U.S. House Report 101-877

October 15, 1990

101ST CONGRESS HOUSE OF REPRESENTATIVES REPORT
2d Session 101-877

PROVIDING FOR THE PROTECTION OF NATIVE AMERICAN
GRAVES, AND FOR OTHER PURPOSES
__________________________

OCTOBER 15, 1990.ýCommitted to the Committee of the Whole House on the
State of
the Union and ordered to be printed
___________________________

Mr. UDALL, from the Committee on Interior and Insular Affairs,
submitted the following

REPORT

[To accompany H.R. 5237]

[Including cost estimate of the Congressional Budget Office]

The Committee on Interior and Insular Affairs, to whom was referred
the bill (H.R. 5237) to provide for the protection of Native American
graves, and for other purposes, having considered the same, report
favorably thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:

Page 1, line 3, strike all after the enacting clause and insert the
following:

SECTION 1. SHORT TITLE.

This Act may be cited as the "Native American Grave Protection and
Repatriation Act".

SEC. 2. DEFINITIONS.

For purposes of this Act, the termý
(1) "burial site" means any natural or prepared physical location,
whether originally below, on, or above the surface of the earth, into
which as a part of the death rite or ceremony of a culture,
individual human remains are deposited.
(2) "cultural affiliation" means that there is a relationship of
shared group identity which can be reasonably traced historically or
prehistorically between a present day Indian tribe or Native Hawaiian
organization and an identifiable earlier group.
(3) "cultural items" means human remains andý
(A) "associated funerary objects" which shall mean objects that,
as a part of the death rite or ceremony of a culture, are
reasonably believed to have been placed with individual human
remains either at the time of death or later, and both the human
remains and associated funerary objects are presently in the
possession or control of a federal agency or museum, except that
other items exclusively made for burial purposes or to contain
human remains shall be considered as associated funerary objects.
(B) "unassociated funerary objects" which shall mean objects that,
as a part of the death rite or ceremony of a culture, are
reasonably believed to have been placed with individual human
remains either at the time of death or later, where the remains are
not in the possession or control of the Federal agency or museum
and the objects can be identified by a preponderance of the
evidence as related to specific individuals or families or to known
human remains or, by a preponderance of the evidence, as having
been removed from a specific burial site of an individual
culturally affiliated with a particular Indian tribe,
(C) "sacred objects" which shall mean specific ceremonial objects
which are needed by traditional Native American religious leaders
for the practice of traditional Native American religions by their
present day adherents, and
(D) "cultural patrimony" which shall mean an object having ongoing
historical, traditional, or cultural importance central to the
Native American group or culture itself, rather than property owned
by an individual Native American, and which, therefore, cannot be
alienated, appropriated, or conveyed by any individual regardless
of whether or not the individual is a member of the Indian tribe or
Native Hawaiian organization and such object shall have been
considered inalienable by such Native American group at the time
the object was separated from such group.
(4) "Federal agency" means any department, agency, or
instrumentality of the United States and shall include, except as may
be inconsistent with the provisions of P.L. 101-185, the Smithsonian
Institution.
(5) "Federal lands" means any land other than tribal lands which are
controlled or owned by the United States.
(6) "Hui Malama I Na Kupuna O Hawai'i Nei" means the nonprofit,
Native Hawaiian organization incorporated under the laws of the State
of Hawaii by that name on April 17, 1989, for the purpose of
providing guidance and expertise in decisions dealing with Native
Hawaiian cultural issues, particularly burial issues.
(7) "Indian tribe" shall have the meaning given such term in section
4 of the Indian Self Determination and Education Assistance Act (25
U.S.C. 450b).
(8) "museum" means any institution or State or local government
agency (including any institution of higher learning) that receives
Federal funds and has possession of, or control over, Native American
cultural items, but does not include any Federal agency.
(9) "Native American" means of, or relating to, a tribe, people, or
culture that is indigenous to the United States.
(10) "Native Hawaiian" means any individual who is a descendant of
the aboriginal people who, prior to 1778, occupied and exercised
sovereignty in the area that now constitutes the State of Hawaii.
(11) "Native Hawaiian organization" means any organization whichý
(A) serves and represents the interests of Native Hawaiians,
(B) has a primary and stated purpose the provision of services to
Native Hawaiians, and
(C) has expertise in Native Hawaiian Affairs, and
shall include the Office of Hawaiian Affairs and Hui Malama I Na
Kupuna O Hawai'i Nei.
House Report 101-877
page 3

(12) "Office of Hawaiian Affairs" means the Office of Hawaiian
Affairs established by the constitution of the State of Hawaii.
(13) "right of possession" means possession obtained with the
voluntary consent of an individual or group that had authority of
alienation. The original acquisition of a Native American funerary
object, sacred object, or object of cultural patrimony from an Indian
tribe or Native Hawaiian organization with the voluntary consent of
an individual or group with authority to alienate such object is
deemed to give right of possession of that object. The original
acquisition of Native American human remains which were excavated,
exhumed, or otherwise obtained with full knowledge and consent of the
next of kin or the official governing body of the appropriate
culturally affiliated Indian tribe or Native Hawaiian organization is
deemed to give right of possession to those remains. Nothing in this
paragraph shall affect the application of relevant State law to the
right of ownership of unassociated funerary objects, sacred objects,
or objects of cultural patrimony.
(14) "Secretary" means the Secretary of the Interior.
(15) "tribal land" meansý
(A) all lands within the exterior boundaries of any Indian
reservation;
(B) all dependent Indian communities;
(C) lands conveyed to, or subject to an interim conveyance of,
Native Corporations pursuant to the Alaska Native Claims Settlement
Act; and
(D) any lands administered for the benefit of Native Hawaiians
pursuant to the Hawaiian Homes Commission Act, 1920, and section 4
of Public Law 86-3.

SEC. 3. OWNERSHIP.

(a) NATIVE AMERICAN HUMAN REMAINS AND OBJECTS.ýThe ownership or
control of Native American cultural items which are excavated or
discovered on Federal or tribal lands after the date of enactment of
this Act shall be (with priority given in the order listed)ý
(l) in the case of Native American human remains and associated
funerary objects, in the lineal descendants of the Native American;
or
(2) in any case in which such lineal descendants cannot be
ascertained, and in the case of unassociated funerary objects, sacred
objects, and objects of cultural patrimonyý
(A) in the Indian tribe or Native Hawaiian organization on whose
tribal land such objects or remains were discovered;
(B) in the Indian tribe or Native Hawaiian organization which has
the closest cultural affiliation with such remains or objects and
which, upon notice, states a claim for such remains or objects; or
(C) if the cultural affiliation of the objects cannot be
reasonably ascertained and if the objects were discovered on
Federal land that is recognized by a final judgement of the Indian
Claims Commission as the aboriginal land of some Indian tribeý
(1) in the Indian tribe that is recognized as aboriginally
occupying the area in which the objects were discovered, if upon
notice, such tribe states a claim for such remains or objects, or
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page 4

(2) if it can be shown by a preponderance of the evidence that
a different tribe has a stronger cultural relationship with the
remains or objects than the tribe or organization specified in
paragraph (1), in the Indian tribe that has the strongest
demonstrated relationship, if upon notice, such tribe states a
claim for such remains or objects.
(b) UNCLAIMED NATIVE AMERICAN HUMAN REMAINS AND OBJECTS.ýNative Ameri-
can cultural items not claimed under subsection (a) shall be disposed of
in accordance with regulations promulgated by the Secretary in
consultation with the review committee established under section 8,
Native American groups, representatives of museums and the scientific
community.
(c) INTENTIONAL EXCAVATION AND REMOVAL OF NATIVE AMERICAN HUMAN RE-
MAINS AND OBJECTS.ýThe intentional removal from or excavation of Native
American cultural items from Federal or tribal lands for purposes of
discovery, study, or removal of such items is permitted only ifý
(1) such items are excavated or removed pursuant to a permit issued
under section 4 of the Archaeological Resources Protection Act of
1979 (93 Stat. 721; 16 U.S.C. 470aa et seq.) which shall be
consistent with this Act;
(2) such items are excavated or removed after consultation with or,
in the case of tribal lands, consent of the appropriate (if any)
Indian tribe or Native Hawaiian organization;
(3) the ownership and right of control of the disposition of such
items shall be as provided in subsections (a) and (b); and
(4) proof of consultation or consent under paragraph (2) is shown.
(d) INADVERTENT DISCOVERY OF NATIVE AMERICAN REMAINS AND OBJECTS.ý(1)
Any person who knows, or has reason to know, that such person has
discovered Native American cultural items on Federal or tribal lands
after the date of enactment of this Act shall notify, in writing, the
Secretary of the Department, or head of any other agency or
instrumentality of the United States, having primary management
authority with respect to Federal lands and the appropriate Indian tribe
or Native Hawaiian organization with respect to tribal lands, if known
or readily ascertainable. If the discovery occurred in connection with
an activity, including (but not limited to) construction, mining,
logging, and agriculture, the person shall cease the activity in the
area of the discovery, make a reasonable effort to protect the items
discovered before resuming such activity, and provide notice under this
subsection. The activity may resume after a reasonable amount of time
and following notification under this subsection.
(2) The disposition of and control over any cultural items excavated
or removed under this subsection shall be determined as provided for
in this section.
(3) If the Secretary of the Interior consents, the responsibilities
(in whole or in part) under paragraphs (1) and (2) of the Secretary of
any department (other than the Department of the Interior) or the head
of any other agency or instrumentality may be delegated to the
Secretary with respect to any land managed by such other Secretary or
agency head.
(e) RELINQUISHMENT.ýNothing in this section shall prevent the
governing body of an Indian tribe or Native Hawaiian organization from
expressly relinquishing control over any Native American human remains,
or title to or control over any funerary object, or sacred object.
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SEC. 4. ILLEGAL TRAFFICKING.

(a) ILLEGAL TRAFFICKING.ýChapter 53 of title 18, United States Code,
is amended by adding at the end thereof the following new section:

"SEC. 1170. ILLEGAL TRAFFICKING IN NATIVE AMERICAN HUMAN REMAINS AND
CULTURAL ITEMS
"(a) Whoever knowingly sells, purchases, uses for profit, or
transports for sale or profit, the human remains of a Native American
without the right of possession to those remains as provided in the
Native American Graves Protection and Repatriation Act shall be fined in
accordance with this title, or imprisoned not more than 12 months, or
both, and in the case of a second or subsequent violation, be fined in
accordance with this title, or imprisoned not more than 5 years, or
both.
"(b) Whoever knowingly sells, purchases, uses for profit, or
transports for sale or profit any Native American cultural items
obtained in violation of the Native American Graves Protection and
Repatriation Act shall be fined in accordance with this title,
imprisoned not more than one year, or both, and in the case of a second
or subsequent violation, be fined in accordance with this title,
imprisoned not more than 5 years, or both."

(b) TABLE OF CONTENTS.ýThe table of contents for chapter 53 of title
18, United States Code, is amended by adding at the end thereof the
following new item:

"1170. Illegal Trafficking in Native American Human Remains and Cultural
Items.".

SECTION. 5. INVENTORY FOR HUMAN REMAINS AND ASSOCIATED FUNERARY OBJECTS.

(a) IN GENERAL.ýEach Federal agency and each museum which has
possession or control over holdings or collections of Native American
human remains and associated funerary objects shall compile an inventory
of such items and, to the extent possible based on information possessed
by such museum or federal agency, identify the geographical and cultural
affiliation of such item.
(b) REQUIREMENTS.ý(1) The inventories and identifications required
under subsection (a) shall beý
(A) completed in consultation with tribal government and Native
Hawaiian organization officials and traditional religious leaders;
(B) completed by not later than the date that is 5 years after the
date of enactment of this Act, and
(C) made available both during the time they are being conducted and
afterward to a review committee established under section 8.
(2) Upon request by an Indian tribe or Native Hawaiian organization
which receives or should have received notice, a museum or federal
agency shall supply additional available documentation to supplement the
information required by subsection (a) of this section. The term
"documentation" means a summary of existing museum or Federal agency
records, including inventories or catalogues, relevant studies, or other
pertinent data for the limited purpose of determining the geographical
origin, cultural affiliation, and basic facts surrounding acquisition
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page 6

and accession of Native American human remains and associated funerary
objects subject to this section. Such term does not mean, and this Act
shall not be construed to be an authorization for, the initiation of new
scientific studies of such remains and associated funerary objects or
other means of acquiring or preserving additional scientific information
from such remains and objects.
(c) EXTENSION OF TIME FOR INVENTORY.ýAny museum which has made a good
faith effort to carry out an inventory and identification under this
section, but which has been unable to complete the process, may appeal
to the Secretary for an extension of the time requirements set forth in
subsection (b)(1)(B). The Secretary may extend such time requirements
for any such museum upon a finding of good faith effort. An indication
of good faith shall include the development of a plan to carry out the
inventory and identification process.
(d) NOTIFICATION.ý(1) If the cultural affiliation of any particular
Native American human remains or associated funerary objects is
determined pursuant to this section, the Federal agency or museum
concerned shall, not later than 6 months after the completion of the
inventory, notify the affected Indian tribes or Native Hawaiian
organizations.
(2) The notice required by paragraph (1) shall include informationý
(A) which identifies each Native Amrican human remains or associated
funerary objects and the circumstances surrounding its acquisition;
(B) which lists the human remains or associated funerary objects
that are clearly identifiable as to tribal origin; and
(C) which lists the Native American human remains and associated
funerary objects that are not clearly identifiable as being
culturally affiliated with that Indian tribe or Native Hawaiian
organization, but which, given the totality of circumstances
surrounding acquisition of the remains or objects, are determined by
a reasonable belief to be remains or objects culturally affiliated
with the Indian tribe or Native Hawaiian organization.
(3) A copy of each notice provided under paragraph (1) shall be sent
to the Secretary who shall publish each notice in the Federal Register.
(e) INVENTORY.ýFor the purposes of this section, the term "inventory"
means a simple itemized list that summarizes the information called for
by this section.

SEC. 6. SUMMARY FOR UNASSOCIATED FUNERARY OBJECTS, SACRED OBJECTS, AND
CULTURAL PATRIMONY.
(a) IN GENERAL.ýEach Federal agency or museum which has possession or
control over holdings or collections of Native American unassociated
funerary objects, sacred objects, or objects of cultural patrimony shall
provide a written summary of such objects based upon available
information held by such agency or museum. The summary shall describe
the scope of the collection, kinds of objects included, reference to
geographical location, means and period of acquisition and cultural
affiliation, where readily ascertainable.
(b) REQUIREMENTS.ý(1) The summary required under subsection (a) shall
beý
(A) in lieu of an object-by-object inventory;
(B) followed by consultation with tribal government and Native
Hawaiian organization officials and traditional religious leaders;
and
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(C) completed by not later than the date that is 3 years after the
date of enactment of this Act.
(2) Upon request, Indian tribes and Native Hawaiian organizations
shall have access to records, catalogues, relevant studies or other
pertinent data for the limited purposes of determining the geographic
origin, cultural affiliation, and basic facts surrounding acquisition
and accession of Native American objects subject to this section. Such
information shall be provided in a reasonable manner to be agreed upon
by all parties.

SEC. 7. REPATRIATION.

(a) REPATRIATION OF NATIVE AMERICAN HUMAN REMAINS AND OBJECTS
POSSESSED OR CONTROLLED BY FEDERAL AGENCIES AND MUSEUMS.ý(1) If,
pursuant to section 5, the cultural affiliation of Native American human
remains and associated funerary objects with a particular Indian tribe
or Native Hawaiian organization is established, then the Federal agency
or museum, upon the request of a known lineal descendant of the Native
American or of the tribe or oranization and pursuant to subsections (b)
and (e) of this section, shall expeditiously return such remains and
associated funerary objects.
(2) If, pursuant to section 6, the cultural affiliation with a
particular Indian tribe or Native Hawaiian organization is shown with
respect to unassociated funerary objects, sacred objects or objects of
cultural patrimony, then the Federal agency or museum, upon the request
of the Indian tribe or Native Hawaiian organization and pursuant to
subsections (b), (c) and (e) of this section, shall expeditiously return
such objects.
(3) The return of cultural items covered by this Act shall be in
consultation with the requesting lineal descendant or tribe or
organization to determine the place and manner of delivery of such
items.
(4) Where cultural affiliation of Native American human remains and
funerary objects has not been established in an inventory prepared
pursuant to section 5 or where Native American human remains and
funerary objects are not included upon any such inventory, then, upon
request and pursuant to subsections (b) and (e) and, in the case of
unassociated funerary objects, subsection (c), such Native American
human remains and funerary objects shall be expeditiously returned where
the requesting Indian tribe or Native Hawaiian organization can show
cultural affiliation by a preponderance of the evidence based upon
geographical, kinship, biological, archaeological, anthropological,
linguistic, folkloric, oral traditional, historical, or other relevant
information or expert opinion.
(5) Upon request and pursuant to subsections (b), (c) and (e), sacred
objects and objects of cultural patrimony shall be expeditiously
returned whereý
(A) the requesting party is the direct lineal descendant of an
individual who owned the sacred object;
(B) the requesting Indian tribe or Native Hawaiian organization can
show that the object was owned or controlled by the tribe or
organization; or
(C) the requesting Indian tribe or Native Hawaiian organization can
show that the sacred object was owned or controlled by a member
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thereof, provided that in the case where a sacred object was owned by
a member thereof, there are no identifiable lineal descendants of
said member or the lineal descendants, upon notice, have failed to
make a claim for the object under this Act.
(b) SCIENTIFIC STUDY.ýIf the lineal descendant, Indian tribe, or
Native Hawaiian organization requests the return of culturally
affiliated Native American cultural items, the Federal agency or museum
shall expeditiously return such items unless such items are
indispensable for completion of a specific scientific study, the outcome
of which would be of major benefit to the United States. Such items
shall be returned by no later than 90 days after the date on which the
scientific study is completed.
(c) STANDARD OF REPATRIATION.ýIf a known lineal descendant or an
Indian tribe or Native Hawaiian organization requests the return of
Native American unassociated funerary objects, sacred objects or objects
of cultural patrimony pursuant to this Act and presents evidence which,
if standing alone before the introduction of evidence to the contrary,
would support a finding that the Federal agency or musuem did not have
the right of possession, then such agency or museum shall return such
objects unless it can overcome such inference and prove that it has a
right of possession to the objects.
(d) SHARING OF INFORMATION BY FEDERAL AGENCIES AND MUSEUMS.ýAny
Federal agency or museum shall share what information it does possess
regarding the object in question with the known lineal descendant,
Indian tribe, or Native Hawaiian organization to assist in making a
claim under this section.
(e) COMPETING CLAIMS.ýWhere there are multiple requests for
repatriation of any cultural item and, after complying with the
requirements of this Act, the Federal agency or museum cannot clearly
determine which requesting party is the most appropriate claimant, the
agency or museum may retain such item until the requesting parties agree
upon its disposition or the dispute is otherwise resolved pursuant to
the provisions of this Act or by a court of competent jurisdiction.
(f) MUSEUM OBLIGATION.ýAny museum which repatriates any item in good
faith pursuant to this Act shall not be liable for claims by an
aggrieved party or for claims of breach of fiduciary duty, public trust,
or violations of state law that are inconsistent with the provisions of
this Act.

SEC. 8 REVIEW COMMITTEE.

(a) ESTABLISHMENT.ýWithin 120 days after the date of enactment of this
Act, the Secretary shall establish a committee to monitor and review the
implementation of the inventory and identification process and
repatriation activities required under sections 5, 6 and 7.
(b) MEMBERSHIP.ý(1) The Committee established under subsection (a)
shall be composed of 7 members,
(A) 3 of whom shall be appointed by the Secretary from nominations
submitted by Indian tribes, Native Hawaiian organizations, and
traditional Native American religious leaders with at least 2 of such
persons being traditional Indian religious leaders;
(B) 3 of whom shall be appointed by the Secretary from nominations
submitted by national museum organizations and scientific
organizations; and
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(C) 1 who shall be appointed by the Secretary from a list of persons
developed and consented to by all of the members appointed pursuant
to subparagraphs (A) and (B).
(2) The Secretary may not appoint Federal officers or employees to the
committee.
(3) In the event vacancies shall occur, such vacancies shall be filled
by the Secretary in the same manner as the original appointment within
90 days of the occurrence of such vacancy.
(4) Members of the committee established under subsection (a) shall
serve without pay but shall be reimbursed at a rate equal to the daily
rate for GS-18 of the General Schedule for each day (including travel
time) for which the member is actually engaged in committee business.
Each member shall receive travel expenses, including per diem in lieu of
subsistence, in accordance with sections 5702 and 5703 of title 5,
United States Code.
(c) RESPONSIBILITIES.ýThe committee established under subsection (a)
shall be responsible forý
(1) designating one of the members of the committee as chairman;
(2) monitoring the inventory and identification process conducted
under sections 5 and 6 to ensure a fair, objective consideration and
assessment of all available relevant information and evidence;
(3) reviewing upon the request of any affected party and finding
relating toý
(A) the identity or cultural affiliation of cultural items, or
(B) the return of such items;
(4) facilitating the resolution of any disputes among Indian tribes,
Native Hawaiian organizations, or lineal descendants and Federal
agencies or museums relating to the return of such items including
convening the parties to the dispute if deemed desirable;
(5) compiling an inventory of culturally unidentifiable human
remains that are in the possession or control of each Federal agency
and museum and recommending specific actions for developing a process
for disposition of such remains;
(6) consulting with Idian tribes and Native Hawaiian organizations
and museums on matters within the scope of the work of the committee
affecting such tribes or organizations;
(7) consulting with the Secretary in the development of regulations
to carry out this Act;
(8) performing such other related functions as the Secretary may
assign to the committee; and
(9) making recommendations, if appropriate, regarding future care of
cultural items which are to be repatriated.

(d) RECOMMENDATIONS AND REPORT.ýThe committee shall make the
recommendations under paragraph (c)(5) in consultation with Indian
tribes and Native Hawaiian organizations and appropriate scientific and
museum groups.

(e) ACCESS.ýThe Secretary shall ensure that the committee established
under subsection (a) and the members of the committee have reasonable
access to Native American cultural items under review and to associated
scientific and historical documents.

(f) DUTIES OF SECRETARY.ýThe Secretary shallý
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(1) establish such rules and regulations for the committee as may be
necessary, and
(2) provide reasonable administrative and staff support necessary
for the deliberations of the committee.

(g) ANNUAL REPORT.ýThe committee established under subsection (a)
shall submit an annual report to the Congress on the progress made, and
any barriers encountered, in implementing this section during the
previous year.

(h) TERMINATION.ýThe committee established under subsection (a) shall
terminate at the end of the 120-day period beginning on the day the
Secretary certifies, in a report submitted to Congress, that the work of
the committee has been completed.

SEC. 9. PENALTY.

(a) PENALTY.ý(1) Any museum that fails to comply with the requirements
of this Act may be assessed a civil penalty by the secretary of Interior
pursuant to procedures established by the Secretary through regulation.
No penalty may be assessed under this subsection unless such museum is
given notice and opportunity for a hearing with respect to such
violation. Each violation shall be a separate offense.
(2) The amount of such penalty shall be determined under regulations
promulgated pursuant to this Act, taking into account, in addition to
other factorsý
(A) the archeological, historical or commercial value of the item
involved;
(B) the damages suffered, both economic and non-economic, by an ag-
grieved party;
(C) the number of violations that have occurred.
(3) Any museum aggrieved by an order assessing a civil penalty under
this subsection may file a petition of judicial review of such order
with the United States District Court for the District of Columbia or
for any other district in which the museum is located. Such a petition
may only be filed within the 30-day period beginning on the date the
order making such assessment was issued. The court shall hear such
action on the administrative record and sustain the imposition of the
penalty if it is supported by substantial evidence on the record
considered as a whole.
(4) If any museum fails to pay an assessment of a civil penalty after
a final administrative order has been issued and not appealed or after a
final judgement has been rendered, the Attorney General may institute a
civil action in a district court of the United States for any district
in which such museum is located to collect the penalty and such court
shall have jurisdiction to hear and decide such action. In such action,
the validity and amount of such penalty shall not be subject to review.
(5) Hearings held during proceedings for the assessment of civil
penalties authorized by this subsection shall be conducted in accordance
with section 554 of Title 5. Subpoenas may be issued for the attendance
and testimony of witnesses and the production of relevant papers, books
and documents. Witnesses summoned shall be paid the same fees and
mileage that are paid to witnesses in the courts of the United States.
In the case of contumacy or refusal to obey a subpena served upon any
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person pursuant to this paragraph, the district court of the United
States for any district in which such person is located, resides or
transacts business, upon application by the United States and after
notice to such person shall have jurisdiction to issue an order
requiring such person to appear and give testimony or produce documents,
or both, and any failure to obey such order of the court may be punished
by such court as a contempt thereof.

SEC. 10. GRANTS.
(a) INDIAN TRIBES AND NATIVE HAWAIIAN ORGANIZATIONS.ýThe Secretary is
authorized to make grants to Indian tribes and Native Hawaiian
organizations for the purpose of assisting such tribes and organizations
in the repatriation of Native American cultural items.
(b) MUSEUMS.ýThe Secretary is authorized to make grants to museums for
the purpose of assisting the museums in conducting the inventories and
identification required under sections 5 and 6.

SEC. 11. SAVINGS PROVISIONS.
Noting in this Act shall be construed toý
(1) limit the authority of any Federal agency or museum toý
(A) return or repatriate Native American cultural items to Indian
tribes, Native Hawaiian organizations, or individuals, and
(B) enter into any other agreement with the consent of the
culturally affiliated tribe or organization as to the disposition of
control over items covered by this Act;
(2) delay actions on repatriation requests that are pending on the
date of enactment of this Act;
(3) deny or otherwise affect access to any court;
(4) limit any procedural or substantive right which may otherwise be
secured to individuals or Indian tribes or Native Hawaiian
organizations; or
(5) limit the application of any State or Federal law pertaining to
theft or stolen property.

SEC. 12. SPECIAL RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND INDIAN
TRIBES.
This Act reflects the unique relationship between the Federal
government and Indian tribes and Native Hawaiian organizations and
should not be construed to establish a precedent with respect to any
other individual, organization or foreign government.

SEC. 13. REGULATIONS.

The Secretary shall promulgate regulations to carry out this Act
within 12 months of enactment.

SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated such sums as may be necessary
to carry out this Act.

PURPOSE
The purpose of H.R. 5237 is to protect Native American burial sites
and the removal of human remains, funerary objects, sacred objects, and
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objects of cultural patrimony on Federal, Indian and Native Hawaiian
lands. The Act also sets up a process by which Federal agencies

and museums receiving federal funds will inventory holdings of such
remains and objects and work with appropriate Indian tribes and Native
Hawaiian organizations to reach agreement on repatriation or other
disposition of these remains and objects.

BRIEF SUMMARY

H.R. 5237, the Native American Grave Protection and Repatriation Act,
achieves two main objectives. The first objective deals with Native
American human remains, funerary objects, sacred objects and objects of
cultural patrimony which are excavated or removed from Federal or tribal
lands after the enactment of the Act.
The Act calls for any persons who wish to excavate such items or
other archeological items to do so only after receiving a permit
pursuant to the Archeological Resources Protection Act (P.L 96-96). If
any of such remains or objects are found on Federal Lands and it is
known which tribe is closely related to them, that tribe is given the
opportunity to reclaim the remains or objects. If the tribe does not
want to take possession of the remains or objects, the Secretary of the
Interior will determine the disposition of the remains or objects in
consultation with Native American, scientific and museum groups.
The Act also addresses those cases involving the incidental discovery
of such items on Federal land by persons engaged in other activities
such as mining, construction, logging or other similar endeavors. When
one or more of these items are found in this manner, the activity must
temporarily cease and a reasonable effort must be made to protect the
item. Written notification must be made to the Federal land manager in
charge and notification must also be given to the appropriate tribe or
Native Hawaiian organization if known or easily ascertainable.
Penalties are included for selling, or otherwise profiting from, any
Native American human remains, funerary objects, sacred objects or
objects of cultural patrimony acquired in violation of this Act.
The second main objective addressed in this Act deals with
collections of Native American human remains, associated and
unassociated funerary objects, sacred objects, and objects of cultural
patrimony currently held or controlled by Federal agencies and museums.
Within 5 years of enactment, all Federal agencies and all museums
which receive federal funds, which have possession of, or control over,
any Native American human remains or associated funerary object (items
which are found with a specific body), are to compile an inventory of
such remains or objects and, with the use of available information they
have, attempt to identify them as to geographical and cultural
affiliation. Upon completion of the inventory, the appropriate tribe or
Native Hawaiian organization is to be contacted. If it is clear which
tribe or Native Hawaiian organization is related to the remains or
objects and that tribe or organization wishes the return of the items,
they are to be returned.
House Report 101-877
page 13

Instead of an object-by-object inventory, a written summary of
unassociated funerary objects (those items which are known to be
funerary objects but are not connected to a specific body), sacred
objects, and objects of cultural patrimony which are controlled by a
Federal agency or museum is to be completed. The summary is to describe
the collection, the number of objects in it, and roughly how, when, and
from where the collection was received. Following the summary, the
appropriate Indian tribe or Native Hawaiian organization is to be
contacted and the two sides are to meet to discuss the future
disposition of the items in question.
This Act allows for the repatriation of culturally affiliated items
as well as any other agreement for disposition or caretaking which may
be mutually agreed upon by involved parties.

BACKGROUND

Digging and removing the contents of Native American graves for
reasons of profit or curiosity has been common practice. These
activities were at their peak during the last century and the early part
of this century.
In 1868, the Surgeon General issued an order to all Army field
officers to send him Indian skeletons. This was done so that studies
could be performed to determine whether the Indian was inferior to the
white man due to the size of the Indian's cranium. This action, along
with an attitude that accepted the desecration of countless Native
American burial sites, resulted in hundreds of thousands Native American
human remains and funerary objects being sold or housed in museums and
educational institutions around the country.
For many years, Indian tribes have attempted to have the remains and
funerary objects of their ancestors returned to them. This effort has
touched off an often heated debate on the rights of the Indian versus
the importance to museums of the retention of their collections and the
scientific value of the items.

NATIONAL DIALOGUE ON MUSEUM/NATIVE AMERICAN RELATIONS

In 1988, the Senate Select Committee on Indian Affairs held a hearing
on legislation which provided a process for the repatriation of Native
American human remains. Several witnesses requested that the Committee
postpone further action on the bill to allow the museum community and
the Native American community to have an opportunity to enter into a
dialogue on repatriation issues. The Committee agreed and, during 1989,
the Barry M. Goldwater Center of Cross Cultural Communication of the
Heard Museum in Phoenix, Arizona sponsored the Panel of National
Dialogue on Museum-Native American Relations.
Several museum professionals, college professors (including
archaeologists and anthropologists), and Indian representatives
(including tribal and religious leaders) met and discussed various
issues surrounding repatriation during this year-long dialogue.
The panel issued a report citing its findings and recommendations.
The panel was not unanimous on all recommendations, but all members did
agree that much was gained in understanding the views of others.
House Report 101-877
page 14

The panel recommended that all resolutions be governed by respect for
the human rights of Native Americans and the value of scientific study
and education. The majority believed that "Respect for Native human
rights is the paramount principle that should govern resolution of the
issue when a claim is made. . .".
The Panel was split on what to do about human remains which are not
culturally identifiable. Some maintained that a system should be
developed for repatriation while others believed that the scientific and
educational needs should predominate. The report strongly supported
dialogue between museums and Indian tribes during all aspects of both
the acquisition of sensitive materials, and repatriation requests. The
Panel concluded that Federal legislation on this matter was needed.

NATIONAL MUSEUM OF THE AMERICAN INDIAN ACT

On November 28, 1989, the President signed into Public Law 101-185,
the National Museum of the American Indian Act. This law established a
museum for the American Indian to be built as part of the Smithsonian
Institution. Testimony received during consideration of this
legislation revealed that the Smithsonian Institution held thousands of
Native American human remains and funerary objects. Several tribes and
Native Hawaiians having cultural and historical affiliation with these
remains stressed their great desire to have the remains of their
ancestors returned to them. After long negotiations between interested
parties, provisions were included in the legislation which authorized
the repatriation of identifiable remains and funerary objects.

H.R. 1381ýNATIVE AMERICAN BURIAL SITE PRESERVATION ACT OF 1989

On March 14, 1989, Representative Charles Bennett introduced H.R.
1381, the Native American Burial Site Preservation Act of 1989. This
bill would prohibit excavations or removal of any content from any
Native American burial site without a State permit. The bill provides
penalties for violation with fines of not more than $10,000 per
violation. The bill provided that anything taken in violation of the
legislation would become the property of the United States.

H.R. 1646ýNATIVE AMERICAN GRAVE AND BURIAL PROTECTION ACT

On March 23, 1989, Representative Morris Udall introduced H.R. 1646,
the Native American Grave and Burial Protection Act. This bill would
make it illegal to sell, profit, or transport across state lines any
Native American skeletal remains without written consent of the lineal
descendants or of the governing body of the culturally affiliated tribe.
Penalties of fines of not more than $10,000 per violation would be
assessed.
The bill would require all Federal agencies and instrumentalities to
list and identify, within 2 years, all Native American skeletal remains
and sacred ceremonial objects in their possession or control. Within 3
years, all agencies would notify appropriate tribes of their findings
and, within 1 year of notification, the concerned tribe would decide
House Report 101-877
page 15

whether or not it wanted the remains or objects returned. If the items
were not acquired with the consent of the tribe or legitimate owner and
the item is not needed for a scientific study the outcome of which would
be of major benefit to the United States, the items are to be returned.
Any museum not in compliance would not be eligible for further Federal
funding.

H.R. 5237ýNATIVE AMERICAN GRAVE PROTECTION AND REPATRIATION
ACT

After the negotiations by the museum, Indian and scientific
communities were completed, Representative Morris Udall introduced H.R
5237, the Native American Grave Protection and Repatriation Act, on July
10, 1990. As introduced, this bill states that any Native American
human remains, funerary objects, sacred objects, and objects of
inalienable communal property that are found on Federal or tribal lands
after the date of enactment would be considered owned or controlled by
(in this order) lineal descendants, the tribe on whose land it was
found, the tribe having the closest cultural affiliation with the item,
or the tribe which aboriginally occupied the area.
Anyone who discovered any of the items covered by the provisions of
the bill accidentally or through activities such as mining, logging, or
construction would have to cease the activity, notify the Federal land
manager responsible and the appropriate tribe, if known, and make a
reasonable effort to protect the items before continuing the activity.
Anyone who profited in violation of the provisions of the bill would
be fined in accordance with title 18, United States Code, imprisoned not
more than one year, or both, with the penalty increasing to 5 years for
a second violation.
All Federal agencies and museums receiving Federal funds which have
control over any of the items covered in the bill would, within 5 years,
have to inventory and identify the items, notify the affected tribes and
make arrangements to return such items if the appropriate tribe made a
request. If the Federal agency or museum shows that the item was
acquired with the consent of the tribe or if the item was part of a
scientific study which was expected to be of major benefit to the
country, the request for repatriation could be denied.
As introduced, this bill established a review committee to be
composed of 7 members, 4 of whom were to be from nominations made to the
Secretary of the Interior from Indian tribes, Native Hawaiian
organizations, and traditional Native American religious leaders. The
committee's responsibilities would be to monitor the inventory and
repatriation activities, review any questions as to the identity or
return of any items, arbitrate among tribes any disputes relating to
this Act, and compile an inventory of unidentifiable remains and
recommend action for disposition of such remains.
Grants were made available to tribes to assist in the repatriation
process and to museums to assist in the inventory and identification
process.
House Report 101-877
page 16

LEGISLATIVE HEARING

On July 17, 1990, the Committee held a hearing on H.R. 1381, the
Native American Burial Site Preservation Act of 1989; H.R 1646, the
Native American Grave and Burial Protection Act; and H.R. 5237, the
Native American Grave Protection and Repatriation Act.

Testimony was presented by professional scientific and museum
associations, archaeologists, representatives of individual museums,
Indian organizations, Tribal religious leaders, Native Hawaiian
representatives, and private art dealers.
Much of the Indian testimony revolved around their rights to the
remains and objects held by the museums and the information surrounding
the acquisition of such items. Some Indian representatives testified
that the spirits of their ancestors would not rest until they are
returned to their homeland and that these beliefs have been generally
ignored by the museums which house the remains and objects. There was
testimony that non-Indian remains which are unearthed are treated much
different than those of Indians. The non-Indian remains tend to be
quickly studied and then reburied while so many Indian remains are sent
to museums and curated.
Testimony received from the scientific community stressed the
importance of human remains to scientific study and the need to learn
for the future from the past. They expressed concern that if remains
are reburied now they will be lost to science forever and not reachable
when future study techniques are developed. Most testimony indicated
the need for strong legislation to protect burial sites from being
looted or desecrated in the future.
Testimony from the museum community stressed the responsibilities
which museums have to maintain their collections and concern for
liability surrounding repatriation. One witness described a situation
where a museum returned Wampum Belts to a tribe. After long
negotiations, a mutually agreed upon compromise was implemented whereby
the tribe received the belts back to continue their ceremonies and the
museum maintained access to the belts for legitimate study and
educational purposes. Most agreed that museums needed to become more
sensitive to the needs and desires of Native Americans whose remains and
objects they house.
Witnesses representing private art dealers testified that Native
Americans should not be the sole conservators of their cultural items
because all Americans have a right to their history. The Art dealers
present denied dealing in human remains per se but did admit that a war
shirt in very good condition containing scalp locks could be sold for
$200,000 on the open market.
Discussion and testimony received by the Committee indicated that a
process was needed by which Native Americans could gain access to
collections housed in museums and Federal agencies.

COMMITTEE AMENDMENT
House Report 101-877
page 17

The Committee adopted an amendment in the nature of a substitute for
H.R 5237. The substitute was developed on the basis of issues and
concerns expressed by witnesses at the Committee hearing, questions and
positions of Committee Members, correspondence from concerned
representatives of the Indian community, the museum and scientific
community and the general public, and meetings with Administration
officials and other interested parties. A detailed explanation of the
substitute is contained in the Section-by-Section Analysis
portion of this report. Certain major substantive changes effected by
the substitute are discussed below.

DEFINITIONS

Definitions of several key terms used in the legislation were changed
to tighten and clarify their meaning.
In the definition of "cultural affiliation", the requirement that a
tribe show a "shared group identity which can be reasonably traced
historically or prehistorically" is intended to ensure that the claimant
has a reasonable connection with the materials. Where human remains and
associated funerary objects are concerned, the committee is aware that
it may be extremely difficult, in many instances, for claimants to trace
an item from modern Indian tribes to prehistoric remains without some
reasonable gaps in the historic or prehistoric record. In such
instances, a finding of cultural affiliation should be based upon an
overall evaluation of the totality of the circumstances and evidence
pertaining to the connection between the claimant and the material being
claimed and should not be precluded solely because of some gaps in the
record.
The definition of "sacred objects" is intended to include both
objects needed for ceremonies currently practiced by traditional Native
American religious practitioners and objects needed to renew ceremonies
that are part of traditional religions. the operative part of the
definition is that there must be "present day adherents" in either
instance. In addition to ongoing ceremonies, the Committee recognizes
that the practice of some ceremonies has been interrupted because of
governmental coercion, adverse societal conditions or the loss of
certain objects through means beyond the control of the tribe at the
time. It is the intent of the Committee to permit traditional Native
American religious leaders to obtain such objects as are needed for the
renewal of ceremonies that are part of their religions.
The definition of "Federal agency" includes the Smithsonian
Institution "except as may be inconsistent with the provisions of Public
Law 100-185". Public Law 100-185 refers to the Act authorizing the
addition of the Museum of the American Indian to the Smithsonian
Institution. The Committee does not wish to change the agreements
reached under the Museum of the American Indian Act with respect to the
inventory and repatriation of native American human remains and funerary
objects, but does intend that the Smithsonian fulfill the obligations
stipulated in H.R. 5237 regarding sacred objects and objects of cultural
patrimony. The Committee further intends for the Smithsonian
Institution to comply with obligations stipulated in H.R. 5237 with
House Report 101-877
page 18

respect to unassociated funerary objects insofar as such obligations do
not weaken those stipulated in Public Law 100-185.
The definition of "right of possession" in section 2(13) of the bill
was amended to include language providing that nothing in the paragraph
is intended to affect the application of relevant State law to the right
of ownership of unassociated funerary objects, sacred objects or objects
of cultural patrimony. The language was adopted to meet the concerns of
the Justice Department about the possibility of a 5th amendment taking
of the private property of museums through the application of the terms
of the Act. While the Committee did not feel that implementation of the
Act would give rise to such a taking, the language was accepted to make
clear its intention. The language is not jurisdictional in nature. It
does not confer or detract from the existing jurisdiction to determine
ownership of an item covered by this Act. Depending upon the
circumstances involved, the law which would be applicable by the court
of competent jurisdiction could be Federal, State, or tribal. The
definition of the right of possession will supplement any existing law
in that respect.
The term "tribal land", as defined in section 2(15), is for purposes
of this Act only and may be inapplicable in other circumstances. The
Committee does not intend that the definition will be determinative of
the status of land owned by Native Corporations pursuant to the Alaska
Native Claims Settlement Act for any other purposes than for this Act.

OWNERSHIP

Section 3(d) refers to the inadvertent discovery of Native American
remains and objects by persons engaged in an otherwise unrelated
activity. Section 3(d)(1) states that, after there has been compliance
with the other requirements of the subsection, "The activity may resume
after a reasonable amount of time". Although a specific time limit was
not added here, the Committee does intend to protect the remains and
objects found and does not intend to weaken any provisions of other
laws, such as Archeological Resources Protection Act, regarding similar
situations.

INVENTORY

Section 5(d) refers to notification of Indian tribes and Native
Hawaiian organizations no later than 6 months after completion of the
inventory requirements. The Committee intends that tribes and
organizations be notified as soon as possible after an inventory is
completed. The allowance of 6 months to make the notification was added
to assist small museums with very limited staffs.

SUMMARY

Due to the possible high number of unassociated funerary objects,
sacred objects, and objects of cultural patrimony, this section is
intended to make it easier for the Federal agencies, museums, and
institutions of higher education to compile and survey the objects they
have in their possession or under their control. It is also intended
that there be a shorter time frame for completion of the summary (3
House Report 101-877
page 19

years) than for the item-by-item inventory to permit earlier contact
with the appropriate tribe so open discussions can begin.

REPATRIATION

Section 7(b) refers to scientific studies the outcome of which would
be of major benefit to the United States. The Committee recognizes the
importance of scientific studies and urges the scientific community to
enter into mutually agreeable situations with culturally affiliated
tribes in such matters.
House Report 101-877
page 20

SHARING OF INFORMATION

Section 7(d) refers to the sharing of information following the
preparation of the initial inventory or summary. Any tribe which may
have a cultural affiliation with certain items may request any
additional available information needed to pursue a claim under the Act.
All tribes which receive notice pursuant to the inventory process or
those that should have received notice because of a potential cultural
affiliation (regardless of whether the showing of such affiliation would
be based upon museum records or non-museum sources) would have standing
to request such information.

REVIEW COMMITTEE

One of the responsibilities of the Review Committee is to compile an
inventory of culturally unidentifiable human remains and develop a
process for their disposition. There is general disagreement on the
proper disposition of such unidentifiable remains. Some believe that
they should be left solely to science while others contend that, since
they are not identifiable, they would be of little use to science and
should be buried and laid to rest. The Committee looks forward to the
Review Committees recommendations in this area. The Committee concurs
with the Justice Department comments that section 7 does not accord
binding legal force to the Review Committee's actions. As such, the
bill did not have to be amended to conform the appointments procedures
for the committee to the Constitution's appointments clause.

PENALTY

The penalty provision of section 9 is not meant to be an exclusive
remedy for any disputes which may arise from the implementation or
interpretation of the terms of the Act nor to preclude resort of any of
the parties to remedies which may be available under other existing law.

SAVINGS PROVISIONS

Section 11(1)(B) preserves the right of all parties to enter into
other mutually agreeable arrangements than those provided for in this
Act. The Committee encourages all sides to negotiate in good faith and
attempt to come to agreements, where possible, which would keep certain
items available to all those with legitimate interests.

CONSULTATION

The term "consultation", wherever it appears in the bill, means a
process involving the open discussion and joint deliberations with
respect to potential issues, changes, or actions by all interested
parties.

SECTION-BY-SECTION ANALYSIS
Section 1
This section cites this Act as the "Native American Grave Protection
and Repatriation Act".
House Report 101-877
page 21

Section 2

This section contains definitions of various terms used in the
legislation.

Section 3

Subsection (a) provides that the ownership or right of control of any
Native American human remains, funerary objects, sacred objects or
objects of cultural patrimony found on Federal or tribal land after the
date of enactment will be under the control of (in this order) lineal
descendants, the tribe or Native Hawaiian organization on whose land the
item was found, the tribe or Native Hawaiian organization which is the
most closely affiliated with the item, or with the tribe or Native
Hawaiian organization which is recognized by the Indian Claims
Commission as having aboriginally occupied the area.
Subsection (b) provides that the ownership of any item covered under
this Act which is not claimed under subsection (a) will be determined by
regulations established by the Secretary of Interior after consultation
with the review committee established in section 8 of this Act, Native
American groups, representatives of museums and the scientific
community.
Subsection (c) provides that items covered by this Act can be
excavated from Federal or tribal lands if proof exists that a permit has
been acquired in accordance with section 4 of the Archaeological
Resources Protection Act, that the appropriate tribe or Native Hawaiian
organization has been consulted or (in the case of tribal land) consents
to the excavation, and if it is agreed that the right of control of any
item covered by this Act which is unearthed will be determined in
accordance with subsection (a) and (b).
Subsection (d) provides that anyone who discovers any item covered by
this Act accidentally, or by an otherwise unrelated activity, on Federal
or tribal land shall notify the head of the Federal entity having
primary jurisdiction over the land in question and any appropriate tribe
or Native Hawaiian organization if known or easily ascertainable. If
the item was discovered during an activity such as logging, mining, or
construction, the activity must stop and a reasonable effort must be
made to protect the item before resuming the activity. This subsection
further provides that, if the Federal land managers involved agree, the
Secretary of Interior can be delegated the responsibility of such
managers with respect to this Act.
Subsection (e) provides that nothing in this section will prevent the
governing body of any tribe or Native Hawaiian organization from giving
up their rights to any Native American human remains, funerary object or
sacred object.

Section 4

Subsection (a) amends chapter 53 of title 18 of the United States
Code by adding a new section at the end thereof as follows:
Subsection (a) of the new section provides that any person who
knowingly sells, purchases, uses for profit, or transports for sale or
profit the human remains of a Native American without the right of
possession, as defined in the Native American Grave Protection and
House Report 101-877
page 22

Repatriation Act, shall be fined in accordance with title 18 or
imprisoned for not more than 12 months or both and, for subsequent
violations, fined in accordance with title 18 or imprisoned for not more
than 5 years or both.
Subsection (b) of the new section provides any person who similarly
deals in Native American cultural items in violation of the Native
American Grave Protection and Repatriation Act shall be liable to fines
and prison terms similar to those provided in subsection (a).
Subsection (b) of section 4 of the bill amends chapter 53 to add the
new section title, "Illegal Trafficking in Native American Human Remains
and Cultural Items" to the chapter table of contents.

Section 5

Subsection (a) provides that any Federal agency or museum which has
possession of, or control over, any Native American human remains or
associated funerary objects is to inventory the items and list the
geographic and cultural identity of each.
Subsection (b) provides that the inventory in subsection (a) shall be
completed, after consultation with tribal and Native Hawaiian
organizational officials and traditional religious leaders within 5
years and shall be made available to the review committee established in
section 8. This subsection also uses and defines the term
"documentation".
Subsection (c) provides for an extension of time for the inventory
deadline if good faith can be shown by a museum.
Subsection (d) provides that, following completion of the inventory,
all Federal agencies and museums shall notify the affected tribes or
Native Hawaiian organizations of any determinations of cultural
affiliation within 6 months. The notice shall include how each item was
acquired, a list of the human remains and associated funerary objects
which are clearly identifiable, and a list of the tribal origin all
items which cannot be positively identified, but, given all information
available, can be identified by a reasonable belief. This subsection
further stipulates that all notices be sent to the Secretary of the
Interior and published in the Federal Register.
Subsection (e) provides a definition of the term "inventory" which is
used in this section.

Section 6

Subsection (a) provides that all Federal agencies and museums which
possess, or have control over, any Native American unassociated funerary
objects, sacred objects, or objects of cultural patrimony shall provide
a written summary of the objects.
Subsection (b) provides that the summary be done in lieu of the item-
by-item inventory of Section 5 and that it be followed by consultation
with tribal and Native Hawaiian officials. The summary is to be
completed within 3 years of the date of enactment of this Act.

Section 7

Subsection (a) provides for the return of human remains, associated
funerary objects, unassociated funerary objects, sacred objects and
House Report 101-877
page 23

objects of cultural patrimony which were identified pursuant to sections
5 and 6. It further calls for all returns to be completed in
consultation with the requesting descendent, tribe or Native Hawaiian
organization.

Subsection (b) provides that, if an item covered in this Act is
needed for a specific scientific study the outcome of which would be of
major benefit to the United States, the item may be kept for the
duration of the study and returned within 90 days of completion.
Subsection (c) provides that, if a request is made for the return of
an unassociated funerary object, sacred object or object of cultural
patrimony, the requesting tribe or organization must first make a
showing that the Federal agency or museum does not have a right of
possession to that item. If this showing is made, the burden shifts to
the agency or museum to show that it does have a right of possession to
the object.
Subsection (d) provides that the Federal agency or museum shall share
its information with the requesting descendant, tribe or Native Hawaiian
organization to assist in making a claim under this section.
Subsection (e) provides that, where there are legitimate competing
claims for any cultural item, the Federal agency or museum can retain
the item until the requesting parties or the courts decide which
requesting party is the appropriate claimant.
Subsection (f) provides that any museum which repatriates items in
good faith will not be liable for any claims because of that
repatriation.

Section 8

Subsection (a) provides for the establishment, by the Secretary of
the Interior, of a committee to monitor and review the implementation of
the provisions of this Act.
Subsection (b) provides that the committee shall have seven members,
three of whom are to be from nominations submitted to the Secretary of
Interior by tribes, Native Hawaiian organizations, and traditional
Native American religious leaders with two of those being traditional
religious leaders. Three are to be from nominations submitted to the
Secretary by national museum organizations and scientific organizations
and one who shall be appointed with the consent of the other six. It
also provides that the members shall serve without pay but shall be
eligible for reimbursement for expenses.
Subsection (c) provides for the responsibilities of the committee
which shall be: to choose a chairperson; to monitor the inventory
process; to review upon request any findings relating to the
identification or return of any items covered by this Act; to facilitate
the resolution of any disputes among or between tribes, Native Hawaiian
organizations, lineal descendants, Federal agencies, or museums; to
compile an inventory of unidentifiable human remains and recommend
actions for their disposition; to consult with tribes and Native
Hawaiian organizations on anything that affects them; to consult with
the Secretary of the Interior in developing regulations to carry out
House Report 101-877
page 24

this Act; and to make appropriate recommendations regarding the future
care of cultural items to be repatriated.
Subsection (d) provides that the committee shall make its
recommendations regarding unidentifiable human remains in consultation
with tribes, Native Hawaiian organizations, and museum and scientific
groups.
Subsection (e) provides that the Secretary of the Interior will
ensure that committee members have reasonable access to the items under
review and all relevant materials.
Subsection (f) provides that the Secretary of the Interior shall
establish rules and provide staff for the committee.
Subsection (g) provides that the committee submit an annual report to
Congress.
Subsection (h) provides for the termination of the committee
following certification to Congress by the Secretary of the Interior
that its work is finished.

Section 9

Subsection (a), paragraph (1), provides that any museum that fails to
comply with the requirements of the Act shall be assessed a civil
penalty by the Secretary. No such penalty is to be assessed unless the
museum has been given adequate notice and opportunity for hearing and
each violation is to be a separate offense.
Paragraph (2) provides that the penalty to be assessed shall be
determined by regulations promulgated under this Act taking into
consideration the value of the item involved, damages suffered, and the
number of violations.
Paragraph (3) authorizes the judicial review of any penalty assessed
under this subsection by the Federal district courts.
Paragraph (4) provides that, if any museum fails to pay such a
penalty after final administrative or judicial action, the Attorney
General may initiate appropriate action to collect such penalty.
Paragraph (5) establishes powers and procedures for administrative
actions to determine, assess and collect such penalties.

Section 10

Subsection (a) provides for grants to tribes and Native Hawaiian
organizations to assist in the return of items covered in this Act.
Subsection (b) provides for grants to museums to assist in the
inventory and summary requirements in this Act.

Section 11

Section 11 provides that nothing in this Act should be understood as
limiting the authority of any Federal agency or museum to return any
items covered in this Act or to stop or limit any other agreements which
can be made regarding the disposition of such items. It further
provides that this Act should not delay any current actions regarding
the return of items. This section provides that this Act does not
intend to restrict access to any court or limit any rights of
individuals, Indian tribes, or Native Hawaiian organizations. It also
House Report 101-877
page 25

states that it is not meant to limit the application of any State or
Federal law pertaining to theft or stolen property.

Section 12

Section 12 recognizes the special relationship between the Federal
government and Indian tribes and Native Hawaiian organizations.
Section 13

Section 13 provides that the Secretary of the Interior shall
promulgate regulations to carry out this Act within 12 months.

Section 14

Section 14 appropriates such sums as may be necessary to carry out
this Act.

COST AND BUDGET ACT COMPLIANCE

The cost and budgetary analysis of H.R. 5237, as evaluated by the
Congressional Budget Office, is set forth below:

U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, October 15, 1990.

Hon. MORRIS K. UDALL
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed H.R.
5237, the Native American Grave Protection and Repatriation Act, as
ordered reportd by the Committee on Interior and Insular Affiars,
October 10, 1990. CBO estimates that enactment of this legislation
would cost the federal government between $20 million and $50 million
over five years, assuming appropriation of the necessary funds. The
range of total estimated costs is wide primarily because of uncertainty
about the cost of compiling an accurate inventory of Native American
human remains.
H.R. 5237 would regulate ownership, trade and disposition of Native
American remains, burial objects, and objects of sacred or cultural
significance. Human remains of funerary objects found on federal land
would be returned to the most closely affiliated tribes, permits would
be required for excavation of remains found on federal or tribal lands,
and it would be illegal to trade in Native American remains of funerary
objects.
H.R. 5237 also would require that federal agencies and museums that
receive federal funding create inventories of Native remains and
associated burial objects, notify tribes of their holdings and return
objects to tribes upon request. The bill would require that inventories
be completed within five years of enactment. Agencies and museums also
would be required to summarize their holdings of other objects covered
by the bill. A review committee would be established to oversee the
House Report 101-877
page 26

process of repatriation, mediate disputes and review museums' progress
in completing inventories. The bill would authorize the appropriation
of such sums as are necessary for grants to assist museums in compiling
inventories and to assist tribes in pursuing their claims. Although no
funds are specifically authorized for federal agencies that have
collection of remains and other opjects, the estimated costs to these
agencies (primarily the Department of the Interior and the Department of
the Army) are included in this estimate. The largest federal
collectors, the

Smithsonia, is already covered by similar provisions in the National
Museum of the American Indian Act.
The main costs from enactment of H.R. 5237 would be the cost to
federal agencies of preparing the inventories required by the bill and
the cost of grants to museums to assist them in carrying out
inventories. To some extent, the total cost is discretionaryýthe more
funds made available, the more accurate and comprehensive will be the
information collected by museums. This estimate represents the cost of
compiling an initial inventory based on existing information. Two
variables determine the cost: the number of remaining and associated
objects and the cost to inventory each object. This estimate assumes
that museums and federal agencies hold between 100,000 and 200,000
Native American remains that would have to be reviewed.
The cost of preparing an accurate inventory of the original and
tribal affiliation of human remains can vary considerably depending on
the information already available, the amount of research needed to
accurately determine tribal affiliation and the contentiousness
surrounding individual pieces. There is considerable disagreement about
the nature of the inventory required by H.R. 5237, and widely varied
estimates of costs. Based on the experience of museums that already
have repatriated remains, we assume costs of $50 to $150 per remain, or
a total cost of between $5 million and $30 million over five years, for
museums to provide tribes with the basic information required by the
bill. This estimate includes the costs of an inventory of museums'
collections, as well as a review of existing information to determine
origin. More extensive studies costing up to $500-$600 per remain would
be necessary to determine the origin of some of the remains; however,
such studies generally are not required by H.R. 5237. If museums were
required to identify all of their holdings definitvely, the costs of
this bill would be significantly higher than the $30 million estimate.
H.R. 5237 also would require an inventory of bruial objects
associated with the human remains, and a summary by each museum of their
holdings of unassociated funerary objects, sacred objects or culturally
important objects. CBO estimates that these inventories and summary
studies would cost museums about $10 million over 5 years.
Finally, H.R. 5237 would provide grants to tribes to assist them in
the repatriation of the remains and objects covered in the bill. This
effort could include assistance in pursuing tribal claims as well as
assistance in repatriating the remains. CBO estimates costs of $5
million to $10 million over five years for these grants.
As operators of about one-third of all museums, state and local
governments could face costs from enactment of H.R. 5237. Assuming
House Report 101-877
page 27

appropriation of adequate amounts by the federal government, however,
these costs would be covered by federal grants made availbale under the
bill.
If you wish further details on this estimate, we will be pleased to
provide them. The CBO staff contact is Marta Morgan, who can be reached
at 226-2860.
Sincerely,

ROBERT D. REISCHAUER,
Director.
House Report 101-877
page 28

INFLATIONARY IMPACT STATEMENT

Enactment of H.R. 5237 would have no significant impact on inflation.

OVERSIGHT STATEMENT

No specific oversight activities were undertaken by the Committee and
no recommendations were submitted to the Committee pursuant to rule X,
Clause 2.

COMMITTEE RECOMMENDATIONS

The Committee on Interior and Insular Affairs, by voice vote,
approved the bill and recommends its enactment by the House, as amended.

EXECUTIVE COMMUNICATIONS

The Committee requested a report from the Department of the Interior
on a similar bill, H.R. 1381, by letters dated June 19, 1989, and
February 27, 1990, and on H.R. 1646 by letter dated February 27, 1990.
No reports on these bills were received at the time of the filing of
this report. Comments on H.R. 5237 from the Army Corps of Engineers,
the Department of Justice and the Department of the Interior follows:
Executive communications received on this legislation are as follows:

DEPARTMENT OF THE ARMY,
Washington, DC, August 31, 1990.

Hon. MORRIS K. UDALL,
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: This office is responding to your letter of July
13, 1990 requesting the views of the Army Corps of Engineers on H.R.
1381, 101st Congress the "Native American Burial Site Preservation Act
of 1989", H.R. 1646, 101st Congress, the "Native American Grave and
Burial Protection Act", and H.R. 5237, 101st Congress, the "Native
American Grave Protection and Repatriation Act".
The purposes of the bills are to protect Native American burial sites
on Federal lands from excavation and vandalism; to prevent the
interstate sale of Native American remains; and, in the case of H.R.
1646 and H.R. 5237, to provide a mechanism by which cultural resources
can be returned to their native tribe.
The Department of the Army shares your concern for the protection of
Native American burial sites; however, these three bills, in our view,
are problematic for a number of reasons.
First, many of the provisions in the bills overlap with the
provisions of the Archaeological Resources Protection Act (ARPA), which
already has a framework in place for the protection of Indian cultural
resources. In the ARPA, the term "archaeological resource" would
encompass Native American burial sites, as the term means "any material
remains of past
House Report 101-877
page 29

human life or activities which are of archaeological interest. . . .".
16 U.S.C. 470bb. This Act authorizes Federal land management agencies
to provide permits to persons for the purpose of excavating or removing
archaeological resources on public lands. The Act provides that if a
permit issued could result in harm to or destruction of any religious or
cultural site, the Federal land manager must notify any Indian tribe
which may consider the site as having religious or cultural importance.
16 U.S.C. 470cc(b), (c). To avoid duplication of existing law and
confusion to program managers, additional protection to Native American
burial sites should be framed as amendments to the ARPA.
In addition, we are concerned that some of the provisions in the
bills are untenable and conflict with the ARPA. For instance, H.R. 1381
would prohibit the excavation of Native American burial sites, except as
permitted by States under State law. This provision conflicts with
section 4 of the ARPA, which provides for Federal permits for excavation
of archaeological resources. We believe that jurisdiction for permits
to excavate or remove Indian remains properly rests with the Federal
Government. The Federal government has a fiduciary obligation to ensure
that in the execution of laws that protect Indian property, full effect
is given to that purpose. Moreover, there is an established rule of
construction of the law that Congress' actions towards Indians are to be
interpreted in light of the special relationship and special
responsibilities of the Government towards the Indians. In our view, to
transfer permitting authority to States would usurp the Federal
Government's duty to ensure that the law be carried out for the benefit
of Indians. Moreover, this provision raises jurisdictional questions as
to whether a State can issue permits for activities on Federal property.
H.R. 1626 and H.R. 5237 also contain provisions that would prohibit
excavation of Native American remains without notice to and consent of
the affiliated Indian tribe or organization. From our perspective,
these provisions create an impossible burden for Federal land managers.
Whenever possible, the Army Corps of Engineers consults with cultural
descendents when human remains and associated items are identified, and
we enter into agreements with descendent tribes when sites are likely to
contain human remains. Nevertheless, there are circumstances when
cultural descendants may not be present or identifiable. By requiring
consent from an affiliated tribe before any excavation could take place,
these provisions could virtually stop the progress of any Corps project.
Essentially, we oppose the overly strict requirements in these two
bills, and would favor a balanced approach that would allow for a
reasonable effort on the part of Federal land managers to consult with
cultural descendents before an area was excavated.
Finally, you requested that the Corps include the current number of
Native American skeletal remains and funerary objects in its possession
or control and the policy regarding those items. At the present time,
the Corps does not have an accurate number of those items for you.
However, the Corps is currently revising its regulations on curation and
collections management that would require all Corps offices to conduct
inventories of curated cultural
House Report 101-877
page 30

and human remains. When the regulation is further developed, the Corps
will be able to proceed on a project by project basis to conduct the
necessary inventories.
Sincerely,

ROBERT W. PAGE,
Assistant Secretary of the Army
(Civil Works).
C. EDWARD DICKEY,
Acting Principal Deputy Assistant
Secretary
(Civil Works).

______________________

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, DC, September 17, 1990.

Hon. MORRIS K. UDALL,
Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: This letter presents the views of the Department
of Justice on two related bills: H.R. 5237, the "Native American Grave
Protection and Repatriation Act," and H.R. 1646, the "Native American
Grave and Burial Protection Act."
H.R. 5237 and H.R. 1646 are similar in substance. Both would protect
and provide for repatriation of Native American human remains, objects
associated with those remains, and other sacred objects. H.R. 5237 would
also protect and provide for repatriation of a fourth category of
objectsý"inalienable communal property"ýdefined to include items "having
historical, traditional, or cultural importance central to the Native
American group or culture . . . ." H.R. 5237, § 2(6).1
On the policy goals and efficacy of these bills, we defer to the
federal agencies responsible for administration of Native American
programs, particularly the Department of the Interior. As to the legal
issues involved, however, we believe that both bills would raise
concerns under the Takings Clause of the Constitution. U.S. Const.,
Amend. V (". . . nor shall private property be taken for public use,
without just compensation"). We first discuss a Takings Clause issue
common to the repatriation provisions in both H.R. 5237 and H.R. 1646.
We then discuss three further matters unique to one or the other bill.
1. Repatriation.ýBoth H.R. 5237 and H.R. 1646 would call upon
private museums to return protected objects upon request from a Native

1A third billýH.R. 1381, the "Native American Burial
Site Preservation Act of 1989"ýwould prohibit excavation
of a Native American burial site. H.R. 1381, § 3. The
Department of Justice has no comments on this
legislation.
House Report 101-877
page 31

American tribal body affiliated with the particular object. H.R. 5237, §
6(a)(1) and (b)(1); H.R. 1646, § 6.2 The precise procedures
for repatriation differ between the two bills. Under H.R. 5237,
requests addressed to private museums would turn upon the results of an
inventory of Native American objects that the museum itself would be
required to complete. H.R. 5237, § 6(a)(1). Only if a private museum
establishes the origin of a particular protected object as part of the
required inventory may a request for repatriation of that object be
made. Id. By contrast, H.R. 1646 would not require private museums to
conduct inventories, see H.R. 1646, § 5 (only federal agencies and
instrumentalities must conduct inventories), nor would it make requests
for repatriation to any type of museum dependent upon the results of any
inventories.
The two bills also differ concerning the grounds upon which a private
museum may refuse a request for repatriation. Under H.R. 5237, a
private museum would need to show "by a preponderance of the evidence
that [it] has right of possession to [the requested] remains or
objects." H.R. 5237, § 6(c)(1). H.R. 5237 would define "right of
possession" to mean "possession obtained with the voluntary consent of
an individual or group that had authority of alienation." H.R. 5237, §
6(d). Under H.R. 1646, a private museum need not grant a request for
repatriation if the object sought was "acquired with the consent of the
tribe or the Native American owners of such items" or, in the case of
skeletal remains, is "indispensable for the completion of a scientific
study, the outcome of which would be of major benefit to the United
States." H.R. 1646, § 6(1) and (2).3
Under either bill, any museum that fails to comply with the relevant
repatriation provisions would be ineligible to receive federal funding
during the period of non-compliance. H.R. 5237, § 6(f); H.R. 1646 § 6.
Th Supreme Court has recognized that Congressýas part of its spending
powerýhas broad authority to place conditions upon the receipt of

2The term "museum," as used in either bill, would
clearly encompass private museums. See H.R. 5237, § 2(9)
("museum" means "any person, State, or local government
agency . . . that receives Federal funds and has
possession of, or control over" protected objects); H.R.
1646, § 3(7) ("museum" means "any museum, university,
government agency, or other institution receiving Federal
funds which possesses or has control over any Native
skeletal remains or ceremonial objects").
Both bills would also permit requests for
repatriation to be made to federal agencies and federal
museums. H.R. 5237, § 6(b); H.R. 1646, § 6. This aspect
of the two bills does not implicate the Takings Clause,
as the property in question is that of the United States
and, hence, may be repatriated by Congress. U.S. Const.,
Art. IV, § 3, cl. 2 (power of Congress to dispose of
"Property belonging to the United States").

3By contrast, H.R. 5237 would permit only federal
agencies and federal museums to refuse a request on
scientific grounds. See H.R. 5237, § 6(b).
House Report 101-877
page 32

federal funds. See South Dakota v. Dole, 107 S. Ct. 2793, 2796 (1987).
In so doing, Congress may seek to accomplish objectives not otherwise
within its Article I powers. Id. (upholding the withholding of federal
highway funds to induce States to adopt uniform drinking ages, "even if
Congress may not regulate drinking ages directly"). Without extensive
elaboration, however, the Court has noted that such conditions may not
be used to induce "activities that would themnselves be
unconstitutional." Id. at 2798 (citing authorities).
This limitation upon the power of Congress to condition the receipt
of federal funds would arguably be implicated by H.R. 5237 and H.R.
1646. Although we have identified no authorities that speak directly to
the relationship between the spending power and the Takings Clause, we
believe that a strong argument could be made that Congress may not
exercise the spending power to accomplish an uncompensated taking of
private property, as such action would contravene the Constitution. Cf.
Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (state
commission may not, absent just compensation, condition a permit to
rebuild house upon transfer of easement to the public across owner's
property).
By its terms, the Takings Clause provides that "private property"
shall not be taken for "public use" absent the payment of "just
compensation." U.S. Const., Amend. V. We discuss first the "private
property" requirement.
Both H.R. 5237 and H.R. 1646 recognize that a private museum need not
return a protected object acquired with the consent of a person or tribe
with authority to transfer that particular object. H.R. 5237, § 6(d);
H.R. 1646, § 6(1). There may, however, be other means by which a
private museum might have acquired a property interest in a protected
object.
For example, the Antiquities Act of 1906 provides that a permit shall
be required for "excavation of archaeological sites" on federal lands.
16 U.S.C. § 432. As a condition for receipt of a permit, the applicant
must provide for "permanent preservation [of excavated objects] in
public museums." Id. A privatre museum open to the public would have a
strong argument that protected objects duly obtained in the past
pursuant to such federal permits constitute museum property. Apart from
laws concerning federal lands, property interests may be recognized by
state law as well. For example, a private museum might have purchased
protected objects that were accidentally discovered in the course of
construction work or other excavation upon private land.
As currently drafted, however, H.R. 5237 and H.R. 1646 do not appear
to exclude from repatriation objects acquired other than through the
consent of the relevant Native Americans. Section 6 of H.R. 1646 states
that only "the tribe or the Native American owners oif [protected]
items" may consent to their acquisition. The equivalent provision of
H.R. 5237 refers more broadly to "consent of an individual or group that
had authority of alienation," but the examples that follow this
statement are restricted to consent involving Native Americans. H.R.
5237 § 6(d). The language of both bills would appear to exclude consent
by a governmental or private landowner that leadsýby design or by
accidentýto the discovery of Native American artifacts that are later
transferred to a private museum. In short, consent by the United States
to excavation on federal lands (or, alternatively consent by a private
landowner to excavation on his property) may confer a property interest
House Report 101-877
page 33

in the objects discovered but would not appear to protect a private
museum from the repatriation requirement. The bills thus may affect
private property and thereby call into play the Takings Clause.
This problem could be resolved by an amendment to exclude private
museumsýand, hence, private propertyýfrom repatriation. Alternatively,
the provisions under which a private museum may decline repatriation
might be broadened to exempt all objects in which the museum has a
property interest cognizable under federal or state law. Similar
legislation introduced in the Senate, for example, would permit a museum
to refuse repatriation if it has "legal title" to the requested object.
See S. 1980, § 5(c)(1). Either revision, however, would reduceýperhaps
significantlyýthe number of protected objects that would be returned to
Native Americans.
Absent such revisions, further issues would arise under the "public
use" and "just compensation" requirements of the Takings Clause. The
courts generally will defer to Congress' detremination of what
constitutes a "public use" of private property. See Hawaii Housing
Authority v. Midkiff, 467 U.S. 229, 240 (1984). The Government "does
not itself have to use property to legitimate the taking," id. at 224;
transfers of property from one private party to another have been upheld
when designed by the legislature to further a public purpose, see, e.g.,
id. Here, however, Congress has inserted no findings in either H.R.
5237 or H.R. 1646 to explain how the transfer of protected objects from
private museums to Native American tribes will advance the public good.
Should Congress wish to reach private property through these bills, it
would be advisable that such findings be included.
Finally, the Takings Clause requires that "just compensation" be paid
for the taking of private property. The absence of a compensation
procedure in either H.R. 5237 or H.R. 1646 would not prevent a private
museum from obtaining compensation in the event that a taking is
effected by either bill. Under the Tucker Act, a private museum may
seek such compensation in the Claims Court. 28 U.S.C. § 1491(a)
(jurisdiction to resolve claims against the United States based upon the
Constitution). The payment of compensation to private museums would
increase the cost of repatriation legislation. Absent such payments,
however, the conditioning of federal funding upon consent to an
uncompensated takingýas we have explainedýmay well be an
unconstitutional exercise of the spending power.

2. Ownership Provision of H.R. 1646.ýAs currently drafted, section
4(c) of H.R. 1646 would implicate the Takings Clause. That section
would declare that "[a]ny grave goods or sacred ceremonial objects found
on public or tribal land shall be deemed to be owned by the tribe"
associated with those objects. To avoid the implication that this
section would transfer ownership of objects found in the past such that
compensation would be due to the previous owners, we recommend amendment
of this section to apply only to objects "found after the date this Act
becomes law." Such an amendment would clarify that section 4(c), like
the protections for Native American artifacts elsewhere in section 4,
will have only a prospective application.

3. Appointment of Review Committee in H.R. 5237.ýUnder section 7 of
H.R. 5237, the Secretary of the Interior would be required to establish
a "review committee" that "shall be composed of 7 members, 4 of whom
House Report 101-877
page 34

shall be appointed by the Secretary from nominations submitted by Indian
tribes, Native Hawaiian organizations, and traditional Native American
religious leaders." H.R. 5237 § 7(b)(1). The committee shall, inter
alia, "review[] upon the request of any affected party any finding
relating to" the identification of a protected object or the return of
such an object. H.R. 5237, § 7(c)(2)
As drafted, the bill would not accord binding legal force to the
committee's review. Should Congress intend otherwise, section 7(b)(1) of
the bill would need to be amended to conform the procedures for
appointment of the review committee to the Constitution's Appointments
Clause. See U.S. Const., Art. II, § 2, cl. 2; Buckley v. Valeo, 424
U.S. 1, 126, 141 (1976) (officials exercising "significant authority
pursuant to the laws of the United States"
must be appointed pursuant to the Appointments Clause). While the
Appointments Clause permits Congress to vest the appointment of
"inferior Officers" in the President alone, we do not believe that it
sanctions limitations upon the power of appointment by reference to a
fixed list of nominees, because such a requirement would permit the
creator of the listýhere, Native American organizationsýto share in the
appointment power.

4. Access Requirement of H.R. 5237.ýSection 7(e) of H.R. 5237 also
concerns the review committee. This section would require the Secretary
of the Interior to "ensure" that the committee will have "full and free
access" to any protected objects necessary for their review. In its
current form, the language of section 7(e) might implicate the Takings
Clause in particular situations. A court will ask whether the
particular intrusion "unreasonably impair[s]" the economic value of
private property. PruneYard Shopping Center v. Robins, 447 U.S. 74, 83
(1980). In this "ad hoc inquiry," the court will regard several factors
as "particularly significantýthe economic impact of the regulation, the
extent to which it interferes with investment-backed expectations, and
the character of the governmental action. Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 432 (1982).
Here, a requirement of "full and free" access might be read broadly
to authorize the sequestration of protected objects that would otherwise
be part of a major exhibition in a private museum. Although the result
would turn largely upon the particular facts, a private museum would
have a substantial argument that such an intrusion constitutes a taking
and, thus, must be accompanied by the payment of just compensation. To
avoid such a situation, we recommend amendment of section 7(e) to
provide merely for "reasonable access" to protected items by the review
committee.
Sincerely,
BRUCE C. NAVARRO,
Deputy Assistant Attorney General.

___________________________

U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, DC, October 2, 1990.

Hon. MORRIS K. UDALL,
House Report 101-877
page 35

Chairman, Committee on Interior and Insular Affairs,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: This is to provide you with our views on H.R.
5237, the "Native American Grave Protection and Repatriation Act".
We support the goal of H.R. 5237, but would oppose it unless amended
as we suggest below. In addition, we oppose provisions in the bill that
would authorize open-ended and unlimited grants to tribes and museums
involved in the repatriation process. H.R. 5237 also raises serious
constitutional problems that must be satisfactorily addressed prior to
enactment. We defer to the Department of Justice for an analysis of the
legal issues associated with this bill, which has been previously
provided to the Committee.

H.R. 5237 would establish criminal penalties for anyone selling or
transporting Native American skeletal remains without the consent of the
heirs of the deceased or the tribe which is culturally affiliated with
the remains. The bill would also establish ownership of grave goods
found on pubic or tribal lands. It would require Federal agencies
having possession of Native American skeletal remains or ceremonial
objects (1) within five years to inventory them and determine tribal
origin; and (2) within six months to notify each tribe of the items in
the agency's possession or control. Tribes would be provided an
opportunity to decide if they wished the items returned, and Federal
agencies would be required to return them unless they are obtained with
the consent of the tribal entity, or are indispensable for study.
Similar requirements for return of such items would be levied on any
museum which receives Federal funds. A review committee would be
established to monitor and review the implementation of the inventory
and identification process required by this bill.
In March of this year, Secretary Lujan directed the National Park
Service to develop a new policy and revise an existing guideline on the
treatment of human remains and funerary objects. The National Park
Service already has been informally reviewing the current policy and
guidelines at the staff level for over a year. This informal review has
included meetings with representatives of Indian groups, as well as with
archaeological and museum groups. The specifics of the Interior policy
and guidelines remain to be defined following more detailed consultation
with Indian, archaeological, museum, and other interested groups.
However, we have identified certain basic principles that we would need
to see incorporated in any legislation which we would support.
Secretary Lujan wants a more sensitive treatment of archaeological
human remains, funerary objects, sacred objects, and objects of Native
American cultural patrimony by managers on Interior lands. He wants
other Federal, State and local agencies that look to the Secretary of
the Interior for guidance to adopt similar sensitive approaches.
However, the Secretary has indicated that he wants to affirm the right
of each tribe to determine the treatment that is afforded human remains
and associated objects that are affiliated clearly with that Tribe.
This right is central to the purpose of H.R.. 5237.
Although the Federal government legally owns human remains, it is our
position that the government should have only stewardship
House Report 101-877
page 36

responsibilities for human remains and other cultural items which should
be held in trust for culturally affiliated groups who can establish
rights to their ownership and for the scientific and educational
benefits derived from some of these cultural items.
We recognize the legitimate interests of contemporary Native
Americans, tribes and tribal components, including extended family
groups, in making a claim. Therefore, in cases where human remains and
associated funerary objects can be linked to contemporary Native
Americans and a claim is made and substantiated, the culturally
affiliated group should determine ultimate disposition.
We further believe that in cases where human remains and associated
funerary objects can be linked to contemporary Native Americans,
justifiable scientific and humanistic studies may be undertaken with the
permission of the acknowledged kin group or tribal representatives who
will decide about the appropriate conditions of study and final
disposition of the human remains and associated funerary objects.
Under present policy, in cases where human remains and associated
funerary objects cannot be linked to contemporary Native Americans or
when a claim is not made, the Federal government would maintain its
stewardship role, providing the opportunity for future evaluation
whenever additional evidence of cultural affiliation is forthcoming and
claims are made. In this area, however, the outcome of Secretary
Lujan's policy review is not yet certain. We support the effort to stem
the removal of these cultural items from their resting places by looting
and inadvertent modern disturbances and to halt the trafficking in these
items.
We believe that H.R. 5237 would largely incorporate these basic
principles. However, the following amendments would be necessary in
order for us to support this bill.

In cases where human remains and associated funerary objects cannot
be linked to contemporary Native Americans, or where a claim has not
been made, we believe it is appropriate for the Federal government
to maintain its stewardship role over these remains, but provide the
opportunity for future evaluation of cultural affiliation if future
claims are made. Therefore, we recommend section 3(a)(2)(B) be
changed to read, "in the Indian tribe or Native Hawaiian
organization which is affiliated with such objects or remains and
which, upon notice, states a claim for such objects or remains."

We believe it would not be proper to use aboriginal occupation as
the sole criteria for establishing affinity where no affinity to
contemporary groups can be established. In some cases this criterion
will be reasonable, in other cases it will not. Therefore, we
recommend section 3(a)(2)(C) be deleted.

We agree that the Secretary of the Interior should develop
regulations for the treatment and disposition of items that are
determined to be unaffiliated with any modern Native American
entity. The stewardship role over these items can result in a wide
variety of treatments, ranging from museum curation of remains and
objects to reburial. If the regulations contemplated in section
3(b) of the bill (providing procedures to be followed in determining
proper treatment for unclaimed items) are intended to provide such
House Report 101-877
page 37

broad authority, report language establishing this intent is
necessary.

In order for repatriation or continued government stewardship of
cultural items to operate effectively, inventories of present
collections in Interior and other Federal agencies are needed. In
order to ensure that cultural items are returned to the appropriate
Native American entity, it will sometimes be necessary to gather
evidence of relatedness, which would include appropriate
combinations of forensic, ethnographic, archaeological, and archival
information. Therefore, we recommend that section 5(b)(2), dealing
with inventory requirements, be amended to allow for additional
studies where necessary to ensure a correct determination of
affinity. We want to ensure, to the best of our ability, that
remains and objects are returned to the correct contemporary groups
and those that stay under Federal stewardship are identified
properly.

The time and costs for Federal agencies and curation facilities
could be substantial. Federal agencies will need to begin evaluating
collections for which they have responsibility in order to develop
plans and cost estimates. The new regulations on curation of
Federal archaeological collections (36 CFR 79), which will become
effective on October 12, 1990, will be helpful for agencies
beginning to organize their efforts. Scheduling for the repatriation
of human remains and associated funerary objects must be realistic.
Therefore, we recommend that Federal agencies have available the
same provisions for extension of the time requirements for
completing their inventories as museums are provided in section
5(c).

Although we believe that many human remains and funerary objects
will be identified with affiliated groups through the inventory
required by the bill, we are not confident that the broader
categories of "scared objects" and "objects of cultural patrimony"
could be treated along these same lines. These terms and the
concepts they represent are too broad and unformulated to include
within this legislation.

We have had experiences with legislation where the definitions
embodied concepts that were too broad to be dealth with effectively
by the agencies that had to implement the law. During the mid-1960s
the concepts of adaptive use and rehabilitation of historic
structures were similarly broad, and only by working on the concepts
and learning the necessary limits of use and rehabilitation through
trial and error during the 1960s and 1970s were we able to produce
the standards and guidelines that direct much of this work today. A
similar period of development concerning the identification,
treatment, and use of Native American sacred objects and cultural
patrimony would provide the same grounds for developing useful and
widely accepted standards and guidelines.

Tribal preservation programs working in consensus and consultation
with Federal agencies and national preservation programs, would
House Report 101-877
page 38

resolve issues of ownership, control, or possession of sacred
objects and cultural patrimony. We expect the appropriate concepts,
relationships, and procedures concerning sacred objects and cultural
patrimony will emerge during the next few years as Tribes, agencies,
and other interested organizations work within the existing
framework on these issues. We urge that decisions about stronger
legislation concerning sacred objects and cultural patrimony be
postponed until this process has occurred.

We would support the creation of a review committee as contemplated
by this bill. However, this committee should be purely advisory in
nature. Therefore, the review committee should be limited to
providing oversight and facilitation of the repatriation process.
Accordingly, at a minimum, we recommend deletion of section 7(c)(4),
which would require the review committee to complies an inventory of
identifiable human remains that are under the control of each
Federal agency or museum.

In conclusion, the Department of the Interior is very concerned that
archaeological human remains, funerary objects, sacred objects, and
objects of Native American cultural patrimony are treated with the
respect and sensitivity which they deserve. However, we would oppose
H.R. 5237 unless amended as we described above including serious
constitutional problems and new, open-ended, unlimited grant programs.
We look forward to working with the Congress and the affected groups to
ensure that we indeed live up to our responsibilities in this area.

The Office of Management and Budget has advised that there is no
objection to the presentation of this report from the standpoint of the
Administration's programs.
Sincerely,
SCOTT SEWELL,
Deputy Assistant Secretary.

CHANGES IN EXISTING LAW

In compliance with clause 3 of Rule XIII of the Rules of the House of
Representatives, changes in existing law made by the bill, as reported,
are shown as follows (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law in which
no change is proposed is shown in roman):

TITLE 18, UNITED STATES CODE

CHAPTER 53. INDIANS

Section 1151. Indian country defined

* * * * * * * * * * * *
ý. Illegal Trafficking in Native American Human Remains and Cultural
Items

§ 1151. Indian country defined
House Report 101-877
page 39

* * * * * * * * * * * *
SEC. ý.ILLEGAL TRAFFICKING IN NATIVE AMERICAN HUMAN REMAINS AND
CULTURAL ITEMS.ý
(a) Whoever knowingly sells, purchases, used for profit, or
transports for sale or profit, the human remains of a Native American
without the right of possession to those remains, as provided in the
Native American Grave Protection and Repatriation Act, shall be fined
in accordance with this title, or imprisoned not more than 12 months,
both, and in the case of a second or subsequent violation, be fined
in accordance with this title, or imprisoned not more than 5 years,
or both.
(b) Whoever knowingly sells, purchases, uses for profit, or
transports for sale or profit any Native American cultural items
obtained in violation of the Native American Grave Protection and
Repatriation Act shall be fined in accordance with this title,
imprisoned not more than one year, or both, and in the case of a
second or subsequent violation, be fined in accordance with this
title, imprisoned not more than 5 years, or both.