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U.S. Senate Report 101-473

September 26, 1990

 

Calendar No. 842


101ST CONGRESS SENATE REPORT
2d Session 101-473

PROVIDING FOR THE PROTECTION OF NATIVE AMERICAN
GRAVES AND THE REPATRIATION OF NATIVE AMERICAN
REMAINS AND CULTURAL PATRIMONY

_______________________________


SEPTEMBER 26 (legislative day, September 10), 1990.ýOrdered to be
printed


Mr. INOUYE, from the Select Committee on Indian Affairs,
submitted the following

REPORT

[To accompany S. 1980]

[Including cost estimate of the Congressional Budget Office]

The Select Committee on Indian Affairs, to which was referred the
bill (S. 1980) to provide for the protection of Native American graves
and the repatriation of Native American remains and cultural patrimony,
having awarded the same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.

PURPOSE

The purpose of S. 1980 is to provide for the protection of Native
American graves and the repatriation of Native American remains and
cultural patrimony.


BACKGROUND

Legislation to establish a process for the repatriation of Native
American human remains, funerary objects, cultural patrimony and sacred
objects had its origins in a hearing that was held by the Select
Committee on Indian Affairs in February of 1987. In his testimony on a
bill to provide for the repatriation of Indian artifacts, Smithsonian
Secretary Robert McCormick Adams indicated that of the 34,000 human
remains currently in the Institution's collection, approximately 42.5%
or 14,523 of the specimens are the remains of North American Indians,
and another 11.9% or 4,061 of the specimens represent Eskimo, Aleut, and
Koniag populations. Tribal reaction to Secretary Adams' testimony was
swift, and in the months which followed, Indian tribes around the
country called for the repatriation of those human remains that could be
Senate Report 101-473
page 2


identified as associated with a specific tribe or region for their
permanent disposition in accordance with tribal customs and traditions,
and for the proper burial elsewhere of those remains of Native Americans
that could not be so identified.

In 1988, the Select Committee on Indian Affairs held hearings on S.
187, a bill to provide a process for the repatriation of Native American
cultural patrimony. In these hearings, the Committee received testimony
from witnesses representing museums and various Indian tribes. Several
witnesses, including representatives of the American Association of
Museums (AAM), requested that the Committee delay any further action on
this bill or any other repatriation measure, in order to allow the
museum community an opportunity to enter into a dialogue with the Indian
community on repatriation issues. The witness representing AAM stated
that the Association might be able to develop a mutually-acceptable
resolution to the issue of repatriation that would dispense with the
need for legislation by meeting with tribal representatives. During
1989, the Heard Museum in Phoenix, Arizona sponsored a year long
dialogue between museum professionals (including archaeologists and
anthropologists) and Native Americans. The purpose of the dialogue was
to develop recommendations to address the necessity of responding to
tribal demands for repatriation. Findings and recommendations that were
agreed to by the participants in the dialogue were published in the
Report of the Panel for a National Dialogue on Museum/Native American
Relations, which was issued on February 28, 1990.

The Report of the Panel for a National Dialogue on Museum/ Native
American Relations contained findings and recommendations, general
principles governing the relations between museums and Indian tribes,
and established policy guidelines outlining museum responsibilities as
well as repatriation policies and procedures. The Panel found that the
process for determining the appropriate disposition and treatment of
Native American human remains, funerary objects, sacred objects, and
objects of cultural patrimony should be governed by respect for Native
human rights. The Panel report states that human remains must at all
times be accorded dignity and respect. The Panel report indicated the
need for Federal legislation to implement the recommendations of the
Panel.

The Panel also recommended the development of judicially-enforceable
standards for repatriation of Native American human remains and objects.
The report recommended that museums consult with Indian tribes to the
fullest extent possible regarding the right of possession and treatment
of remains and objects prior to acquiring sensitive materials.
Additional recommendations of the Panel included requiring regular
consultation and dialogue between Indian tribes and museums; providing
Indian tribes with access to information regarding remains and objects
in museum collections; providing that Indian tribes
should have the right to determine the appropriate disposition of
remains and funerary objects and that reasonable accommodations should
be made to allow valid and respectful scientific use of materials when
Senate Report 101-473
page 3


it is compatible with tribal religious and cultural practices.

On May 11, 1989, Senator Inouye introduced S. 978, the National
Museum of the American Indian Act. As part of this legislation to
establish a museum for the American Indian within the Smithsonian
Institution, the bill also included provisions related to the proper
treatment and appropriate disposition of Native American human remains
and sacred objects. In hearings of the Select Committee on Indian
Affairs on S. 978, the Committee received testimony from several tribal
witnesses indicating the significance of certain sacred objects to their
respective tribes and the need to have those objects returned to the
tribe so that important religious ceremonies in which such objects are
central could be resumed. Tribal witnesses also testified that the vast
numbers of Native American human remains contained in the Smithsonian
collections which, according to tribal religious practices, must be
given appropriate burials.

The testimony received by the Committee indicated a need for
provisions in S. 978 to provide a process for the inventory,
identification and subsequent repatriation of Native American human
remains and funerary objects. The Committee worked with the Smithsonian
Institution and tribal representatives to develop such a process. These
provisions were made a part of S. 978, the National Museum of the
American Indian Act. The President signed S. 978 into law on November
28, 1989 (Public Law 101-185). The provisions of Public Law 101-185
which authorize the repatriation of human remains and funerary objects
from the collections of the Smithsonian Institution established a
precedent for further legislative action.

On May 17, 1989, Senator McCain introduced S. 1021, the Native
American Grave and Burial Protection Act, to provide for the protection
of Indian graves and burial grounds. On November 21, 1989, Senator
Inouye introduced S. 1980, the Native American Repatriation of Cultural
Patrimony Act to provide for the repatriation of Native Americans group
or cultural patrimony. The provisions of S. 1980 were modeled after the
provisions contained in Public Law 101-185. S. 1980 would extend the
inventory, identification and repatriation provisions of Public Law
101-185 to all Federal agencies and any institution which receives
Federal funding. The provisions of the bill include protections of
Native American sacred objects and items of Native American cultural
patrimony.

On May 14, 1990, the Select Committee on Indian Affairs held a
hearing on S. 1021, S. 1980, and the Report of the Panel for a National
Dialogue on Museum/Native American Relations. The Committee received
testimony from several professional associations of archaeologists and
anthropologists, representatives of several museums with Native American
collections, private art dealers and tribal leaders. Tribal witnesses
testified at the hearing that their rights to Native American human
remains, funerary objects, sacred objects and cultural patrimony have
been ignored or discounted by the museum and scientific
Senate Report 101-473
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communities. The Committee also received testimony from tribal
representatives which indicated that in cases where Native Americans
have attempted to regain items that were inappropriately alienated from
their tribes, they have met with resistance from museums and have lacked
the legal ability of financial resources to pursue the return of the
items. Several witnesses testified that in many instances Indian tribes
do not know what types of remains or objects are in the possession of
museums and have been unsuccessful in their attempts to obtain access to
this information.

In addition, the Committee received testimony from representatives of
museums that there are a few instances where a museum and an Indian
tribe have agreed to the repatriation of human remains and sacred
objects. There was also testimony about other agreements between Indian
tribes and museums that allowed the museums to retain possession of
sacred objects except during certain times of the year when those
objects were required for tribal religious ceremonies. A witness also
described an agreement between an Indian tribe and a museum whereby the
human remains of tribal members were returned to the Indian tribe and
reinterred and periodically, scientists would be allowed access to the
remains to continue their studies of the remains. These examples
presented by witnesses indicated the need for a process in which
meaningful discussions between Indian tribes and museums regarding their
respective interests in the disposition of human remains and objects in
the museum's collections could be discussed and the resolution of
competing interests could be facilitated.

Tribal leaders and representatives of the archaeological community
testified to the great need for Federal legislation which could provide
additional protections to Native American burial sites. Indian tribes
have had many difficulties in preventing the illegal excavation of
graves on tribal and Federal lands. Several witnesses testified that
there is a flourishing trade in funerary and sacred objects that have
been obtained from burials located on tribal and Federal lands.
Additional testimony was received from witnesses which indicated that
tribal and Federal officials have been unable to prevent the continued
looting of Native American graves and the sale of these objects by
unscrupulous collectors.

The Committee also received testimony from tribal witnesses who felt
that the return of human remains to Indian tribes has been a most
frustrating issue to Native Americans. In cases where remains are
identifiable, tribal witnesses felt strongly that they should be
returned for proper burial, which is an important part of the religious
and traditional life cycle of Native Americans, including Native
Hawaiians. Tribal witnesses also testified that in the case of
unidentifiable Native American human remains, the human remains should
still be given proper burial. The Committee received testimony from
professionals in the scientific community who say that there is an
overriding interest in the acquisition and retention of human remains
for the purpose of scientific inquiry. Scientists have indicated that
Senate Report 101-473
page 5


recent technological advances allow them to analyze bones and learn new
facts and pursue important research on diet, disease, genetics and
related matters. Native American witnesses have indicated that they do
not object to the study of human remains when there is a specific
purpose to the study and a definitive time period for the study. The
Native American
witnesses did object, however, to museums retaining human remains
without a clear purpose, especially when those human remains are
identifiable and affiliated with a specific Indian tribe. In addition,
at least one tribal witness questioned the scientific value of
unidentifiable remains.


COMMITTEE AMENDMENT

The Committee adopted an amendment in the nature of a substitute to
S. 1980, the Native American Grave Protection and Repatriation Act. The
provisions of the substitute amendment would extend the provisions on
inventory, identification, and repatriation of Public Law 101-185, the
National Museum of the American Indian Act, to Federal agencies and
museums receiving Federal funds. The Committee intends the provisions
of this Act to establish a process which shall provide a framework for
discussions between Indian tribes and museums and Federal agencies. The
Committee believes that the process established under this Act will
prevent many of the past instances of cultural insensitivity to Native
American peoples. The Committee has received testimony describing
instances where museums have treated Native American human remains and
funerary objects in a manner entirely different from the treatment of
other human remains. Several tribal leaders expressed their outrage at
the manner in which Native American human remains had been treated,
stored or displayed and the use of culturally sensitive materials and
objects in violation of traditional Native American religious practices.
In the long history of relations between Native Americans and museums,
these culturally insensitive practices have occurred because of the
failure of museums to seek the consent of or consult with Indian tribes.


FINDINGS

The substitute amendment finds that many Federal agencies, as well as
state and private museums which receive Federal funding have large
numbers of human remains of Native Americans in their collections. Some
of the Native American human remains in these collections are culturally
affiliated with present day Indian tribes. The Committee finds that
many Indian tribes and Native Hawaiians have expressed a clear and
unequivocal interest in the return of these remains to the Indian tribe
or Native Hawaiian organization so that the tribe, family or
organization may determine the appropriate disposition of the remains
which is consistent with their religious and cultural practices. The
Committee has received testimony from several museums and Indian tribes
about agreements that have been reached on the disposition of Native
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American human remains and objects. One example of an agreement reached
between an Indian tribe and a museum is in Nevada where the state museum
agreed to return the human remains in their collections to the Fallon
Paiute Tribe for appropriate burial on the reservation. The tribe in
turn placed the human remains in a specially designed crypt which could
be opened periodically to provide access for scientists to continue the
study of the human remains. The Committee intends this legislation to
allow
for the development of agreements between Indian tribes and museums
which reflect an understanding of the important historic and cultural
value of the remains and objects in museum collections.

The Committee agrees with the findings and recommendations of the
Panel for a National Dialogue on Museum/Native American Relations. The
Committee believes that this legislation will encourage a continuing
dialogue between museums and Indian tribes and Native Hawaiian
organizations and will promote greater understanding between the groups.
The Committee believes that human remains must at all times be treated
with dignity and respect. The Committee recognizes the important
function museums serve in society by preserving the past to educate the
public and increase awareness about our country's history.


DEFINITIONS

The substitute amendment contains several definitions which are
intended to clearly delineate the scope and application of the bill.
The Committee intends that these definitions will provide the necessary
clarity to potentially ambiguous terms. The Committee shares the
concerns expressed by several hearing witnesses that terms such as
"sacred" or "cultural patrimony" could be construed to include a broad
range of objects and items which would be outside the scope of this
legislation.

There has been much debate with regard to the definitions contained
in the Act. Members of the scientific community express concern that if
Native Americans are allowed to define terms such as "sacred object",
the definition may be so broad as to arguably include any Native
American object. In an effort to respond to this concern, the Committee
has carefully considered the issue of defining objects within the
context of who may be in the best position to have full access to
information regarding whether an object is sacred to a particular tribe
or Native Hawaiian group. Many tribes have advanced the position that
only those who practice a religion or whose tradition it is to engage in
a religious practice can define what is sacred to that religion or
religious practice. Some have observed that any definition of a sacred
object necessarily lacks the precision that might otherwise characterize
legislative definitions, given that the definition of sacred objects
will vary according to the tribe or religious practice engaged in by the
tribe, and pointing to the difficulty that would arise if one were
charged with defining objects that are central to the practice of
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page 7


certain religions, such as defining the Bible or the Koran.

The Committee has made every effort to incorporate the comments and
address the concerns of members of the scientific and museum communities
with regard to the substantive definitions set forth in the Act, while
at the same time recognizing that there are over 200 tribes and 200
Alaska Native villages and Native Hawaiian communities, each with
distinct cultures and traditional and religious practices that are
unique to each community. Accordingly, the definitions of sacred
objects, funerary objects, and items of cultural patrimony will vary
according to the tribe, village, or Native Hawaiian community.
The substitute amendment establishes four categories of objects
subject to the provisions of the Act. These categories are Native
American human remains, funerary objects, sacred objects and objects of
cultural patrimony. These categories are specifically defined in the
substitute amendment. The Committee intends the term "funerary object"
to mean any object placed with a deceased Native American as part of a
death rite ceremony. The substitute amendment also defines the term
"burial site" broadly to include all traditional Native American burial
sites such as rock cairns or pyres which do not fall within the ordinary
definition of grave site. Throughout the bill, the Committee
specifically uses the phrase "associated funerary object" by which the
Committee intends that a funerary object must be associated with the
remains of a Native American to fall within the protections afforded by
the bill.

The substitute amendment includes a revised definition of the term
"sacred object." The Committee received comments regarding the
ambiguity surrounding the term "sacred," in particular when that term is
used in reference to Native American religious practices. There has
been concern expressed that any object could be imbued with sacredness
in the eyes of a Native American, from an ancient pottery shard to an
arrowhead. The Committee does not intend this result. The term sacred
object is an object that was devoted to a traditional religious ceremony
or ritual when possessed by a Native American and which has religious
significance or function in the continued observance or renewal of such
ceremony. The Committee intends that a sacred object must not only have
been used in a Native American religious ceremony but that the object
must also have religious significance. The Committee recognizes that an
object such as an altar candle may have a secular function and still be
employed in a religious ceremony. The substitute amendment requires
that the primary purpose of the object is that the object must be used
in a Native American religious ceremony in order to fall within the
protections afforded by the bill. It has been suggested that some
Native American artisans create objects which could be construed as
falling within the definition of sacred object and therefore this
provision would adversely impact the trade in Native American artwork.
The Committee does not intend the definition of sacred object to include
objects which were created for purely a secular purpose, including the
sale or trade in Indian art.
Senate Report 101-473
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The substitute amendment also includes a revised definition of the
term "Native American cultural patrimony." The Committee received
comments from several witnesses regarding the lack of clarity in the
original definition of cultural patrimony. These concerns focused
primarily on the character of property within traditional Native
American societies where property was held by the whole community, not
by an individual. It had been suggested that in traditional Native
American societies no object could be conveyed by an individual because
it was owned by the collective whole. The substitute amendment defines
"Native American cultural patrimony" as an object with significant
historical, traditional or cultural importance and which is central to
the culture of an Indian tribe or to Native Hawaiians. The Committee
intends this term to refer to only those items that have such great
importance to an Indian
tribe or to the Native Hawaiian culture that they cannot be conveyed,
appropriated or transferred by an individual member. Objects of Native
American cultural patrimony would include items such as Zuni War Gods,
the Wampum belts of the Iroquois, and other objects of a similar
character and significance to the Indian tribe as a whole.

The substitute amendment also includes a definition of the term
"right of possession." The term "right of possession" refers to the
authority by which a museum or agency came into possession of human
remains of a Native American, funerary object, sacred object, or object
of cultural patrimony. The Committee intends this term to provide a
legal framework in which to determine the circumstances by which a
museum or agency came into possession of these remains or objects. The
Committee has heard from many tribal leaders situations where important
ceremonial objects have been stolen from the Indian tribe only to
reappear later in the collections of a museum. The term "right of
possession" will provide a clear standard for determining whether an
object was originally acquired with the voluntary consent of an
individual or an Indian tribe which had the authority to alienate the
object. "Right of possession" also refers to the original acquisition
of human remains of a Native American. In order to have the "right of
possession" to human remains of a Native American a museum must have
originally acquired the remains with the full knowledge and consent of
the next of kin or the Indian tribe. The "right of possession" to an
object requires that the party have obtained possession of the object
with the voluntary consent of an individual who has the authority to
alienate possession of the object.

The Committee shares the concerns expressed by tribal leaders that
museums and agencies have not, until recently, inquired into the
circumstances of how an individual came to possess a funerary object,
sacred object or object of cultural patrimony. This practice has
contributed to the continued growth of a black market in the sale and
trade of objects illegally removed from Indian burial sites located on
Federal and tribal lands. The Committee intends this definition to
provide a standard by which the legal possession of an object may be
viewed. Review of the right of possession to a given object is very
Senate Report 101-473
page 9


similar to the transfer of title to other forms of property. The
Committee intends this section to operate in a manner that is consistent
with general property law i.e., an individual may only acquire the title
to property that is held by the transferor.

The substitute amendment includes a revised definition of the term
"cultural affiliation." The term "cultural affiliation" means a
relationship between a present day Indian tribe and a historic or
prehistoric Indian tribe or Native Hawaiian group. The Committee
intends the relationship to be reasonably established through an offer
of evidence which shows a continuity of group identity from the earlier
to the present day group. The Committee intends that the "cultural
affiliation" of an Indian tribe to Native American human remains or
objects shall be established by a simple preponderance of the evidence.
Claimants do not have to establish "cultural affiliation" with
scientific certainty. This standard of proof applies to determinations
of "cultural affiliation" as well as determinations of "right of
possession" as established in the Act.
The types of evidence which may be offered to show cultural
affiliation may include, but are not limited to, geographical, kinship,
biological, archaeological, anthropological, linguistic, oral tradition,
or historical evidence or other relevant information or expert opinion.
The requirement of continuity between present day Indian tribes and
materials from historic or prehistoric Indian tribes is intended to
ensure that the claimant has a reasonable connection with the materials.
Where human remains and funerary objects are concerned, the Committee is
aware that it may be extremely difficult, unfair or even impossible in
many instances for claimants to show an absolute continuity from present
day Indian tribes to older, 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 gaps in the record.


NEW EXCAVATIONS OR DISCOVERIES

The substitute amendment provides that for any Native American human
remains or funerary objects, excavated or discovered on Federal or
tribal land after enactment of this Act, the lineal descendants shall
have the right of possession. It further provides that for sacred
objects, objects of cultural patrimony and human remains or funerary
objects where there are no lineal descendants, the right of possession
shall be in the Indian tribe or Native Hawaiian family or organization
on whose land the items were found or the Indian tribe or Native
Hawaiian family or organization which has the closest cultural
affiliation to those items. The substitute amendment also provides that
for those human remains or objects discovered on Federal lands where the
cultural affiliation cannot be reasonably ascertained, the right of
possession shall be in the Indian tribe or Native Hawaiian organization
Senate Report 101-473
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that aboriginally occupied the area where the items were discovered.
This section of the bill requires an Indian tribe or Native Hawaiian
community or organization to state a claim for the right of possession
to objects found outside their traditional or present day lands.

The Committee recognizes that in some areas of the country several
Indian tribes may have to claim human remains or objects found on their
aboriginal lands. The Committee also recognizes that there may be
circumstances where human remains or objects found on one Indian tribe's
lands may be culturally affiliated with a different Indian tribe. In
these situations, where more than one Indian tribe makes a claim for the
right of possession, the Committee intends that a determination of the
right of possession shall be based on the best available evidence given
the totality of the circumstances. Determinations of the right of
possession should be made pursuant to the regulations promulgated by the
Secretary in consultation with the Review Committee. The Committee
contemplates that the Review Committee could serve as a useful mediator
in resolving a dispute between Indian tribes regarding the ownership,
control, or right of possession of human remains or objects. In
addition, the Committee intends this section to allow for the
negotiation of agreements between Indian tribes that provide for
mutually acceptable dispositions for human remains or objects over which
there are competing claims of the right of possession.


EXCAVATION PERMITS

The substitute amendment establishes a permit process for the
excavation or removal of Native American human remains or objects from
Federal or tribal lands. The process established under this Act would
require any party uncovering human remains or objects on Federal or
tribal lands to provide notice to the Secretary of the particular
Federal Department with authority over those Federal lands and to the
appropriate Indian tribe. After notice has been received the party must
cease the activity and make all reasonable efforts to protect the
remains or objects before resuming the activity. The activity may
resume 30 days after notice has been received. An Indian tribe or
Native Hawaiian organization may, after notification, determine the
appropriate disposition of any remains or objects found on these lands.
Under this notification process, an Indian tribe may determine the
appropriate disposition of any remains or objects found on Federal or
tribal lands without significant interruption of the activity. The
substitute amendment also provides that the Secretary of any department
or head of any agency of the United States may delegate his
responsibilities under this section to the Secretary of the Interior
where the Secretary consents to such delegation.

The Committee intends this section to provide for a process whereby
Indian tribes and Native Hawaiian organizations have an opportunity to
intervene in development activity on Federal or tribal lands in order to
safeguard Native American human remains, funerary objects, sacred object
Senate Report 101-473
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or objects of cultural patrimony. Under this section, Indian tribes or
Native Hawaiian organizations would be afforded 30 days in which to make
a determination as to the appropriate disposition for these human
remains or objects. The Committee does not intend this section to
operate as a bar to the development of Federal or tribal lands on which
human remains or objects are found. Nor does the Committee intend this
section to significantly interrupt or impair development activities on
Federal or tribal lands. Finally, the Committee intends the notice and
permit provisions of this section to be fully consistent with the
provisions of the Archaeological Resources Protection Act, 16 U.S.C. §
470aa et. seq.


UNLAWFUL ACTIONS

The substitute amendment also amends title 18 of the United States
Code to establish criminal penalties for the sale, purchase, use for
profit, or transportation for sale or profit of Native American human
remains without the right of possession to those remains. It would
further amend title 18 of the United States Code to establish criminal
penalties for the sale, purchase, use for profit, or transportation for
sale or profit of funerary objects, sacred objects or objects of
cultural patrimony which were obtained in violation of this Act. A
violation of either section could subject the violator to a fine or
imprisonment of up to 12 months or both. The criminal penalties for
sale, purchase, use for profit, or transportation for sale or profit of
funerary objects, sacred objects, or objects of cultural patrimony are
prospective in nature so that objects which were obtained prior to
enactment are not covered by these provisions.

The criminal penalties for sale, purchase, use for profit, or
transportation for sale or profit of the human remains of a Native
American shall apply to any Native American human remains, wherever they
have been obtained, where the party does not have the right of
possession to those human remains as defined in this Act. The Committee
intends these provisions to act as a deterrent to unscrupulous dealers
who traffic in Native American human remains or objects unlawfully
removed prior to the enactment of this Act from Federal lands or tribal
lands. The Committee believes that this section in combination with
other penalties already enacted into law will help stem the black market
trade in unlawfully obtained Native American artifacts and protect
Federal or tribal lands from further looting.

INVENTORY OF NATIVE AMERICAN COLLECTIONS

The substitute amendment would require Federal agencies and museums
receiving Federal funds to conduct an inventory which identifies the
cultural affiliation of remains and objects within their collections.
The substitute amendment would require these inventories to be completed
within five years from the date of enactment. The substitute amendment
provides that once a Federal agency or museum makes a determination of
Senate Report 101-473
page 12


cultural affiliation of human remains or objects in its possession, the
amendment would require the agency or museum to provide notice to all
culturally affiliated Indian tribes or Native Hawaiian organizations.
Upon notification, an Indian tribe or Native Hawaiian organization may
make a request for the return of such remains or objects.

The substitute amendment provides that once the cultural affiliation
of an object is determined and an Indian tribe or Native Hawaiian
organization makes a request for its return, then a museum may refuse to
return those items for which they have the right of possession as
defined in the Act. A Federal agency may refuse to return those objects
which are necessary for the completion of a scientific study of major
benefit to the United States and to which it has the right of
possession. The substitute amendment provides that any agency which
fails to comply with the provisions of the Act shall not be eligible to
receive Federal funding for the period of the non-compliance. The
substitute amendment also provides that a museum that has made a good
faith effort to carry out an inventory and identification and has been
unable to complete the process within five years may appeal to the
Secretary of the Interior for an extension of the time requirements
established in the Act.

The Committee believes that the inventory and notice process should
allow for the cooperative exchange of information between Indian tribes
or Native Hawaiian organizations and museums regarding objects in museum
collections. The Committee recognizes that there will be a significant
number of Native American human remains, funerary objects, sacred
objects and objects of cultural patrimony, where the cultural
affiliation can be reasonably ascertained given the totality of the
circumstances surrounding the acquisition of the remains or objects.
The determination of cultural affiliation shall be based on a
preponderance of the evidence. The Committee intends the inventory and
notification process established under this section to provide an
opportunity for the museum to provide notice to Indian tribes and Native
Hawaiian organizations of culturally affiliated remains and objects
identified throughout the process. The Committee does not intend the
notice requirement in this section to be interpreted to allow Federal
agencies and museums to wait until after completion of the entire
inventory process before providing notice to Indian tribes or Native
Hawaiian organizations.

The Committee also recognizes that there are a significant number of
Native American human remains, funerary objects and sacred objects for
which the cultural affiliation may not be readily ascertainable. The
Committee does not intend this Act to require museums or Federal
agencies to conduct exhaustive studies and additional scientific
research to conclusively determine the cultural affiliation of human
remains or objects within their collections. The Committee recognizes
that the inventory process established under this Act could work some
hardship on museums which do not possess the resources to inventory
their Native American collections. The Committee intends the provisions
Senate Report 101-473
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for an extension of the five year deadline for the inventory process to
alleviate any hardship on such museums.


REPATRIATION

The substitute amendment provides that if the cultural affiliation of
Native American human remains and associated funerary objects with a
particular Indian tribe or Native Hawaiian organization is established,
then upon the request of the Indian tribe or Native Hawaiian
organization such remains and objects shall be expeditiously returned.
The Committee intends that the repatriation of Native American human
remains, funerary objects, sacred objects, or objects of cultural
patrimony shall be accomplished in consultation with the Indian tribe or
Native Hawaiian organization that made the request. The Committee
intends that this process allow for Indian tribes or Native Hawaiian
organization to present additional evidence to establish the cultural
affiliation of objects or remains in museum collections. Although this
section requires expeditious return of culturally affiliated objects and
remains to the particular Indian tribe or Native Hawaiian organization,
the Committee recognizes that Indian tribes and museums may agree to a
mutually acceptable alternative to repatriation. The Committee intends
that this process will facilitate the negotiation of agreements as to
appropriate disposition of objects and remains in museum collections.

The substitute amendment also provides that a museum may refuse to
return Native American human remains, funerary objects, sacred objects
and objects of cultural patrimony, where the cultural affiliation has
been established and the culturally affiliated Indian tribe or Native
Hawaiian organization has requested its return, if the museum has the
right of possession to such remains or objects. A museum must establish
the right of possession by
a preponderance of the evidence. If a museum fails to satisfy the burden
of proof, then such remains or objects shall be expeditiously returned.
The substitute amendment further provides that a Federal agency may
refuse to return Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony, where the cultural
affiliation has been established and the culturally affiliated Indian
tribe or Native Hawaiian organization has requested its return, if the
Federal agency establishes that the remains or objects are indispensable
for the completion of a specific scientific study the outcome of which
would be of major benefit to the United States and that the Federal
agency has the right of possession to such remains or objects. Such
remains or objects shall be returned no later than 90 days after the
completion of the scientific study.


REVIEW COMMITTEE

The substitute amendment provides for the establishment of a review
committee to monitor and review the implementation of the inventory and
Senate Report 101-473
page 14


identification process. The review committee will be responsible for
facilitating the resolution of any disputes among Indian tribes, Native
Hawaiian organizations, museums, Federal agencies, and lineal
descendants. The Committee intends the Review Committee to serve the
very important function of facilitating the resolution of disputes
between claimants and disputes between Indian tribes and museums as to
the determination of cultural affiliation, right of possession or the
character of the items or objects, and disputes as to the appropriate
disposition of human remains or objects. The Committee intends the
review committee to participate in discussions between Indian tribes and
museums in the development of agreements which provide for the
disposition of Native American human remains, funerary objects, sacred
objects, or objects of cultural patrimony. The Committee intends that
the findings of the review committee shall not be binding on the parties
but that the review committee shall be an advisory committee which makes
recommendations to the Secretary and helps facilitate the resolution of
disputes regarding the provisions of this Act. The review committee
shall submit an annual report to the Congress on the progress made and
any problems encountered in implementing the inventory and repatriation
provisions of this Act. The substitute amendment provides that the
review committee shall review museum requests for extensions of time to
complete inventories and make recommendations to the Secretary on such
requests.


GRANTS

The amendment also provides that the Secretary of the Interior is
authorized to make grants to Indian tribes or Native Hawaiian
organizations to assist such groups in the repatriation of Native
American human remains, funerary objects, sacred objects and objects of
cultural patrimony. The Secretary of the Interior is also authorized to
make grants to museums to assist them in the inventory and
identification process established under this Act.
The Committee recognizes that the inventory and identification process
may work a hardship on those museums that lack adequate resources to
inventory their collections. In order to prevent this hardship, the
Committee intends this grant program to provide resources to allow a
museum to prepare the inventories required under this Act. The
Committee intends that grants to be awarded by the Secretary to Indian
tribes or Native Hawaiian organizations would be used for the costs
associated with repatriating human remains or objects to Indian tribes.
The Committee recognizes that some Indian tribes have expressed interest
in curating objects on the reservation once they have been returned.
The Secretary may award a grant under this provision to an Indian tribe
for the costs of curating certain objects which have been repatriated
under this Act.


SAVINGS PROVISIONS/ENFORCEMENT
Senate Report 101-473
page 15


The substitute amendment provides for alternative dispositions of
human remains and objects where the Federal agency or museum and the
affected Indian tribe or Native Hawaiian organization reach an
agreement. In those instances in which the parties cannot reach an
agreement regarding the appropriate disposition of Native American human
remains, funerary objects, sacred objects and objects of cultural
patrimony, the amendment provides that any person may bring an action in
Federal court alleging a violation of this Act. The Committee intends
this section to provide an avenue after the review committee process for
any party; including an Indian tribe, Native Hawaiian organization,
museum or agency, to bring a cause of action in the Federal district
court alleging a violation of this Act. The Committee intends the
Federal District Court to be the forum for a dispute between the parties
regarding a determination of cultural affiliation, right of possession,
or the character of an article or object in the possession of a museum
or Federal agency.


LEGISLATIVE HISTORY

S. 1980 was introduced on November 21, 1989 by Senator Inouye and was
referred to the Select Committee on Indian Affairs. The Committee held
a hearing on S. 1980 on May 14, 1990. On August 1, 1990, Senator McCain
offered an amendment in the nature of a substitute to S. 1980. The bill
was considered by the Select Committee in an open business session on
August 1, 1990, and was ordered reported as amended.


COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In open business session on August 1, 1990, the Select Committee on
Indian Affairs, by a unanimous vote of a quorum present, ordered S.
1980, as amended, reported with the recommendation that the Senate adopt
the bill.
SECTION-BY-SECTION SUMMARY ANALYSIS


SECTION 1ýSHORT TITLE

Section (1) sets out the short title of the bill as the
"Native American Grave Protection and Repatriation Act".

SECTION 2ýFINDINGS

Section (2) of this bill sets out the findings of the Congress.

SECTION 3ýDEFINITIONS

Section (3) of this bill sets out the definitions used in the Act.

SECTION 4ýOWNERSHIP
Senate Report 101-473
page 16

Subsection (a) of this section provides that for any human remains of
a Native American or any Native American funerary objects which are
excavated or discovered on Federal or tribal land after the enactment of
this Act, the lineal descendants of the Native American shall have the
ownership, control, or right of possession. It further provides that
for human remains and Native American funerary objects where the lineal
descendants of the Native American cannot be determined and for sacred
objects and objects of Native American cultural patrimony the ownership,
control or right of possession shall be in the Indian tribe or the
Native Hawaiian organization on whose land the remains or objects are
found or in the Indian tribe or Native Hawaiian organization which has
the closest cultural affiliation.
Subsection (b) provides that the Secretary shall prescribe
regulations regarding the disposition of Native American human remains
and funerary objects, sacred objects and objects of cultural patrimony
not claimed under subsection (a) in consultation with the review
committee established under section 5 and Indian tribes and Native
Hawaiian organizations. Subsection (c) provides that nothing
in this section shall prevent any Indian tribe or Native Hawaiian
organization from expressly relinquishing title to or control over any
human remains, funerary objects, sacred objects or objects of cultural
patrimony.

SECTION 5ýEXCAVATIONS

Subsection (a) establishes a permit process for the excavation or
removal of human remains, funerary objects, sacred objects, or objects
of cultural patrimony from Federal or tribal lands. It provides that
such remains or objects may only be excavated or removed after notice to
and upon the consent of the lineal descendants or the appropriate Indian
tribe or Native Hawaiian organization. It further provides that a
permit issued under this section may only be issued upon proof of notice
and consent under this Act.
Subsection (b) provides that any person who knows or has reason to
know that he or she has discovered human remains, funerary objects,
sacred objects or objects of cultural patrimony on Federal or tribal
lands shall notify the Secretary of the agency with primary management
authority over those lands as well as the appropriate Indian tribe or
Native Hawaiian organization. It further requires any person to cease
the activity in the area of discovery and to make all reasonable efforts
to protect said remains and objects before resuming such activity. The
activity may resume 30 days after certification that the notice provided
for under this section has been received.
Subsection (b) also provides that the responsibilities under this
section may be delegated to the Secretary of the Interior by the
Secretary of any department or the head of any Federal agency, if the
Secretary of the Interior consents.


SECTION 6ýUNLAWFUL ACTIONS

Subsection (a) amends Chapter 53 of title 18 of the United States
Code to provide a new section 1166. Section 1166(a) provides that
whoever knowingly sells, purchases, uses for profit, or transport for
Senate Report 101-473
page 17

sale or profit the human remains of a Native American without the right
of possession to those remains shall be subject to a fine or imprisoned
not more than 12 months or both. Section 1166(b) provides that whoever
knowingly sells, purchases, uses for profit, or transports for sale or
profit Native American funerary objects, sacred objects or objects of
cultural patrimony obtained in violation of this Act shall be subject to
a fine or imprisoned not more than 12 months or both.


SECTION 7ýINVENTORY OF NATIVE AMERICAN COLLECTIONS

Subsection (a) requires each Federal agency and museum receiving
Federal funds that has possession or control over any human remains or
funerary objects of a Native American, or any Native American sacred
objects or cultural patrimony to compile an inventory of objects in its
possession and control and to identify the geographic and cultural
affiliation of the objects to the extent possible.
Subsection (b) sets out the requirements for inventories and
identifications required under subsection (a). The inventory and
identification shall be conducted in consultation with Indian tribes and
must be completed within five years of enactment. The identifications
shall be based on the best available historic and scientific
documentation. The inventories and identifications shall be completed
in consultation with the Indian tribes and Native Hawaiian
organizations. The Review Committee established under Section 6 shall
have access to the inventories and identifications while they are being
conducted and afterward.
Subsection (d) provides that a museum that is unable to complete the
inventory and identification process within the five year time period
can appeal to the Secretary for an extension of time upon a showing of
good faith.
Subsection (e) provides that if the Native American cultural
affiliation of an item is established in the identification process by a
preponderance of the evidence then the Indian tribe or Native Hawaiian
organization shall be notified within 6 months after the completion of
the inventory and a copy of the notice shall be sent to the Secretary
who shall publish each notice in the Federal Register. Under this
section, notice may be provided to the Indian tribe or Native Hawaiian
organization prior to the completion of the entire inventory process.

SECTION 8ýREPATRIATION

Subsection (a) provides that if the cultural affiliation of Native
American human remains and associated funerary objects with a particular
Indian tribe or Native Hawaiian organization is established, then upon
the request of the tribe or Native Hawaiian organization or the lineal
descendants of the Native American, they shall be expeditiously
returned. If the cultural affiliation of remains or objects is
subsequently established by an Indian tribe or Native Hawaiian
organization then upon the request of the Indian tribe or Native
Hawaiian organization or lineal descendant such objects shall be
expeditiously returned.
Subsection (b) provides that if a lineal descendant, Indian tribe or
Native Hawaiian organization requests the return of culturally
Senate Report 101-473
page 18

affiliated remains or objects, the Federal agency or museum shall
expeditiously return such remains or objects unless they are
indispensable for the completion of a specific scientific study of major
benefit to the United States and the museum or agency has the right of
possession of said remains or objects.
Subsection (c) provides that once an Indian tribe, Native Hawaiian
organization or lineal descendant requests the return of culturally
affiliated remains or objects, the museum must prove by a preponderance
of the evidence that the museum has the right of possession to such
remains or objects. If a museum fails to satisfy the burden of proof,
then such remains or objects shall be expeditiously returned.
Subsection (d) provides that the museum shall share information with
the known lineal descendant, Indian tribe or Native Hawaiian
organization regarding an item in its possession to assist in
establishing the cultural affiliation of the remains or objects.
Subsection (e) provides that any museum that fails to comply with the
provisions of this section shall not be eligible to receive any Federal
funds for the period of non-compliance.

SECTION 9ýREVIEW COMMITTEE

Subsection (a) of this section provides that the Secretary shall
establish a review committee within 120 days after enactment of this Act
to monitor and review the implementation of the inventory and
identification process.
This section provides a description of the composition of the
committee and the duties and responsibilities of the committee. It
provides that the review committee shall review requests for extensions
for the completion of the inventory process, facilitate the resolution
of any dispute among Indian tribes, Native Hawaiian organizations,
Federal agencies, museums or lineal descendants relating to the return
of remains or objects, and compile an inventory of unidentifiable human
remains that are in the possession or control of Federal agencies or
museums.
This section provides that the review committee shall issue a
preliminary report on the inventory no later than 3 years after the date
the committee was established. The committee shall make a final report
and recommendations to the Congress and the President no later than 6
years after the date the committee was established. The committee shall
terminate 120 days after the Secretary certifies in a report to the
Congress that the work of the committee is completed.

SECTION 10ýGRANTS

This section provides that the Secretary is authorized to make grants
to Indian tribes and Native Hawaiian organizations to assist such groups
in the repatriation of remains and objects and to make grants to museums
to assist museums in the inventory and identification process under this
Act.

SECTION 11ýSAVINGS PROVISIONS

This section provides that nothing in this Act shall be construed to
limit the authority of any Federal agency or museum to return or
Senate Report 101-473
page 19

repatriate any remains or objects to Indian tribes, Native Hawaiian
organizations or lineal descendants or to enter into agreements for the
disposition of control over objects covered by this Act. It further
provides that nothing in this Act shall be construed to limit any
substantive or procedural right secured to a Native American or an
Indian tribe or Native Hawaiian organization or limit the application of
any State or Federal law pertaining to theft or stolen property.

SECTION 12ýREGULATIONS

This section authorizes the Secretary of the Interior to promulgate
regulations to carry out this Act.

SECTION 13ýAUTHORIZATION OF APPROPRIATIONS

This section authorizes the appropriation of such sums as are
necessary to carry out the provisions of this Act.

SECTION 14ýENFORCEMENT

This section provides that the United States District Court shall
have jurisdiction over any action brought alleging a violation of this
Act and may issue such orders as are necessary to enforce the provisions
of this Act.

COST AND BUDGETARY CONSIDERATION

The cost estimate for S. 1980 as provided by the Congressional Budget
Office, is set forth below.
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, DC, September 21, 1990.
Hon. DANIEL K. INOUYE,
Chairman, Select Committee on Indian Affairs,
U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed S.
1980, the Native American Grave Protection and Repatriation Act, as
ordered reported by the Select Committee on Indian Affairs, August l,
1990. CBO estimates that enactment of this legislation would cost the
federal government between $20 million and $55 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.

S. 1980 would regulate ownership, trade and disposition of Native
American remains, burial objects, and objects of sacred or cultural
significance. Human remains or 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 or funerary
objects.

S. 1980 also would require that federal agencies and museums that
Senate Report 101-473
page 20

receive federal funding create inventories of Native remains and objects
covered by the bill, 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. A review committee would be
established to oversee the 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 objects, the
estimated costs to these agencies (primarily the Department of the
Interior and the Department of the Army) are included in this estimate.
The bill exempts the Smithsonian, which is covered by the National
Museum of the American Indian Act.

The main costs from enactment of S. 1980 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 discretionary--the 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 remains 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 and 10 million to 15 million other objects that would have to be
reviewed.

The cost of preparing an accurate inventory of the origin 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 S. 1980, and widely varied
estimates of costs. Based on the experience of museums that have
already repatriated remains, we assume costs of $50 to $150 per remain,
or a total cost of between about $5 million and $30 million over five
years. This estimate includes the costs of an inventory of museums'
collections, as well as a review of existing studies and research to
determine origin. More extensive studies costing up to $500-$600 per
remain may be necessary to determine the origin of some of the remains;
however, such studies generally are not required by S. 1980.
Other objects covered by S. 1980 are less costly to inventory and
identify. CBO estimates cost of about $10 million to $15 million over
five years for museums to prepare inventories of their archaeological
collections based on existing information and to identify objects which
may be of interest to tribes. Finally, S. 1980 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
Senate Report 101-473
page 21

governments could face costs from enactment of S. 1980. Assuming
appropriation of adequate amounts by the federal government, however,
these costs would be covered by federal grants made available 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.


REGULATORY IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate
requires each report accompanying a bill to evaluate the regulatory and
paperwork impact that would be incurred in carrying out the bill. The
Committee believes that S. 1980 will have minimal regulatory or
paperwork impact.

EXECUTIVE COMMUNICATIONS

The only communications received by the Committee from the Executive
Branch regarding S. 1980 were in the form of testimony from the
Department of the Interior and a letter from the Department of Justice.
Set forth below is the testimony of Mr. Jerry L. Rogers, Associate
Director, Cultural Resources, National Park Service, Department of the
Interior at the May 14, 1990 hearing of the Select Committee on Indian
Affairs and a letter from Mr. Bruce C. Navarro, Deputy Assistant
Attorney General, Department of Justice dated August 1, 1990.

STATEMENT OF JERRY L. ROGERS, ASSOCIATE DIRECTOR, CULTURAL RESOURCES,
NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE SELECT
COMMITTEE ON INDIAN AFFAIRS, ON S. 1021 AND S. 1980, MAY 14, 1990

Mr. Chairman, I appreciate the opportunity to appear before the
committee to discuss S. 1021 and S. 1980's, treatment of human remains,
funerary objects, sacred objects, and objects of Native American
patrimony from archeological sites.

The Administration has not had an opportunity to thoroughly review
the draft substitute for S. 1980 recently developed by committee staff.
Thus, the Administration cannot take a position on the legislation until
an interagency review is completed. A report outlining the
Administration's views will be available early this summer. I would
note that in March, 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 Park Service has
been working informally at the staff level for over a year on a review
of the current policy and guideline. This informal review has included
meetings with representatives of Indian groups, as well as with
archeological and museum groups.
Senate Report 101-473
page 22

Secretary Lujan wants a more sensitive treatment of archeological
human remains, funerary objects, sacred objects, and objects of Native
American cultural patrimony by managers of 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. The
specifics of the Interior policy and guidelines remain to be defined
following more detailed consultation with Indian, archeological, museum,
and other interested groups. However, the Secretary has indicated that
he wants to affirm the rights of Tribes to determine the treatment that
is afforded human remains and associated objects that are affiliated
clearly with the Tribe.

This concludes my prepared remarks, Mr. Chairman. I would be pleased
to answer any questions you may have.

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF LEGISLATIVE AFFAIRS,
Washington, DC, August 1, 1990.

Hon. DANIEL K. INOUYE,
Chairman, Select Committee on Indian Affairs,
U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: This letter presents the views of the Department
of Justice on an amendment proposed by Senator McCain in the nature of a
substitute to S. 1980, the "Native American Grave Protection and
Repatriation Act." The McCain bill would protect and provide for
repatriation of Native American human remains, objects associated with
those remains, and other objects of Native American culture.

On the policy goals and efficacy of this bill, 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 S. 1980ýin its current
formýmay raise constitutional concerns.

1. Repatriation.ýSection 4(c)(3)(A) of S. 1980 would require the
Secretary of the Interior to "prescribe regulations . . . that provide
for the repatriation to the appropriate Native American group" of
protected objects "which may have been excavated under the authority of
any Federal law or under any permit issued by a federal agency."
(Emphasis added.) As currently drafted, the language of this section is
unclear on whether repatriation would be required of protected objects
excavated in the past pursuant to federal permits. The use of the
passive voiceý"may have been excavated"ýmight be interpreted to suggest
such retrospective application.

If that is the intent of Congress, then section 4(c)(3)(A) would
implicate the Takings Clause of the Fifth Amendment, which provides that
"private property" shall not be taken for "public use" without the
payment of "just compensation" to the owner. Depending upon the
circumstances, protected objects excavated by a private party pursuant
to a federal permit might constitute "private property" within the
meaning of the Takings Clause. The Antiquities Act of 1906, for
Senate Report 101-473
page 23

example, 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 such a permit, the applicant must provide for
"permanent preservation [of excavated objects] in public museums." Id.
A private party who has acted in accordance with a permit under the
Antiquities Act would have a strong argument that excavated items
displayed in compliance with the conditions set by the permit constitute
the "private property" of that party.

This problem could be resolved by an amendment to section 4(c)(3)(A)
to clarify that the repatriation regulations required by S. 1980 shall
apply only prospectively. Alternatively, section 4(c)(3)(A) might
specifically provide that any protected object in which a private party
has "legal title" would not be subject to repatriation. Such an
amendment would bring section 4(c)(3)(A) into line with section 5(c)(1)
of the bill, which would permit private museums to resist repatriation
upon a showing of "legal title" to the requested object. Under either
suggested amendment, "private property" would not be taken within the
meaning of the Takings Clause.

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' determination 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 244;
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 S. 1980 to
explain how the transfer of protected objects from private parties to
Native American groups will advance the public good. Should Congress
wish to reach private property through S. 1980, 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 S. 1980 would not prevent a private party from obtaining
payment in the event that a taking is effected. Under the Tucker Act, a
private party may seek compensation in the Claims Court. 28 U.S.C.
§1491(a) (jurisdiction to resolve claims against the United States based
upon the Constitution). Such compensation payments might significantly
increase the cost of repatriation legislation.

2. Appointment of Review Committee.ýUnder section 6(a)(2) of S.
1980, the Secretary of the Interior would be required to establish a
"review committee" that "shall be composed of 7 members, 4 of whom shall
be appointed from nominations submitted by Native American groups." 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 § 6(a)(3)(B).
As drafted, the bill would not accord binding legal force to the
committee's review. Indeed, section 6(b)(5) states that the committee
shall not have authority to transfer "legal title" to any protected
object. Should Congress intend otherwise, section 6(a)(2) of the bill
Senate Report 101-473
page 24

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 list ý here, Native American organizations ý
to share in the appointment power.

3. Access Requirement.ýSection 6(a)(5) 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 6(a)(5) 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 6(a)(5) to
provide merely for "reasonable access" to protected items by the review
committee.

The Office of Management and Budget has advised the Department that
it has no objection to the submission of this report from the standpoint
of the Administration's program.

Sincerely,
BRUCE C. NAVARRO,
Deputy Assistant Attorney General.

CHANGES IN EXISTING LAW


In compliance with subsection 12 of rule XXVI of the Standing Rules
of the Senate, the Committee states that enactment of S. 1980 will
result in the following changes in existing law.

Chapter 53 of Title 18 of the United States Code is amended by adding
at the end thereof section 1166 (a) which provides that whoever
knowingly sells, purchases, uses for profit, or transports for sale or
Senate Report 101-473
page 25

profit the human remains of a Native American without the right of
possession to those remains shall be subject to a fine or imprisoned not
more than 12 months or both, and section 1166 (b) which provides that
whoever knowingly sells, purchases, uses for profit, or transports for
sale or profit Native American funerary objects, sacred objects or
objects of cultural patrimony obtained in violation of this Act shall be
subject to a fine or imprisoned not more than 12 months or both.

 

 
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