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Joaqlin Estus
Indian Country Today

The Native American Graves Protection and Repatriation Act has been useful but is long overdue for changes. So said several people testifying at a Senate Committee on Indian Affairs hearing last week. NAGPRA is a tool for Native Americans seeking the return of ancestral remains and funerary, sacred and cultural objects.

The National Park Service, which administers the law, said it has consulted with 71 tribes and plans to soon release proposed changes to the law for public review.

Carmen Hulu Lindsey, Native Hawaiian, elected trustee and chair of the Office of Hawaiian Affairs, described conditions before the law was enacted in 1990.

“Just over 30 years ago, the mass excavation of the sacred remains of over 1,100 men, women, children, and infants out of their final resting place occurred at Honokohau on my island home of Maui to build a large hotel resort. At the same time, hundreds of remains were being disinterred at another large resort in another area of Maui.”

Now, she said, “while we continue to address ongoing disinterment and desecration of our ancestral burial sites in the islands,” NAGPRA (the Native American Graves Protection and Repatriation Act) has “allowed Native Hawaiians to bring thousands of our ancestors home to be respectfully venerated and ceremoniously reburied.” She said almost 4,000 Native Hawaiian ancestors were repatriated from one museum alone on the island of Oahu.

“Native Hawaiians are humbled and grateful to be of service to our beloved ancestors, knowing that but for them, we simply would not exist. In the increasingly contentious times now present in our world and in the greater story of humanity, caring for our ancestors guides, strengthens, and teaches us the enduring value of Aloha, which embodies the concepts of love, compassion, and forgiveness,” Lindsey said.

In this July 18, 2002 file photo, Eugene Futato, senior archeologist and curator of archaeological collections at the Office of Archaeological Services, pulls out a drawer of Mississippian Indian ceramic vessels from Moundville, in Moundville, Ala. Leaders of several American Indian tribes are asking the University of Alabama to return nearly 6,000 human remains and artifacts from the school's archaeological park and museum. (Mike Kittrell/Mobile Register via AP)

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— California museum returns massacre remains to Wiyot Tribe

Committee chairman Sen. Brian Schatz, a Hawaii Democrat, said when Congress enacted NAGPRA, it estimated it would take 10 years to complete the work of returning human remains and cultural items to tribes and Native Hawaiians.

“Now more than 30 years later, over 200,000 ancestral remains, and approximately 2.5 million associated funeral items have been identified” but less than half the ancestral remains and only 70 percent of cultural items have been repatriated, he said.

Watch: National Park Service' David Barland-Liles speaks with ICT

One of the biggest problems, said panelists at the hearing, is the lack of a clear process for resolving disputes over ownership. As it stands now, if cultural affiliation with a tribe can be established, that tribe may claim human remains or cultural objects.

However, researchers sometimes contest tribal claims. And, items may be affiliated with more than one Native American entity. In fact, officials say cultural affiliation has not been identified for 94 percent of the items listed in inventories but not yet returned.

Disputes go before a review committee but its findings are not binding.

Rosita Worl, Tlingit, president of the Sealaska Heritage Institute, is a former chair of the review committee.

“We would like to amend NAGPRA to require review committee findings in disputes as mandatory rather than advisory. Tribes go to a great deal of effort and expense to bring the case before the committee, a committee comprised of scientists, museum professionals, and tribal members, without any guarantee that the committee's findings will be acted upon,” Worl said.

Worl also said the law needs to be amended to clarify that Alaska Native corporations are eligible to take part in NAGPRA. Co-chair Sen. Lisa Murkoswki, a Republican from Alaska, said the proposed change would allow the Native corporations to add to the efforts of tribes and regional nonprofits who work on repatriation efforts in Alaska.

One change Worl doesn’t want to see has to do with notification of tribes.

Worl said, “we strongly object to the removal of the requirement by the federal officials to notify and initiate consultation with any known linear descendant and likely culturally affiliated Indian tribe or a Native Hawaiian organization within three working days of receipt of a written confirmation of discovery.”

Sen. Maria Cantwell, a Washington Democrat, said the issue of timeliness has arisen before. She mentioned the case of the 8,000 to 9,000-year-old Kennewick man, or the Ancient One. His skeletal remains were discovered in 1996 but due to lengthy disputes over tribal affiliation were not transferred to a tribe until 2017.

Tlingit Athabascan artist Crystal Worl, second from left holding banner, protested an auction of sacred items in Paris in May 2021 while in the city for an exhibition of her work. She also took time out to chat with Indian Country Today Media Network about her impressions of the metropolis nicknamed the City of Light. (Photo by Dominique Godrèche)

Joy Beasley, associate director for Cultural Resources, Partnerships and Science with the National Park Service, said museums and federal agencies do wield significant power in determining what items will be repatriated.

“We hope that this imbalance can be corrected through the regulatory changes that we're proposing. And we hope that the Congress will support that effort by affirming in the hearing record that the purpose of NAGPRA is repatriation,” Beasley said.

She said, “I want to emphasize that the department's committed to strengthening to the maximum extent possible the requirements for consultation with Indian tribes, Alaska Native villages and Native Hawaiian organizations on any discovery or excavation on federal lands.

“The revisions to the regulations that would streamline the process and make clear what the steps are for federal agencies and federal land managers should assist both Indian tribes and federal agencies through the process.”

Schatz asked if the National Park Service, which handles NAGPRA complaints and investigations, has a backlog of allegations that remain unaddressed. Beaseley said the agency will soon follow up with a status report on that and other committee questions.

Executive Director Valerie Gressing, of the National Association of Tribal Historic Preservation Officers, said proposed amendments to NAGPRA have come up before, including some changes recommended in a Government Accounting Office report issued in 2011.

“My and our chairman's predecessors testified before the House Natural Resources Committee in 2000, and before this committee in 2011. Unfortunately, the recommendations and report findings remain relevant today.”

She said more funding is needed to implement NAGPRA. “A system that makes tribes compete for limited funding for the most sacred and foundational restorative work is retraumatizing. The time is now for the federal government to fulfill its promises to fund agencies’ consultation requirements and to fund tribes so that they have a seat at the table complete with the meal and utensils,” Gressing said.

As Becky Mitchell, back left, and of the Colorado Water Conservation Board, and U.S. Rep Diana DeGette, D-Colo., look on, Interior Secretary Deb Haaland speaks during a news conference after Haaland's visit to talk about federal solutions to ease the effects of the drought at the offices of Denver Water Thursday, July 22, 2021, in Denver. Haaland will make stops in two cities on Colorado's Western Slope as part of her trip to assess the effects of the drought on the Centennial State. (AP Photo/David Zalubowski)

The Department of Interior said in a prepared statement its proposed changes would:

  • Strengthen the authority and role of Indian tribes and Native Hawaiian Organizations in the repatriation process
  • Address barriers to timely and successful disposition and repatriation
  • Document and address requests of Indian tribes and NHOs when human remains or cultural items are discovered on federal or tribal lands before items are further disturbed
  • Increase transparency and reporting of holdings or collections

Panelists suggested additional changes, including:

  • Increased penalties for non-compliance
  • Shift oversight from the National Park Service to another Interior department agency, the Bureau of Indian Affairs
  • Authorize federal agencies to allow the reburial of ancestral human remains at the site from which they were taken
  • Increased funding for tribes, museums, and tribal historic preservation officers
  • Update definitions
  • Establish, fund a task force to stop illegal trafficking of human remains and cultural items
  • Fund tribal preservation officers specifically to work on NAGPRA issues
  • Recognize traditional knowledge and oral tradition as a valid form of knowing

Meanwhile, the National Park Service last week hired an investigator, its first, to go over NAGPRA claims and alleged violations. David Barland-Liles will present his findings to Interior Secretary Deb Haaland, Laguna Pueblo.

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