MINUTES
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REVIEW COMMITTEE
FIRST MEETING: APRIL 29-MAY 1, 1992
WASHINGTON, DC

The first meeting of the Native American Graves Protection and
Repatriation Review Committee was called to order by Dr. Francis P.
McManamon, Departmental Consulting Archeologist, at 9:10 a.m, Wednesday,
April 29, 1992, at the main building of the Department of the Interior,
Washington, D.C. The meeting was adjourned at noon on Friday, May 1,
1992. The following Review Committee members, staff, and others were in
attendance:

Members of the Review Committee:
Ms. Rachel Craig
Ms. Tessie Naranjo
Dr. Martin E. Sullivan
Mr. William Tallbull
Dr. Phillip L. Walker

Members absent:
Mr. Dan L. Monroe (participated in conference call on May 1, 1992)

National Park Service staff present:
Mr. Jerry Rogers, Associate Director for Cultural Resources
Dr. Francis McManamon, Departmental Consulting Archeologist
Dr. C. Timothy McKeown, Archeological Assistance Division
Dr. Veletta Canouts, Archeological Assistance Division
Dr. Ruthann Knudson, Archeological Assistance Division

The following others were in attendance (at least part of the time):
Mr. Timothy Glidden, Councilor to the Secretary
Ms. Jennifer Salisbury, Deputy Assistant Secretary, Fish and
Wildlife and Parks
Mr. Lars Hanslin, Solicitor's Office, Department of the Interior
Mr. Robert Moll, Solicitor's Office, Department of the Interior
Mr. Jim Bird, Shea & Gardner
Mr. David Cole, president, Keepers of the Treasure, Inc.
Ms. Karen Funk, attorney, Hobbs, Straus, Dean & Wilder
Ms. Jo Anna Meninick, Culture Committee, Yakima Nation
Mr. Tom McCulloch, Advisory Council on Historic Preservation
Ms. Diane White, attorney, Shea & Garner
Mr. Raul N. Zinn, Voice of America

Dr. McManamon advised that notice of the meeting had been published in
the April 15, 1992 Federal Register (copy appended as Attachment 1 to
the minutes) and identified himself as Designated Federal Officer for
the meeting. He agreed to serve as chairman until such time as the
seventh member of the Review Committee is appointed by the Secretary and
the members can elect a chairperson. He thanked the Review Committee
members for agreeing to serve on the committee and for arranging their
already busy schedules so they could attend this first meeting. He then
proceeded by providing a brief introduction of each Review Committee
member.

Councilor to the SecretaryAfter his introductions of the Review Committee
members, Dr. McManamon introduced Mr. Timothy Glidden, Councilor to
the Secretary, who welcomed
the Review Committee to Washington for the Secretary. Mr. Glidden
recalled that Secretary Lujan's interest in ensuring more sensitive
treatment of Native American human remains and other cultural items
predated passage of the Native American Graves Protection and
Repatriation Act (NAGPRA). The Secretary has worked diligently toward
implementing the statute, his efforts including:

o requesting and obtaining funding to establish the Review
Committee and undertake other implementation activities,
o chartering the Review Committee and soliciting nominations
from which this august group ultimately was appointed,
o assigning responsibility for implementing some provisions of
the statute to the Departmental Consulting Archeologist (DCA)
and the Archeological Assistance Division (AAD) of the
National Park Service.
o developing the initial draft of the implementing regulations
which the Review Committee would be discussing at this first
meeting.

Mr. Glidden identified this first meeting of the Review Committee as an
important milestone in the implementation and emphasized that Secretary
Lujan considers the committee's work to be critical to the preservation
of Native American cultural items.

Deputy Assistant Secretary for Fish and Wildlife and Parks

Dr. McManamon introduced Ms. Jennifer Salisbury, Deputy Assistant
Secretary for Fish and Wildlife and Parks, who welcomed the members to
their first meeting on behalf of Assistant Secretary for Fish and
Wildlife and Parks Michael Hayden. She said that both she and the
Assistant Secretary take their responsibilities under NAGPRA very
seriously and that she is personally happy to have the opportunity to
work together with the Review Committee to ensure the fair
implementation of the statute's provisions. She pointed out that the
Assistant Secretary's office was instrumental in obtaining FY 1992
appropriations to enable the members to come together as a chartered
Review Committee to begin the crucial task of advising the Secretary.
She anticipates the development of a strong working relationship with
the Review Committee.

Associate Director, Cultural Resources, National Park Service

Dr. McManamon introduced Mr. Jerry Rogers, Associate Director for
Cultural Resources, National Park Service. Reflecting upon 25 years of
service in Washington, Mr. Rogers remarked that he is extremely
optimistic about the current efforts to implement NAGPRA. Mr. Rogers
pointed out that current efforts to implement the statute exist within
the context of a variety of cultural resource programs administered by
the National Park Service -- the National Register Program, the Historic
American Building Survey/Historic American Engineering Record, the
Archeological Assistance Division, the Tax Incentive Program, as well as
National Park System programs in historic architecture, history,
archeology, and ethnography. He specifically recognized the Tribal
Historic Preservation Grants program as being instrumental in providing
the foundation for Keepers of the Treasures, a group which he hopes will
eventually develop into the Native American equivalent of the National
Trust for Historic Preservation. Mr. Rogers pointed out that there is
more money devoted to these programs now than at any time in his 25
years in Washington, and he singled out the senior level of
administrators with the Department of the Interior -- referring
specifically to Secretary Lujan, Assistant Secretary Hayden, and Deputy
Assistant Secretary Salisbury -- as being responsible for what he
considers the best of times for heritage preservation.

NAGPRA Program Staff

Dr. McManamon introduced Dr. Timothy McKeown and Mr. Lars Hanslin. Dr.
McKeown was hired by the National Park Service-Archeological Assistance
Division (AAD) as NAGPRA Program Leader, thanks to the funding
previously mentioned by Ms. Salisbury. Among Dr. McKeown's roles are
supervising development of the draft regulations and coordinating
activities for the Review Committee.

Mr. Hanslin serves with the Solicitor's Office within the Department of
the Interior and specializes in matters related to the implementation of
cultural resource laws. Dr. McManamon thanked Mr. Hanslin for making
himself available over the next three days to answer any legal questions
that come up.

Review of the Agenda

Dr. McManamon reviewed the meeting agenda (copy appended as Attachment 2
to the minutes). Besides getting to know one another, there were two
major issues which needed to be investigated during the meeting. The
committee would be reviewing the current draft of the regulations,
identified as Draft Four. The committee also needed to develop a list
of nominees from which the Secretary could appoint the committee's
seventh member.

Regulatory Process

Dr. McManamon introduced Mr. Hanslin, who outlined the regulatory
process for members of the committee. Regulations implement the law --
explaining any ambiguities or gaps left by the statute -- but the
regulations may not contradict the law. As you might imagine, Mr.
Hanslin explained, that is not always an easy line to discern.

Mr. Hanslin's job, on behalf of the Secretary, is to make sure the
regulations are consistent with the statute and other Federal law. He
does this in two ways -- by assisting the Review Committee and by
advising the Secretary. Mr. Hanslin pointed out that the Review
Committee need not take his recommendations, they are entitled to make
whatever recommendations they consider appropriate to the Secretary.
However, once the draft Proposed Regulations are given to the Secretary,
Mr. Hanslin's role is to review them on the Secretary's behalf. The
Secretary has ultimate responsibility for their content. Once approved
by the Secretary, the draft Proposed Regulations are sent to the Office
of Management and Budget (OMB) to be reviewed under the Regulatory
Reform Program. Part of this program has been the 90 day moratorium on
new regulation, which is probably going to be extended for another 90
days. (The moratorium has subsequently been extended until November,
1992). Once OMB approves the regulations, they will be issued as
Proposed Regulations in the Federal Register. Publication will include
not only the entire text of the regulations, but also a preamble whichin
narrative form describes what the regulation is intended to do and
defines a period during which public comment will be accepted. This
period of public comment is typically no less than sixty days and, in
the case of these regulations, probably longer.

Once all the public comments are received, the Review Committee, the
Department, and the Secretary are obligated to review the comments --
not just read them -- but actually review them and respond in written
form. The Secretary is obligated to make a public record to demonstrate
that all comments have been considered fully taken into account.
Following this comment and review process, Final Regulations will be
developed and will again have to pass through OMB before they are
published in the Federal Register. The preamble to the Final
Regulations will discuss in general terms all the comments received and
how they were dealt with -- identifying which sections were changed and
which were not, and justify why. All substantive issues raised by the
comments must be dealt with in the preamble. Mr. Hanslin predicted that
while the NAGPRA regulations themselves may not be very long, the
preamble will be quite lengthy.

Historical Background

Dr. McManamon updated committee members on the activities taken by the
DCA and AAD thus far to implement the statute. He explained the
leadership role this office provided for the Department of the Interior
in the preservation and protection of Native American cultural items
even before passage of the statute because of its oversight, leadership,
and coordination responsibilities for archeological issues. Staffing
was provided for Departmental representatives, such as in drafting
testimony for officials appearing before Congress and responding to
inquiries on these issues from the public. The DCA and AAD helped
coordinate the activities of other bureaus within the Interior
Department -- the Bureau of Indian Affairs, the Bureau of Land
Management, the Fish and Wildlife Service, etc. -- as well as with other
offices within the National Park Service like the Tribal Historic
Preservation Office, the Curatorial Services Division, and the
Ethnography Program. The DCA and AAD played a central role as the
Native American Graves Protection and Repatriation Act moved through the
Congress.

The DCA and AAD leadership role came from its expertise in several
specific areas addressed by the statute -- site protection, site
preservation, the treatment of remains from archeological collections,
the treatment of archeological collections generally. The DCA and AAD
also worked with Native American individuals and tribes on a number of
issues, including providing training to tribes for protecting
archeological sites on tribal land and also developed regulations on
consultation with Native Americans. The Division was aware and
sympathetic to many of the issues raised by the Native American
community. The Division's expertise involves historic preservation
issues, archeological issues, and scientific issues. One of the
functions of the Review Committee is to insure that the Native American
perspective is articulated in the regulations and in the review of
disputes.

The statute was passed very late in the cycle for the Administration's
FY92 Federal budget. It was impossible to get any additional funding
for fiscal year 1991. Information was prepared to justify increasing
the FY92 budget to allow for the formation of the Review Committee,
drafting of the regulations, and supporting various activities. This
effort succeeded due to the firm support of the Assistant Secretary and
the Secretary.

Between March and August of 1991, the DCA and AAD worked on formally
establishing this committee. This included drafting the committee
charter, based on the statute, which was reviewed formally throughout
the Department. The charter was approved by many of the assistant
secretaries' offices and at least three separate parts of the
solicitor's office. Mr. Hanslin reviewed it, as well as the assistant
solicitor for general law and the assistant solicitor for Indian
affairs. That review process is one of the requirements for
establishing a formal Federal advisory committee. Without the charter,
this committee would not exist. The charter was approved in August of
1991.

At the same time, the Secretarial Order was drafted, reviewed, and
approved assigning the Secretary's responsibility to provide staffing
for the Review Committee, to assist in assembling the nominations for
the Review Committee, to draft the regulations, and to administer the
grants program when funding is provided to the DCA and AAD.

Although no new funding for implementation activities was available, AAD
was able to use what is called "lapse money," money for a position that
had not been filled, to bring in one of our regional office staff to
help. Larry Nordby, of the NPS Southwest Cultural Resource Center,
performed admirably in this role. He drafted the charter and helped
move it through the review process. He and Dr. McManamon also developed
a paper which eventually appeared in October, 1991, as the memorandum on
implementation of the NAGPRA. Comments on the draft memo were solicited
from a wide range of Native American, scientific, and museum
organizations and individuals. On the Native American side, comments
were received from the Native American Rights Fund, the Association for
Native Americans, as well as from a number of individuals who had been
intimately involved in drafting the statute -- including Jack Trope,
Karen Funk, and Dean Suagee. Comments also were received from the
Society for American Archeology and other scientific organizations. We
tried to integrate those comments into the memorandum. Mr. Hanslin and
others at the Solicitor's Office reviewed the document. A good faith
effort was made to integrate comments into the document.

Mr. Hanslin reminded the committee members that the October 30th
memorandum was preliminary and subject to change within the regulatory
process. Its purpose was to promulgate some information related to the
statute to the public without having to take positions before the
government and the review committee were ready to do so.

With the October memorandum as a foundation, Dr. McManamon continued,
effort was devoted to putting down on paper an initial draft of the
regulations implementing the statute. We asked a number of individuals
from Federal agencies to help us in putting together this draft. We
limited membership on the Interagency Working Group to Federal officials
-- to do otherwise would have involved the complexities of forming yet
another Federal advisory committee. Members were drawn from agencies
with experience dealing with Native American issues, such as the Bureau
of Indian Affairs, as well as land management agencies and agencies
responsible for collections. The Interagency Working Group met twice,
in December, 1991, and once in January of this year. The result of
their efforts is what you have in front of you right now.
Review of NAGPRA Regulations: Draft 3

Review of Draft 3 of the Regulations opened with a general discussion of
the importance of expedient action to fully implement provisions of the
statute.

Dr. Sullivan stated that completing the regulations may turn out to be
easier than anticipated, since many museums recognized the need for
better communications with Native Americans even before the law was
passed. What museums need now are guidance and examples. Dr. Walker
concurred with Dr. Sullivan's call for expedient action, stressing that
conscientious museums may start the summary and inventory process early,
only to face the possibility of having to redo their efforts once the
final regulations are completed. He went on to express his concerns
that the grants program authorized by the statute has thus far not been
funded. The lack of funding impacts upon the ability of museums to
comply with the summary and inventory provisions by the deadlines
stipulated by the law.

Mr. Tallbull raised the question of determining title of cultural items
picked up by military officers during the various police actions against
the Indian Nations during the 19th Century. Many chief's bundles and
private medicine bundles were taken, and these are now in museums. If
no one has formal title, than who owns them? Dr. McManamon explained
that if a museum cannot demonstrate a right of possession through a
receipt or an authorization to excavate signed by a tribal
representative, the title would go to the closest lineal descendent,
culturally affiliated Indian tribe or Native Hawaiian organization.

Dr. Sullivan questioned including "human remains" within the definition
of "cultural item." Dr. Walker concurred that this usage seems
offensive, and questioned how much leeway the committee had to deviate
from the statutory language. Mr. Hanslin responded by explaining that
perhaps the best way to deal with definitions which are defined in the
statute is to use the statutory language, but to use language from the
committee reports, statements made on the floor of Congress, and the
congressional reports to further clarify the meaning.

Mr. Tallbull stated that one of the most important issues raised by this
statute concerns just what constitutes proper treatment and protection.
These things are risky. He recounted a reburial he was asked to
participate in of a man who lived seven thousand years ago. The man had
been buried with his head to the west, facing north. Mr. Tallbull knew
this practice, so he was comfortable doing the reburial. But suppose
the man had been a "contrary." He would have done everything backwards,
and whatever Mr. Tallbull would have done would have be exactly the
opposite of what should have been done.

Dr. McManamon proceeded to read and explain the rationale behind each
section.

§ 10.1 Purpose

The committee members had no comments on this section.

§ 10.2 Authority

The committee members had no comments on this section§ 10.3 Applicability

Dr. Walker asked about the status of cultural items recovered by Federal
agencies but currently in the collections of the Smithsonian. Dr.
McManamon explained that the Smithsonian's policy is that all material
that has been accessioned will be considered the responsibility of the
Smithsonian. The Smithsonian has expressed willingness to talk with
individual agencies about who would actually be responsible for the
cultural items. Dr. Walker and Dr. Sullivan suggested that Federal
agency responsibility for their collections currently curated by museums
needs to be made very explicit.

Ms. Craig asked about the applicability of the statute to lands
controlled state or local governments. Dr. McManamon explained that
provisions of the statute dealing with current excavations are limited
to Federal and tribal lands.

Dr. Walker asked about the sentence "In the event that items were
removed from Federal lands which later were transferred from the
administrative control of one agency to another, the agency managing the
lands at the time of the removal is responsible with the provisions of
this Act with respect to those items, unless ownership of the collection
has been otherwise conveyed."

Dr. Walker could not find any reference in either the statute or the
draft regulations concerning the transfer of ownership of cultural items
transferred from one Federal agency to another. Dr. McManamon explained
that Federal agencies frequently switched management responsibilities.
There are two ways to handle this. One way is to assign responsibility
to the Federal agency assuming administrative control of the land. The
other is to assign responsibility to the Federal agency controlling the
collection. This draft reflects the latter approach, since that is what
the Interagency Working Group decided. Dr. Sullivan voiced his concern
over the use of the term "ownership" in this context, preferring instead
"control" or "custody."

§ 10.4 Definitions

(a)(4) museum

Dr. Sullivan pointed out that representatives of the National Museum of
Natural History have indicated that they would conducting their
repatriation activities under provisions of this statute, despite the
fact that they are explicitly excluded under this definition.

Dr. Walker asked what constitutes "receiving Federal funds". Mr.
Hanslin explained that this is an issue that has litigated to the
Supreme Court in terms of Title 11 funds. It seems clear from the
present tense phrasing that the Federal funding must have been received
after November 16, 1990. The question of local government museums that
receive pass-through Federal funding from their city governments needs
to be resolved.

(a)(7) Indian tribe

Dr. Walker asked for clarification of the phrase "eligible for the
special programs and services provided by the United States to Indians
because of their status of Indians." Mr. Hanslin explained this is alegal
term of art which is precisely defined, though there will be some
grey areas.

Dr. McKeown asked whether inclusion of Native Hawaiian organizations,
which are recognized by their state but not by the Federal government,
provides a precedent for including all State recognized tribes. Mr.
Hanslin stated that no such precedent was established.

Dr. McKeown asked whether the tribes receive funds from other Federal
agencies, such as from the Department of Health and Human Services,
would also be included. Mr. Hanslin said that the definition includes
funds from any Federal agency, not just from the Bureau of Indian
Affairs.

(a)(11) traditional religious leader

Dr. Walker pointed out that not all tribes have traditional religious
leaders as part of their government bureaucracy. Dr. McManamon
explained that the statute required that traditional religious leaders
be consulted regarding identification and proper treatment of cultural
items, but that it was the Indian tribe and Native Hawaiian organization
officials who were charged with making the ultimate decisions. This
reflects the government to government relationship recognized between
the Federal and tribal governments. Mr. Hanslin pointed out that the
Federal agency and museum officials also must make sure that they are
dealing with some legitimate representative of the Indian tribe or
Native Hawaiian organization.

Ms. Craig took issue with the term "leader." She explained that in her
area, many of the individuals who are recognized as experts in
traditional religion by members of the community are not actual
practitioners of the traditional religion. They follow traditional
values. Mr. Tallbull suggested the term be changed to "elder." Dr.
McManamon stated that the definition seemed to address everyone's
concerns, while the term may be inappropriate. Mr. Hanslin explained
that it was possible to change the term in the regulations, as long as
it is stipulated that the term satisfies the statutory requirements for
"traditional religious leader." Dr. McManamon suggested that the review
committee pay particular attention to the consultation section (§ 10.6)
where procedures for identifying and contacting appropriate traditional
religious leader are specified.

(b)(2) associated funerary objects

Ms. Craig wondered about hunting implements or beads that might be left
with burials. Dr. McKeown explained that Navajo often leave utilitarian
objects with or near their deceased owner. Contemporary Navajo still
recognize that if they find an object, such as a spoon, on a site, that
there is a burial nearby. Ms. Naranjo pointed out that the kinds of
utilitarian objects left with burials is continuously changing. Dr.
McKeown suggested amending the first category of associated funerary
objects as follows: "cultural items that, as part of the death rite or
ceremony of a culture, are reasonably believed to have been
intentionally placed with or near human remains."

Dr. Sullivan asked for clarification for second category. Dr. McManamon
explained that category two includes those artifacts which were not
found directly associated with human remains, but that are known from
other studies of the prehistoric or historic culture to have an
exclusive burial function. This might include a particular type ofceramic
jar that was invariably used to hold cremated remains. Dr. Sullivan
asked about utilitarian vessels which might also be used for
cremations. Dr. McManamon pointed out that the term "exclusively for
burial purposes" comes from the statute.

(b)(4) sacred objects

Ms. Naranjo suggested changing the wording of the first line of this to
"specific ceremonial objects which are needed by traditional Native
American religious leaders for the practice..." to reflect the previous
decision on § 10.4 (a)(11).

Ms. Naranjo, Ms. Craig, and Mr. Tallbull questioned the necessity of
having "present day adherents" to claim sacred objects. Dr. Sullivan
commented that this definition was one of the toughest to work out,
since everything in the world could be considered sacred. This
definition was crafted to emphasize those items that have incredible
power to Native people. Dr. McManamon stated that disposition of sacred
objects would have to be worked out on a case-by-case basis. Dr.
Sullivan pointed out that some of these items might also fall under the
category of objects of cultural patrimony.

Dr. Walker commented that he was aware of situations in which Native
Americans were reluctant to discuss particular sacred objects, making
identification difficult. Mr. Tallbull confirmed this, saying that he
had been in situations where he didn't tell all he knew because the knew
the curators would not believe him. Dr. McManamon stated that this
certainly was a problem which needs to be addressed, but suggested that
generalized regulations might not be the proper place to do it.

(b)(5) objects of cultural patrimony

Ms. Naranjo pointed out that the Zuni War Gods might not be the best
example here, as they are both objects of cultural patrimony and sacred
objects. Mr. Tallbull detailed several Northern Cheyenne items which
might be considered both sacred objects and objects of cultural
patrimony. Dr. Sullivan mentioned that while some of the Iroquois'
wampum belts had both sacred and patrimonial functions, others, such at
the as the "Washington covenant" belt, were more documentary than
religious items, being considered sacred in the same way that we
consider the Declaration of Independence sacred. Dr. Sullivan suggested
modifying the example to read "some kinds of the Wampum belts of the
Iroquois,..." Mr. Tallbull and Ms. Craig pointed out that for their
peoples, nothing was truly given or owned by an individual. Everything
is cultural patrimony. Ms. Naranjo recognized that while it was not
possible to change the language of the law, the distinction between
sacred objects and objects of cultural patrimony is a fuzzy one.

(b)(6) unclaimed cultural items

Dr. McManamon explained that this term, which is not defined in the
statute, was included in the regulations primarily to specify a time
frame after which disposition of the cultural items which are not
claimed might take place. Mr. Hanslin suggested amending this section
to reflect the Federal statute of limitations. The last phrase should
read: "...but which are not claimed for a period of five six years
following notification."

(b)(7) unaffiliated cultural itemsDr. McManamon suggested amending
the final clause to read: "...identified during or after the inventory or through
a claim made by a lineal descendant, Indian tribe, or Native Hawaiian organization."
He went on to explain that unaffiliated cultural items are most likely to
be those for which there is not very much provenience information, those
which are very old, those from areas where the prehistoric past is not
very well known and where the modern Indian history has been quite
disrupted, and those from areas where there are long gaps between the
modern group that may have a legitimate claim and the older group that
is only known archeologically. Dr. Sullivan posited that he felt the
affiliation of nearly 90% of some collections would be determinable.
Dr. Walker disagreed, thinking the percentage of affiliated human
remains to be much lower.

(d) ownership

Dr. McManamon acknowledged the that several committee members were
uncomfortable with use of this term.

(d)(2) lineal descendent

Dr. Walker suggest modifying the definition as follows: "an individual
tracing his or her ancestry directly and without interruption to the
individual whose remains and/or associated objects are being claimed
under the Act."

(d)(3) cultural affiliation

Dr. Walker pointed out that one problem he sees in the draft regulations
is that the concept of cultural affiliation shifts throughout the
document, starting with an affiliation between tribes and previous
cultural groups, but gradually shifting into referring to the
affiliation between tribes and objects. Dr. McManamon encouraged Dr.
Walker to comment on the language whenever he sees the term used
inappropriately.

(d)(4) prior ownership or control

Dr. McManamon explained that while the term was used in the statute, no
definition was given. This was an attempt to provide guidance on the
term. Mr. Hanslin pointed out that his office will be paying particular
attention to issues related to ownership and possession and that the
committee members might expect this and other sections dealing
specifically with ownership concepts to be changed significantly in the
next draft. Dr. Sullivan objected to the first three words of the
definition -- "ownership is established..." -- in that it implied a
simple process of determination. Mr. Hanslin agreed, citing as examples
of the complexity concerning the ownership of human remains, questions
of legal title, and Fifth Amendment takings. He suggested that one
approach would be a definition of ownership that doesn't define it, but
simply provides a framework for making decisions. He agreed to develop
suggestions for resolving the issue.

(e)(8) advice of discovery

Dr. Sullivan pointed out that this term is used in several different
ways within the draft and should be used consistently throughout.

(e)(12) dispositionDr. Walker pointed out that the term is only used in
25 USC 3002 (d) dealing with inadvertent discoveries. Other usage in the
regulations may be inappropriate.

§ 10.5 Consultation

(c)

Ms. Craig reminded the committee of the earlier discussion concerning
"traditional religious leaders." She explained that in her area there
is no such person, but there are people who are knowledgeable about
traditional spiritual matters and religious values. She felt that the
current definition would affect the consultation process in her area
since there is no one who really fits the definition of a "traditional
religious leader." Dr. McManamon explained that there are two ways to
deal with the issue: 1) to add another term in this section identifying
the appropriate contact person, or 2) to rework the definition in §
10.4 (a)(11)

Ms. Meninick addressed the committee from the audience, saying that she
disagreed with what Ms. Craig had said. She explained that she was at
the meeting on behalf of the Yakima Nation and that in her group there
are traditional religious leaders, as well as elders who are teaching
young people. She reaffirmed that traditional religious leaders should
be notified and consulted. Dr. McManamon responded by pointing out that
nothing that has been said would prevent traditional religious leaders
from being contacted or being involved in the consultation process.

Ms. Naranjo stated that she had a problem with the word "identify."
She suggested Ms. Meninick's choice of "notify" might be a softer word,
at least for a Southwestern tribal elder. "Identify" implies by name.
Notify is not so direct. Dr. McManamon explained that "identify" was
used because the purpose of this particular subsection is to try to get
additional information from Native people who you are already in contact
with. A better word might be found, but "notify" probably not be
enough. Dr. Sullivan suggested that perhaps the phrase could be changed
to say consult with appropriate traditional leaders. Ms. Naranjo
concurred.

Ms. Meninick asked about changing the word "should" to "shall." Dr.
McManamon explained that the purpose of the section is to identify
people who would be recommended for consultation. He continued that the
intent was to try to increase the number of people who might be
consulted. But there is no way of ensuring that everybody that is
recommended would in fact be consulted. That would have to be a
decision that would be made by whoever would be in charge of the
particular institution undertaking the consultation.

Ms. Meninick asked about the term "other sources of expertise." Dr.
McManamon explained that these sources might include non-Indian people
who could serve as sources of information.

(d)

Dr. Walker suggested that "define" be changed to "adopt" or "use" or
"implement." These consultation procedures should be implemented, not
just written down.§ 10.6 Procedures for Consultation

Dr. Sullivan pointed out that "cultural items" should be deleted from
the third line.

(a)(1)

Ms. Meninick suggested that the term "applicable" be replaced with
"Federally recognized." Dr. Sullivan suggested deleting the term. Dr.
Walker explained that he though in this context "applicable" meant
"potentially affiliated," and suggested making that change and then
working on a definition for the latter term. Defining "potentially
affiliated" in §10.4 Definitions will solve this problem.

(b) Initiation of Consultation

Dr. Sullivan asked about the third point in this section, that
consultation must begin no later than five years from the date of
enactment of the Act. Dr. McKeown explained that the five year deadline
was designed to concur with the deadline for completion of the
inventories. Some repositories may not have reached the point in their
inventories where the cultural affiliation of cultural items is being
investigated actively. However, consultation would need to begin by
that date in order for the repository to qualify for an extension. He
then suggested that perhaps the best way to clarify would be to delete §
10.4 (b)(3) and to rewrite (b)(1) and (b)(2) as follows:

(b)(1) upon provision of written summary of unassociated
funerary objects, sacred objects and objects of cultural
patrimony to affiliated Indian tribes and Native Hawaiian
organizations, and no later than November 16, 1993, or
(b)(2) the point in the inventory process when the cultural
affiliation of human remains and associated funerary
objects is being investigated, and no later than November
16, 1995.

§ 10.7 Procedures for Determining Right of Possession

Dr. Walker suggested changing the name of this section to "Priority of
Claims," since "right of possession" does not play a role in the statute
at all for human remains, only for funerary objects.
(a)(1)

Dr. Walker suggested deleting this section since it wouldn't seem to
have any effect on human remains.

(a)(3)

Dr. Walker objected to use of the term "closest cultural affiliation,"
indicating that it is only used in provisions of the statute dealing
with discoveries and excavations, and not to museum collections. The
law requires a determination be made that a cultural object either is
culturally affiliated or it is not. The degree of affiliation only
becomes important when there are more than one claim, and the resolution
of that type of dispute is left to the claimants. He suggested changing
this section to read "the Indian tribe or Native Hawaiian organization
which has cultural affiliation with such remains or objects..."

(c) Lineal DescentDr. Walker suggested including examples to clarify this
section. Ms. Craig pointed out that Native American conceptions of these
"relationships" is much different from the Western, biological approach.
Dr. McKeown pointed out that the important part of this definition is
that it requires an unbroken chain of named individuals between the
cultural item and the contemporary claimant.

(d)(2)(i)

Dr. Walker questioned use of the term "present day group" -- a term
which is not defined in the statute or in the draft regulations -- and
suggested changing the sentence to read "existence of an identifiable,
present day Indian tribe or Native Hawaiian organization.

Dr. Walker questioned the use of subsection (A), (B), (C), and (D) as
criteria for determining applicability of the statute to any particular
Indian tribe when the statutory language indicates they must be
"recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians." He
suggested that subsection (A) should be expanded to indicate what is
required for Federal recognition. Ms. Craig and Ms. Naranjo affirmed
that such expansion is not really necessary as both recognized and
unrecognized tribes know their status. Dr. Walker questioned use of the
BIA list, particularly in California where there are groups not on the
list that receive Federal support. He didn't want to see all of these
California group excluded from consideration. Mr. Hanslin suggested
expanding (A) to read "Federally recognized tribes and those recognized
as eligible for the special programs and services provided by the United
States to Indians because of their status as Indians. Dr. Walker asked
what types of non-BIA programs might be included. Dr. McManamon stated
that he knew of at least three: the Association of Native Americans, the
Department of Education for Indian education programs, and the Indian
Health Service.

Dr. Sullivan objected to the wording of (C), suggesting it read "a
listing of all current members and their addresses, establishing that a
substantial portion of the membership constitutes a present-day Indian
tribe or Native Hawaiian organization, and/or"

Dr. McKeown suggested that this we should probably go back to scratch on
this section, looking at exactly what BIA, DHHS, IHS, and other Federal
agency criteria are.

(d)(2)(ii)

Ms. Naranjo stated that, at least in the Southwest, the question of the
existence of an "identifiable earlier group" is easy. Anasazi would be
an example. But she didn't know if the rest of the country knew about
Anasazi. Dr. Sullivan suggested that this also may be more difficult to
ascertain the further back you go.

(d)(2)(iii)

Ms. Craig mentioned that in Alaska, her group's oral tradition indicates
their relationship with sites from very long ago, while archeologists
make distinctions between people that built their fires inside and
outside the house. Dr. Walker explained that there might be traits
found in sites associated with an identifiable earlier group that are
also used by present day Indian tribes and Native Hawaiian organization.
That is one way to demonstrate the shared group identity.(d)(3)

Dr. McManamon explained that this section provided guidance for
resolving conflicting claims. Dr. Sullivan agreed that this type of
guidance would be needed.

§ 10.8 Procedures for Conducting Inventories and Developing Written
Summaries

Dr. Sullivan suggested using examples to clarify the nature of the
inventories and written summaries, but agreed in general that the
section as written is at about the right level of specificity.

(a)(2) Standards for Inventory Content

Dr. Walker expressed his concern that the requirements were not
practical. In particular he was concerned with the requirement that the
inventory of human remains be done "by individual, or by skeletal
elements when individuals cannot be identified." Dr. McManamon
explained that he had recognized that problem, but that there was also
an issue of accountability. The museum or agency must be able to
identify what they have and tell the Indian tribes and Native Hawaiian
organizations in some detail. This is the only time that the parties
involved have an opportunity to describe the cultural items that might
be changing hands. He went on to explain that this problem was
recognized by Congress in that the statute authorized a grants program
to help museums comply with this aspect of the law. He suggested that
the committee not necessarily shy away from detailed inventory
requirements because of a lack of resources. Dr. Sullivan suggested
that the most important statement in the section was § 10.8 (a)(1), that
"the inventory process must be flexible...," and suggested that one way
to help solve the problem was to drop the phrase in § 10.8 (a)(2) "or by
skeletal elements when individuals cannot be identified." Mr. Hanslin
suggested that was also possible to prioritize the inventory process, to
begin inventorying the materials you have reason to believe people are
actually interested in. Dr. Walker added that this prioritization might
also serve as one indication of the museum's good faith in responding to
Native American concerns.

10.9 Procedures for Repatriation and Disposition

(h) Disposition of Federal property as part of a repatriation action.

Dr. Sullivan identified this as one area which could prove
controversial. He saw it as an extremely useful section because it
makes clear that compliance with this law superceeds ordinary property
disposition. Many private museums have objected that they can't do
anything until their state's attorney general approves it.

Mr. Hanslin explained that this is one of the problems of this law. It
can require anything it wants from a Federal agency, but it can't change
state and corporate law. Museums are either going to have to resolve
those problems in order to keep the Federal funding or stop taking
Federal funding and obey state laws. Similarly, there have been
problems where a private individual may have donated a item on condition
that it be displayed at the museum forever. If the museum breaches that
agreement they may be liable, and this law doesn't overcome those kinds
of arrangements.Dr. McManamon referred to Section 7 (f) which states that
"any museum which repatriates any item in good faith pursuant to this Act shall not
be liable..." Mr. Hanslin identified the particular provision as one
that may cause problems and result in litigation. He stated that to the
extent possible, the regulations must avoid taking peoples' property
while, on the other hand, achieving the purposes of the law.

10.11 Procedures for Determining Ownership

Dr. McManamon discuss two possible interpretations of 25 USC 3002 (a) on
ownership in the statute, one which follows the priority order down the
page: 1, 2a, 2b, 2c, ..., and another which views the priority as
between 1 and 2, and within 2 to whoever has the best case. The current
draft uses the second interpretation. The effect of this interpretation
is to not give priority to tribal land owners in all cases. Dr. McKeown
explained that use of the first interpretation also changes the nature
of the consultation process on tribal land in that the Federal agency
official only has to consult with the tribal land owners, and not with
any Indian tribe that might be more closely affiliated with the remains
or cultural items.

Dr. Walker pointed out that in § 10.11 (a)(2), the right of possession
does not have anything to do with human remains.

Nomination of the Seventh Member

Discussions of individuals to be nominated as the seventh member of the
committee were conducted on Thursday afternoon and Friday morning. Dr.
McManamon outlined the statutory requirements for the nomination of the
seventh member. The committee must provide a list of potential
appointees that all current committee members "consent to," the phrase
used in the statute. He recommended developing a list of at least five
people, since they would each need to be contacted to determine if they
might we willing to serve and one or two might drop out. It is
important that the Secretary be provided with a genuine choice.

During the Thursday afternoon meeting, members discussed the factors
which needed to be taken into account in nominating the seventh member.
Dr. Sullivan pointed out that there currently is no one on the committee
representing archeological concerns.

Ms. Craig raised the issue that there is no one on the committee from
the Eastern United States. Dr. Sullivan also raised the issue of
geographic representation, stating that committee would surely be
criticized if another Arizonan were named. Dr. Walker suggested that,
while this was a concern, the committee should nominate the people it
felt were qualified and leave the politics of the final choice to the
Secretary. In all, the members discussed 26 individuals and at the
close of Thursday's discussion, developed a preliminary list of six
persons. This list was telefaxed to Mr. Monroe on Thursday evening.

Dr. Monroe participated via teleconference with the rest of the members
in Friday morning's discussion. At the request of Ms. Meninick, Ms.
Naranjo asked Mr. Monroe whether he would be representing the interests
of the Northwest Affiliated Tribes of the Northwest. Mr. Monroe
indicated the he would need to build a working relationship with that
organization. Each individual on the list was discussed and a vote
taken. The final list which was consented to by all six members of the
committee included:

Cecil Antone (Pima): director, Department of Land and Water
Resources, Gila River Indian Community; spokesperson, Cultural
Resources Working Group, Inter Tribal Council of Arizona; chairman,
Four Tribes Cultural Concern Committee; member, Governor's
Archeology Advisory Commission in Arizona.

David Cole (Chickasaw/Choctaw): director, Cultural Resources
Department, Chickasaw Nation; president, Keepers of the Treasure.

Jonathan Haas, archeologist: Vice President, Collections and
Research, Field Museum of Natural History.

G. Peter Jemison (Seneca): site manager, Ganondagan State Historic
Site; chairman, Haudenosaunee Standing Committee on Burial Rules
and Regulations; Eastern Regional representative, Board of
Trustees, Keepers of the Treasure; member, ad hoc committee for
Native American and Museum Collaboration established by the
American Association of Museums.

Leigh Jenkins (Hopi): director, Hopi Cultural Preservation Office;
member, Governor's Archeology Advisory Commission in Arizona.

Dr. McManamon proposed calling the five on the list to find out if they
would serve on the committee. If they say yes, we will ask them to
submit a statement which we will submit to the Secretary's staff. In
transmitting the list to the Secretary, the concerns about expertise and
geography that the committee raised would be mentioned. The members
concurred.

Prior to ending the telephone hookup, Mr. Monroe proposed that in order
for the committee to work effectively together it would make good sense
to begin by saying that in the event that there is a very serious
concern on the part of any member, the committee should recognize that
concern. Dr. Sullivan agreed. Ms. Craig also concurred, stating that
the committee will be working together for a long time. Mr. Tallbull
summed up the general feeling by saying that while he had a lot of
unspoken concerns of the heart, the committee has to develop a working
relationship to try to resolve the long standing problems experienced by
Indian people. He said that it is important that the members honestly,
sincerely work together as a group. He hoped that the group had one
thing in mind, to address the concerns of the people of this country,
whether it be museums, archeologists, or Indian tribes. The committee
must try to do its best to resolve the problems that may come up.

Mr. Monroe recommended that while each member had a certain constituency
he or she represented, that it is critical that the committee develop a
close working relationship with each other based on respect and based on
appreciation for our common cause. He also recommended that future
meetings not be held in Washington. He said that is important to let
people have access to the committee, and to not make it appear that this
is a remote committee whose activities always take place within the
beltway. He recommended that meetings be held in other places where it
will be possible for committee members to be accessible to people around
the country. Mr. Monroe's recommendations were unanimously supported by
the other members.

Deputy Solicitor for General LawDr. McManamon introduced Robert Moll,
the Deputy Solicitor with the Division of General Law. Mr. Moll addressed
application of the provisions of the Federal Advisory Committee Act (FACA) and
its implementing regulations to the activities of the review committee. Mr.
Moll explained that back in the 1970s, Congress recognized that Federal
officials were meeting with many outside groups and the public was
unaware of the nature of those dealings. FACA set up a formal structure
by which agencies would receive advice from outside groups. Under the
statute, an advisory committee consists of any task force, group, or
committee which is used in the interest of obtaining advice by the
president or agency head. No advisory committee can function without a
charter and all activities of advisory committee must be consistent with
the charter. FACA and its implementing regulations place a number of
administrative requirements on advisory committees: notice of all
meetings must be published in the Federal Register; meetings are
generally open to the public; all committee records, reports,
transcripts, final reports and drafts are available to the public under
the Freedom of Information Act.

Dr. Walker asked whether an individual member's notes must also be made
available. Mr. Moll explained that anything that becomes part of the
record of an advisory committee meeting would need to be made available.
This might not include an individual member's notes if they were not
made a part of the discussion. And, exemptions can be made for
information of a private nature, such as discussion of a particular
individual. That kind of information may be withheld.

Dr. Walker inquired about provisions for closing meetings, explaining
that he could foresee a situation where the committee might need to
discuss information which would include the location of specific
archeological sites. Divulging this information might expose those
sites to looting. Mr. Moll said that closed meetings are extremely
rare. In fact, in his ten years with the Department of the Interior he
could think of only one or two cases were closing a meeting was even
considered. He suggested that the smartest way to deal with the
situation would be to make sure the site coordinates were not discussed
within the context of the meeting.

Dr. Walker asked Mr. Moll to clarify the nature of each member's
liability when dealing with the type of contentious issues the committee
will face. Mr. Moll explained that the committee serves in a strictly
advisory capacity and does not make policy decisions. Virtually any
conceivable suit filed against the committee would be handled by the
Justice Department. He pointed out that the members have no authority
to act individually, only as a committee. If someone calls asked for
your recommendation as a member of the committee, you can share
committee records, reports, transcripts, final reports and drafts with
them. You can report what the committee has recommended to the
Secretary. But you do not want to put yourself in the position as being
thought of as the spokesman for the committee. You need to avoid a
situation where someone gets in trouble and says that you told them to
do it. Then they can come after you. Mr. Hanslin added that this will
never be an issue unless you go well beyond the scope of your advisory
role.

Deputy Assistant Secretary for Fish and Wildlife and Parks

Deputy Assistant Secretary Salisbury rejoined the meeting and fielded a
number of questions from committee members. Both Dr. Sullivan and
Dr.Walker expressed concern that deadlines for completion of written
summaries and inventories were approaching while the regulations were
still in draft form. Mr. Hanslin concurred, stating that it is
typically 18 months from the time regulations go out as proposed to when
they are published in final form. Ms. Salisbury suggested that perhaps
interim guidance should be promulgated to assist Federal agencies and
museum in meeting their responsibilities. Mr. Hanslin agreed. Dr.
Walker added that another major problem was that the grants program had
not been funded. Ms. Salisbury suggested the committee might contact
various members of Congress to show how important this is.

Dr. McManamon asked the members to send their comments on the draft
regulations

Ms. Craig asked to say a few things. She said that she thought this had
been an important meeting. She explained that she was apprehensive when
she arrived because she didn't really know what to expect. But she
thought that after going through the process she was becoming
comfortable -- getting to know the other members and the staff that the
committee would be working with. She said that she was looking forward
to the next meeting when she would not be so apprehensive, and said that
she enjoyed this.

Ms. Naranjo stated that in the Indian way there is always a prayer at
the beginning and the end of meetings. She suggested planning for this
at future meetings and asked Mr. Tallbull to provide some guidance. Mr.
Tallbull noted that in every meeting he had ever attended, Indians
always end up doing the invocation.

The meeting was adjourned at approximately noon on May 1, 1992 by Dr.
McManamon, the designated Federal official.

____[Signed by Rachel Craig, Chair]______ _08-28-92_
Chair, Native American Graves Protection Date
and Repatriation Review Committee