January 6, 2008
Dr. Sherry Hutt
Manager, National NAGPRA Program
National Park Service
Docket No. 1024-AC84
1849 C Street, NW (2253)
Washington, DC 20240
Re: RIN 1024-AD68, proposed rule regarding procedures for the disposition of culturally unidentifiable human remains in the possession of museums and Federal agencies pursuant to the Native American Graves Protection and Repatriation Act.
Dear Dr. Hutt:
The Ohio Archaeological Council (OAC) is a private, non-profit, charitable, scientific, and educational membership organization whose mission is to promote the advancement of archaeology in Ohio. The majority of our members are professional archaeologists working in private, for-profit cultural resource management firms and private and public sector, non-profit universities, museums, and government agencies, some of which are defined as museums and Federal agencies in the Native American Graves Protection and Repatriation Act (NAGPRA). The institutions with which our members are associated contain hundreds of thousands of students, faculty, and members. The culturally unidentifiable human remains and associated funerary objects that are the subject of the proposed rule are of vital importance to the collective missions of these institutions, including physical anthropologists, physicians, and forensic scientists who teach at associated medical schools, universities, and colleges. On behalf of the Board of Directors and members of the OAC, I offer the following comments opposing the Secretary of the Interior’s (SOI) proposed rule regarding the disposition of culturally unidentifiable human remains and associated funerary objects.
The OAC supports the positions taken by the Society for American Archaeology (SAA) and the American Association of Physical Anthropologists (AAPA) opposing the promulgation of the proposed rule. The OAC is in agreement with our colleagues that promulgation of the rule is likely to severely damage the generally positive yet somewhat tenuous relationships that NAGPRA has fostered between Native Americans and the scientific community, one positive result of Congress’ thoughtful effort to balance scientific and cultural interests when it enacted NAGPRA. The following comments are intended to supplement those submitted by the SAA and the AAPA.
The SOI does not have the authority to issue the proposed rule. The SOI cannot promulgate a rule that, by regulatory fiat, amends NAGPRA regarding the disposition of culturally unidentifiable human remains and associated funerary objects. Only Congress can amend the law. NAGPRA does not authorize taking culturally unidentifiable human remains and associated funerary objects from museums and Federal agencies and giving them to culturally unaffiliated Indian tribes and Native American groups. When Congress was crafting NAGPRA, it received divergent opinions concerning such matters from Indian tribes, museums, and the scientific community. At that time agreement was unattainable, so Congress requested that the Review Committee provide Congress with recommendations regarding this issue. The only language in NAGPRA that addresses this matter is where the Review Committee is charged with the task of “compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum and recommending specific actions for developing a process for disposition of such remains” [25 U.S.C. 3006(c)(5)]. The Review Committee provided recommendations recognizing the legitimacy of traditional cultural and scientific interests, and to this day no consensus has emerged. Congress did not find the Review Committee’s recommendations compelling enough to amend NAGPRA. Congress did not authorize the SOI to develop a rule by which the disposition of culturally unidentifiable human remains and associated funerary objects would be required. Furthermore, our colleagues note that despite the SOI’s assertions to the contrary, the rule may violate the Fifth Amendment takings clause of the United States Constitution. Promulgation of this rule could result in years of costly legal challenges that could threaten the constitutional basis of NAGPRA itself.
The proposed rule asserts control over cultural material not covered in NAGPRA. Contrary to the original intent of NAGPRA, the proposed rule is not restricted to culturally unidentifiable Native American human remains. It appears to encompass all culturally unidentifiable human remains in museums and Federal agencies, even those where there is no evidence connecting the human remains to Native Americans. The proposed rule defines culturally unidentifiable human remains as “human remains and associated funerary objects in museum or Federal agency collections for which no lineal descendant or culturally affiliated Indian tribe or Native Hawaiian organization has been identified.” The rule does not specify that the human remains also must meet the legal definition of Native American to be considered culturally unidentifiable. As noted by our colleagues, the proposed rule’s broadening of the intent of NAGPRA appears to be an attempt to circumvent the Ninth Circuit Court’s ruling in the Kennewick Man case, which restricted the legal definition of Native American to ancient groups with a clear cultural connection to a modern tribe. The proposed rule also appears to apply to human anatomical collections of Native American origin and otherwise that medical schools use for training physicians, nurses, forensic scientists, and other medical personnel. This was not the intent of Congress when it enacted NAGPRA.
The proposed rule does not conform to the principles of agreement proposed by the Review Committee. The Review Committee's 1999 Draft Principles of Agreement Regarding Disposition of Culturally Identifiable Human Remains acknowledged "...the legitimate public interest in the educational, historical, and scientific information conveyed by those remains and objects (25 U.S.C. 3002 (c); 25 U.S.C.3005 (b))." By ignoring legitimate educational, historical, and scientific interests, the proposed rule makes a mockery of Congress’ intended balancing of divergent interests. As the AAPA wrote,
NAGPRA works because it recognizes the legitimate interests of Indian tribes in their ancestral remains and the legitimate interests of science and the broader public in gaining knowledge about our common human heritage from archaeological and physical anthropological studies of human remains.
Furthermore, the proposed rule is inconsistent with the SOI’s support for the Ninth Circuit Court’s ruling in the Kennewick Man case. In a 2005 NAGPRA oversight hearing before the Senate Committee on Indian Affairs, Paul Hoffman, the Department of the Interior Deputy Assistant Secretary for Fish and Wildlife and Parks, stated,
As previously stated, in Bonnichsen the Ninth Circuit concluded that congressional intent was 'to give American Indians control over the remains of their genetic and cultural forbearers, not over the remains of people bearing no special and significant genetic or cultural relationship to some presently existing indigenous tribe, people, or culture.' We believe that NAGPRA should protect the sensibilities of currently existing tribes, cultures, and people while balancing the need to learn about past cultures and customs. In the situation where remains are not significantly related to any existing tribe, people, or culture they should be available for appropriate scientific analysis.
The proposed rule confers "binding legal force" to the Review Committee's actions that were explicitly withheld under NAGPRA. Under NAGPRA, the Review Committee was established to "advise Congress and the Secretary on matters relating to these regulations and the Act," but all actions of the Review Committee were "advisory only and not binding on any person" (43 CFR Part 10 §10.16). In the House Report on NAGPRA, this point was reaffirmed: "The [House] Committee concurs with the Justice Department comments that section 7 does not accord binding legal force to the Review Committee's actions" (H. R. Report No. 101-877, p. 4375). Under the proposed new regulations, however, the disposition of unidentifiable human remains must meet guidelines established by the Review Committee and any disposition agreement for unidentifiable human remains first must be reviewed by the Committee. Thus, the proposed rule attempts to enlarge the role of the Review Committee beyond that which Congress specifically intended.
The proposed rule may lead to results antithetical to the original intent of NAGPRA. The proposed rule will result in the transfer of culturally unidentifiable human remains and associated funerary objects in museums and Federal agencies to Indian tribes and Native American groups that have only a tenuous, if any, cultural or other connection with them. In the proposed rule, final disposition of culturally unidentifiable human remains and associated funerary objects is enabled largely through the mechanism of requiring the disposition of these cultural materials to Indian tribes and Native American groups whose claims are based solely on some sort of cultural relationship to a region in which the materials were found, or simply to the region in which a museum is located. The term "cultural relationship" is not defined in NAGPRA. Unlike the NAGPRA defined term "cultural affiliation," an Indian tribe or Native American group could claim a cultural relationship with human remains and funerary items without showing a demonstrable cultural connection to these materials. Thus, the proposed rule facilitates a result expressly unintended by Congress, the final disposition of human remains and associated funerary objects to culturally unaffiliated Indian tribes and Native American groups.
The proposed rule is impractical because it cannot be comprehensively and fairly implemented without a substantial increase in NAGPRA grant funds to museums and Federal agencies, the funding for which is unlikely to be appropriated by Congress in the foreseeable future. The proposed rule’s consultation requirements are so broad that they are unreasonable and financially burdensome. Our colleagues have determined that the unfunded mandate placed on museums and Federal agencies is likely to cost hundreds of millions of dollars. According to the proposed rule, under penalty of law museums and Federal agencies are required to consult with an unknown and perhaps unknowable number of officials and religious leaders from Indian tribes and Native American groups claiming a cultural relationship to a region. Additionally, museums are burdened by the requirement that they document the more than 825,000 funerary objects associated with culturally unidentifiable human remains. Contrary to the provisions of NAGPRA, the proposed rule recommends the repatriation of these objects. Furthermore, the provision in the proposed rule that allows museums to maintain culturally unidentifiable human remains in their collections is irrational and impossible to meet. The only basis in the proposed rule for a museum to retain possession of culturally unidentifiable human remains is for the museum to “prove that it has a right of possession, as defined at §10.10(a)(2).” However, the provision referenced requires showing that consent was obtained from the next of kin or from a culturally affiliated Indian tribe or Native Hawaiian organization, which, of course, is a requirement that cannot be met for human remains that are culturally unaffiliated. This provision is so illogical that, as our colleagues suggest, it appears to be a conscious effort on behalf of the SOI to end the scientific study of culturally unidentifiable human remains, a result that is unacceptable to the OAC.