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NAGPRA officials defend program management

WASHINGTON – A new report finds several problems with the management of the Native American Graves Protection and Repatriation Act, but the top manager who administers the program says many issues are already largely accounted for and that the research is misleading in some of its conclusions. Still, tribal officials say that the hands of officials at the national NAGPRA office are not clean, and that congressional action should be taken.

The report, issued jointly by the National Association of Tribal Historic Preservation Officers and the Makah Nation of Washington Aug. 14, found that the National Park Service used more than $3 million in tribal grants since 1999 for purposes other than supporting museums and American Indians to participate in the repatriation process.

The report also found that “the National Park Service … is one such agency that has the remains of hundreds of Native Americans in storage because the service has withdrawn the public notices that tie the remains and objects to contemporary Native Americans.”

Those two findings are especially controversial, since NPS oversees the national NAGPRA office, which was established in 1990 when Congress passed the law – a law that created a legal process for federal agencies and institutions that receive federal funding to return American Indian human remains and cultural items to their respective tribes or lineal descendants.

NPS, an agency of the U.S. Department of the Interior, funded the NATHPO/Makah study via a grant issued in 2006.

Sherry Hutt, the national NAGPRA program manager, called the report “ambitious” and said it did a positive job at drawing attention to the reasons behind the law, but she believes it contains several shortcomings and mistaken information.

Hutt said the report’s attention to NPS and withdrawn notices is “old news” – at least to officials in the federal government. Since 2004, the NAGPRA office has sent hundreds of letters to agencies, colleges and museums, including NPS, asking them to publish finalized notices of remains eligible for repatriation under the law that they sent to the office in earlier days of the law’s existence. Otherwise, according to the letters, the draft notices would be withdrawn.

Since the letters went out, many draft notices have been automatically withdrawn, sometimes resulting in Indian remains and artifacts being left in storage for more than a dozen years and counting, as the report notes.

Some tribal officials who’ve reviewed the report are especially concerned about these withdrawn notices because they see these situations as a sort of loophole whereby agencies can say they are continuing to consult with tribes without taking meaningful action under NAGPRA.

“Nothing has come across my desk about how and why these withdrawn notices came about,” said Reno Franklin, a member of the Kashia Pomo Tribal Council and a historic preservation officer. “It’s news to me.”

Franklin believes tribes have been “left in the dark” on the issue and that the action taken by the national NAGPRA office to default several draft notices as withdrawn ends up hurting tribes’ abilities to get their rightful remains and artifacts back.

“These withdrawn notices haven’t been explained to tribes. What exactly is the motive of the national NAGPRA office?”

Hutt noted that just because a draft notice has been withdrawn doesn’t automatically mean a tribe has lost its claim to the objects in question. In many instances involving withdrawn notices, she said, new notices have been presented that better state an agreement between a tribe and agency after further consultation.

Still, as a result of the withdrawn notice situation, remains originally filed as affiliated with a particular tribe have now been changed by some agencies to be listed as “unaffiliated.” The report’s authors note this as a big problem that they say shows agencies are not acting in the spirit of the law.

As for the current notice situation, there is expected to be a 70 percent increase in published notices this year over last year, and there has already been a 40 – 50 percent increase in the number of submitted draft notices this year so far over last year. All of which means that more tribes could be seeing increased numbers of remains and artifacts repatriated in the coming years.

As to perhaps the most scathing charge resulting from the report – that NPS has improperly used more than $3 million since 1999 intended for grants to tribes and museums to help them utilize NAGPRA – Hutt said simply, “That’s not true.”

“All of the money that Congress puts into the grant allotment has gone for NAGRPA purposes, except for one time, in 2005, when the Department of the Interior moved funds to pay for attorney’s fees [related to the Bonnichsen v. United States court case],” Hutt said. The case involved sovereignty, cultural and anthropological issues centered on the famous Kennewick Man. Interior designated $680,000 from the tribal grant program to pay for a portion of the federal government’s legal fees.

The rest of the $3 million noted in the report has gone toward funding “statutorily mandated NAGPRA functions,” such as the publication of notices, running the review committee, maintaining databases and doing training, Hutt said. “There are no other funds” to perform these functions, she said.

In past meetings, however, members of the law’s review committee and other attendees have asked why NPS and Interior aren’t doing a better job of getting more money appropriated from Congress to cover non-grant NAGPRA functions, so as not to have to poach into the tribal and museum grant money pot.

Hutt said she did not believe the report would lead to congressional investigations of NAGPRA management because “there’s no new information in there that brings something to light that hasn’t already been dealt with.”

“The report doesn’t actually come to the point of saying, ‘This is the data that indicates a problem.’”

She noted what it actually does is present statements from several tribal officials with various concerns.

Anecdotal data, she said, is crucial in telling the story of NAGPRA and many other Native-focused programs, but she said she and other agency officials would have liked to have seen these concerns presented in a data set that would allow agency officials to review their progress, or lack thereof, under NAGPRA.

Specifically, Hutt said she and others would have liked to have seen in the report how many individuals in federal agency collections were listed in inventories as “culturally affiliated” to a particular tribe, but have not yet been listed in a public notice. Knowing that number, she said, would have provided “an immediate homework assignment” for federal NAGPRA officers in terms of what they should be doing to be better accountable to tribes.

“What I look for in a study such as this is a simple matrix of the numbers, so that a federal agency could look at that matrix and determine where they are in relation to other agencies and others in their own agency. You would be giving clear guidance to the agency as to what has worked and what needs work.”

If such research were conducted, more tribes that want action taken by agencies might see their needs addressed if agencies adjusted the number of officials working on NAGPRA issues, depending on their statistical situations. Agencies that got little done could also be held better accountable by tribal leaders.

Officials with the national NAGPRA office are currently in the process of beginning a study that will develop a matrix of the type Hutt described. A similar study focused on museum collections is already in process.

Despite Hutt’s issues with the NATHPO/Makah report, NAGPRA officials noted there is room for improvement in processes involving the complex law. In fact, the seven-member review committee of NAGPRA is currently mulling an official call for a report by the U.S. Government Accountability Office on ways to improve the program’s implementation.

“We’d like to see a [GAO] study looking specifically at how well the government agencies are complying with the law,” said Colin Kippen, a Native Hawaiian who serves on the committee. “I would hope that GAO could use the [NATHPO/Makah] study as a floor, and move upwards from it.”

Kippen said he and other members of the committee are “very open” to “increasing the accountability and transparency” of the law’s implementation. He called the NATHPO/Makah study a “positive development” toward that goal. He added that he’s especially supportive of one of the report’s top recommendations: Increasing the training and capacity of tribes and agencies to better implement NAGPRA.

He said, too, that the report’s charges involving the alleged misspent $3 million by NPS is an area he’d like to see investigated further to determine whether the spent monies best served the implementation of NAGPRA. He said he would have more questions for the report’s authors about this topic and other areas when they are expected to attend the next review committee meeting in October.

“This is a program that requires additional funding; but, at the same time, we want to be evaluating whether we are spending our money in a way that is most effective,” Kippen said. Congress appropriated $2.4 million for NAGPRA grants in fiscal year 2008.

Beyond its criticisms of the national NAGPRA office and NPS, the report also found in some instances that agencies have withheld or changed information about the objects or human remains in their possession, “in blatant disregard of the law.”

Its authors also note that the federal government neither assures compliance with nor enforcement of the law.