MINUTES
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REVIEW COMMITTEE
FIFTH MEETING: SEPTEMBER 20 - 22, 1993
WASHINGTON, D.C.

The fifth meeting of the Native American Graves Protection and
Repatriation Review Committee was called to order by Ms. Tessie
Naranjo at 8:30 a.m., Monday, September 20, 1993 at the Maritime
Commission Hearing Room, 800 North Capitol Street, NW,
Washington, DC The following Review Committee members, staff,
and others were in attendance:

Members of the Review Committee:
Ms. Tessie Naranjo, Chair
Ms. Rachel Craig
Mr. Jonathan Haas
Mr. Dan Monroe
Mr. Martin E. Sullivan
Mr. William Tallbull
Mr. Phillip L. Walker

National Park Service staff present:
Mr. Francis P. McManamon, Departmental Consulting
Archeologist, Washington, DC
Ms. Veletta Canouts, Data Preservation Team Leader,
Washington, DC
Mr. C. Timothy McKeown, NAGPRA Program Leader, Washington, DC
Mr. Hugh (Sam) Ball, Archeologist, Washington, DC
Ms. Mandy Murphy, intern, Washington, DC
Ms. Sylvia Yu, intern, Washington, DC
Mr. Jerry Rogers, Associate Director for Cultural Resources,
Washington, DC
Ms. Patricia Parker, Coordinator for Tribal Preservation
Programs, Washington, DC

The following were in attendance during some or all of the
proceedings:

Mr. Raymond Apodaca, Chairman of the Human and Religious
Rights Committee for the National Congress of American
Indians, El Paso, TX
Ms. Donna Augustine, Micmac Tribe, New Brunswick, Canada on
behalf of the Aroostook Band of Micmacs, ME
Ms. Marcia Cronan, Special Agent, Division of Law Enforcement,
Branch of Investigation, Fish & Wildlife Service,
Washington, DC
Ms. Ernestine Ducheneaux, Ducheneaux, Taylor & Associates,
Washington, DC

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Ms. Karen Funk, attorney, Hobbs, Straus, Dean & Wilder,
Washington, DC
Mr. Lars Hanslin, Solicitor's Office, Department of the
Interior, Washington, DC
Ms. Suzan Shone Harjo, President of the Morning Star
Institute, Washington, DC, and Chairwoman of the Program
Planning Committee for the National Museum of the American
Indian, Washington, DC
Mr. Scott Keep, Assistant Solicitor for Tribal Government and
Alaska, Division of Indian Affairs, Solicitor's Office,
Department of the Interior, Washington, DC
Ms. Naida Lefthand, delegate from the Confederated Salish and
Kootenai Tribes of Pablo, MT
Mr. Tim Mentz, Sr., Tribal Council member, Standing Rock Sioux
Tribe, Fort Yates, ND
Mr. Darrell Newell, Passamaquoddy Tribe, ME.
Ms. Deborah Osborne, Federal Energy Regulatory Commission,
Washington, DC
Mr. Frank Shoemaker, Special Agent in Charge of
Investigations, Fish & Wildlife Service, Washington, DC
Mr. Daniel Weiner, outside counsel for the American Museum of
Natural History, New York, N.Y.
Mr. Frank E. Wozniak, NAGPRA Inventory Coordinator for the
Southwestern Region, U.S. Forest Service, Albuquerque, NM
Ms. Pemina Yellow Bird, Three Affiliated Tribes, Fort Berthold
Reservation, ND

Ms. Naranjo welcomed everyone to the meeting and asked that the
Review Committee and National Park Service staff introduce
themselves. Ms. Naranjo noted that the meeting was open to the
public and had been announced in the Federal Register. After the
introductions Mr. William Tallbull gave the invocation.

Mr. Jerry Rogers, National Park Service Associate Director for
Cultural Resources, welcomed the Review Committee to their fifth
meeting and gave a brief overview of the Committee's
accomplishments since their first meeting in May, 1992. Mr.
Rogers complimented the Committee on their integrity and
thoughtfulness and asked that they continue their good work as
the regulations are moved toward their final form.

Review of the Agenda

Mr. Francis McManamon welcomed the Review Committee and members
of the public to the meeting and went on to thank the
organizations hosting the reception being held that evening in
honor of the Review Committee. These included the American
Association of Museums, the Society for American Archeology, the
Native American Rights Fund, the Association of American

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Universities, the Society for Historical Archeology, and the
National Conference of State Historic Preservation Officers.

Mr. McManamon explained that the agenda was structured to allow
in depth discussion of the written comments that had been
received on the proposed regulations. He hoped the Committee
would be able to produce a set of recommendations to the
Secretary. He also suggested that the Committee could discuss
the draft dispute resolution procedures, if time permitted.

Mr. McManamon then reported on the activities of the
Archeological Assistance Division over the previous months,
including drafting the proposed regulations, reviewing the
comments thereon, revising the proposed regulations in response
to the comments, preparing the Review Committee's 1992 Report to
Congress, drafting grant information and applications, and
disseminating information through speaking engagements or printed
materials.

Review of Comments on Proposed Regulations

Mr. Timothy McKeown provided an introductory overview of the
comments received on the proposed regulations. Eighty-two
comments, representing 89 organizations or individuals, were
received. The comments included letters representing 13 tribes,
10 other Indian organizations, 9 museums, 3 national
scientific/museum organizations, 7 universities, 11 state
agencies, 19 Federal agencies, and 17 other private individuals
or organizations. Comments generally fell into four categories:
1) typographical/grammatical errors; 2) misunderstandings; 3)
substantive disagreements with the regulatory text; and 4)
substantive disagreements with the statutory text. Mr. McKeown
indicated that all of the first type, and many of the second and
third type comments, were used to modify the proposed text. The
fourth type of comments were not dealt with.

Discussion of the Proposed Regulations

10.1 Purpose and Applicability

No changes to this section were proposed.

10.2 Definitions

"Federal Agency" [10.2(a)(4)]. Mr. McKeown recommended that
the word "stipulated" be changed to "specified." Mr. Monroe

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asked if a sentence might be added indicating that repatriation
activities at the Smithsonian Institution, which is specifically
excluded under NAGPRA, are mandated by the National Museum of the
American Indian Act. Mr. McKeown agreed the information was
important but explained that statements of an informational
nature are best placed in the Preamble.

"Federal Agency Official" [10.2(a)(5)]. Mr. McKeown proposed
amending this definition to read "means an individual authorized
by delegation or authority within a Federal agency to perform the
duties relating to these regulations." The Committee agreed to
the revision.

"Indian Tribe" [10.2(a)(9)]. Mr. McKeown recommended that
all explanatory text starting with the phrase "Groups that wish
to determine if they qualify as Indian tribes..." be deleted from
the regulations and inserted in the Preamble. Mr. Walker
concurred, say that he found the explanatory material to be
insulting to Native Americans.

Mr. Monroe requested a discussion of the definition of "Indian
tribe" because he felt the original legislation did not intend to
restrict the tribes involved to only those with Federal
recognition. Mr. McKeown replied that the legislative history,
as evidenced by the House and Senate reports, showed that the
definition had been taken from other legislation. Mr. Monroe
disagreed and said that he, as a member of the group who had
advised Congress during the drafting of the legislation, had not
intended to restrict tribal participation.

Ms. Naranjo stated that she found the current statutory
definition troubling in that it excluded some Native American
groups that should be legitimately considered. Mr. Haas and Mr.
Walker agreed, stipulating that the problem would be particularly
acute in California where there were many such unrecognized
groups.

Mr. Haas continued that much of the problem grew from the fact
that NAGPRA requires museums and Federal agencies to proactively
notify all Indian tribes that might be culturally affiliated with
human remains or cultural items in their collections. In order
to comply with the notification requirement, museums and Federal
agencies must have a list of Indian tribes before consultation
begins. What Mr. Haas referred to as the "first come, first
served" repatriation policies of both the National Museum of the
American Indian and the National Museum of Natural History made
such a list less important to them.

Mr. McKeown indicated that the current listing of NAGPRA contacts
for the 761 Federally recognized tribes had taken nearly a year

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to compile, largely due to administrative differences within the
Bureau of Indian Affairs regarding Alaska villages and
corporations. Mr. Haas questioned the feasibility of creating a
more inclusive list in time for museums and Federal agencies to
comply with the November 16, 1993 deadline for completing
summaries of their collections. Mr. Walker agreed that a change
of the list at such a late date could cause chaos among the
museum community but, he agreed that the law was not intended to
limit the tribes to those who were Federally recognized.

Mr. Monroe characterized the discussion as being between what was
right and what was expedient. The spirit of the law would not be
maintained if the regulations continued to exclude Indian people
that had historically been excluded again and again. He said it
was hard for him to accept the argument that because it took so
long to get the first list from the Bureau of Indian Affairs, the
Committee shouldn't recommend the right thing and expand the
list. It was his understanding that the additional information
would not be that hard to procure. He conceded that certain
provisions might need to be added to the regulations to
accommodate for a change at such a late date. In his opinion,
the primary stumbling block was the Department of the Interior's
concern about the precedent of such an action.

Ms. Naranjo agreed that the clause should be embracing rather
than excluding and added that she had a particular problem with
the BIA being responsible for determining whether someone was an
Indian or not. Ms. Craig also voiced her concern with allowing
the BIA to determine if a tribe was qualified. She stated that
not having Federal recognition had not stopped Indians from being
born or dying. Neither had it stopped other people from taking
their bones.

Mr. Haas stated that one alternative would be to retain the
present definition but, also add a statement encouraging museums
and Federal agencies to consult with additional Native American
groups. Mr. Tallbull agreed that such a compromise might work.
Mr. Lars Hanslin concurred that such an admonition would be
possible. Mr. Sullivan agreed, but cautioned that museums could
not be expected to notify newly added groups by the November 16th
deadline. The challenge, he thought, would be to craft
appropriate language to broaden the definition while making it
clear that the primary basis for inclusion needed to be one of
cultural heritage. He felt that if the Secretary and the
Solicitor's Office insisted on the narrow definition, the
Committee should officially register its disagreement.

Mr. Hanslin responded by saying it would be perfectly appropriate
for the Committee to recommend a broader definition. Mr. Haas
challenged Mr. Hanslin's statement, recollecting that discussions

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of the issue at the Fort Lauderdale meeting had included a strong
argument from the Solicitor for limiting the definition to the
BIA interpretation. This information had subsequently been
disseminated to the entire museum community. Mr. Haas considered
such "wishy-washiness" at this late date extremely detrimental as
the definition had been discussed ad nauseam at earlier meetings.
Mr. Hanslin explained that the preliminary views of the
Department of the Interior were that as a matter of law, not
policy, the list should be limited. The real dilemma, according
to Mr. Hanslin, stemmed from the fact that neither the statute
nor the legislative history suggested a broader list.
Regulations can only clarify Congressional intent, even if the
Committee and the Secretary do not agree. Mr. Monroe asked if a
letter from the Chairman of the Senate Select Committee might
help alleviate the problem. Mr. Hanslin replied an individual
Congressman's recollections cannot change the written legislative
history, although such information might be useful to the
Secretary. Mr. Monroe disagreed with Mr. Hanslin's
interpretation of the legislative history which he found to be
neutral regarding the definition of Indian tribe. Mr. Hanslin
explained that legislative intent is determined first by looking
at the language of the statute itself. Only if there is some
ambiguity in the statute are the House and Senate Committee
reports reviewed. Finally, if Congressional intent is still
ambiguous, the initial bills, amendments and hearing record can
be reviewed. Mr. Hanslin continued that the definition of Indian
tribe in one of the earlier versions of the bill had referred to
the definition in the Indian Self-Determination Act and the
statute simply quoted that definition. The Indian Self-
Determination Act definition has been interpreted by the Bureau
of Indian Affairs to mean the tribes on their list. Further,
Section 12 of NAGPRA states that the Act "reflects the unique
relationship between the Federal government and Indian tribes . .
." Such a government-to-government relationship that extends
only to those governments recognized by our the U.S. government.

Mr. Monroe raised his concern that the Department would follow
its own agenda in redrafting the Final Regulations and would not
take the Committee's recommendations into account. Mr. McManamon
explained that the Department will redraft the regulations,
taking the Committee's recommendations into account, and send the
document to the Departmental Assistant Secretaries and the
Solicitor for review and approval. The document will then go to
the Secretary of the Interior for his review and signature. It
was Mr. McManamon's understanding that the definition of Indian
tribe, along with several other issues, would come under
scrutiny. Mr. Monroe asked why. Mr. McManamon responded that it
was his understanding that the recognition of a group by the
Department of the Interior or the BIA brought a variety of
benefits. Mr. Monroe asked if the Department of the Interior had

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one standard definition of Indian tribe. Mr. McManamon responded
that he understood the Department did, but continued that he
thought it might be possible to craft a broader definition for
the purposes of NAGPRA. He advised the Committee to make a
specific recommendation as to a broader definition so that it
could be incorporated into the revised version of the proposed
regulations or sent to the Secretary as an alternative. Mr.
McManamon added that no one had really been happy with the
definition of "Indian tribe" at the Fort Lauderdale meeting and
so the Preamble of the proposed regulations had specifically
asked for comments on the definition because some tribes not
currently recognized by the BIA should be included and, on the
other hand, there are also tribes or fringe groups where the
question is less clear. Mr. McManamon saw the problem as how and
where to draw the line.

Mr. Haas proposed an alternative interpretation of the statutory
language which would include the BIA list as well as other groups
who are able to demonstrate eligibility for the special programs
and services provided by the U.S. because of their status as
Indians. Mr. Haas particularly wanted to include those groups
who were not recognized by the BIA, who did not want to be
recognized by the BIA, but never-the-less, met all the other
criteria. Mr. Hanslin interjected that Mr. Haas' expanded
interpretation of the definition begged the question of who would
be responsible for deciding whether a group was eligible or not.
Mr. McManamon concurred that someone would have to be responsible
for determining if a group was eligible and requested the members
to comment on the palatability of erecting yet another process
for recognizing Indian tribes. Mr. Monroe objected to Mr.
McManamon's request, stating that he wanted to keep the
discussion focused on the issue of participation first and figure
out the process later. Ms. Craig, Ms. Naranjo, and Mr. Sullivan
stated that they felt better about using the BIA list as a
starting point with the possibility of additions.

Mr. Monroe asked if Mr. Haas' expanded interpretation would allow
for terminated tribes to be included. Mr. Haas responded that
Mr. Jack Trope, an attorney with the Association for American
Indian Affairs, had recommended that terminated tribes not be
automatically included, as the reasons for their terminations
were complex and varied. Mr. Monroe asked if the BIA had a list
of tribes under consideration to become recognized. Mr. McKeown
replied that approximately 100 tribes were currently seeking
recognition from the BIA. Mr. Monroe asked for copies of the
list of tribes seeking recognition and those that had been
terminated. The Committee then adjourned to provide the members
with time to review the various lists.

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Mr. Monroe made a statement when the Committee reconvened. He
stated that the Committee shared "the concerns of those opposed
to limiting the Act's applicability to only those tribes
recognized by the Bureau of Indian Affairs" and was "unanimously
and strongly opposed to a policy of exclusion." He continued
that the Act "was not created to apply only to a specific group
of Native Americans, it was created to apply to all Native
Americans" and cautioned that by "limiting participation in
NAGPRA, the fundamental goals and purposes of the Act will be
substantively diminished." Mr. Monroe added that the Department
of the Interior had elsewhere defined "Indian tribe" in several
ways, including some definitions that formally included state-
recognized tribes. He continued that a Federal court, in Abenaki
Nation v. Hughs, had ruled that the NAGPRA definition of "Indian
tribe" clearly included tribes other than those recognized by the
BIA. Mr. Monroe concluded that the Committee "strongly and
forcefully recommends a broad interpretation of the definition of
"Indian tribe" within NAGPRA regulations."

Following Mr. Monroe's statement, Mr. Scott Keep, Assistant
Solicitor for Tribal Government and Alaska within the Indian
Affairs division of the Solicitor's Office, was invited to
provide the Committee a brief history of the definition of
"Indian tribe." He explained that in the early 1970s, many
tribes were petitioning for recognition but, the Department did
not have procedures in place to determine the merit of the
petitions. At that time, the courts established that the
Department might have obligations to a tribe even if the tribe
was not officially "recognized." Consequently, the Department
produced regulations (25 CFR Part 83) for determining if a group
of Indians was indeed an Indian Tribe and a list was published,
in the Federal Register, of all tribes which met the criteria.
The combination of court cases and promulgation of regulations
for recognizing tribes raised the question of encroachment on
state jurisdiction because Indian tribes have certain privileges,
immunities and responsibilities due to their status as Indians.

Mr. Monroe asked Mr. Keep to explain the Department's
reservations regarding the Committee's desire to expand the
NAGPRA definition of "Indian tribe." Mr. Keep considered it a
matter of Congressional intent, explaining that Congress could
have broadened the definition if they wanted to, as they had done
in the Indian Arts and Crafts legislation. Since Congress used
language from a statute where the term was narrowly defined, they
must have been willing to accept the consequences. He added that
the Committee might consider making a recommendation to Congress
that the definition be changed.

Following Mr. Keep's presentation, Mr. Monroe stated that it
appeared to him while the Committee's efforts to expand the

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definition of Indian tribe were well-intentioned, they were
probably not wise. He went on to recommend that the Committee
stick with the statutory language in the regulations and present
a separate statement to the Secretary which argued that the
definition should extend beyond Federally recognized tribes to
tribal groups that are eligible for Federal services because of
their status as Indians. He also recommended that the Committee
ask the Department to compile a list of other tribes who receive
funds from Federal agencies and that list, plus the BIA list,
should be the list for the purposes of NAGPRA. Mr. Monroe felt
that if the regulations were modified to include notification of
additional tribes, technical assistance would have to be provided
to museums or Federal agencies to resolve any confusion over a
tribe's status. Mr. Hanslin replied that there was nothing in
either the regulations or the statute which precluded a museum or
Federal agency from contacting and consulting with tribes which
were not Federally recognized, the only problem would occur when
the time came to actually repatriate objects or remains.

Mr. McKeown asked for a clarification of the Committee's
recommendation as it pertained to Alaska. The statutory language
included Alaska Native villages as defined under the Alaska
Native Claims Settlement Act. The proposed regulations read "any
Alaskan Native village or corporation." Mr. Hanslin stated that
the Department had agreed to the inclusion of the Alaska Native
corporations in the proposed regulations even though they were
not mentioned in the statute and, in his opinion, there was no
reason to remove them. The Committee agreed that the definition
of "Indian tribe" was to follow statutory language with the
explicit addition of Alaska Native corporations.

Mr. Frank Wozniak, NAGPRA Inventory Coordinator for the Southwest
Region, US Forest Service, asked Mr. Monroe, as a participant in
the development of NAGPRA legislation, if they understood
Congressional intent to be an inclusive definition of Indian
tribe, why that understanding was not incorporated into the
statute itself. Mr. Monroe replied that they had been so
involved with trying to bring all the issues together and reach
some sort of compromise that they lost track of what was right.

Ms. Naida Lefthand from the Confederated Salish and Kootenai
Tribes of Pablo, Montana, voiced her concerns about changes in
the definition of "Indian tribe." Ms. Lefthand shared with the
Committee her family's dealings with the BIA's Acknowledgment
Section and explained that people are unable to make the BIA's
enrollment list even though they are Indians and know the
language and the traditions. Ms. Lefthand wanted Indian people
to decide who should be included under the definition of Indian
tribe.

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Ms. Suzan Harjo, President of the Morning Star Institute and
Chairwoman of the Program Planning Committee for the National
Museum of the American Indian, commented that the Committee had a
responsibility to go beyond the arbitrary definition of "Indian
tribe." She contended there are many definitions of "Indian
tribe" used by the U.S. government. She asserted the
Department of the Interior currently deals with non-Federally
recognized tribes, including those that are state-recognized,
under the Indian Arts and Crafts Act Amendments of 1990 although,
she admitted the Arts and Crafts Board list contained some
questionable entities. Ms. Harjo also reported California was
investigating the cases of tribes which had negotiated treaties
that had never been ratified by the Senate.

In Ms. Harjo's opinion, the statutory requirement to deal with
traditional religious leaders includes all religious leaders,
whether belonging to a Federally recognized tribe or not. She
asked the Committee to consider how many tribes would have been
outside the current definition of "Indian tribe" if NAGPRA had
been enacted in the 1970s. In closing, Ms. Harjo reiterated that
the American Indian Religious Freedom Act was the important
document to consider and stated she was speaking on behalf of the
voiceless Indians and hoped the Committee would do well by them.

Mr. Raymond Apodaca, Chairman of the Human and Religious Rights
Committee, National Congress of American Indians, agreed with the
concerns voiced by Ms. Harjo and emphasized the necessity for
expanding the definition of "Indian tribe" to cover viable
continuing communities of Indians. Mr. Apodaca asked that
traditional religions be interfered with as little as possible
throughout the processes covered by the regulations. He
explained, many Indian religions prohibit talking or writing
about religious matters, including the naming of religious
leaders. In addition, Mr. Apodaca cautioned that museums and
Federal agencies need to be extremely careful to deal with the
appropriate person, not just anyone who declares him/herself a
spokesperson or religious leader. Ms. Harjo agreed that correct
contact information must be provided to museums and Federal
agencies.

Mr. Apodaca stated that although museums may be dealing with
objects, Indians are dealing with their ancestors and with the
means of communicating with the Creator. He continued that many
tribes are faced with activities, such as dealing with the dead,
they are not prepared to deal with. Mr. Apodaca added that
although some comments put forth by members of the audience may
have been offensive, they would not have been necessary if human
beings were treated as human beings. He apologized for the
comments but added they resulted from frustration with the system
and the situation. Mr. Apodaca asked the Committee and the

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museum community to remember history and try to understand why
the tribes feel the way they do.

Mr. Tim Mentz, Sr., Tribal Council member from the Standing Rock
Sioux, Fort Yates, North Dakota, told the Committee that a
majority of the people on his reservation did not want to be
recognized by the BIA. Mr. Mentz asked the Committee to
seriously consider every decision regarding the regulations
because they affected every tribe in the U.S. He said the
discussion was creating conflicts between tribes where none
existed. Ms. Naranjo responded that although she was unable to
shed her "puebloness", she tried very hard to represent all
tribes in all her dealings as a Committee member.

"Native Hawaiians" [10.2(a)(10)]. Mr. Monroe questioned the
inclusion, throughout the regulations, of Native Hawaiians under
the general category of Indian tribes. He felt it would be more
appropriate, as Native Hawaiians were never organized as tribes,
to add "and Native Hawaiian organization" wherever the
regulations refer to "Indian tribes". Mr. Walker agreed and
noted that subsuming Native Hawaiians into the definition of
Indian tribe would deprive them of the flexibility afforded them
by the broad statutory definition of Native Hawaiian. Mr.
McKeown asked Ms. Craig if Alaskan Natives liked being referred
to as Indian tribes. Ms. Craig agreed with Mr. Monroe and Mr.
Walker that Native Hawaiians should be noted separately from
Indian tribes in the regulation's wording because NAGPRA
specifically identified Native Hawaiians. She added, although
so-called Eskimos do not appreciate being categorized as Indians
and would rather be referred to by ethnic groupings such as
Inupiat and Yupik, they have resigned themselves to being
referred to as Indian tribes because national legislation has
used that wording. Ms. Naranjo stated that groups of people
should be referred to by names of their choosing. Mr. McKeown
questioned the feasibility of replacing all references to "Indian
tribes" with "Indian tribes, Native Alaskan villages and
corporations and Native Hawaiian organizations" due to the
confusion which may result from such verbiage. The Committee
decided to leave the wording as written.

"Native Hawaiian Organization" [10.2(a)(11)]. Mr. Monroe
asked why this definition had not been changed in light of
several recommendations in the comments. Mr. McKeown responded
that several commentors had recommended inserting a requirement
that Native Hawaiian organizations have a majority of Native
Hawaiian members. He explained that the legislative history
showed such a requirement was not intended by Congress, since an
earlier House version of the bill had included such a provision
but the final statute did not. Thus, Congress had considered the
requirement and decided against including it in the definition.

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"Indian Tribal Official" [10.2(a)(12)]. Mr. McKeown proposed
amending the definition to read "means the principle leader of an
Indian tribe or the individual officially designated by the
governing body of an Indian tribe or as otherwise provided by
Tribal code, policy, or procedure as responsible for matters
relating to these regulations." Mr. McManamon explained some
tribes do not have codes or written documents which declare
exactly who has authority to deal with certain issues. The
important point of the change was that it left the decision
making process to the tribe. Mr. Haas questioned how a museum
official would know what procedure a particular tribe used and
asked that the phrase "established tribal code, policy or
procedure" be included to provide minimum additional guidance.

"Lineal Descendant" [10.2(a)(14)]. Mr. McKeown recommended
the definition be modified to include the possibility of tracing
ancestry by "the common law system of descendance" as well as by
means of a traditional kinship system. The Committee agreed.

"Human Remains" [10.2(b)(1)]. Mr. Monroe brought up the
feasibility of determining if portions of human remains were
freely given. In his opinion, the regulations should not make
such impossible demands. Mr. Sullivan reminded Mr. Monroe that
the language came from Committee discussions at the Fort
Lauderdale meeting. Mr. Monroe agreed but suggested the
inclusion of modifying language. Mr. Hanslin suggested the
phrase, "remains that may reasonably be determined to have been
freely given". Mr. Walker and Mr. Sullivan approved of the
wording because it gave tribes and the Committee a legal position
to recommend punishment if a museum or agency attempted to evade
the law.

"Associated Funerary Objects" [10.2(b)(3)]. Mr. Monroe
remarked on one comment concerning the addition of "or near" to
the statutory definition. Mr. McManamon responded that the term
had been added after discussion at a previous Committee meeting
where it had been agreed that in some burial practices objects
were not necessarily placed with a body but near it. Mr.
Tallbull agreed and explained that at the time of death the
Cheyenne place a man's weapons and medicine bundles at some
distance from his grave. The Committee concurred that the
reasoning behind this addition was still sound.

"Sacred Objects" [10.2(b)(5)]. Mr. Monroe questioned the
addition of the word "current" to the statutory definition. The
Committee decided to follow statutory language and remove the
word.

Ms. Naranjo questioned inclusion of the phrase "or function in
the continued observance or renewal of such ceremony" in the

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regulatory definition. She felt, and Mr. Walker agreed, that for
an object to be considered sacred by a tribe, it should be needed
for a religious ceremony, not used to reclaim their culture by
reinvigorating the ceremonies. Mr. McKeown responded that the
phrase was drawn from the House Committee report and continued
that the report provided additional clarification of
Congressional intent by stating that "the Committee recognizes
that the practice of some ceremonies has been interrupted because
of governmental coercion adverse societal conditions or the loss
of certain objects through means beyond the control of the tribe
at the time. It is the intent of the Committee to permit
traditional Native American religious leaders to obtain objects
as are needed for the renewal of ceremonies that are part of
their religions." Mr. Tallbull agreed that in certain
circumstances, such as the return of a medicine wheel or the
reburial of a skeleton, renewal ceremonies were necessary. He
also explained that some tribes hold annual ceremonies to renew
their medicine bundles, replacing certain physical parts and
reintroducing the bundle to the tribe's ritual system so that the
system is in balance again. Mr. Monroe repeated he wanted to be
clear on the Committee's opinion because some tribes felt it was
appropriate to have an object repatriated in order to restore a
ceremony which had been discontinued but some museums were
concerned because such action could set a precedent for
inappropriate repatriation claims. He explained that the concept
of "renewal" had been a subject of deep contention during the
drafting of the legislation and the word had been omitted from
the statute for that reason. Mr. Monroe encouraged the use of
language which allows repatriation of objects for renewal of
practices which have clear historical precedent, even if they are
not performed at the present time, because that was the intent of
the law. Ms. Naranjo agreed.

Ms. Craig spoke about Alaskan religious beliefs in which the
traditional religions and Christianity coexist. Sometimes the
beliefs have been modified in order to fit into the majority's
system. She wanted it made clear that "traditional religion"
needed to be defined from the Native perspective so as not to
impose conflicts. Mr. Tallbull agreed.

"Cultural Affiliation" [10.2(c)]. Mr. Monroe proposed adding
the following line to the definition: "Cultural affiliation may
be reasonably concluded when the preponderance of geographical,
kinship, biological, archeological, linguistic, folklore, oral
tradition, historical evidence, or other information or expert
opinion supports such a conclusion." The Committee concurred.

"Tribal Lands" [10.2(d)(2)]. Mr. McKeown recommended that
the definition be amended to delete the phrase "excluding
privately owned lands", and adding "(iv) The regulations shall

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not apply to Tribal lands to the extent that any particular
action authorized or required hereunder would result in a taking
of property without compensation within the meaning of the Fifth
Amendment of the United States Constitution." The Committee
agreed to delete the phrase "excluding privately owned lands."

Mr. Monroe asked for an explanation of the section regarding the
Fifth Amendment. Mr. Hanslin explained that statutory language
covered "all lands which are within the exterior boundary of any
Indian Reservation." This definition contradicted other
statutory language which made clear that no takings were implied.
The proposed regulations had excluded all privately owned lands
within a reservation's exterior boundaries. However, Mr. Hanslin
continued, one of the comments had argued that certain actions,
such as the repatriation of human remains, would not result in a
taking even if applied to private lands since there can be no
property interest in human remains. The present draft had been
changed to focus more narrowly on possible instances of Fifth
Amendment takings such as the repatriation of individually owned
sacred objects. Common law in many states would hold that sacred
objects found on private land belong to the land owner. A taking
would occur if the object had to be turned over to a tribe.

Mr. McManamon added that in reviewing the comments he had come to
realize that there was a greater possibility for a taking to
occur during property development. The proposed definition of
"tribal lands" allowed a tribe to make all the decisions with
regard to what happens to objects and human remains. A tribe
could decide, on otherwise private land, that it did not want
objects disturbed. The owner could then have an argument that
there was a taking of his/her right to get the full benefit of
the property. Mr. McManamon concluded the revised definition was
an attempt to deal with this possible problem.

Mr. Monroe asked who would determine if a taking had occurred.
Mr. Hanslin replied that the court would be responsible for
making such a determination.

Mr. Monroe stated that one of the commentors argued that the
statute clearly stated that tribal lands include all lands within
the exterior boundary of Indian reservations and the inclusion
should be maintained because landowners cannot own human remains.
In addition, the Supreme Court had recognized tribal jurisdiction
over non-Indians where their conduct effects the health and
welfare of the tribe. Mr. Hanslin agreed that these arguments
could be followed up to the point when a Fifth Amendment taking
occurs. He explained that the proposed revision agreed with the
stated arguments except in instances where tribal control over a
site or the contents therein would constitute a taking.

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Mr. McManamon asked for clarification from Mr. Hanslin regarding
the status of lands held in trust by the United States that are
outside the boundaries of an Indian reservation. According to
the proposed regulations, would these lands be included as
"tribal lands" under the concept of dependent Indian communities?
Mr. Hanslin responded that such lands would probably be
considered as Federal lands because the U.S. government owns them
in trust for Indian tribes. Mr. McManamon pointed out that
Indian tribes would have less control over lands held in trust if
they are considered to be Federal lands.

"Possession" [10.2(e)(5)]. Mr. McKeown proposed adding the
following sentence: "Generally, a museum or Federal agency would
not be considered to have possession of human remains or cultural
items on loan from another individual, museum, or Federal
agency."

"Control" [10.2(e)(6)]. Mr. McKeown proposed adding the
following sentence: "Generally, a museum or Federal agency that
has loaned human remains or cultural items to another individual,
museum, or Federal agency is considered to retain control of
those human remains or cultural items for purposes of these
regulations."

Mr. Monroe read one comment which requested a return to statutory
language for the definitions of "possession" and "control". Mr.
Hanslin responded that the changes had amplified the statutory
meaning. He continued that a literal reading of the original
language would have forced museums and Federal agencies to
repatriate objects that had been left in their possession instead
of only the objects which they had a legal right to repatriate.
The literal reading would have increased the problem of Fifth
Amendment takings. Mr. Monroe replied that he was skeptical of
Mr. Hanslin's interpretation when two other lawyers had a
different reading of the problem and questioned whether Mr.
Hanslin was working for the Committee or for the Department of
the Interior. Mr. Hanslin and Mr. McManamon explained the
Committee was free to take Mr. Hanslin's advice or not, at their
discretion. Mr. Hanslin explained that the rewritten version of
the regulations said, essentially, that museums must have
sufficient legal interest in an object to be able to transfer the
object. Congress had tried to address the problem through the
definition of right of possession. The comment by Mr. Jack Trope
and Mr. Walter Echo Hawk resolved the problem by saying a museum
has possession unless it results in a taking of property. Mr.
Hanslin felt the amended language stated the situation more
clearly. Ms. Naranjo said she worried about Mr. Trope's comment
because it implied museums had an "out" if they claimed not to
possess objects. Mr. Hanslin responded that, in his opinion, the

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regulations did not provide an "out" for museums, the statute
did.

Mr. McManamon asked the Committee for examples where museums have
objects in their possession which they do not own. Mr. Sullivan
responded that a museum may feel it does not have clear title to
an object and would deny a repatriation request out of fear that
someone with a greater interest would bring legal action. In
addition, an object may have been donated with conditions which
repatriation would break. The museum would need to evaluate the
conditions before agreeing to repatriation. Mr. Sullivan said it
did not seem to him that the regulatory language allowed museums
to invent reasons for not complying in the way that Mr. Trope and
Mr. Echo Hawk alleged. Mr. Monroe added that objects on long-
term loan from private individuals or held in a museum's care but
owned by a Federal agency are not owned by the museum. Mr.
Monroe recounted a situation where a museum acted as a go-between
when a tribe requested the repatriation of an object on loan to
the museum. The Committee decided that the rephrasing did not
present any new loopholes and agreed to retain it.

Mr. Wozniak asked for a definition of the word "repatriation"
because its use in the statute implied the transfer of property
rights. Mr. Monroe cautioned that NAGPRA should not be seen as a
property rights issue but rather, as concerning people and the
creation of a better relationship between Native Americans,
museums and the scientific community. He felt that any attempt
to define repatriation would limit the range of NAGPRA.

10.3 Intentional Excavations

Mr. McKeown proposed that the following sentence be added
immediately before the last sentence of 10.3(c)(2): "Written
notification should be followed up by telephone contact if there
is no response in 15 days." The Committee concurred.

Mr. Monroe asked for an explanation of when a planned activity
would be subject to review under Section 106 of the National
Historic Preservation Act as referred to in 10.3(c)(3). Mr.
Hanslin replied that any action which is assisted by Federal
money, or which requires a Federal permit, and has the ability to
affect cultural resources, is subject to the provisions of
Section 106. Thus, there would be a great deal of overlap
between NAGPRA and Section 106 for Federal undertakings conducted
on Federal or tribal lands.

Mr. McKeown recommended adding a sentence under 10.3(c)(4) to
recommend that Indian tribes should take appropriate steps to:
"(i) Ensure that the human remains and cultural items are
excavated or removed in accordance with 10.3(b)(1), and . . ."

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The original phrase would be renumbered as 10.3(c)(4)(ii) and
changed to read: "make certain that treatment and disposition of
any human remains or cultural items excavated or discovered as a
result of the planned activity are carried out in accordance with
their ownership as described in 10.6." The Committee concurred.

10.4 Inadvertent Discoveries

Mr. McKeown proposed changing the first sentence of 10.4(b) to:
"Any person who knows or has reason to know that he or she has
discovered human remains or cultural items on Federal or Tribal
lands after November 16, 1990, must provide immediate telephone
notification of the discovery, with written backup..." Mr.
Hanslin explained that this change made it clear that the
discoverer, as opposed to a bystander, has the responsibility to
notify the appropriate authorities. Mr. McKeown explained that
immediate telephone notification would provide a Federal land
manager with the time necessary to identify the proper Indian
tribal representatives prior to the receipt of formal, written
notification and the beginning of the required 30-day
consultation period.

Mr. Monroe referred to several comments that identified the one-
working-day notification period required in 10.4(c) as being
impractical. Mr. Sullivan reminded him of the recommended change
in the previous section that required immediate telephone
notification followed up by a letter, the receipt of which
triggers the one-working-day deadline. Mr. Monroe asked what
would happen if, after 30 days, there was no response. Mr.
Hanslin replied that the statute only stops the excavation
progress for 30 days so, if there was no response in 30 days, the
excavation could continue. Mr. McManamon explained the finite
period of inactivity was the reason the regulations had been
structured to encourage proactive consultation and the
development of a plan prior to excavation which could be followed
in the case of a discovery. Mr. Hanslin added that in reality,
the excavation probably would not resume in 30 days because other
Federal laws could also apply. Ms. Craig reported that she had
heard reports that construction companies might stop reporting
discoveries because continued 30-day halts would cost them money.
Mr. Ball said that, in his experience, companies often isolate a
contested site and continue their work in other areas while the
consultation process progresses.

Ms. Deborah Osborne, from the Federal Energy Regulatory
Commission, asked how to proceed if, 30 days after an inadvertent
discovery, no approved written plan of action is in place. Mr.
McManamon agreed that this question had been raised by a number
of commentors and promised to see if the section could be
clarified.

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Mr. Wozniak asked for guidelines to determine the "area of
discovery", where project activity must be suspended, as stated
in 10.4(c). In addition, Mr. Wozniak questioned the necessity
for notifying tribes when a discovery had been made anywhere on
their aboriginal land claim as too broad a spread of cultural
affiliation.

10.5 Consultation

Mr. McKeown recommended inserting the following sentence before
the last sentence in 10.5(b): "The notice shall propose a time
and place for meetings or consultation to further consider the
inadvertent discovery or intentional excavation, the Federal
agency's proposed treatment of the human remains or cultural
items that may be excavated, and the proposed disposition of any
excavated human remains or cultural items." The Committee
concurred.

Mr. McKeown proposed retitling 10.5(f) "Comprehensive
agreements." Mr. McManamon explained that one of the statute's
primary goals was improving relationships between Indian tribes
and Federal agencies. In his eyes, comprehensive agreements were
a way to bring people together and, hopefully, create more
positive relationships through the continual discussions
necessitated by such agreements. The regulations had not been
drafted with the thought that Federal agencies would draw up pro
forma documents and continue with business as usual. Mr. Walker
and Ms. Naranjo asked that examples of agreements be included.
Mr. McKeown reminded the Committee that Appendix E of the
regulations had been reserved for such an example. Mr. McManamon
described a hypothetical agreement which laid out the steps to
follow and the individuals to contact when human remains or
cultural items were discovered. In his view such an agreement
could provide information to the Federal agency and to the tribe
such that the Federal agency would know what to do and the tribe
would be able to expect certain actions. Mr. Tallbull agreed
that in such a situation the tribe would be able to monitor
compliance with the plan.

Ms. Lefthand stated that face-to-face consultations were
necessary because tribes had been hurt by Federal agencies whose
idea of consultation was a letter. She asked how to trust
someone you had never seen before. Ms. Naranjo agreed that face-
to-face consultation was very important, especially for
inspection of objects and repatriation requests. Initial
contact, she felt, could be handled through telephone calls or
letters but, as the process progresses, face-to-face meetings
become imperative.

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10.6 Ownership

Mr. McKeown recommended amending the requirement for publication
of general notices of the proposed disposition in a newspaper of
general circulation to include provisions for publication "if
applicable, in a newspaper of general circulation in the area(s)
in which culturally affiliated Indian Tribes now reside." Such a
provision would ensure that culturally affiliated Indian tribes
were aware of inadvertent discoveries in their former
territories. The Committee concurred.

Mr. Wozniak asked for clarification of what information would be
published in a Notice of Intent to Repatriate. In addition, he
questioned the propriety of requiring a notice of proposed
repatriation to be published in a general circulation newspaper
as such a notice would alert pothunters to forthcoming
opportunities and call undue attention to the repatriated
objects. He suggested directly contacting all tribes which had
been consulted. Mr. McManamon responded that the published
notice was intended to notify all lineal descendants who may or
may not have been contacted previously and it should announce an
impending repatriation without mentioning reburial. Mr. Sullivan
commented if the notice mentioned the discovery site that would
give pothunters a location to search. Mr. McKeown added that the
alternative would risk repatriation to the wrong people.

10.8 Summaries

Mr. McKeown proposed changing the term "undertakings" in 10.8(a)
to "actions." Mr. Walker asked for clarification, stating that
the changed language did nothing but scare a non-lawyer. Mr.
McManamon explained that the term "undertakings" had a specific
meaning within the context of Section 106 of the National
Historic Preservation Act. A less specific term was needed for
the NAGPRA context. Mr. McManamon stated he was not entirely
happy with the change as it begged the question of who decides if
an activity falls under NAGPRA. He explained he had heard
reports that some U.S. Army Corps of Engineers districts were
applying the principles of NAGPRA to activities on non-Federal
lands. It is a question the Department of the Interior will have
to look at.

Mr. Sullivan requested clarification regarding the applicability
of civil penalties to museums that did not complete summaries by
the November 16, 1993 deadline stipulated in 10.8(c). Mr.
McManamon stressed that the section of the regulations regarding
civil penalties had been drafted and agreed that the Committee
would need to address the issue of penalties at an upcoming
meeting.

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Mr. McKeown recommended the addition of the following sentence
under 10.8(d)(2): "Consultation may be initiated with a letter,
but should be followed up by telephone or face-to-face
consultation." He also proposed including the following as the
second sentence under 10.8(d)(3): "A copy of the summary shall
also be provided to the Departmental Consulting Archeologist."
The Committee concurred.

Mr. Haas was concerned with the feasibility of museums
identifying traditional religious leaders for consultation. Ms.
Naranjo indicated that some Pueblos did not want museums to
contact religious leaders. Mr. Tallbull concurred, stating that
the Northern Cheyenne have two governmental structures, the
formally elected tribal officials and a traditional governmental
of 44 chiefs. Some museums have consulted with traditional
chiefs without notifying the tribal government. This has caused
confusion. Mr. McManamon explained that current wording was
designed to reflect the contentious nature of religious and
political leadership in some tribes by allowing museums some
latitude in how they identify traditional religious leaders. Mr.
Haas suggested subsuming 10.8(d)(ii) and (iii) under
10.8(d)(iv) so that a museum's request for the names of
traditional religious leaders, where appropriate, would be a part
of its total request for recommendations on how the consultation
process should be conducted.

Ms. Naranjo voiced her concern with the requirement in 10.8(e)
to provide item-by-item lists to the Departmental Consulting
Archeologist. She felt the primary relationship intended by the
statute was between museums and Indian tribes. Ms. Naranjo also
worried that sensitive information held by the Departmental
Consulting Archeologist might get into the wrong hands through a
Freedom of Information Act request. Mr. McManamon replied that
the lists are necessary to allow the Committee to monitor the
repatriation process as well as providing a central location for
information which may be useful to other tribes and/or museums.
Mr. McManamon added that the language could be changed to ensure
that if sensitive information was included as part of the
decision making process it not become part of the public record.
He suggested deleting 10.8(e)(1-8) and revising the next
sentence to read: "The notice of intent to repatriate shall
describe the unassociated funerary objects, sacred objects, or
objects of cultural patrimony being claimed in sufficient detail
so as to enable other individuals or Indian tribes to determine
their interest in the claimed objects."

Mr. Haas inquired as to how long a museum should wait after the
publication of a notice in the Federal Register before it
proceeded to repatriate human remains or cultural items. Mr.
McManamon explained that 10.10 contained the statement that

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repatriation could take place 30 days after the date the
notification was published. Mr. Haas suggested that the
information also be included at the end of 10.8(e). Mr. Monroe
objected to the 30 day waiting period, stating that the statute
was clear that nothing should prevent repatriation. He referred
to the comment by Mr. Jack Trope and Mr. Walter Echohawk in which
they argued that repatriation should occur immediately and not be
delayed. Mr. Haas and Mr. Sullivan responded that failure to
publish such a notice would be disastrous to the entire process.
Mr. Haas explained that the Field Museum was currently involved
in the repatriation of a sundance wheel to the Northern Arapaho.
The museum's records indicated that the wheel originated on the
Wind River Reservation, home of the Northern Arapaho. The museum
consulted with the Arapaho Business Council, the Council of
Ceremonial Elders from the Northern Arapaho, members of the
Northern Arapaho Sun Dance Ceremony, members of the Northern
Arapaho Tribal Council and a member of the Southern Arapaho
Tribal Council. All of the consultants confirmed that the wheel
should be repatriated. However, during the process of receiving
approval for repatriation from the museum's Board of Trustees,
members of the Arapaho community, a keeper of the sundance wheel,
a chief of the Sun Dance Ceremony, and a keeper of the Southern
Arapaho sundance wheel contacted the museum and urged them not to
repatriate. An additional objection was raised by the Southern
Arapaho following publication of the Notice of Intent to
Repatriate in the Federal Register. Mr. Haas felt the 30 day
waiting period had provided the Southern Arapaho community with
the time necessary to discuss the situation and voice their
objection.

Mr. Wozniak questioned the need to summarize archeological
surface collections as it was probable that they would not
contain sacred objects or objects of cultural patrimony. Mr.
Monroe felt it would not be safe to assume, just because the
materials were collected from the surface, that they were not
sacred or objects of cultural patrimony. Mr. Haas counseled
following the directives in 10.8 but to realize that museums
would not be able to provide the same amount of detail for
archeological collections as they could for ethnographic
collections.

10.9 Inventories

Mr. McKeown recommended replacing the term "undertaking" in
10.9(a) with "action." The Committee concurred.

Ms. Naranjo asked how long is a reasonable time for a museum to
wait for a response. She explained that some Indian tribes do
not respond to letters, in addition, some letters do not reach
the appropriate person, so a follow-up telephone call might get a

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better response. But, she questioned how much more beyond a
letter and a phone call would be reasonable to expect.

Mr. Monroe requested that the first line of 10.9(b)(2) be
rewritten as follows: "Museum and Federal agency officials shall
begin inventory consultation as early as possible, no later than
the point in the inventory process at which investigation into
the cultural affiliation of human remains and associated funerary
objects is being conducted." Mr. Monroe remarked that a number
of responses concerned the definition of consultation and he felt
that point needed some discussion and possibly the inclusion of
minimum parameters. Mr. McManamon responded that he felt, from
his work with other regulations, that the proposed regulations
dealing with consultation during excavation were among the most
detailed in trying to describe how to go about consulting. Mr.
Monroe was concerned with the regulations dealing with
consultation during the summary and inventory process. He wanted
to add more detailed guidelines for museums and tribes to
forestall museums writing a single letter and letting the process
die. Ms. Craig said the small villages in Alaska would probably
contact the larger Native corporations to find out what to do
with a museum notification. She continued with a recommendation
for museums to send copies of everything mailed to a village to
the central Native corporation as well.

Mr. McManamon raised the possibility of requiring face-to-face
consultation but both Mr. Monroe and Mr. Walker said that there
would be times when a face-to-face consultation would not be
possible and such a requirement would be a burden to both tribes
and museums. Mr. Tallbull responded that a law may require
consultation but the parties don't have to listen to one another.
He said some Indians feel that Federal agencies simply "go
through the motions" of consultation without any intention of
considering the other party's side. This feeling has made some
tribes reluctant to participate in consultations. Ms. Craig
added that in some instances face-to-face consultation with
elders would be the only means of identifying some sacred and
burial objects. Mr. Monroe wanted to clarify that consultation
was construed to mean a dialogue. Mr. McKeown proposed adding a
sentence to read: "Consultation may be initiated with a letter,
but should be followed up by telephone or face-to-face dialogue."
The Committee agreed. Mr. Sullivan also suggested the inclusion,
at the end of the regulations, of a sample consultation
procedure. Mr. McManamon agreed that the Park Service would
draft sample procedures for review by the Committee.

Ms. Naranjo referred to one of the comments that recommended the
inventory of culturally unidentified human remains and cultural
items identified in 10.9(d)(2) be publicized by tribal media.
Mr. McManamon recommended against including such a requirement in

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the present section, as 10.11 had specifically been reserved to
outline requirements for such items. Including a requirement in
this section would unduly tie the Committee's hands when the time
comes for their recommendations to the Secretary.

Mr. Wozniak asked what sort of electronic format, as stated in
10.9(e)(4), would be required for the transmittal of information
to the Department of the Interior. Mr. Mcmanamon replied the
language as written was rather strong and a change would be
considered to allow for leeway.

Mr. Monroe recommended that "an extension" referred to in
10.9(f) be changed to "one extension" to make it clear that
continued extensions would not be possible.

Mr. Wozniak voiced concern that 10.8 and 10.9 required Federal
agencies to ensure all requirements were met for collections
which originated on lands controlled by them. Mr. Wozniak
pointed out that a large percentage of the materials were
collected as a result of research initiated and carried out by
the universities and museums which now hold the collections. Mr.
Wozniak asked that shared responsibility for these collections be
considered.

10.10 Repatriation

Mr. Monroe objected to the requirement in 10.10(b)(2) that
repatriation of human remains and associated funerary objects not
occur until a Notice of Inventory Completion had been published
in the Federal Register. In Mr. Monroe's opinion, that
requirement was contrary to other provisions in the statute. He
was concerned that museums and agencies would delay repatriating
remains until they had completely finished and published all
their inventories. Mr. McManamon replied that he felt 10.9 had
made it clear that museums and agencies were encouraged to
produce inventories on parts of their collections, especially on
the parts where they had more information.

Ms. Naranjo raised objections to the exception for scientific
study "commenced prior to receipt of a request for repatriation"
in 10.10(c)(1). Mr. Sullivan noted that the particular
statement was even stronger than the statutory language. Mr.
McKeown added that the revision had been made based on discussion
at the Fort Lauderdale meeting. Mr. Walker and Mr. Monroe agreed
it was a tough standard. Mr. Haas asked if comments had been
received regarding the section. Mr. McKeown replied that three
commentors recommended deleting the section. Mr. Monroe and Ms.

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Naranjo recommended removing the phrase as there had been an
objection to it in the comments.

Mr. Tallbull asked whether the benefit to Indians might be
considered in defining whether a study was of "major benefit" to
the United States. Numerous studies have been conducted on
Federal and Indian lands and he didn't recall ever seeing the
results made available to a reservation library. Mr. Haas
suggested including a statement in the Preamble indicating that
the Committee considered the
"major benefit" standard to be a very high one. Mr. Tallbull
also requested that the information gained from any scientific
study be made available to Indians.

Ms. Osborne asked who would decide what constituted a scientific
study of major benefit to the United States. Mr. McManamon
responded that, at this point, there was no definition of "major
scientific importance" and he felt such situations would be rare.
He suggested consultation if an agency believed a study to be
crucially important. If no agreement could be reached, the tribe
and the agency could present the situation for dispute
resolution.
Ms. Naranjo requested that the final phrase in 10.10(c)(2) be
changed from "proper recipient" to "most appropriate recipient"
to more closely reflect statutory language. Mr. Sullivan
proposed changing the second line of the section to read: "In
such circumstances, the museum or Federal agency may retain the
human remains and cultural items..." The Committee concurred
with both changes.

Mr. Haas cited several comments requesting the return to
statutory language in 10.10(c)(3). Mr. Hanslin explained that
the statutory language had been changed for legal considerations.
The United States Claims Court referred to in the statute no
longer exists and has been replaced by the Court of Federal
Claims, a statutory court. But, the Supreme Court is the only
court which can decide a taking and Congress cannot, by writing a
law, decide that a statutory court has priority over the Supreme
Court. Mr. Sullivan said the Committee simply wanted to make
clear what a Fifth Amendment taking was. Mr. Hanslin agreed and
suggested "as determined by the Supreme Court of the United
States." Mr. Daniel Weiner, outside counsel for the American
Museum of Natural History, New York, N.Y., commented that the
phrase might confuse people and make them think such a case would
have to go to the Supreme Court. Mr. Hanslin responded with the
phrase, "a court of appropriate jurisdiction upon application of
established Federal case law."

Mr. Sullivan requested a separate section for the last sentence
in the paragraph of 10.10(c)(3) because he felt it was a very

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important concept and had come directly from the statute. Mr.
McKeown responded that the structure of the section would not fit
if the sentence was made 10.10(c)(5), but that some other
revision could be worked out emphasize the sentence.

Mr. McKeown proposed inclusion of a statement to be renumbered
10.10 (e) indicating that museum or Federal agency officials
should inform the recipients of repatriations of any known past
treatment of the objects that might represent a potential health
hazard to persons handling the objects. The Committee concurred.

Mr. McKeown proposed including a statement under 10.10 (e)
specifying the potential applicability of various endangered
species legislation to the repatriation process. Mr. Monroe
questioned the addition of such a blanket statement requiring
compliance without understanding the affect on NAGPRA. He was
concerned that the addition would create confusion and suggested
the regulations provide either an in depth analysis of the
Federal wildlife laws and their application to NAGPRA or simply
state that such laws may be relevant to certain objects
repatriated under NAGPRA. Mr. Walker agreed and specifically
noted that objects repatriated to northwest coastal Indian tribes
might be covered by the Marine Mammal Protection Act. Ms. Craig
agreed and remarked that Native Alaskans also made objects from
marine mammal parts.

Mr. Sullivan described the Heard Museum's interaction with the
Fish and Wildlife Service. Delegates from the Crow Nation in
Montana had identified a medicine hoop, containing eagle parts,
as a sacred object and requested its return. The Heard Board of
Trustees agreed to repatriate the medicine hoop but asked if the
museum could be accused of trafficking in endangered species.
The question was resolved with a phone call to the Fish and
Wildlife Service.

Ms. Marcia Cronan and Mr. Frank Shoemaker, Investigative Special
Agents for the U.S. Fish & Wildlife Service, were asked to
address the Committee. Ms. Cronan explained that there were so
many Federal wildlife statutes which may apply to Native American
cultural objects, due to the inclusion of protected animal parts,
that the easiest way for a museum to be sure they were in
compliance would be to call a central contact person for the Fish
& Wildlife Service and get the information. Mr. Monroe and Mr.
Haas asked if the Service was prepared to deal with the thousands
of questions they might receive from small museums and historical
societies whose collections include marine mammal ivory or bone.
Ms. Cronan replied it would be to a museum's advantage to ask the
question of the Service rather than be in violation of the Act.
Mr. Monroe asked if the Service had ever prosecuted a museum.
Ms. Cronan replied that she could not think of a museum in the

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Eastern Region, where she works, which had deliberately violated
a Fish & Wildlife statute. Mr. Monroe asked if Native Americans
were exempted from some of the provisions in the Acts. Ms.
Cronan agreed that in some circumstances they were.

Mr. Weiner asked what the per unit cost of permits would be. Ms.
Cronan replied the Service needed to look into the charges but
she expected something could be worked out where one fee would
cover all repatriated objects. Ms. Pemina Yellow Bird, member of
the Three Affiliated Tribes, Fort Berthold Reservation, North
Dakota, commented that the objects involved were not black market
objects, they were the belongings of the dead. She disagreed
with "white man's laws" regulating Native American cultural
objects and she did not feel native peoples should need permits
to have their ancestors returned. Ms. Cronan replied that the
issue of a tribe obtaining a permit for cultural objects may not
occur but, she simply wanted to make it known that the Service
was available to answer questions should any museum, agency, or
tribe have one. Mr. Walker asked if Fish & Wildlife intended to
issue blanket waivers covering all repatriated materials. Ms.
Cronan did not know of any intent at the current time but she
agreed it should be looked into. The Committee recommended that
information concerning possible Fish & Wildlife statute
violations be placed in the Preamble to notify museums and
agencies of the potential for problems.

Mr. McKeown recommended inclusion of a statement under 10.10 (e)
indicating that museum or Federal officials, at the request of an
tribal official, could take steps to ensure that information of a
particularly sensitive nature is not made available to the
general public. The Committee concurred.

10.14 Lineal Descent and Cultural Affiliation

Mr. McKeown recommended replacing the "must" in 10.14 (c)(2)
with "may include, but is not limited to." The Committee
concurred.

Mr. McKeown recommended inclusion of a statement under 10.14 (d)
indicating that findings of cultural affiliation should be based
upon an overall evaluation of the totality of circumstances and
evidence pertaining to the connection between the claimant and
the material being claimed and should not be precluded solely
because of some gaps in the record. Mr. McKeown explained that
the proposed language was verbatim from the House Report per the
comments of Mr. Echo Hawk and Mr. Trope. The Committee
concurred.

10.15 Repatriation Limitations and Remedies

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Ms. Naranjo questioned the use of the phrase "timely claim" in
the second sentence of 10.15 (a). Mr. Hanslin reminded her that
the Committee developed the phrase at the Fort Lauderdale meeting
as a means of identifying an end of the repatriation process. He
continued that it only applied in a situation where repatriation
is scheduled and a dispute occurs. In such a situation the
protesting party has at least 30 days after a Notice of Intent to
Repatriate or a Notice of Inventory Completion is published in
the Federal Register to complain.

Mr. Sullivan questioned the change in the third sentence in
10.15(a) from "may" to "shall" so that the resulting sentence
read "If there is more than one claimant, the human remains
and/or cultural items shall be held by the responsible museum . .
." Mr. Sullivan felt that the use of "may" left open the
possibility of a third party holding the object during the
dispute resolution. Mr. Haas asked if the choice of "may" left
museums open to accusations of not paying attention to
repatriation claims. After the Committee members discussed
possible alternative phrasing it was decided to stay with the
statutory language.

PUBLIC COMMENT

Mr. Frank Wozniak, NAGPRA Inventory Coordinator for the
Southwestern Region of the U.S. Forest Service, asked a number of
questions regarding specific points in the regulations. His
comments have been included under the appropriate regulatory
reference.

Ms. Naida Lefthand, Assistant Director of the Kootenai Culture
Committee on the Flathead Reservation in Montana and delegate
from the Confederated Salish Kootenai of Pablo, Montana,
commended the Committee on the time and effort they had expended
trying to formulate the regulations. Ms. Lefthand concluded by
asking the Committee members to keep their minds and heart open
and to remember that the legislation is important to Native
peoples.

Ms. Pemina Yellow Bird, member of the Three Affiliated Tribes
from Fort Berthold Reservation, North Dakota and member of the
North Dakota Inter-Tribal Reinterment Committee, spoke on behalf
of the tribal peoples of North Dakota. Ms. Yellow Bird stated
the proposed regulations deleted or negated many of the
protections and sanctions contained in NAGPRA's statutory
language, specifically she pointed to the changes in the
definition of "Indian tribe" and "tribal lands." In addition,
she complained that the tribes of North Dakota had little
opportunity for input and no influence over the drafting of the

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regulations. Ms. Yellow Bird asked why legal counsel
representing native peoples had not been present, in the same
capacity as the Solicitor's Office representative, at Committee
meetings and during the drafting of the regulations to protect
the interests of native peoples. Ms. Naranjo and Mr. Monroe
explained that tribal lawyers had supplied input through their
comments on the proposed regulations and other regulation drafts
as well as through their presence at Committee meetings and,
although the Committee was concerned about the lack of nNtive
legal counsel, they never felt the Solicitor's Office was trying
to hoodwink the Committee. Mr. McManamon explained the Solicitor
Office answered legal questions for the Departmental Consulting
Archeologist's office, the office responsible for assisting the
Committee. He added, if the Committee felt it needed additional
assistance, the Secretary could consider the request. Ms. Yellow
Bird requested the comment period be extended to allow
opportunity for all tribes to review the issues raised at the
meeting. Ms. Yellow Bird reminded the Committee that it had a
Congressional mandate to carry out the requirements set forth in
NAGPRA and concluded her three days of remarks by asking that the
Committee members open their minds and hearts to hear Indian
representatives speaking about protection of the rights of the
ancestors. Ms. Naranjo thanked Ms. Yellow Bird for her comments.

Ms. Donna Augustine, member of the Micmac Tribe of New Brunswick,
Canada, member of the Task Force for Museums and First Peoples in
Canada and a representative of the Micmac Nation in Aroostook
County, Maine, felt native peoples had not been notified and were
not aware of what was happening with NAGPRA legislation. Ms.
Augustine added that native people need help to get their
ancestors back and she regretted the necessity of continually
asking other people to return the ancestors. Ms. Naranjo agreed
wholeheartedly with the need to bring the ancestors back home.

Mr. Tim Mentz, Sr., member of the Tribal Council, Standing Rock
Sioux Tribe, Fort Yates, North Dakota, cautioned Committee
members that they were not acting from their hearts. Ms. Naranjo
responded that her community of Santa Clara was a very small,
very strong community with a deep sense of spirituality and,
although she was not a religious leader, she was very, very
spiritual. In addition, she wanted to reassure Mr. Mentz and
other members of the public, that spirituality was very important
to all the Committee members. Ms. Craig agreed and stated she
put "her heart and soul" into her work. Mr. Mentz asked which
Committee members were traditional religious leaders. Mr.
Tallbull responded that he had reburied many people, at great
spiritual risk to himself.

Mr. Mentz felt a representative from the Solicitor's Office was
unnecessary at Committee meetings because the members should

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search themselves for what they needed to do. And, Mr. Mentz
continued, if a Solicitor's representative attended the meetings
so should a Native American legal representative.

Mr. Mentz chastised the Committee members for attending a
reception at which alcoholic drinks were served when the spirits
of the ancestors had not yet been laid to rest and for delegating
themselves the authority to interpret the statutory law to fit
their own vested interests. Ms. Craig admonished Mr. Mentz for
speaking harshly to elders. Mr. Mentz asked why NAGPRA was
required to have guidelines and regulations when the statutory
language was explicit on implementation. In addition, he did not
feel the Committee had the authority to determine the outcome of
the reserved sections in the regulations, he felt such a
determination was up to the tribes.

Mr. Mentz concluded by requesting a meeting of the Committee at
the United Tribes Educational Technical College in Bismarck,
North Dakota so the Plains area of the country could be heard.
Ms. Naranjo thanked Mr. Mentz for his comments and told him the
Committee would consider his invitation to meet in North Dakota.

Mr. Daniel Weiner, outside counsel for the American Museum of
Natural History, commented that the statute did not preclude
museums from dealing with non-Federally recognized tribes. He
added, the American Museum of Natural History had dealt, and
would continue to deal, with tribes that are not "Federally
recognized." Mr. Weiner continued that an expansion of the
current definition of "Indian tribe" would cost tribes as well as
museums. In response to incredulity expressed by members of the
audience with regard to the possibility of tribal
misrepresentations, Mr. Weiner shared with the Committee an
instance of misrepresentation which occurred at the American
Museum of Natural History.

Mr. Weiner concluded that museums are also watching the
Committee's actions and are paying particular attention to any
attempts to change statutory language. He explained the museum
community holds objects in trust for all peoples and, although
they fully intend to comply with the statute, they are worried
that deviation from statutory language will result in litigation
at the expense of cooperation. Mr. Monroe thanked Mr. Weiner for
his comments.

Mr. Darrell Newell, representative of the Passamaquoddy Tribe
from Maine, encouraged the members of the Committee to be true to
the responsibility they had been given and follow through with
the spirit of the law.

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OTHER BUSINESS

Minutes of the February 26-28, 1993, Committee meeting in
Honolulu, HI, were approved by the Committee and signed by Ms.
Naranjo.

Mr. McManamon opened discussion on several issues related to
implementation of the statute.

Final Regulations. Mr. McManamon proposed the Departmental
Consulting Archeologist's office make changes to the revised
proposed regulations as recommended by the Committee and begin
the process of final Departmental approval. Mr. Haas agreed that
it was time to move on to the other issues which needed the
Committee's attention. Mr. Monroe did not feel the Committee had
fully exercised its responsibility by reviewing each of the
comments in depth. Ms. Naranjo agreed she needed to go home and
digest what she had heard at the meeting. Mr. Haas asked if each
Committee member could review the draft final regulations and
forward their comments to the Chair so she could communicate the
Committee's collective concerns to the Department. Mr. McManamon
proposed that if the Departmental review process yielded any
major change, the Committee might consider a special session in
Washington to discuss the change with the relevant Departmental
officials. He also indicated that republication of the
regulations in the Federal Register as "proposed" might be
necessary if major changes were contemplated by the Department.
Mr. Monroe asked how long it might take for the Department to
review the final regulations. Mr. McManamon and Mr. Hanslin
responded that the process might take about six months.

Reserved Sections. Mr. McManamon outlined the process by
which the previously reserved sections would be drafted,
published as proposed regulations in the Federal Register and
published as Final Regulations.

Grants. Mr. McManamon indicated that the administration's
budget request for fiscal year 1994 included $2.75 million
dollars for NAGPRA grants. He was not sure what figure would
actually be appropriated by Congress but was hopeful that the
decision would be made by October, 1993.

CLOSING

Mr. McManamon thanked the Committee members for the time and
effort they put into this meeting. He thanked the members of the
public for their comments, Mr. Hanslin for his time and advice,

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and Park Service staff for their assistance in planning and
implementing the meeting.

Mr. Tallbull provided some closing words for the meeting. The
meeting was adjourned by Ms. Naranjo at 5:15 p.m. on Wednesday,
September 22, 1993.

Approved:

/s/ Tessie Naranjo June 6, 1994
Tessie Naranjo, Chair Date
Native American Graves Protection
and Repatriation Committee