department of the Interior regarding the Native American Grave Protection and Repatriation Act, the Bonnichsen v. United States court decision concerning the disposition of the Kennewick Man remains, and the amendment as proposed in S. 536. The department opposes amending NAGPRA to alter the decision of the Ninth Circuit Court as proposed in the technical amendments of the Native American Omnibus Act. The Chairman. Could I interrupt you, Mr. Hoffman? Mr. Hoffman. Yes, sir. The Chairman. Is that in keeping with the Administration's previous position? Mr. Hoffman. This Administration actually never took a position on it. When we took office, this process was being litigated and worked out. We determined at that time to allow the agencies to work this out and to let the litigation proceed in order to hear the court's opinions and construction of the law. We are compelled by their argument. NAGPRA was enacted in 1990 to address 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 law directed the Secretary of the Interior to promulgate regulations, provide staff, make grants to assist organizations in their compliance with the law, extend inventory deadlines when those organizations are demonstrating good faith in complying with the law, publish notices of completed inventories and notices of intent to repatriate either human remains or cultural items. The department has the authority to assess civil penalties for failure to comply and respond to notices of inadvertent new discoveries on Interior lands. Every Federal agency has their own responsibility under NAGPRA to ensure that their agency is in compliance with it, but the national NAGPRA program is administered within the Department of the Interior under the National Park Service. Some statistics to note, the Congressional Budget Office estimated at the time of the passage of NAGPRA that there were somewhere between 100,000 and 200,000 human remains in collections as of 1990. The NAGPRA program has successfully repatriated 31,093 human remains over the past 15 years and approximately 111,000 human remains have been identified as culturally unidentifiable. The Bonnichsen v. United States court decision addressed the question of whether the Kennewick Man remains were Native American under NAGPRA. The U.S. Army Corps of Engineers and the Department of the Interior had determined that the remains were Native American because they predated the arrival of Europeans. The District Court and the Court of Appeals ruled against the United States, saying to be Native Americans. There must be a general finding that the remains have a significant relationship to the presently existing tribe, people or culture and that the relationship must go: Beyond features common to all humanity. Relying only upon the age of the remains that predate European arrival is not sufficient to conclude that the remains are Native American. This is from the court decision. Also from that decision, congressional intent was: To give American Indians control over remains of their genetic and cultural forbears, not over the remains of people bearing no special and significant genetic or cultural relationship to some presently existing indigenous tribe, people or culture. I would note for the record that there have been human remains of nearly the same age as the Kennewick Man that both predate Europeans and have been demonstrated to have significant or special relationship to existing tribes, peoples, or cultures. The amendment in S. 536 would change the definition of ``Native American.'' The term ``Native American'' would mean of or relating to a tribe, people or culture that is, and the amendment inserts, or was indigenous to any geographic area that is now located within the boundaries of the United States. We believe that the Ninth Circuit Court of Appeals correctly interpreted the law and the intent of Congress, which was to give American Indians control over remains of their genetic and culture forbears, not over the remains of people bearing no special or significant genetic or cultural relationship to some presently existing indigenous tribe, people or culture. NAGPRA should protect the sensibilities of current existing tribes, peoples and cultures, while balancing the need to learn about past cultures and customs. By adding the words ``or was'' to the definition of Native American, the proposed amendment would shift away from this balance. Thank you, Mr. Chairman. I would be happy to answer any questions. [Prepared statement of Mr. Hoffman appears in appendix.] The Chairman. Thank you very much. In Bonnichsen v. United States, the Department of the Interior argued that the Kennewick Man remains met the definition of ``Native American'' and so were covered by NAGPRA, but today you are testifying that they should not be covered by NAGPRA. You are asserting that the department has not changed its position? Mr. Hoffman. Up until the court decision in Bonnichsen v. United States, the Department of the Interior had taken the position that if the remains predated European arrival in the Americas, then the remains would be presumed to be Native American. The court interpreted it differently, and we believe provided a compelling argument for a change in that application of the definition. The Chairman. Are there remains other than the Kennewick Man's remains that are affected by this court decision? Mr. Hoffman. Potentially. As I indicated, there are a number of remains of approximately the same age as the Kennewick Man. Some of them have been repatriated. I believe they have been repatriated. I know they have been identified as culturally affiliated because of where they were found and objects that were found with those remains that could tie those remains to a specific living tribe, culture or people group. The Chairman. The coalition of Indian tribes in the court case sought to prevent scientific study of the remains on the grounds that this was offensive to their religious belief. Now that this decision has made it clear that not all indigenous remains are Native American, how can one establish whether remains are or are not Native American without offending these beliefs? Mr. Hoffman. The challenge in NAGPRA is that, I have been involved in a lot of discussions since my arrival at the Department of the Interior about 3\1/2\ years ago, and it seems to me it is about one part law, two parts philosophy, and three parts spiritual issues. Our charge is to deal with the law and what the law says. How would we deal with future remains or other remains would be that if we could establish a significant or genetic link to an existing living culture, tribe or people group, then those remains would be repatriated. If we cannot, then those remains would not be repatriated. The Chairman. Senator Dorgan. Senator Dorgan. Mr. Hoffman, you are in the process of writing regulations, are you not? Mr. Hoffman. Yes. Senator Dorgan. Can you give us a status? What is happening? What is the timing of regulations that would implement that section of NAGPRA which established the process for disposition of culturally unidentifiable human remains? Mr. Hoffman. Those regulations have been in process for a number of years and under review for a number of years. I am not familiar with the immediate status of those, but I will be glad to get back to you with that answer. Senator Dorgan. I never understand what that means when an agency says they have been in process for a number of years. It seems to me that if one undertakes the responsibility of writing a set of regulations, you write them, you put them out for comment, then you implement the regulations. So when did this start and when do you expect to be completed? Mr. Hoffman. I would be glad to get back to you on the actual start date and an estimated completion date. I do not know that off the top of my head. I appreciate what you are saying. Some Administrations advance regs; other Administrations come in and may have a different feeling about those regs and may just choose to let that regulation development stay in abeyance. That is not a pretty story about the process, but it is certainly a real one. Senator Dorgan. It is a great quicksand out there, isn't it, for the regulatory issues. They just seem to go on and on and on. Let me ask about attorneys fees awarded under the litigation that my colleague referred to. Is the department paying attorneys fees awarded under that litigation, do you know? Mr. Hoffman. Yes, sir; we are paying approximately $680,000 in attorney fees to the plaintiffs. Senator Dorgan. And where does that money come from? Mr. Hoffman. That money will be coming from the NAGPRA grant program. Senator Dorgan. So that is the grant program that we provided funding for? Okay. Well, I also just would observe, I think the chairman was suggesting there seems to be a conflict in the department's previous position on this and current position. I think you have answered the inquiry by the chairman, but I think there is a conflict there. I appreciate your being here today, Mr. Hoffman. Mr. Hoffman. Thank you. The Chairman. Senator Inouye. Senator Inouye. Thank you. Mr. Hoffman, you indicated that you know that to be declared a Native American, those remains must be culturally related to the present tribe or Indian? Mr. Hoffman. To a living tribe, people or culture. Senator Inouye. Who has the burden of proof? Is the department the one to say that you are not or do the Indians have the burden of proof of saying we are? Mr. Hoffman. Most remains are in the possession of either Federal agencies or museums or organizations that are studying the remains. They are in collections, if you will. It is under the law, the obligation of the people in possession of the remains to identify whether those remains are culturally unidentifiable or culturally unidentifiable. The normal process is that the department, the NAGPRA office, then makes the list of culturally identifiable remains available to the public and tribes, Native Hawaiians and other groups can then petition, if you will, to make their case for why they believe the remains are identifiable. Senator Inouye. And who determines what remains are culturally identifiable? Mr. Hoffman. In the case of new discoveries, the Federal land manager--if on Federal lands--or the Indian landowner--if on tribal lands--makes the determination as to whether NAGPRA applies and the eventual disposition of the remains. In the case of collections, the Federal agency or museum that receives Federal funds which has control of the items is responsible for making that determination. Senator Inouye. So the Department of the Interior does that? Mr. Hoffman. The Department of the Interior would only make that decision if the new discovery was on Interior lands or if the collection was owned by a Federal agency within Interior, or in very limited cases, if the Secretary of another department delegates responsibility to the Secretary of the Interior. Senator Inouye. Now, you have indicated that there are 111,000 culturally unidentifiable remains. Mr. Hoffman. Yes, sir. Senator Inouye. What happens if this bill passes? What is the impact? Mr. Hoffman. If this bill passes, things would go on largely as they have been proceeding since the passage of the act. Senator Inouye. And you believe that your amendments will resolve this matter? Mr. Hoffman. Mr. Chairman, our position is we are opposed to the amendment. I am guessing it is the belief of those who are proponents of the amendment that it will resolve the matter. We believe that there needs to be an appropriate balance between not offending the sensibilities of these existing living cultures, tribes and people groups and the need to be able to study some remains further in order to determine whether they are affiliated or what the origins are or how it led to the establishment of people in the North American continent, specifically the United States. Senator Inouye. Mr. Chairman, I have many other questions. May I submit them later? The Chairman. Without objection. Senator Inouye. Thank you very much. The Chairman. Thank you very much, Mr. Hoffman. We will continue to work with you and we hope that you will have a report for Senator Dorgan about the process. Mr. Hoffman. Yes, sir; I will. Thank you very much. The Chairman. Thank you very much. Our second panel is Paul Bender, professor of law at Arizona State University College of Law; Walter R. Echo-Hawk, senior staff attorney, Native American Rights Fund; Patricia Lambert, American Association of Physical Anthropologists at Utah State University; Paula Barran, an attorney for Barran and Leibman in Portland, OR, accompanied by Alan Schneider, director of friends of America's Past; Professor Keith Kintigh, Society for American Archaeology in Tempe, AZ; and Van Horn Diamond of Honolulu, HI. We will begin with our old friend, Paul Bender. Welcome back. STATEMENT OF PAUL BENDER, PROFESSOR OF LAW, ARIZONA STATE UNIVERSITY COLLEGE OF LAW Mr. Bender. Thank you, Senator. And thank you for your leadership in this whole project from the beginning of the statute. I am here because I was a facilitator of the dialog panel which I think you recommended should be convened. That dialog panel, Mr. Echo-Hawk was on the panel, came up with a consensus about what the statute should contain. The Ninth Circuit decision is just wrong about the definition of ``Native American.'' The reason it is wrong is because it failed to understand that NAGPRA has two principal purposes. One is repatriation, but to me, and I think to the panel the more important one was consultation, admitting Indian tribes into the consultation process so that, for example, when you discover old remains in a building project, you have to notify tribes and consult with tribes about whether they are affiliated. Under the Ninth Circuit decision, there would be no consultation, or there wouldn't have to be any consultation. The museum that had remains or people who discovered remains could just make the decision that, hey, there is no present day tribe that is affiliated and go on and treat them as if they were not Native American. The term ``Native American'' is meant to be tremendously inclusive in order to permit the tribes to engage in consultation about whether they are culturally related to a present day tribe, and that the repatriation standard is what the Ninth Circuit said the Native American standard was. The repatriation standard is whether there is a relationship with a present day Indian tribe, but materials are Native American before you make that determination because if it is determined that they are not affiliated with a present tribe, the statute says those remains or the fate of those remains is in the hands of the review committee that the statute set up. The review committee is explicitly told to compile an inventory of culturally unidentifiable human remains that are in the possession or control of Federal agencies or museums, and recommend specific actions for developing a process for disposition of such remains. If unidentified remains or unaffiliated remains are not Native American remains, this provision has absolutely no meaning because culturally unidentified material would not be Native American and would not go before the committee. I think that illustrates what is wrong with the Ninth Circuit's interpretation. It focused on repatriation. It said, hey, we should not repatriate things unless they are related to a present day tribe. That is generally true under the statute, but the important thing is that before you decide whether they are affiliated, you have to consult with tribes and with a review committee. The Ninth Circuit decision just strikes that completely from the statute. The consultation part of the statute was to me the more important part. The thing that struck me in the dialog panel was that the principal anger of the tribes over many years was the failure to consult. Museums would have things and would say we know what they are; we are not going to talk to you; we are not even going to let you see them. When they consulted, generally there was an agreement about whether they were related to a tribe and what should be done with them. It was the failure to consult, the failure to admit Indians into the process of deciding whether they were Native American, whether they were related to a present day tribe, whether they ought to be repatriated. The statute carefully set up a two stage process. First, you consult and then you make a decision. If the decision is that they are not related to a present day tribe, then they go to the review committee. The review committee is supposed to decide what happens to them. The Ninth Circuit seemed to think that the only thing the statute was for was to repatriate. That is just not true. Under the Ninth Circuit decision, that whole consultation part of the statute would be canceled because you would dig up a skeleton; you would say, hey, do I think this is related to a present day tribe? No. Therefore, I can go ahead and destroy it, throw it away. The statute meant to say when you dig up and old skeleton, you stop and the statute says you have to stop, and you consult with the appropriate tribes. Through that consultation process, you try to decide whether they are repatriatable remains. It is really important to have the tribes involved in that. It is also really important to have the tribes, even if you decide that the remains are not affiliated with a present day tribe, it is really important to have Indians involved in the decision in the review committee about what should happen to these old remains. The review committee contains Indian representatives. The Ninth Circuit decision just throws that out and acts as if the only question is, are these repatriatable. So a museum with remains or a museum with any cultural objects could say, well, we do not think there is a present day tribe that is related to these so we don't have to tell anybody about them. Well, they have made the decision that they are not affiliated. The whole point was they were supposed to inform tribes so that they could consult with them about whether they were affiliated. That is the part of the process that the Ninth Circuit decision leaves out. If you change the statute the way the amendment proposes, you would not change the repatriation standard at all. It remains exactly the same. What you would change is the need to bring Indians into the process of deciding whether they are affiliated and if so, who they are affiliated with. I think that is really important to do. [Prepared statement of Mr. Bender appears in appendix.] The Chairman. Thank you very much. Why do you think the Administration opposes? Mr. Bender. I haven't got the slightest idea. They were right the first time. They clearly understood that indigenous meant any indigenous people prior to the Europeans' arrival; any indigenous materials like that were under NAGPRA. Why they have changed their mind about that, I do not know. The Chairman. Welcome, Mr. Echo-Hawk. STATEMENT OF WALTER R. ECHO-HAWK, Sr., SENIOR STAFF ATTORNEY, NATIVE AMERICAN RIGHTS FUND Mr. Echo-Hawk. Thank you, Mr. Chairman. Good morning, members of the committee, Senator Inouye and Senator Dorgan. It is a pleasure to be back before the committee to discuss today's subject. I am familiar with the issue today by virtue of my work since 1986 on repatriation issues. I was a member of the panel that was referred to in Professor Bender's testimony. I worked closely with the committee, gave testimony on NAGPRA and worked with the staff in the development of NAGPRA on behalf of Native clients. Subsequent to that, I have worked on the implementation of the statute by representing tribes in repatriation claims. I also participated in the Bonnichsen case as counsel to amicus parties to try to effectuate the statute and ensure that it was properly interpreted by the court. So I am familiar with today's issues. My written testimony is in the record. I will just briefly summarize it and I would like to address myself, time permitting, to the comments made by the Administration, which I feel are a very sad retreat from its earlier position. I would like to introduce for the record the brief that was submitted by the United States in the Bonnichsen case where it supported very strongly the definition of Native American as including all indigenous Native people indigenous to the United States and their regulations implementing NAGPRA. So it was very sad for me today to see the Department of the Interior break its word that it gave to the Ninth Circuit. I think when it comes to a human rights matter, we lose credibility when the Department says one thing to one branch of the Government and then the opposite to another branch. So if I may, I would like to introduce the United States' brief into the record of this hearing, if I may. The Chairman. Without objection. It will be made a part of the record. Mr. Echo-Hawk. Thank you, Mr. Chairman. [Referenced document appears in appendix.] Mr. Echo-Hawk. Today, I represent a working group of prominent Native Americans who are concerned with unknown Native American dead, those dead who are currently listed as not being culturally affiliated or having any known descendants. According to the testimony of the Administration, there are 111,000 of these unknown dead. My clients are concerned about their fate and their proper disposition, and particularly those provisions of NAGPRA which expressly pertain to their classification, their treatment and their disposition. I fully agree with the very sound legal analysis provided by Professor Bender regarding the impact of Bonnichsen on NAGPRA. The court's interpretation was incorrect for the reasons that he gave in his testimony. I would just simply add two things in my written testimony on that point, on the correctness of the opinion. It is very telling that the court did not cite any direct legislative history concerning section 3001(9), the definition of ``Native American'' to support its narrow restrictive holding. And the reason why, Mr. Chairman, is that there is no direct legislative history behind that section. The reason why is there was no debate, there was no argument, or no controversy concerning that section at the time it was crafted. All of the parties, everyone who worked on the legislation, including myself, logically assumed that NAGPRA would apply to any Native Americans that are indigenous to the United States. That is the reason why there are special statutory sections that deal with these individuals, these unknown individuals. That is why the Secretary of the Interior promulgated regulations on that assumption and took the position it did in Bonnichsen, because we were all under that assumption, and the court undercut the scope of it. And second, it is very telling that the court even recognized that there is a disparate coverage now for Native American and Native Hawaiian. The court said we do not have this threshold showing for Native Hawaiians because Congress used different language, using geographic criteria. But I know that Congress did not intend to have broader coverage for Native Hawaiians than Native Americans. So the Ninth Circuit decision is wrong. It nullifies various provisions in the statute that are referenced in my testimony. It restricts the coverage of the statute seriously. So I earnestly urge the committee to continue working on this problem to get us back on the path that was established by all of us in 1990. I think we were all well pleased with the work that was done then and considered it landmark, consensus human rights legislation. As a practitioner of Federal Indian law for 30 years, I have had occasion to study the history of Federal Indian law, Mr. Chairman. I have seen, and I think scholars will agree with me, and Senator Inouye I have heard him as well, that there has been far too much abrogation of Indian treaty rights and Indian rights in the history of our great Nation. It is within the power of Congress to ensure that its human rights measures enacted for Native Americans are not abrogated by other branches of the Government. That is what occurred in the Bonnichsen case. I think we just witnessed the Department of the Interior in today's hearing attempt to abrogate the statute as well, retreating from its position. That is very sad to see. I thought those days were past. So I just respectfully say and urge the Committee in the name of the national honor to uphold this human rights statute and ensure that our intent is effectuated. I thank you for the opportunity again to be here, and I pledge any assistance to work with the committee as we continue to look at this serious impairment of the NAGPRA objectives that has resulted. Thank you. [Prepared statement of Mr. Echo-Hawk appears in appendix.] The Chairman. Thank you very much. Ms. Lambert. STATEMENT OF PATRICIA M. LAMBERT, AMERICAN ASSOCIATION OF PHYSICAL ANTHROPOLOGISTS, UTAH STATE UNIVERSITY Ms. Lambert. I am here representing the American Association of Physical Anthropologists. We want to thank you for the opportunity as well to present testimony before the committee. I will read this to make sure I get it right. The American Association of Physical Anthropologists is the largest professional society devoted to the study of physical anthropology in the United States. We were part of the coalition of Native American and scientific groups that worked for the passage of the Native American Graves Protection and Repatriation Act. We continue to support the key goal of ensuring that culturally affiliated federally recognized tribes are allowed to make decisions regarding the disposition of their ancestral remains. During the NAGPRA negotiations, it was our understanding that the term ``Native American'' encompassed both modern and ancient indigenous groups, including the many earlier archaeologically documented cultures that have disappeared and thus are not culturally affiliated with any modern federally recognized tribe. The Ninth Circuit Court's ruling in the case of Kennewick Man makes it clear that the current NAGPRA definition of ``Native American'' does not reflect this commonsense understanding of the term. We consequently do not object to the insertion of ``or was'' into the current definition to clarify its meaning. However, we do have a concern about the timing of the proposed amendment. It is impossible to judge the effects of the proposed change in the absence of regulations regarding the disposition of culturally unidentifiable human remains. This apparently minor word change in the definition of ``Native American'' could have profound legal ramifications at odds with the intent of NAGPRA depending on how the regulations are worded. NAGPRA has been a success because of the careful way it was crafted to balance the disparate interests of many different groups of Americans in archaeological remains. NAGPRA's specific instructions regarding the composition of the review committee makes this balance of interests very clear. The key to the compromise that allowed so many different groups to support NAGPRA's passage resides in the concept of cultural affiliation. NAGPRA provides culturally affiliated tribes with the right to reclaim the remains of their ancestors where lineal descent or relationship of shared group identity can be clearly established, based on the preponderance of a broad range of different types of evidence. However, when a reasonably close relationship between human remains and a modern federally recognized tribe cannot be established, NAGPRA permits human remains to be retained for scientific study. In this way, NAGPRA balances the undisputed right of close relatives to decide about the disposition of their ancestral remains, against the rich array of historical insights that can be derived through scientific study for all Americans. The troubling aspect of the Kennewick case in our opinion is not the fact that the Secretary of the Interior considered the Kennewick remains to be those of a Native American. Instead, it derives from the Secretary's lack of adherence to the statutory definition of ``cultural affiliation,'' which is a ``relationship of shared group identity which can be reasonably traced between a present day Indian tribe and an earlier identifiable group.'' We also feel there was a lack of appreciation for the balance which is at the heart of NAGPRA. Such attempts by the DOI to extend the concept of cultural affiliation to encompass very ancient remains with no demonstrable relationship to any modern tribe makes us apprehensive about the way the amendment you are currently considering will interact with pending draft regulations dealing with culturally unidentifiable human remains because the proposed amendment will bring very ancient remains like Kennewick Man under the purview of NAGPRA by defining them as Native American. We want to remind the committee that NAGPRA neither instructs nor provides authority for mandatory mass repatriations of culturally unidentifiable human remains to culturally unaffiliated groups. It does not say that anywhere. However, it seems likely, based on the position the DOI took in the Kennewick case, that the proposed regulations will attempt to do just that. Given these concerns, we hope that you will consider delaying the passage of the proposed amendment until regulations dealing with culturally unidentifiable human remains are promulgated. We look forward to your assistance in making sure that any regulations dealing with such collections balance the absence of a relationship of shared group identity against the value of these remains to all Americans as a source of information about our collective past. Culturally identifiable remains have enormous scientific value for learning about life in distant times. They also have provide insights for modern day medical and forensic concerns. I would be happy to elaborate on that. In summary, we support the spirit of the proposed amendment and withhold our full support only because the legal ramifications of this change in statute cannot be fully assessed in the absence of regulations dealing with the disposition of culturally unidentifiable human remains. Thank you. [Prepared statement of Ms. Lambert appears in appendix.] Senator Dorgan [presiding]. Ms. Lambert, thank you very much. The Chairman had to go down to the Commerce Committee which is downstairs to offer an amendment on a markup. He will be back, at which point I will go down and offer my amendment on the markup of another bill, so we are having to juggle in this manner, but Senator McCain will be back in a bit. Next, let me call on Paula Barran, attorney at Barran and Leibman, Portland, OR, accompanied by Alan Schneider, Director of Friends of America's Past in Portland, OR. Ms. Barran, thank you very much for being here. STATEMENT OF PAULA BARRAN, ATTORNEY, BARRAN AND LEIBMAN, LLP; ACCOMPANIED BY: ALAN L. SCHNEIDER, DIRECTOR, FRIENDS OF AMERICA'S PAST Ms. Barran. Thank you, Senator. I appreciate the opportunity to be here, as does Mr. Schneider. We are the attorneys who handled the Bonnichsen v. United States case from almost the moment that the skeleton of the Kennewick Man was discovered in the Columbia River 9 years ago this week. We are continuing to handle it today. I must say that I very much disagree with Professor Bender's analysis of the Ninth Circuit and its opinion in that case. I argued the case before the Ninth Circuit, and before that Mr. Schneider and I briefed the case, and before that we tried the Kennewick Man case, and before that we consulted or attempted to consult with the Government. One of the problems that we ran into, in addition to some very shameful treatment by the government in this case, which I will elaborate on briefly, one of our issues was not that the Department of the Interior and the Army Corps of Engineers was consulting with the tribes. We thought that was wonderful and that was the way the statute was intended to be. Our problem was that the moment that skeleton was seized by the Army Corps of Engineers, our clients, who were the most distinguished physical anthropologists in this country, were literally shut out of that process. We were told by the Government that it was our job to figure out what to tell them, but they were not going to talk to us. They were not going to tell us what they were finding. But they also ridiculed us and they ridiculed our clients, people who have written the books about the prehistory of this country. I found that treatment to be a terrible thing to experience as an American. Nine years ago this week, the Kennewick Man skeleton was discovered and he is magical; 2 weeks ago, the scientific team finally ended its first round of investigation into that skeleton. I tell you, what they are discovering is just a magical wonderful part of the peopling of the Americas. It was 8,000, 9,000, 10,000, maybe longer, many, many years ago, people walked this land. They walked the continental United States and they were not American Indians as we know those people today. They are different. Kennewick Man is different. There are a handful of ancient skeletons and they have the capacity to tell us so much about the prehistory of this country. But we have so very little to work from. One of the reasons that Kennewick Man sparked the battle that he did is the incredible value of an almost complete 9,000 year old skeleton with a spear point in his hip, a tall man, five foot ten inches or so, who lived to a very, very ancient age, 9,000 years ago, more than 500 generations before the pyramids. This man walked our country and he was not an American Indian as we know it today. But the Army Corps of Engineers seized that skeleton and immediately announced its intention to ``do exactly what the Umatilla have requested us to do,'' which means to rebury that skeleton with no opportunity to find out what he meant and what he could tell us. I mentioned that we have very, very little to look on to understand the prehistory of this country. It is a little bit like trying to understand all of Shakespeare by reading two sonnets in the balcony scene from Romeo and Juliet. There was a culture here many, many millennia ago, and we deserve as Americans to understand that. What you are looking at today in this proposed amendment, which I think has a misnomer of a technical amendment. It is not. It is a sweeping change. You are going to take those ancient cultures and you are going to stamp them with the stamp that says you are Native American as we understand that today, and we are not ever going to let you tell us the story of what it was like so long ago. I think you have been told today and you have been told as this statute has developed and as these proposed amendments have been developed that they will not make any change; they will go back to the original intent of NAGPRA. We came here today out of Oregon, where I do not think any sane Oregonian would leave in the summer, because we wanted to talk to you about the drastic changes that these proposed amendments are going to make. The first step that happens when you are looking at a skeleton is to make a determination whether or not it is Native American. Once that happens, there are very, very severe consequences to that decision. The second analysis is whether or not that Native American skeleton is culturally affiliated. That is a very important structure, we think, because the consequences of calling something ``Native American'' means that skeleton, and I am going to just talk about remains because that is what we had in Kennewick Man, that skeleton can be automatically turned over to people who have no relationship to it simply because you called it ``Native American.'' There is a form under NAGPRA, under the graves statute, of automatic ownership. That can happen, for example, if the Department of the Interior promulgates regulations that will just give over these ancient remains without proof of a relationship. But there are also provisions in the statute that automatically give over ownership based simply on geography. So for example, if you find ancient remains, 9,000 years old, and you find them on land that was declared in some ancient court case to have been aboriginal, it will automatically be turned over to people who have no need to show that they have a demonstrable connection. So that is the first consequence of calling something ``Native American.'' The second consequence, and this is one that we very, very much experienced during the Kennewick Man battle and the Kennewick Man litigation, once you say something is Native American, the only people who can make a claim for those remains are people who are today Native American. We were told repeatedly after the Kennewick Man skeleton was discovered that because our scientists were not Native American, they had no right to even be heard on what would happen to that skeleton, even though as it turned out that skeleton bears no relationship whatsoever, including from the government's own study team, no relationship whatsoever to modern day Native Americans. He is different. His closest affinities are Polynesian or the Ainu of Japan, the prehistoric ancestors of the Ainu of Japan. Let me give you a hypothesis of what might happen and what we might discover here. Suppose, just suppose for 1 moment that this land was originally settled by people who came up from the south, from Central America or South America or Mexico and they moved into what is now the continental United States, and then they were pushed back out, but they had for a while a thriving culture. And then later, many, many centuries later they came back. What you would be doing is to say, your remains, those ancient people whose ancestors were ancestral to Hispanic populations, are not Native American and their ownership is being transferred to claiming Indian tribes when that is a totally different culture. And you are saying, you don't matter to us. Your culture does not matter to us; 12 percent of our population in this country today is Hispanic, and that is not an unlikely consequence of what we might discover. I also mentioned earlier in my remarks that the Government acted most shamefully in this case. I want to give you a couple of examples of that so you will understand why we came here and why this was so important, and why we battled in court for years and years and years over the right to study this skeleton. The first thing that we noticed when we were finally given access to the administrative record is that an employee of the Department of the Interior, just an employee, not a policy setter, was writing memoranda about how he wanted to suppress thought on how this country might have been peopled. Now, I think that is terrifying, to have an employee in a government agency start telling people that he wanted to control these remains so that we could not find anything out because he did not like a particular theory that science was advancing. Senator Dorgan. Would you submit that for the record? I assume that is part of your argument. Ms. Barran. Yes, sir; it is part of the administrative record and I would be happy to. Senator Dorgan. Would you submit it? Thank you. Ms. Barran. The second thing that happened is in April 1998, this body, the Senate and the House of Representatives passed a bill. That bill was to forbid the destruction of the Kennewick Man discovery site. It was passed. It was sent to the White House for signature. And then unfortunately, you took an Easter recess and as soon as Congress closed down for the weekend, the Army Corps of Engineers' helicopters took off and dumped tons of rubble over the Kennewick Man discovery site. They ruined it. We will now never know what was buried there. And one of the things that we are starting to see from this first scientific study of the skeleton is he might have been intentionally buried there, but we will never have the opportunity. That was an astonishing act from the Army Corps of Engineers to be so openly defiant of Congress. The third thing that happened was this level of appeasement. We never walked into court wanting to fight with the tribes with whom we have incredible respect. Our clients study their culture. But we did walk into court saying that our clients, our scientists should be treated fairly in this process and we all, as Americans, should have the right to learn about Kennewick Man. But we saw memorandum after memorandum saying if we get the right answer the first time, we will not even allow anybody to study. We will do what the tribes want us to do with this incredible skeleton, this most incredible skeleton. The last thing that happened was a level of astonishing insult from these agencies. We stood in Federal court in Portland, OR and listened to a Department of Justice attorney call these scientists ``savagers of Indian heritage.'' We listened to them. We heard them calling Dr. Owsley who sits here today from the Smithsonian Institution a ``paleo-cowboy.'' One of the NAGPRA officials told Mr. Schneider here that he didn't want to let a bunch of old bones get in the way of doing other important business. The Department of the Interior and the Army Corps of Engineers did that under the current statute. So we ask you to think about what they will do if you give them broader powers under this new definition. The last effect that I think you will see is what is a hamstringing of education in this country. Senator, I have earned five university degrees. I have earned three of them in this country. Until this case, I would stack my experience up against anything that any other country can give us. But now, anthropology departments are starting to send their Ph.D. candidates out of this country to do their study because they cannot have access to the remains that they need to complete their studies. If you pass this amendment, if you pass this bill, you might as well shut down paleoanthropology studies in American universities. Our scholars of tomorrow will be trained by foreign scientists who are trained elsewhere, if we train them at all. I find that to be a very, very sad outcome. So when I was flying across the country yesterday, I was thinking a lot about being an American and what it has always meant to me, and what it meant to me during this litigation and what it meant to me to have a judicial system that could rein in the overweening pride and hubris of these Government agencies that we had to do battle for so many long years. I was reminded that when this country was formed, even people like Thomas Jefferson, who was no mean scientist in his own right, remarked that we would not ever be afraid to follow truth wherever truth will take us. I ask this committee to please don't prove him wrong. [Prepared statement of Ms. Barran appears in appendix.] Senator Dorgan. Ms. Barran, thank you very much for your testimony. You know Mr. Bender, is that right? Ms. Barran. I do not. I have met Mr. Bender for the first time today. Senator Dorgan. We will probably have a chance during the question and answer session to exchange views, since you described Mr. Bender's views. I appreciate very much the opportunity to have conflicting sets of interests and views here so the committee can evaluate them. Both of you expressed them very well, as did the other witnesses. Professor Keith Kintigh, the Society for American Archaeology in Tempe, AZ is with us. Professor Kintigh, why don't you proceed with your testimony. STATEMENT OF KEITH W. KINTIGH, SOCIETY FOR AMERICAN ARCHAEOLOGY Mr. Kintigh. Thank you, Mr. Chairman. The Society for American Archaeology thanks the committee for the opportunity to comment on the proposed amendment. Fifteen years ago, I appeared before this committee to present SAA's testimony on S. 1980, the bill that became NAGPRA. SAA represented the scientific community in shaping NAGPRA's compromise among Native Americans, including Mr. Echo-Hawk, museums and scientists. SAA helped form a coalition of scientific organizations and Native American groups that strongly supported NAGPRA's enactment. Since that time, SAA has closely monitored NAGPRA's implementation and consistently urges our 6,800 members always to work toward its effective implementation. We believe that any amendment should uphold NAGPRA's central principle that repatriation is a remedy provided to Indian tribes that are reasonably closely related to human remains or objects. Under NAGPRA, in most cases cultural affiliation is the legal standard for closeness of relationship that must be achieved. The proposed amendment would modify the definition of ``Native American'' in response to judicial rulings that the statute requires that human remains bear some relationship to a presently existing tribe, people or culture in order to be considered Native American. In our amicus filing in the Kennewick case, SAA agreed with DOI's earlier position on the broader meaning of ``Native American,'' arguing that requiring demonstration of a relationship to modern Native Americans is contrary to the plain language of the statute and would absurdly exclude historically documented Indian tribes that have no present-day descendants. However, in that same amicus filing SAA argued, contrary to DOI's position, that Kennewick Man should not be repatriated to the claimant tribes because he did not meet the statutory standard of cultural affiliation. On this point, Judge Jelderks agreed, stating ``the Secretary's decision does not meet this standard.'' ``As a consequence,'' the judge continued, ``even if the Secretary's conclusion that the remains are Native American had been correct, the decision to award these remains to the tribal claimants could not stand.'' I continue to think that SAA got it right in its amicus brief. The proposed amendment would have the effect of reversing the court's interpretation, thereby restoring the status quo ante for the definition of ``Native American.'' The amendment would not affect the court's findings on cultural affiliation. The amendment thus would make NAGPRA's language consistent with what the Congress, SAA, NARF, and to our knowledge all the other involved parties understood ``Native American'' to mean back in 1990. I agree completely with Mr. Echo-Hawk that it was uncontroversial at that time. In our analysis that I will briefly outline, we indicate that the predictable effects of the amendment would be minor, in keeping with the committee's characterization of it as a technical amendment. For NAGPRA to apply, human remains or objects must satisfy the definition of ``Native American.'' However, that is only the first step. In most cases, repatriation under NAGPRA occurs only if there is also cultural affiliation, a relation of shared group identity with a present day Indian tribe. Culturally affiliated human remains or objects are a subset of the remains or objects that would meet the definition of ``Native American'' either under the Kennewick court's interpretation or the proposed amendment. Thus, to the extent that repatriation is contingent on a showing of this more restrictive standard of cultural affiliation, the proposed definitional change would have absolutely no affect on the remains and objects that could be repatriated. In order to see the logical effects of the amendment, we must then look to three circumstances in which repatriation can occur in NAGPRA without a finding of cultural affiliation. First, cultural affiliation is not required for repatriation to lineal descendants. We take this to be unproblematic because any repatriation to lineal descendants is a reasonable disposition. Second, cultural affiliation is not required for repatriation of human remains or other cultural items found on Indian lands since NAGPRA's enactment. However, even in the absence of an amendment, the tribe controls the remains or objects under other law. This exception is therefore also unproblematic. Third, the proposed amendment would extend the possibility of repatriation to those ancient human remains or objects for which no relationship to a present day tribe can be shown if they were discovered since NAGPRA's enactment on Federal lands that are legally recognized as the aboriginal lands of a tribe. When NAGPRA's language was negotiated in 1990, SAA argued that the standard of cultural affiliation should also apply to these remains. However, as part of a compromise, SAA accepted the language that appears in the statute and is prepared to stand by it. In summary, consistent with our longstanding position on the meaning of ``Native American,'' the Society for American Archaeology supports the proposed amendment. Our analysis of its predictable effects suggests that the amendment would, in combination with responsible and even-handed regulations, serve to maintain NAGPRA's balance between the public interest in the advancement of science and the very real concerns of Native Americans. SAA is grateful for the balance shown by the committee as it addresses NAGPRA, and again thanks you for the opportunity to provide you with our perspective. We would be happy to help the committee in any way possible as it pursues this issue. [Prepared statement of Mr. Kintigh appears in appendix.] Senator Dorgan. Professor, thank you very much. Our final witness is Van Horn Diamond from Honolulu, HI. Mr. Diamond, thank you and you may proceed. STATEMENT OF VAN HORN DIAMOND, HONOLULU, HI Mr. Diamond. Aloha and thank you, Senator Dorgan, for this chance to talk with you about NAGPRA and the Native Hawaiian, specifically the need to further the enabling of the Native Hawaiian family, called Ohana, to meet its prime societal responsibility and family duty, the care for, custody and reverence to ancestral remains and artifacts. Please note this testimony is from the Diamond Ohana. We are recognized under NAGPRA as a Native Hawaiian organization. We do not speak for the Hawaiian people, nor are we experts to speak ex cathedra. But we have had interface with other Native Hawaiian organizations, especially families. Therefore, our remarks reflect our conversations with them, and to the extent applicable, our hands-on learning about NAGPRA and how it works in Hawaii as we observed and personally experienced. Before continuing, it is important for us to affirm our support for and endorsement of S. 536, section 108. The two amendments enables Native Americans ways to have standing and enhance further the connection to ancestral remains and artifacts. No scientific curiosity should have singular license to indigenous remains and artifacts. Not all knowledge resides in Western scientific methodologies, modalities and even eschatology. The Native Hawaiian family Ohana situation is somewhat similar to the Colville Tribes connection to the Kennewick Man, and the Fallon Paiute-Shoshone Tribe in Nevada to its 10,000 year old man. Ancestral remains and certain artifacts were buried secretly to protect from and deter desecration both physical and spiritual. Consequently, it is the family's oral traditions, genealogy, history and geographic presence, including how a descendant is named which connects the present generation with its predecessors, especially our ancestors. But often, the specific tie as to who is buried and where they lay, these facts sometimes die with whomever it was passed on to in prior generations. Consequently, the lineal definition within NAGPRA's administration rules does not readily and most often not enable the Hawaiian family from achieving its lineal descendant status. The alternative is therefore the NAGPRA definition of the Native Hawaiian organization. But it is a catch-all definition, wherein all categories of Native Hawaiian organizations can be placed. Most are and were community-based nonprofit agencies. This exists because when NAGPRA came to be there was no Hawaiian Native government. The majority of the participating Native Hawaiian groups were not the Hawaiian family. But in the 2004 and 2004 timeframe, this fact has changed. Families are now trying to assume and fulfill their responsibility, their duty. However, there are some community-based entities suggesting the restriction as to who is a Native Hawaiian organization to the disadvantage of the Native Hawaiian family. The consequence is no lineal descendant, no Native Hawaiian organization, therefore no family ability to participate. Our preference, therefore, is to recommend, if it is doable, to give the Native Hawaiian family its standing separate from the lineal descendants and Native Hawaiian organizations. If this cannot be, to ensure that under the Native Hawaiian organizations, the Native Hawaiian family standing is protected from excisement to fulfill their prime duty and responsibility. One thing that came to mind as I was listening to Mr. Bender is that under NAGPRA our experience is that prospective claimants, as well as those that are recognized, have the right to inspect the items. Clearly, the presumption then is that there is going to be confer and consultation with whomever is the repatriator. I would also think that under 106 there is a definition about culturally relevant communication. I would suggest to parties that want to have scientific inquiry that they affirm that by their participation and behavior. [Prepared statement of Mr. Diamond appears in appendix.] Senator Dorgan. Mr. Diamond, thank you very much. Mr. Diamond. Thank you. Senator Dorgan. The testimony that all of you have presented is very interesting testimony and has some conflict, as you have heard it. I think probably a starting point is that all of would agree that Indians, Alaska Natives, Native Hawaiians, and others have suffered great injustices at the hands of the Federal Government, Federal agencies, museums, and other institutions that have removed the remains of their ancestors. I recall some years ago being involved with respect to the Smithsonian that as warehousing massive amounts of Indian remains in their basements and their warehouses. I became very interested in that. I want to tell you just one other story of interest. It relates only tangentially to this. I was walking down in the hallway of this building about 4 years ago and I saw a historical document in a little display about Senate history. It was a historical document about something called the Congressional Cemetery, which really is not owned by or supported by the Congress, but it is called the Congressional Cemetery. It is not very far from this building. It said that there were Senators and Congressmen buried there from decades past in the past century. It also said there were some Indians buried there. I said to myself, let's find out if there are Indians from our region buried there and why and how it happened. So I had my staff do some research. And sure enough, there was a man named Scarlett Crow buried there. He is from the Sisseton-Wahpeton Tribe, which is partly in North Dakota. I decided to find out what had happened to Scarlett Crow. He came out to Washington, DC with I think six or eight other Indians from his tribe, I believe it was 1862, to negotiate a treaty. He was found dead under the Occoquan Bridge. The death certificate said suicide and they buried him over here in the Congressional Cemetery in a far corner. I got a copy of the Alexandria, VA police records and saw that when they investigated the death of Scarlett Crow, this fellow who was in Washington, DC from the Wahpeton-Sisseton Tribe in the 1860's, when they investigated his death, the police investigators said that he was said to have committed suicide by hanging, but in fact he was lying next to his robe that was carefully folded next to his body, and the branch from which he said he would have hung himself would not have held a 6-year old child. These are the police investigators. It seems to me it was just a cursory review of whatever records were available, this man was killed, which probably was not too unusual back in the 1860's when people from tribes came here, and then he was put in a small grave over here. I notified the Sisseton-Wahpeton Tribe with all the relevant information about this man named Scarlett Crow who came to Washington, DC, I am sure with great intentions, with his tribal members, of negotiating a treaty with the Federal Government and ended up being killed under the Occoquan Bridge. It is very unlikely he committed suicide; very likely he was killed. And the investigation was stopped and they put suicide on the death certificate and buried him in a corner of the cemetery. So my acquaintance with all of these issues is not only going over to the Congressional Cemetery and investigating that, but working with the tribe to think through the issue of burial grounds and the building of a bridge, a whole range of issues, working with others in my service in both the House and the Senate with respect to the issue of the Smithsonian and other institutions that have picked up remains of Native Americans and warehoused them. This is a very emotional issue and it is a spiritual issue. I find it really intellectually interesting, obviously, to hear the different views today. It is difficult. It is not an easy issue to deal with because you are dealing with spiritual issues here. So let me ask the question, let me start with Ms. Barran and Mr. Bender. I assumed that you probably knew each other and were longstanding advocates on different sides of this issue. Ms. Barran, you expressed disagreement with Mr. Bender. Let me have Mr. Bender respond to your disagreement and then let's have a discussion about that. Mr. Bender. Mr. Bender. Yes; the reason, we have not met I think is because I have not been an advocate on this issue. My contact with it really stopped when the legislation was approved. I testified before the committee prior to the legislation's enactment in my capacity as a facilitator for national dialog. I have not been involved. My point here is that the Ninth Circuit decision is an erroneous construction of the statute as I understood it at the time it was enacted. The statute was a compromise, as everybody has said. A couple of things in response to what Ms. Barran said. Scientific people are not excluded from the process of deciding what should be done with unaffiliated remains. The review committee contains seven members. Three of them are Indians and three of them are nominated by museums and the scientific community. That is the way the scientific community is guaranteed a consultation with regard to remains that are not connected with a present day tribe. Those remains are to be disposed of in a way that the review committee says and the review committee has a very substantial scientific representation. But what the Ninth Circuit has done, and if you don't change the Ninth Circuit decision what is going to happen is not that scientists are going to be excluded, but that Indians are going to be excluded from the process because there are three Indians on that committee also. That is the chance of the Indian community to have some say in what should happen to these prehistoric remains that are not affiliated with any current tribe. If the Ninth Circuit decision is correct, Indians will not be involved in that process. The most important thing that NAGPRA did was to include Indians in the process. For example, when museums are told to do an inventory, this is the inventory section, Section 3003, they are told to do an inventory of Native American things and tell the tribes what they have. If unaffiliated remains that are unaffiliated with a current tribe are not Native American, they won't even tell the tribes they have them. That is wrong. That is exactly contrary to what everybody at the time wanted NAGPRA to do. It wanted NAGPRA to include Indians in the process, not to exclude them. So that is the basic problem with the Ninth Circuit decision. Reversing the Ninth Circuit decision does not exclude scientists because they are included in the review committee. Senator Dorgan. Ms. Barran. Ms. Barran. As you can see, I am ready to go here. Let me tell you what that guarantee meant to us 9 years ago. I think that will give you a sense of why the Ninth Circuit was outraged, why the Federal District Court for the District of Oregon was outraged, and why that court ultimately concluded that the Government had acted in bad faith and was consistently biased. Nine years ago, on July 26, the Kennewick Man skeleton was discovered. His remains were collected by an anthropologist, Dr. Chatters. Dr. Chatters initially thought that the remains may very well have been a Caucasian settler of the area until he saw the stone spear point in the hip bone of the skeleton, and until an early radio carbon dating showed that he was incredibly old, 9,000 years old. Dr. Chatters was in immediate consultation with Dr. Owsley at the Smithsonian, who is one of the world's experts in these ancient remains. The Army Corps of Engineers got wind of it, learned of the discovery because Dr. Chatters had to obtain a permit to excavate the remains. They seized the skeleton. From that point forward, the Government clamped down its lid on everything that was happening. Our clients did not march into court just because they wanted to get themselves involved in an almost decade-long legal battle, but they started writing letters saying, let me explain what this means; let me tell you what it means to find an almost complete 9,000 year old skeleton in this country. Not only were they rebuffed, they barely had an acknowledgment that they had even written. They attempted to discuss this issue with the Government, but were closed out. Then the Army Corps of Engineers started creating the documents that we later saw as the administrative record. I am going to quote directly from the Army Corps of Engineers: ``I told him,'' referring to one of the tribal representatives, ``we will do what the tribes decide to do with the remains, but we will not involve ourselves in that decision. I assured him that we were working under the assumption the decision will be what the Umatilla have asked for.'' One of the claims that we brought ultimately in the Kennewick Man litigation was a denial of due process to our clients. One of the issues in the court decision was a finding by the Federal District Court at the trial court level and later affirmed by the Ninth Circuit, not that it was wrong to consult with the tribes, but that it was wrong to close us out of the process because the skeleton was not Native American to begin with. This is an ancient person from possibly Polynesia who came to these shores. He is not ancestral to current day tribes. So when we finally concluded at the trial court level, sort of the middle part of this process, the trial court actually wrote that the administrative record from these Government agencies, the Army Corps of Engineers and subsequently the Department of the Interior, establishes that the agency was consistently biased, acted with obvious disregard for even the appearance of neutrality, and predetermined the outcome of critical decisions, including the ultimate disposition of the remains. They jumped to a decision without even knowing what they had. Our battle with the government has never been over an effort to exclude the tribes from this process. But we had an anthropological treasure found in this country and it was going to go back into the ground without ever allowing us to teach anything. Senator Dorgan. Ms. Barran, I do not want you to re-argue the case. I appreciate your comments. Let me ask Mr. Echo-Hawk, and I think from what I have learned from the witnesses, including Ms. Barran, I think that there is a default position assumed in some of the testimony here that human remains should be, shall be or will be considered tribal, indigenous people as a kind of default position. If that is the case, especially with the proposed amendment, if that is the case, then if tomorrow someone finds the remains of a person that was judged to be living 12,000 years ago, a scientific treasure trove of information about human life then, would because of cultural issues and other concerns, would there be a preclusion of the study of those remains? Mr. Echo-Hawk. Not necessarily, Senator. If the amendment goes forward to preserve the original intent of Congress, it would simply mean that person would be deemed to be a Native American and subject to the provisions of the act, the input, the consultation, the protective procedures. It would not mandate his repatriation at all because any tribal claimant would have to establish that it is culturally affiliated with those remains. Senator Dorgan. Can I just stop you at that moment? Just for a second, save your thought. Ms. Barran is saying that in fact consultation was prohibited in the scientific direction by the government agencies. You support consultation in both directions, I assume, and so does Mr. Bender. Is that correct? Mr. Bender. Yes. Senator Dorgan. Let Mr. Echo-Hawk finish. I just wanted to make that point. The consultation issue is really important in this discussion. Mr. Echo-Hawk. Exactly. I think it is built into the act on all sides, and no one is intended to be excluded. Now, I cannot comment on the facts of the particular Kennewick case, whether the particular Federal officials may have abused or acted improperly with regard to the particular facts of that case. Their conduct, however, has nothing to do with the statute or its coverage. And I am not here today to overturn the outcome of that case, because the court did hold that the tribal claimants were unable to prove their cultural affiliation with those remains, and we are not here today to overturn that outcome, but merely to restore the coverage that everyone thought we had on the statute. That coverage in 15 years since the date of NAGPRA, has not emptied our universities. It has not emptied the collections of human remains. For example, you mentioned earlier that at the Smithsonian, in 1989, they had 18,000 remains. Congress enacted very similar repatriation provisions, requiring that those that any culturally affiliated remains be repatriated. Well, here we are 15 years later and there are still 15,000 remains in the Smithsonian. So it has not emptied the collection. My fundamental problem with some of what has been said today is I think that the scientific community is overstating some of their fears and concerns, because we simply have not had that experience in the United States of having absurd outcomes under the statute and we have not emptied, like there are hundreds of thousands of remains that are still on shelves under the statute. So I think that many of these concerns are overstated and not reflected in our actual experience in 15 years. Senator Dorgan. Ms. Lambert, if I might ask you if or was, two words, were amended to the statute, is it your contention that that would largely preclude you from being consulted, from being a part of this process? Is that what your testimony is? Ms. Lambert. No. Senator Dorgan. Okay. Explain it if you would. Ms. Lambert. In fact, we really have no problem with the amendment, depending on the wording of the regulations for culturally unidentified human remains. I think one of the interesting things about the Ninth Circuit Court decision is that it showed that a commonsense interpretation is not necessarily the same as a legal interpretation. We certainly agree with the commonsense interpretation, and if you look at the literature by those of us who study the past here, you will find ``Native American'' everywhere. And so I do not think you would find disagreement at that level. However, when you change statutory language, you change legal ramifications and what we are saying is that we cannot really assess what this minor little word change is going to do without being able to see what the regulations are for culturally unidentifiable human remains, because they do change the purview of NAGPRA. So on the one hand, we support the amendment and we agree and we acknowledge that it was a commonsense understanding at the time and everybody agreed about it. However, because the Ninth Circuit Court decision has pointed out the difference between that sort of common understanding and legislative language and legal meaning, we would like to ask that this amendment be postponed until we can see what the actual on the ground ramifications are going to be, and we cannot see that until the regulations are out. They should be out soon. Senator Dorgan. Who knows where the remains of the Kennewick Man are now? Who has possession of those remains? Ms. Barran. They are being curated and are presently stored at the Burke Museum at the University of Washington. They are under the control of the Army Corps of Engineers, which was the agency that had responsibility for the Federal land where the remains were found. They were found sort of partially submerged in the Columbia River, and that is land under the authority of the Army Corps of Engineers. So the Army Corps has authority over them. Senator Dorgan. Mr. Bender. Mr. Bender. Senator, could I say something about the timing that Ms. Lambert is talking about? If the Ninth Circuit's interpretation of the statute were to stand, those regulations could not be promulgated because if the Ninth Circuit's interpretation stands, remains that are not affiliated with a present tribe are not Native American materials, and the review committee and the regulations that the department is supposed to adopt are regulations only for Native American things. So I understand the feeling that you do not want to do things unless you know what the regulations are going to have, but I think the right thing to do is to change the statute back to its original intention; let the regulations be promulgated and consult in the promulgation, because if you do not do that, then the promulgation of regulations would be ultra vires because it would be about stuff that is not Native American. The committee's authority is only to deal with Native American things. Senator Dorgan. Well, we have some other questions. Dr. Kintigh, I appreciate your being with us today. I understand you were involved, or at least the American Association of Physical Anthropologists, the Society for American Archaeology, they were both involved in the discussions that led to the enactment of NAGPRA. I assume there was some belief then about what the specific language meant or did not mean, particularly with respect to the term ``Native Americans.'' Was it your sense that they were only referring at that point to presently existing tribes? Mr. Kintigh. No; I think I agree with Mr. Echo-Hawk that at the time everyone took the definition of ``Native American'' to be self-evident. It was essentially what DOI argued in the Kennewick case. It was people we think of, just loosely speaking, people we think of as Indians today and then pre- Colombian all the way back. I think that was the sort of common sense understanding of ``Native American'' at the time. I think that is what we thought. As far as I know, that is what Congress and everybody else thought. However, as other speakers have also pointed out, the notion that there is a separation between what is considered to be Native American and what is repatriatable under the Act, and what is repatriatable largely depends upon this definition of ``cultural affiliation.'' So much of the discussion, including ones I had directly with Mr. Echo-Hawk, had to do very much with setting that standard for cultural affiliation. I think what Congress' intent was to deal with those human remains and cultural items that are reasonably closely related to present day tribes, but it did that at the stage of cultural affiliation, not at the stage of deciding what is Native American. I agree with Mr. Bender that it would affect this whole consultation process and that certainly a benefit of NAGPRA and certainly an intent of NAGPRA was to enhance that consultation. I think it has been quite successful. Senator Dorgan. Let me say this has been a really interesting discussion. I did want to point out, Ken Davis is over here, the chairman of the Turtle Mountain Tribe in North Dakota. Chairman, thank you for being with us today. This has been an interesting discussion and one of great importance to a lot of people. We understand that and no one would minimize the importance of repatriation of human remains. I have talked to tribal leaders at great length about this. There is a backdrop here in which this discussion takes place, and part of it is described by Mr. Echo-Hawk. There were times in this country when Indian bodies were collected on the battlefield and sent back to Washington for study, and then end up as a set of bones somewhere in a basement. That is a pretty shameful thing to have had happen. I was involved with respect to the repatriation legislation that Mr. Echo-Hawk described a bit ago. I was involved in that precisely because this country did some things that were very shameful and we needed to make amends for that and try to repatriate the remains to those tribes. I regret it has not gone quite as smoothly or as quickly as many of us would have liked. Chairman McCain, as I indicated to you, went down to the Commerce Committee to offer an amendment. As is always the case wherever Chairman McCain is, controversy follows. [Laughter.] He seldom ever offers milquetoast amendments, so my guess is that his amendment has provoked a substantial amount of discussion. I, by the way, have left my proxy to vote against Senator McCain's amendment because we happen to disagree on this Amtrak issue. [Laughter.] But I am going to be offering an amendment on another bill that is being marked-up just following Senator McCain's amendment. My expectation and his was that he was going to be back before we completed this hearing, but obviously this discussion of his is taking more time in the Commerce Committee than he expected. Let me on behalf of our committee pledge to you that we intend to look seriously at all of these issues. We thank all of you for traveling, in many cases great distances, to come to testify before this committee. The hearing is a hearing we held because we think 2 words or 100 words, this is important. Words have meaning and consequence. This is not just some academic or ethereal debate. It is a debate that has great spiritual and cultural and historical significance for the first Americans. It also has significance for our scientific community, and that is why we wanted to have an opportunity to have an exchange of views. I thank you very much for being here today and this hearing is adjourned. [Whereupon, at 10:55 a.m., the committee was adjourned, to reconvene at the call of the Chair.] ======================================================================= A P P E N D I X ---------- Additional Material Submitted for the Record ======================================================================= Prepared Statement of Hon. Daniel K. Inouye, U.S. Senator from Hawaii Thank you Mr. Chairman. I commend the committee for holding this hearing on this very important issue for all Native Americans. Around 1987, I learned that museums and scientific institutions throughout this land had thousands of Native American human remains and sacred objects in their collections that were being held for the purposes of scientific research, all without the knowledge and consent of Native Americans. In order to address this atrocious situation, facilitated dialog was initiated between Native Americans, museums, and scientific institutions. Eventually consensus was reached, and in 1990 the Native American Graves Protection and Repatriation Act [NAGPRA] was enacted into law to provide that ancestral remains, funerary objects, sacred items, and objects of cultural patrimony be repatriated to Indian tribes, Native Hawaiian organizations, and individual Native American descendants. This act has empowered Native Americans by mandating involvement in both the discovery and repatriation process and by requiring tribal notification, consultation and inclusion in the decisionmaking process. This inclusion fosters respect for Native people, Native traditions, and Native belief systems and protects the dignity of the human body after death in congruence with local Native practices. Controversy has arisen surrounding the so-called ``Kennewick Man.'' Whose remains were found in Washington State and are now available for scientific examination, due to the fact that a direct cultural affiliation could not be established. Even though direct cultural affiliation could not be established, that does not mean that he is, and was, not Native American. Native Americans evolved in the same manner that other people evolved. Although some tribes were forcefully moved from their lands, other tribes remain in the same area that they have historically been located. Their oral tradition evidences this fact. Similarly, in Hawaii, remains are often identified through oral traditions, history, and geographic location. It should also be known that iwi or bones and remains of a person are very sacred in Hawaiian culture, so sacred that some of them have been secretly buried to protect them from desecration. I would like extend a special welcome Van Horn Diamond who will be testifying to that effect today. I want to thank Chairman McCain and Vice Chairman Dorgan for allowing Mr. Diamond to testify today. This is an important issue for him--so important, that when he was invited 2 weeks ago, he immediately decided to postpone serious medical treatment in order to be here today. Mr. Diamond thank you for coming today. I look forward to the testimony today, and working with members of the Indian Affairs Committee to devise a policy that reflects the concerns of Native people as well as the concerns of other involved groups. Once again, thank you Mr. Chairman. ______ Prepared Statement of Mervin Wright, Jr., Member, National Working Group on Culturally Unidentifiable Human Remains My name is Mervin Wright, Jr., a GIS Specialist for the Pyramid Lake Paiute Tribe of Nevada and I am a member of the National Working Group on Native American Culturally Unidentifiable Human Remains. Thank you for the opportunity to submit written testimony for this Oversight Hearing on the Native American Graves Protection and Repatriation Act [NAGPRA]. I commend the committee for its attention to the concerns of Native American People about section 108 of NAGPRA, the definition for Native American. NAGPRA's statutory definition was re- defined restrictively in the Ninth Circuit Court ruling in Bonnichen v. United States, 357 F.3d 962 (2004). The impact of the ruling undermines indigenous existence on this land prior to the United States becoming a country. As a field practitioner of repatriation, I know that certain provisions of NAGPRA are meeting the intentions of Congress when it enacted NAGPRA into law. The Ninth Circuit Bonnichsen decision turned the Congressional intent of NAGPRA on its head and ignored the legislative intent of the definition. The Court inserted its own intent into the law by rewriting it. Many scientists working in the field of repatriation see the Bonnichsen ruling as a victory because now the NAGPRA definition of Native American does not have to include anything older than 500 years. When NAGPRA began to be implemented it presented a new set of circumstances for tribes, agency officials, museum officials, and scientists. Scientists and agency officials were not fully prepared for having the obligation to return human remains that were either lawfully or unlawfully excavated. Tribes were also placed in the precarious situation of having to perform an obligation for actions never imagined by cultural and traditional rules. Nevertheless, tribes understand the rightful place of our dead and there is respect for the sanctity of the ancient burial rites of our ancestors. When scientists realized that they may not be able to test their theories on ancestral Indian human remains, they searched for ways to prevent repatriation. One way was to use the affiliation procedures in NAGPRA, along with their theoretical hypotheses, and to define ancient indigenous existence they create astounding conclusions for what they think. The definition of ``Native American'' must be clearly understandable so that NAGPRA is correctly interpreted by everyone involved with repatriation efforts. History tells that canons of statutory construction require courts to construe statutes broadly for the benefit of Indian tribes. Because courts are normally the final option for dispute resolution, courts should not have the authority to make judgments about what Native people see as the natural laws of creation. Regardless of who has authority over Federal ``property,'' the application of the definition must be based on ultimate respect for a living being, a life before ours, the continuity of a culture, and a matter of understanding that human beings are created equally and should have undisturbed internment. Bonnichsen is not an isolated situation when it comes to interpreting the meaning of Native American. Applying the definition is directly connected to the determination of cultural affiliation. In at least two cases in Nevada, ancient human remains were involved in ``new scientific studies'' without the consent of the two affected tribes. In 1994, 29 sets of human remains were taken from the Nevada State Museum [NSM] to the University of California at Los Angeles for radiocarbon testing. Once the ages of the remains were determined, the two oldest sets of human remains were automatically categorized as ``unaffiliated.'' In 1996, the NSM and the Nevada Bureau of Land Management [BLM] convened a meeting to obtain tribal consent for such findings. After conducting their destructive analyses, they reached their troubling conclusions that somehow these human remains were another ``people'' and thus not affiliated. Physical sciences such as geology and archaeology tell another story of human existence and certain evolutionary changes over time. Repatriations have occurred for human remains that range in age from historic to prehistoric. Some agency and museum officials have reasonably come to accept the traditional knowledge and oral histories of Native Indian People. On the other hand, tribes have suffered setbacks at the hands of scientists who have exaggerated theories and used their interpretation of NAGPRA to deny repatriation of certain human remains. A clear definition of Native American will enable a fair application of the law, and there will be a clearer understanding of prior existence for the history of this country. Tribes have done all they can to avoid confrontation on these issues. The matter of repatriating human remains is not instituted, nor is it provoked by Indigenous People. Unfortunately, because scientists do not know as much as they want to know, human remains are categorized as ``culturally unidentifiable'' to prevent repatriation and to support their continued career endeavors. The scientific community does not realize that their theories will never tell the complete story of evolution. Some of their unanswered questions will remain absolutely unsolved forever. Theoretical conclusions will be as close as they will get to discovering the truth of ancient life on the North American Continent. Science is not absolute. Existence of human life for at least 40,000 years on this continent supports the traditional knowledge of indigenous People. There have been challenges to the NAGPRA, but only to the extent that science cannot agree with the definition and the conditional requirement imposed by the law for repatriation. In light of Bearing's theory, ancient civilizations date farther back into time as sites are discovered in the southern hemisphere, in Central America and South America. As science attempts to discover the origins of man, it cannot apply racial tendencies through technology, there is no such thing as racial science. To believe a pure race for the colors of man-kind originated from Africa, each race must embrace the fundamental principle supporting evolutionary understandings. Science has conflicted with moral understandings of traditional and indigenous populations around the world. It is only when a People agree with scientific application of scientific theories do scientists set out with their ``discovery.'' It is an exaggeration of the truth. The Native people of this land are connected to it, and it is our home no matter who occupies it. Indian people have never been told that we are no longer care-takers of the land. We have never been told in the sense outside from or from above the written laws of man. The belief and faith system of traditional and cultural knowledge rests in the hands of our Creator, all mighty God. 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