Repatriation process criticized at Senate hearing

The federal government has done a poor job of repatriating the remains of Native people, a Senate committee was told on Wednesday.

The Native American Graves Protection and Repatriation Act (NAGPRA) was passed in 1990 to ensure that tribal ancestors are returned to their rightful owners. But witnesses at a Senate Indian Affairs Committee said the law hasn't been followed.

Suzan Shown Harjo, an activist who pushed for the law, traced the problem to the National Park Service, the lead agency on repatriation issues. She said archaeologists there have a "conflict of interest" because they oppose returning remains and artifacts to Native people.

"It's really 100 percent archaeological officers," Harjo testified, "deciding these life and death, and death and death and observance of death matters that are so important to us, and often deciding against us unless our interests coincide with the archaeologists."

Walter Echohawk, an attorney with the Native American Rights Fund (NARF), said repatriation duties should be stripped from the NPS and handed to another agency. He suggested tapping the resources of the Department of Defense, citing a case in which the U.S. Army helped return the remains of some warriors to Oklahoma tribes.

"They did it in a very professional, very caring, very sensitive manner," he told the committee. "They have no vested interests at stake one way or the other."

Paul Bender, a law professor from Arizona State University, said the government is even less likely to follow NAGPRA as a result of the recent decision in the Kennewick Man case. This past February, the 9th Circuit Court of Appeals held that the 9,000-year-old remains of a man discovered on a former reservation in Washington were not Native American.

"They said NAGPRA was entirely irrelevant to what should happen to those remains," Bender said. "That was a startling holding for somebody like myself who was involved in the framing of NAGPRA ... and I think it would startle every member of the committee that recommended the NAGPRA legislation."

No one from NPS testified at the hearing, held 25 years after the passage of the American Indian Religious Freedom Act. But two government officials said they were committed to ensuring the religions rights of Native people are protected.

Bureau of Indian Affairs director Brian Pogue said the Department of Interior has an inter-agency task force to deal with sacred site and related issues. BIA and NPS are agencies of the Interior.

Joel Holtrop, a deputy chief from the U.S. Forest Service, pointed to the creation of an Office of Tribal Relations to deal with tribes on a government-to-government basis. He also said his agency started a task force responsible for developing a sacred site policy that should be ready by October 2005.

"They are consulting with both tribal leaders as well as spiritual leaders," he told the committee.

According to the National NAGPRA program at NPS, nearly 28,000 sets of human remains and nearly 580,000 artifacts have been through the repatriation process as of March 31 of this year. A far greater number of remains, more than 108,000, have been deemed "culturally unidentifiable," meaning government scientists haven't linked them to a particular tribe or Native Hawaiian group.

Harjo said the number of "unidentifiable" remains could be reduced if the government would give Native people access to information collected on the remains. "Most of those remains can be identified," she testified.

Echohawk wants NPS to produce an "inventory" so that tribes can help determine what would happen to the remains and other objects. "For many of these remains, because they are unknown, have no scientific value," he said.

"That's why we want to have a neutral agency involved in those deliberations so that we can not have a biased set of staff decision makers that are working solely for the archaeologists," he added.

Relevant Documents:
Written Witness Testimony (July 14, 2004) | 2004 NAGPRA Report (April 2004)

Relevant Links:
National NAGPRA Program, NPS - http://www.cr.nps.gov/nagpra
Office of Tribal Relations, USFS - http://www.fs.fed.us/spf/tribalrelations