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.

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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.