Message #97: From: AzTeC SW Archaeology SIG To: "'Matthias Giessler'" Subject: NAGPRA Discussion Date: Fri, 05 Apr 96 13:22:00 MST Encoding: 374 TEXT Attached is paper that Myra Giesen, Great Plains Region NAGPRA Cooordinator, presented at the Flint Hills Conference this past week in Kansas. It gives a short summary of NAGPRA and an analysis of a recent court decision in Hawaii. ------------------------------------------------------------- NAGPRA: A REVIEW OF 1995 REGULATIONS AND CURRENT CASE LAW Myra J. Giesen, Ph.D., NAGPRA Coordinator, Bureau of Reclamation 3612 West Timber Court, Lawrence, KS 66049-2149 and Leah M. Gagne, Esq. Staff Attorney, Shughart Thomson & Kilroy Paper presented at the 18th Annual Flint Hills Archeological Conference, March 29-30, 1996, St. Joseph, MO. ABSTRACT The Native American Graves Protection and Repatriation Act ((NAGPRA) 25 USC 3001 et seq.) was signed into law on November 16, 1990; although the regulations (43 CFR Part 10) for administering NAGPRA were not formally established for another five years. NAGPRA is concerned with Native American human remains, associated and unassociated funerary objects, objects of cultural patrimony, and sacred objects. NAGPRA requires Federal agencies and museums to take certain actions, within a prescribed timeframe, under the provisions of the law. For example, summaries of unassociated funerary objects, objects of cultural patrimony, and sacred objects must have been completed by November 16, 1993. Inventories of human remains and associated funerary objects must have been completed by November 16, 1995. In addition, NAGPRA requires repatriation, on request, to the culturally affiliated tribes. It also strictly limits the sale or purchase of Native American human remains and cultural objects identified in the act, whether or not they derive from Federal or Indian lands. This paper will provide an overview of NAGPRA; the effects of the recent passage of federal regulations (December 4, 1995) to implement the law; and procedural differences in how to establish cultural affiliation with remains found before and after passage of NAGPRA. A recent court case involving NAGPRA will be explored. Special emphasis will be placed on the Freedom of Information Act and what is construed as a "good faith" effort when completing an inventory. OVERVIEW OF NAGPRA (SLIDE 1) The Native American Graves Protection and Repatriation Act ((NAGPRA) 25 USC 3001 et seq.) affirms the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to custody of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. In enacting this legislation, Congress and the President acknowledged that over the course of the nation's history, Native American human remains and funerary objects have suffered from differential treatment as compared with the human remains and funerary objects of other groups. They also acknowledged the failure of American law to recognize traditional concepts of communal property used by many Indian tribes. The processes outlined in NAGPRA are aimed at bringing together the subject parties and the parties with standing under the law to resolve issues surrounding the custody of Native American human remains and culturally significant items. Here the subject parties are Federal agencies and museums that receive Federal funds, e.g., academic institutions. Parties with standing are lineal descendants, Indian tribes, and Native Hawaiian organizations. Our goal in this presentation is to provide an overview of NAGPRA legislation in order to clarify the responsibilities of affected parties under the law. (SLIDE 2) The talk includes a historical summary of the development of the NAGPRA legislation; a description of important components of the legislation; a discussion of a few of the problems associated with carrying out the legislation; and a synoptic summary of the first federal court case that interprets the law. HISTORY AND DETAIL OF NAGPRA LEGISLATION Repatriation defined here is the legal process of returning ownership and responsibility from one party to another party with respect to Native American remains and funerary objects. This process has become prominent in the past 20 years. The desire for repatriation has resulted from the strong conviction of many Native Americans and others that curation is not appropriate treatment of the dead. The resulting heightened awareness has given increased power to native groups over the disposition and treatment of remains and related artifacts, and has led to the enactment of progressively broader laws associated with the issue of repatriation. Individual states were the first to respond to these increasing concerns through the enactment of legislation to protect unmarked burial sites as well as establish actual repatriation law. For example, the state of North Dakota passed a statute in 1988 that set requirements for dealing with discoveries of human remains and associated materials on state, local, and private lands and established the North Dakota Intertribal Reinterment Committee to manage a repatriation process. All states do not have similar laws, however, at least 34 different states have enacted legislation. Although specific laws vary from state to state, most state laws mandate special treatment of burial sites and associated resources, and provide for penalties for failure to comply. Due to growing political and regional pressures legislation was put forward and passed at the federal level. The first law enacted by Congress, in 1989, was Public Law 101-185 (the National Museum of the American Indian Act). It mandates that the National Museum of Natural History, Smithsonian Institution, inventory and identify the origins of all American Indian and Native Hawaiian human remains and funerary objects under its control. Repatriation is required when cultural affiliation can be clearly established. Funds were appropriated to cover the cost of the actions mandated by this law. Later Congress broadened this mandate to include all agencies of the United States Government and any museum receiving Federal funding through the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), Public Law 101- 601. Besides human remains and funerary objects, NAGPRA also added sacred objects and items of cultural patrimony to the list of potential repatriable items. Although the operational ramifications were daunting, only limited funds were appropriated to cover the cost of the actions mandated by the expanded version of the law. As we will discuss in a moment, this limitation of funds has been very significant in the subsequent implementation of the law. The 1990 statute has two principal intentions (SLIDE 3). The first intention is to deal with existing collections (meaning collections made before the passage of NAGPRA on November 16, 1990) by means of summaries and inventories. The second intention is the protection of Native American graves and other cultural items still located within archeological sites on federal and tribal lands. The act lays out two processes to ensure proper disposition or repatriation of objects under the jurisdiction of NAGPRA. One process provides a mechanism for museum or Federal agency officials to consult with and, upon request, repatriate Native American human remains to lineal descendants or culturally affiliated Native American organizations. The other process provides a mechanism for Federal land managers to consult with Native American organizations to determine the proper disposition of Native American human remains discovered on Federal or tribal lands. Associated with the 1990 law, two key operational deadlines were established. Summary reports were due November 16, 1993. These reports were to be completed in order to meet the requirements in Section 6 of NAGPRA. The reports were to contain information on unassociated funerary objects, sacred objects, and/or objects of cultural patrimony held in museums and Federal agencies based upon available materials only. The resulting summary reports were to be distributed to all "affected" Native American organizations and to the Departmental Consulting Archeologist (DCA). The inventories, which were mandated in Section 5 of NAGPRA, were to include item-by-item compilations of all holdings of human remains and associated funerary objects under the control of museums or Federal agencies. Inventories were then to be completed by November 16, 1995. This inventorying process was to be done in consultation with tribal government and traditional religious leaders. The goal of the inventories was to simplify the repatriation process by providing clear descriptions of the human remains and associated funerary objects in the possession of the affected repositories, and to establish the cultural affiliation between these objects and present-day Indian Tribes. The final presentation of the inventories to the affected parties and the DCA is not required until May 16, 1996. PROBLEMS WITH IMPLEMENTING NAGPRA (SLIDE 4) As should be obvious, NAGPRA procedures are very complicated, and those complexities have lead to a number of problems in administering the law. Problems have included: 1) inadequate funding for effective implementation; 2) delays in the establishment of specific regulations for the administration of the law; 3) debates about the affiliation of remains and questions about which Native American parties are responsible for the decisions of dispensation and repatriation (contention also has been over the methods of interpretation as well as who should actually make the interpretation); 4) cultural differences between different potentially affected Native American parties about the disposition of the remains; 5) differences of opinion in the research community about the utility of NAGPRA, and how it impacts the professions of archeology and physical anthropology; 6) a general ignorance of the law in the people who are responsible for carrying out the law (including parties at Federal agencies, museums, and academic institutions); 7) widespread ignorance of the law, and lack of cultural traditions pertaining to "repatriation" of human remains and cultural objects among Indian tribes; and 8) actual legal interpretations of the law and how these interpretations relate to other potential constitutional issues. Obviously, we cannot discuss all these problems today because of time limitations. However, we do want to highlight some of the more striking administrative problems we have observed. First, the implementation of NAGPRA has not been adequately funded. For example, only $2.3 million was budgeted to meet more than $23 million in grant requests in fiscal year 1994. This problem was exacerbated by the fact that the funds were not accessible to museums and tribes until FY1994 that was after the deadline for submission of summaries under the original 1990 law. Given the lack of direct funding, the Federal agencies had the dilemma of how to pay for carrying out the requirements. Outside of not having specific funds for the first three years after NAGPRA passage, large uncertainties existed about the costs of implementation. These types of summaries and inventories had never been done before, and it took some time to understand the law adequately before defining the actual costs. Because of the above problems, agencies and museums found the deadlines nearly impossible to meet, and the tribes found themselves buried under reams of documentation, that may or may not apply to them, without the means to conduct their own inquiries. The second major operational problem to implementation was the lack of defined regulations for carrying out NAGPRA for five years after its passage. Museums, agencies, and tribes were placed in the tenuous position of interpreting draft regulations to meet their own needs. Without firm regulations (which were not put into law until December 4, 1995), the resulting summaries varied extremely in interpretation, approach, and content. No standardization existed in the resulting procedures, and each summary had innate biases and weaknesses associated with the group who developed the summary. It should be noted that the Bureau of Reclamation and other Federal agencies did establish internal guidance, but, even with relatively clear internal goals, the fact that other parties had developed independent procedures made broad application of the internal goals difficult. CASE LAW RELATIVE TO NAGPRA (SLIDE 5) One of the most important issues about NAGPRA is how the law will be interpreted by the courts. Because of the newness of the law, only one NAGPRA-related case has been ruled upon at this time. The case was associated with Native Hawaiian remains and was entitled NA IWI O NA KUPUNA O MOKAPU VERSUS JOHN DALTON (894 F. Supp. 1397 (D.Hawaii)). We are going to provide a brief review of the case to elucidate possible legal interpretations associated with the law. One important point to note prior to discussing the case is that it is only one case, in the Hawaii District Court, and, as such, the rulings may not translate to other possible future cases in other Federal District Courts. It does, however, provide precedence for future rulings, which may be important. Background to the case: This case was brought by Hui Malama, a native Hawaiian organization, against the Secretary of the Navy, John Dalton and the Bishop Museum (the Federal Defendant). Hui Malama filed a lawsuit on June 16, 1994 requesting relief associated with an inventory, performed under Section 5 of NAGPRA, of human remains curated at the Bishop Museum. Hui Malama filed a two Count petition (SLIDE 6). Count I alleged that the Federal Defendant failed to return the remains expeditiously. In Count II, Hui Malama alleged that the Federal Defendant conducted additional scientific research on the remains in spite of an agreement between the parties. Hui Malama requested that the court declare that the Federal Defendant: 1) violated NAGPRA by not returning the remains expeditiously; 2) violated NAGPRA for conducting further tests; 3) delete the alleged additional tests from the inventory; 4) place under seal the additional research and release the information only with Hui Malama's permission; and 5) order expeditious return of the remains. To interpret the decisions, a brief summary of what lead to the suit is necessary. As stated, the Bishop Museum performed an inventory of human remains and related items disinterred from Mokapu Peninsula on Department of Navy land. The purpose of the inventory was to provide an accurate list of the remains and to establish the minimum number of individuals represented by the remains. It should be noted that no formalized regulations existed for the inventory process at the time of the work. The collection was in disarray, therefore existing information in the catalogs could not adequately be used for the inventory. As a result, the Museum performed standard osteological techniques to complete the inventory. No destructive testing was done on the remains for purposes of the inventory. During the inventory process, the Museum consulted with Hui Malama regarding the osteological methodologies being used. These consultations included two face-to-face meetings between the parties. The preliminary results were reported to Hui Malama on January 13, 1993. This preliminary report included the age, sex, pathologies, and skeletal completeness. In January 1994, the Museum completed the inventory that included a narrative report and appendices. The inventory was distributed to: 1) possible claimants to the human remains; 2) persons involved in the litigation; 3) Navy personnel; 4) the NAGPRA Review Committee and the DCA; and 5) requestors under the Freedom of Information Act. Results of the lawsuit: Three potentially significant decisions came out of the court action (SLIDE 7). The first was in the definition of "parties to the suit," and the second and third were related to the two Counts within the court action. Decision 1 . . . Regarding Parties to the Suit - Hui Malama s petition named the human remains of Mokapu as a party to the litigation; however, the court ruled that the remains did not have "standing" under the law. Therefore, they were excluded from the decision. In order to have standing, the plaintiff must have a legally predictable interest at stake in the litigation. In this case, the court found that the remains of Mokapu did not have standing. The court found that human remains were defined as items and not persons with a legally protected interest under NAGPRA. Hui Malama argued that human remains are spiritual beings and possess all traits of a living person. However, the argument did not overcome the statutory construction of NAGPRA that explicitly defined that human remains were items and not persons. Decision 2 . . . Regarding Count I - Hui Malama alleged that the Mokapu remains were not expeditiously returned. This was dismissed by the court, because cultural affiliation had not been determined. The court concluded that the administrative process of determining cultural affiliation should be completed before the court would become involved in issues regarding the inventory and repatriation. Decision 3 . . . Regarding Count II - Hui Malama claimed that although an agreement was made with the Museum as to the inventory process, the Federal Defendant performed additional scientific tests without their consent. This Count was rejected because the court ruled that no legal agreement between the parties existed a priori, and even if it had, the performance of tests and the dispensation of the results by the Defendant were within the guidelines of NAGPRA. Regarding the "issue of agreement," the court found no explicit agreement between the parties, and that even if an agreement had been made, it was not valid. Federal agencies can enter into agreements with the culturally affiliated tribes or organizations; however, only after cultural affiliation has been clearly established. Cultural affiliation was not established here. Therefore, a valid agreement under the law could not be made. The "issue of further scientific tests and the dispensation of the results" is more complex than the issue of agreement. Count II sought to delete and seal information in the inventory; however, this request was not consistent with the Freedom of Information Act (FOIA). Hui Malama counter argued that the issues should be exempt from the FOIA. Two possible exemptions were argued. The first basis of exemption claimed that NAGPRA was a withholding statute. The argument was based upon the fact that NAGPRA defines the inventory as a simple itemized list. This implies that additional information should not be included in the inventory. The court examined the context of the term simple itemized list, and concluded that the term was used in NAGPRA to minimize the requirement of detailed inventories; the term was not intended to limit the amount of information in the inventory. Information regarding sex, age, and pathology included in the Defendant's inventory was deemed perfectly acceptable. In fact, the court ruled that the efficient and accurate repatriation of human remains could only be furthered if as much information as possible was contained in the inventory. The second exemption argued by Hui Malama was whether the information in the inventory qualified as "personnel or medical files" which, if released, would constitute a "clearly unwarranted invasion of personal privacy." The court found that the information in the inventory fell outside this exemption. This exemption was meant to protect the interest of the living, and even if the remain's personal privacy was infringed upon, because of the state of the remains, it was highly improbable that any individual could be identified. Other considerations regarding sealing results and further testing: The court concluded that the tests performed by the Federal Defendant, in total, were within the proscription of the statute. Since the tests performed were done to provide accurate identification information, NAGPRA was not violated. Also, no prohibitions exist in NAGPRA related to the osteological tests performed; thus, the information in the inventory can be disclosed. Finally, Hui Malama contended that NAGPRA required the Federal Defendant to rely on the information already in its possession, and not conduct any further tests. The court ruled, however, that this was only meant to prevent additional scientific tests from being performed after an inventory is completed. This section was intended to target studies unrelated to the inventory. In summary: The court held that the Federal Defendant conducted the inventory correctly in this case. Remember, that every case is fact specific and this is only one court's decision. Diversity exists between the various courts and it is likely these issues will be brought up again with possibly different results. Until that time, this case provides the first ruling under what is known as case law. CONCLUSIONS (SLIDE 8) Optimism exists regarding the progress made in complying with NAGPRA. Museums and archeologists are taking seriously the multiple charges of summary and inventory reportimg, tribal notification, and consultation with affected tribes. The subject parties appear to have met the major legislated deadlines for compliance. Likewise, Native Americans have responded to various notifications and initiated dialogues with institutions, visited museums, and often brought repatriation requests to a closure. The total impact of NAGPRA is unclear at this time. One apparent result is change. Change in how collections are being treated and change in how the parties communicate. It is likely the parties will never be in full agreement with respect to the issue of repatriation. However, the parties are listening to each other and the results generally are positive. NAGPRA is not going to go away. It is best to become familiar with the statue, the regulations, and the case law. Do not rely on someone elses interpretations. You must read it youself.