Native American Graves Protection and Repatriation Act
After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act Gao ID: GAO-10-768 July 28, 2010The Native American Graves Protection and Repatriation Act (NAGPRA) required federal agencies and museums to (1) identify their Native American human remains and other objects, (2) try to culturally affiliate them with a present day Indian tribe or Native Hawaiian organization, and (3) repatriate them under the terms in the act. The National NAGPRA office, within the Department of the Interior's National Park Service (NPS), facilitates the government-wide implementation of NAGPRA. GAO was asked to determine, among other things, the (1) extent to which agencies have complied with their NAGPRA requirements, (2) actions taken by National NAGPRA, and (3) extent of repatriations reported by agencies. GAO reviewed records for eight key agencies with significant historical collections, surveyed agencies to obtain repatriation data, and interviewed agency, museum, and tribal officials.
Almost 20 years after NAGPRA, key federal agencies still have not fully complied with the act for their historical collections acquired on or before NAGPRA's enactment. GAO examined NAGPRA implementation in detail for eight key federal agencies with significant historical collections: Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service (FWS) and NPS; Agriculture's U.S. Forest Service; the U.S. Army Corps of Engineers (Corps); and the Tennessee Valley Authority (TVA). First, all of the agencies acknowledge that they still have additional work to do to fully comply with the act's requirements to identify all of their NAGPRA items, establish cultural affiliations when possible, and create summaries and inventories of the items. Overall, the Corps, the Forest Service, and NPS did the most work to identify their NAGPRA items. BLM, BOR, and FWS did some work, and BIA and TVA have done the least amount of work. Second, some of the eight agencies, along with some other federal agencies, have not fully complied with NAGPRA's requirement to publish notices of inventory completion for all of their culturally affiliated human remains and associated funerary objects in the Federal Register. Until agencies (1) identify all of the possible NAGPRA items in their historical collections, (2) establish cultural affiliations to the extent possible, and (3) publish the required notices, they cannot repatriate their Native American human remains and objects. To fulfill the Secretary of the Interior's responsibilities under NAGPRA, National NAGPRA has taken some actions consistent with the act, such as publishing notices in the Federal Registerand administering a grants program. However, GAO identified some actions of concern. National NAGPRA developed a list of Indian tribes eligible under NAGPRA that was inconsistent with BIA's official list of federally recognized tribes and departmental policy. Furthermore, National NAGPRA did not always screen nominations for Review Committee positions properly and, in a few cases, inappropriately recruited nominees for Review Committee positions. Through fiscal year 2009, 55 percent of the human remains and 68 percent of the associated funerary objects that have been published in notices of inventory completion had been repatriated, according to agency data and GAO's survey results. Agencies are required to permanently document their repatriations, but they are not required to compile and report that information to anyone. Only three agencies--the Corps, the Forest Service, and NPS--centrally track their repatriations. These three agencies, however, along with the other federal agencies that have published notices, generally do not report any of their data on repatriations to National NAGPRA or to Congress. As a result, policymakers, Indian tribes, and Native Hawaiians organizations do not have access to readily available information about culturally affiliated NAGPRA items that have not been repatriated. According to officials, the remaining items have not been repatriated for a variety of reasons, such as a lack of repatriation requests and financial constraints. GAO recommends, among other things, that the Departments of Agriculture, Defense, and the Interior as well as TVA report to Congress the actions that they need to take to fully comply with the act and that they report the status of their repatriations to National NAGPRA. GAO is also recommending that National NAGPRA make improvements in its facilitation of the act. Agriculture, Interior, and TVA agreed with GAO's recommendations. The Department of Defense did not provide comments on the report.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Anu K. Mittal Team: Government Accountability Office: Natural Resources and Environment Phone: (202) 512-9846GAO-10-768, Native American Graves Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
July 2010:
Native American Graves Protection And Repatriation Act:
After Almost 20 Years, Key Federal Agencies Still Have Not Fully
Complied with the Act:
NAGPRA Implementation:
GAO-10-768:
GAO Highlights:
Highlights of GAO-10-768, a report to congressional requesters.
Why GAO Did This Study:
The Native American Graves Protection and Repatriation Act (NAGPRA)
required federal agencies and museums to (1) identify their Native
American human remains and other objects, (2) try to culturally
affiliate them with a present day Indian tribe or Native Hawaiian
organization, and (3) repatriate them under the terms in the act. The
National NAGPRA office, within the Department of the Interior‘s
National Park Service (NPS), facilitates the government-wide
implementation of NAGPRA. GAO was asked to determine, among other
things, the (1) extent to which agencies have complied with their
NAGPRA requirements, (2) actions taken by National NAGPRA, and (3)
extent of repatriations reported by agencies. GAO reviewed records for
eight key agencies with significant historical collections, surveyed
agencies to obtain repatriation data, and interviewed agency, museum,
and tribal officials.
What GAO Found:
Almost 20 years after NAGPRA, key federal agencies still have not
fully complied with the act for their historical collections acquired
on or before NAGPRA‘s enactment. GAO examined NAGPRA implementation in
detail for eight key federal agencies with significant historical
collections: Interior‘s Bureau of Indian Affairs (BIA), Bureau of Land
Management (BLM), Bureau of Reclamation (BOR), U.S. Fish and Wildlife
Service (FWS) and NPS; Agriculture‘s U.S. Forest Service; the U.S.
Army Corps of Engineers (Corps); and the Tennessee Valley Authority
(TVA). First, all of the agencies acknowledge that they still have
additional work to do to fully comply with the act‘s requirements to
identify all of their NAGPRA items, establish cultural affiliations
when possible, and create summaries and inventories of the items.
Overall, the Corps, the Forest Service, and NPS did the most work to
identify their NAGPRA items. BLM, BOR, and FWS did some work, and BIA
and TVA have done the least amount of work. Second, some of the eight
agencies, along with some other federal agencies, have not fully
complied with NAGPRA‘s requirement to publish notices of inventory
completion for all of their culturally affiliated human remains and
associated funerary objects in the Federal Register. Until agencies
(1) identify all of the possible NAGPRA items in their historical
collections, (2) establish cultural affiliations to the extent
possible, and (3) publish the required notices, they cannot repatriate
their Native American human remains and objects.
To fulfill the Secretary of the Interior‘s responsibilities under
NAGPRA, National NAGPRA has taken some actions consistent with the
act, such as publishing notices in the Federal Register and
administering a grants program. However, GAO identified some actions
of concern. National NAGPRA developed a list of Indian tribes eligible
under NAGPRA that was inconsistent with BIA‘s official list of
federally recognized tribes and departmental policy. Furthermore,
National NAGPRA did not always screen nominations for Review Committee
positions properly and, in a few cases, inappropriately recruited
nominees for Review Committee positions.
Through fiscal year 2009, 55 percent of the human remains and 68
percent of the associated funerary objects that have been published in
notices of inventory completion had been repatriated, according to
agency data and GAO‘s survey results. Agencies are required to
permanently document their repatriations, but they are not required to
compile and report that information to anyone. Only three agencies”the
Corps, the Forest Service, and NPS”centrally track their
repatriations. These three agencies, however, along with the other
federal agencies that have published notices, generally do not report
any of their data on repatriations to National NAGPRA or to Congress.
As a result, policymakers, Indian tribes, and Native Hawaiians
organizations do not have access to readily available information
about culturally affiliated NAGPRA items that have not been
repatriated. According to officials, the remaining items have not been
repatriated for a variety of reasons, such as a lack of repatriation
requests and financial constraints.
What GAO Recommends:
GAO recommends, among other things, that the Departments of
Agriculture, Defense, and the Interior as well as TVA report to
Congress the actions that they need to take to fully comply with the
act and that they report the status of their repatriations to National
NAGPRA. GAO is also recommending that National NAGPRA make
improvements in its facilitation of the act. Agriculture, Interior,
and TVA agreed with GAO‘s recommendations. The Department of Defense
did not provide comments on the report.
View [hyperlink, http://www.gao.gov/products/GAO-10-768] or key
components. For more information, contact Anu K. Mittal at (202) 512-
3841 or mittala@gao.gov.
[End of section]
Contents:
Letter:
Background:
Key Federal Agencies Have Not Fully Complied with NAGPRA for Their
Historical Collections:
The Review Committee Has Monitored Compliance with NAGPRA
Implementation, Made Recommendations with Mixed Success, and Continues
to Face Challenges:
National NAGPRA Has, in Some Cases, Not Effectively Carried Out Its
Responsibilities:
Many NAGPRA Items Have Been Repatriated, but Repatriations Are Not
Tracked or Reported Governmentwide:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: List of 28 New and Restored Indian Tribes Since NAGPRA
Was Enacted:
Appendix III: National NAGPRA's Lack of Authority to Ensure Federal
Agency Compliance with NAGPRA:
Appendix IV: Information on the Recent Regulation Addressing
Disposition of Culturally Unidentifiable Human Remains:
Appendix V: Status of Review Committee Recommendations Made in 12
Disputes:
Appendix VI: Other Activities Conducted by National NAGPRA:
Appendix VII: Comments from the Department of Agriculture:
Appendix VIII: Comments from the Department of the Interior:
Appendix IX: Comments from the Tennessee Valley Authority:
Appendix X: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Five Types of Native American Cultural Items Covered by
NAGPRA:
Table 2: Background Information on Eight Federal Agencies with
Significant Historical Collections:
Table 3: Examples of Eight Federal Agencies' Activities to Identify
NAGPRA Items and Prepare Summaries and Inventories:
Table 4: Native American Human Remains and Associated Funerary Objects
Published in Notices of Inventory Completion and Those Listed in
Federal Agency Inventories as Culturally Unidentifiable, as of
September 30, 2009:
Table 5: Examples of Federal Agencies' Units That Still Need to
Publish Notices of Inventory Completion for Culturally Affiliated
Human Remains:
Table 6: Unresolved Cases of Culturally Unidentifiable Human Remains
Brought before the Review Committee as of September 30, 2009:
Table 7: Review Committee Recommended Actions for Disposition of
NAGPRA Items That Fell Outside the Scope of NAGPRA, 1994 through 2008:
Table 8: NAGPRA Regulations and Related Information Published in the
Federal Register, as of April 2010:
Table 9: Human Remains and Associated Funerary Objects Repatriated for
Notices of Inventory Completion Published as of September 30, 2009:
Table 10: Reburial Policies for Eight Key Federal Agencies:
Table 11: Policies or Practices for Funding Tribal Repatriation and
Reburial Expenses by Eight Federal Agencies for Their Historical
Collections:
Table 12: Objects Included in Notices of Intent to Repatriate as of
September 30, 2009:
Table 13: Types of Federal, Tribal, and Museum Officials That GAO Met
with During Site Visits:
Table 14: List of 28 New and Restored Indian Tribes Since NAGPRA Was
Enacted:
Table 15: Draft Federal Register Notices Withdrawn by Federal Agencies
and their Status as of June 2010:
Table 16: NAGPRA Grant Applications Submitted by and Awarded to Tribes
and Native Hawaiian Organizations and Museums, Fiscal Years 1994
through 2009:
Table 17: Enacted NAGPRA Grants Funding, Amount Used for Grants, and
Their Difference, Fiscal Years 1994 through 2009:
Figure:
Figure 1: Number of Notices of Inventory Completion and Corrections
Published by Federal Agencies, by Fiscal Year:
Abbreviations:
ANCSA: Alaska Native Claims Settlement Act:
BIA: Bureau of Indian Affairs:
BLM: Bureau of Land Management:
BOR: Bureau of Reclamation:
FWS: U.S. Fish and Wildlife Service:
NAGPRA: Native American Graves Protection and Repatriation Act:
NPS: National Park Service:
TVA: Tennessee Valley Authority:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
July 28, 2010:
The Honorable Byron Dorgan:
Chairman:
Committee on Indian Affairs:
United States Senate:
The Honorable Nick J. Rahall, II:
Chairman:
Committee on Natural Resources:
House of Representatives:
Many federal agencies and museums have acquired Native American human
remains, funerary objects, sacred objects, and objects of cultural
patrimony over hundreds of years. When the Native American Graves
Protection and Repatriation Act (NAGPRA) was enacted, on November 16,
1990,[Footnote 1] it was estimated that federal agencies and museums
had tens of thousands of such items in their historical collections.
[Footnote 2] NAGPRA required federal agencies and museums to (1)
identify their Native American human remains, funerary objects, sacred
objects, and objects of cultural patrimony,[Footnote 3] (2) try and
determine if a cultural affiliation exists with a present day Indian
tribe or Native Hawaiian organization,[Footnote 4] and (3) generally
repatriate the culturally affiliated items to the applicable Indian
tribe(s) or Native Hawaiian organization(s) under the terms and
conditions prescribed in the act.[Footnote 5] However, a June 2008
report by the Makah Indian Tribe and the National Association of
Tribal Historic Preservation Officers reported a number of concerns
about federal agencies' compliance with the act.[Footnote 6]
Of the variety of NAGPRA requirements for federal agencies, museums,
and the Secretary of the Interior, those most relevant to their
historical collections, and which are the focus of this report,
include the following:
* Having each federal agency and museum, with NAGPRA items in their
collections, (1) compile an inventory of Native American human remains
and associated funerary objects; (2) compile a summary of Native
American unassociated funerary objects, sacred objects, and objects of
cultural patrimony; and (3) repatriate culturally affiliated human
remains and objects identified through the inventory or summary
processes if the terms and conditions prescribed in the act are met.
* Having the Secretary of the Interior establish a Review Committee to
monitor and review the implementation of these requirements.
* Having certain duties assigned to the Secretary of the Interior,
which are carried out by the National NAGPRA Program Office (National
NAGPRA) within the Department of the Interior's National Park
Service's (NPS) Cultural Resources program.
To address the status of NAGPRA implementation, you asked us to
determine the (1) extent to which federal agencies have complied with
NAGPRA's requirements for their historical collections; (2) activities
taken by the Review Committee to fulfill its role under NAGPRA and
what challenges, if any, it faces; (3) actions taken by National
NAGPRA to fulfill its responsibilities under NAGPRA; and (4) extent to
which federal agencies reported repatriating Native American human
remains and objects.
To determine the extent to which federal agencies have complied with
their NAGPRA requirements for their historical collections, we
obtained and verified data from National NAGPRA on all federal
agencies' notices of NAGPRA items published in Federal Register
notices through the end of fiscal year 2009. We examined NAGPRA
implementation in detail for eight key federal agencies with
significant historical collections: Interior's Bureau of Indian
Affairs (BIA), Bureau of Land Management (BLM), Bureau of Reclamation
(BOR), U.S. Fish and Wildlife Service (FWS), and NPS; the U.S. Army
Corps of Engineers (Corps); the Department of Agriculture's U.S.
Forest Service; and the Tennessee Valley Authority (TVA). For each of
these agencies we reviewed records on NAGPRA compliance, such as
inventories, summaries, Federal Register notices, and correspondence.
We interviewed both headquarters and field staff for each agency,
except TVA, to discuss their NAGPRA implementation. For TVA we
interviewed its entire staff responsible for NAGPRA implementation.
TVA's NAGPRA staff are located at its headquarters in Knoxville,
Tennessee. We also reviewed information for other federal agencies
that had published NAGPRA notices and included basic data on their
submissions in our analysis. To determine how the Review Committee has
carried out its role of monitoring and reviewing NAGPRA implementation
and what challenges it faces, we attended two Review Committee
meetings and interviewed 10 out of 23 current and former Review
Committee members who represented a variety of experiences.[Footnote
7] We interviewed some federal, tribal, museum, and scientific
organization officials on the role of the Review Committee. We also
analyzed the Review Committee's recommendations to the Secretary of
the Interior on disposition requests for culturally unidentifiable
human remains and its recommended resolutions of disputes. To examine
how National NAGPRA has carried out its role of facilitating NAGPRA
implementation, we reviewed National NAGPRA's list of eligible Indian
tribes, Review Committee nomination files, National NAGPRA annual
reports, and we interviewed the National NAGPRA program staff. To
measure the extent to which federal agencies have repatriated items
published in notices of inventory completion, we obtained data from
the three agencies that track their repatriations--the Corps, the
Forest Service, and NPS. For other agencies that had published notices
of inventory completion--four other key federal agencies as well as
eight additional federal agencies--we deployed a survey. A more
detailed description of our scope and methodology is presented in
appendix I.
We conducted this performance audit from July 2009 to July 2010 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
Background:
NAGPRA covers five types of Native American cultural items, which we
refer to collectively, in this report, as NAGPRA items (see table 1).
Table 1: Five Types of Native American Cultural Items Covered by
NAGPRA:
NAGPRA item: Human remains;
Definition: Physical remains of the body of a person of Native
American ancestry. 43 C.F.R. § 10.2(d)(1).
NAGPRA item: Associated funerary objects;
Definition: Objects that, as part of the death rite or ceremony of a
culture, are reasonably believed to have been placed with individual
human remains either at the time of death or later, and both the human
remains and associated funerary objects are presently in the
possession or control of a federal agency or museum, except that other
items exclusively made for burial purposes or to contain human remains
shall be considered as associated funerary objects. 25 U.S.C. §
3001(3)(A).
NAGPRA item: Unassociated funerary objects;
Definition: Objects that, as part of the death rite or ceremony of a
culture, are reasonably believed to have been placed with individual
human remains either at the time of death or later, where the remains
are not in the possession or control of the federal agency or museum
and the objects can be identified by a preponderance of the evidence
as related to specific individuals or families or to known human
remains or, by a preponderance of the evidence, as having been removed
from a specific burial site of an individual culturally affiliated
with a particular Indian tribe. 25 U.S.C. § 3001(3)(B).
NAGPRA item: Sacred objects;
Definition: Specific ceremonial objects which are needed by
traditional Native American religious leaders for the practice of
traditional Native American religions by their present day adherents.
25 U.S.C. § 3001(3)(C).
NAGPRA item: Objects of cultural patrimony;
Definition: Objects having ongoing historical, traditional, or
cultural importance central to the Native American group or culture
itself, rather than property owned by an individual Native American,
and which, therefore, cannot be alienated, appropriated, or conveyed
by any individual regardless of whether or not the individual is a
member of the Indian tribe or Native Hawaiian organization and such
object shall have been considered inalienable by such Native American
group at the time the object was separated from such group. 25 U.S.C.
§ 3001(3)(D).
Source: NAGPRA and its implementing regulations.
[End of table]
Since the early 1800s, federal agencies have amassed archaeological
collections with items numbering in the millions. Some, such as NPS,
acquired their collections through archaeological excavations intended
to advance scientific knowledge and preserve cultural resources.
Others, such as the Corps and TVA, have made discoveries during the
massive construction projects that are part of their missions.
[Footnote 8] Forest Service officials estimated that an overwhelming
majority of the agency's collections resulted from non-Forest Service
initiated activities, such as research by museums and universities or
as a result of the construction of highways, reservoirs, and
pipelines; or mining claims. Interior--with its land-management
agencies--has the largest collection outside of the Smithsonian
Institution, with an estimated 146 million objects and documents that
cover archeology as well as disciplines such as art and zoology.
Federal agency archaeological collections are currently stored at a
variety of repositories,[Footnote 9] both federal and nonfederal,
located throughout the country. For example, BLM's collections are
stored at three BLM facilities and 121 other repositories. According
to TVA officials, TVA's collections are stored at universities in
Alabama, Kentucky, Michigan, Mississippi, North Carolina, and
Tennessee.[Footnote 10] These federal collections include tens of
thousands of Native American human remains and hundreds of thousands
of funerary objects, sacred objects, and objects of cultural patrimony
subject to NAGPRA.
NAGPRA defines a federal agency as any department, agency, or
instrumentality of the United States, except the Smithsonian
Institution,[Footnote 11] and defines a museum as any institution or
state or local government agency, including any institution of higher
learning, that receives federal funds and has possession of, or
control over,[Footnote 12] Native American cultural items, except the
Smithsonian Institution.[Footnote 13] The eight federal agencies with
significant historical collections that we reviewed--BIA, BLM, BOR,
FWS, NPS, the Corps, the Forest Service, and TVA--manage various
amounts of federal land in conjunction with their missions and differ
in organizational structure (see table 2). They also have long
histories over which they came into possession or control of NAGPRA
items.
Table 2: Background Information on Eight Federal Agencies with
Significant Historical Collections:
Federal agency: Department of the Interior[A]: BIA;
Date established: Department of the Interior[A]: 1824;
Organization structure: Department of the Interior[A]: 12 regions and
83 agency offices;
Acres managed: 55 million;
Estimated number of objects in museum collection: 5.7 million;
Fiscal year 2010 total enacted agency budget: $4.8 billion.
Federal agency: Department of the Interior[A]: BOR;
Date established: Department of the Interior[A]: 1902;
Organization structure: Department of the Interior[A]: 5 regions;
Acres managed: 6.5 million;
Estimated number of objects in museum collection: 8.3 million;
Fiscal year 2010 total enacted agency budget: $1.2 billion.
Federal agency: Department of the Interior[A]: BLM;
Date established: Department of the Interior[A]: 1946[B];
Organization structure: Department of the Interior[A]: 12 state
offices and 144 field offices;
Acres managed: 253 million;
Estimated number of objects in museum collection: 13.2 million;
Fiscal year 2010 total enacted agency budget: $1.3 billion.
Federal agency: Department of the Interior[A]: NPS;
Date established: Department of the Interior[A]: 1916;
Organization structure: Department of the Interior[A]: 7 regions and
392 park units;
Acres managed: 84 million;
Estimated number of objects in museum collection: 122.5 million;
Fiscal year 2010 total enacted agency budget: $3.2 billion.
Federal agency: Department of the Interior[A]: FWS;
Date established: Department of the Interior[A]: 1940[C];
Organization structure: Department of the Interior[A]: 8 regions, 551
national wildlife refuges, and over 700 field offices;
Acres managed: 150 million;
Estimated number of objects in museum collection: 6.2 million;
Fiscal year 2010 total enacted agency budget: $2.8 billion.
Federal agency: Corps of Engineers[D];
Date established: Department of the Interior[A]: 1802[E];
Organization structure: Department of the Interior[A]: 8 regional
divisions and 38 districts;
Acres managed: 11 million;
Estimated number of objects in museum collection: [F];
Fiscal year 2010 total enacted agency budget: $4.6 billion.
Federal agency: Forest Service;
Date established: Department of the Interior[A]: 1905;
Organization structure: Department of the Interior[A]: 9 regions, 155
national forests, 20 grasslands, and over 600 ranger districts;
Acres managed: 193 million;
Estimated number of objects in museum collection: [G];
Fiscal year 2010 total enacted agency budget: $6.2 billion.
Federal agency: TVA;
Date established: Department of the Interior[A]: 1933;
Organization structure: Department of the Interior[A]: Independent
federal corporation[H];
Acres managed (in millions): 0.3[I] million;
Estimated number of objects in museum collection: [J];
Fiscal year 2010 total enacted agency budget: [K].
Source: Data from the eight federal agencies.
[A] The Department of the Interior was established in 1849 and was
originally comprised of the General Land Office, the Patent Office,
the Indian Affairs Office, and the military pension offices.
[B] BLM was established in 1946 through the consolidation of the
General Land Office, created in 1812, and the U.S. Grazing Service,
formed in 1934.
[C] FWS was established through the merger of the U.S. Fish
Commission, established in 1871, and the Office of Economic
Ornithology and Mammalogy, established in 1885.
[D] According to Corps officials, the number of Corps organizational
units listed in the table are the units that administer fee title
lands and are subject to NAGPRA.
[E] When the Continental Congress organized the Continental Army in
1775, it provided for a Chief Engineer to design and construct
military batteries and fortifications. In 1802, Congress permanently
established the Corps.
[F] The Corps estimates that the size of its collection is 47,500
cubic feet of objects.
[G] The Forest Service estimates that it manages 589,796 cubic feet of
objects in museum collections. Forest Service archaeological
collections include 377,953 cubic feet of material at the Grey Towers
National Historic Site, which is a historic mansion in Milford,
Pennsylvania, converted into a conservation education and leadership
center.
[H] TVA has four main offices (Knoxville, Chattanooga, and Nashville,
Tennessee; and Muscle Shoals, Alabama), regional customer service
centers, and offices in seven economic development regions. It manages
11 coal-fired plants, 9 combustion turbine plants, 3 nuclear plants,
29 hydroelectric dams, and a pumped-storage plant, among other things.
[I] According to TVA, it manages one of the nation's largest river
systems covering a 41,000 square mile watershed and 11,000 miles of
shoreline.
[J] TVA estimates that the size of its collection is 20,954 cubic feet
of objects.
[K] TVA is an independent, wholly owned federal corporation and
receives no federal funding for its operations. It is funded through
power sales and the sales of bonds on the financial markets. It has
annual revenues of over $9 billion.
[End of table]
In addition, the missions of the agencies vary widely. For example,
NPS's mission is to preserve unimpaired the natural and cultural
resources and values of the national park system for the enjoyment,
education, and inspiration of this and future generations. In
contrast, the mission of TVA is to serve the Tennessee Valley through
energy, environment, and economic development. Because of their
varying missions, the scope and treatment of their archaeological
programs have also differed.
Since 1906, federal agencies have been issuing permits to individuals,
universities, and corporations to perform archaeological excavation
and research on the federal land they manage.[Footnote 14] Although
the permitting system has changed over time, these permits generally
allowed the entities conducting the excavation and research to
preserve the excavated materials in public museums.[Footnote 15] Thus,
in theory, archaeological materials legally excavated from federal
lands since 1906 are recorded in agency reports and records, or in
permitting records located in agency files, the Smithsonian
Institution's National Anthropological Archives, or the National
Archives. However, due to the age of some of the permits, the large
number of permits, and administrative processes that have changed over
time, it can be difficult for some agencies to know where all of their
collections are currently located. For example, a recent Interior
Inspector General report stated that Interior agencies' collections
are held in 625 Interior facilities and at least 1,020 non-Interior
facilities, but that four of its agencies were not aware of the
location of their collections held in the non-Interior facilities.
[Footnote 16]
NAGPRA Requirements for Historical Collections:
NAGPRA's requirements for federal agencies, museums, and the Secretary
of the Interior, particularly the ones most relevant to their
historical collections, which are the focus of this report, include
the following:
* Compile an inventory and establish cultural affiliation. Section 5
of NAGPRA required that each federal agency and museum compile an
inventory of any holdings or collections of Native American human
remains and associated funerary objects that are in its possession or
control. The act required that the inventories be completed no later
than 5 years after its enactment--by November 16, 1995--and in
consultation with tribal government officials, Native Hawaiian
organization officials, and traditional religious leaders. In the
inventory, agencies and museums are required to establish geographic
and cultural affiliation to the extent possible based on information
in their possession. Cultural affiliation denotes a relationship of
shared group identity which can be reasonably traced historically or
prehistorically between a present day Indian tribe or Native Hawaiian
organization and an identifiable earlier group.[Footnote 17]
Affiliating NAGPRA items with a present day Indian tribe or Native
Hawaiian organization is the key to deciding to whom the human remains
and objects should be repatriated. If a cultural affiliation can be
made, the act required that the agency or museum notify the affected
Indian tribes or Native Hawaiian organizations no later than 6 months
after the completion of the inventory. The agency or museum was also
required to provide a copy of each notice--known as a notice of
inventory completion--to the Secretary of the Interior for publication
in the Federal Register. The items for which no cultural affiliation
can be made are referred to as culturally unidentifiable.[Footnote 18]
* Compile a summary of other NAGPRA items. Section 6 of NAGPRA
required that each federal agency and museum prepare a written summary
of any holdings or collections of Native American unassociated
funerary objects, sacred objects, or objects of cultural patrimony in
its possession or control, based on the available information in their
possession. The act required that the summaries be completed no later
than 3 years after its enactment--by November 16, 1993. Preparation of
the summary was to be followed by federal agency consultation with
tribal government officials, Native Hawaiian organization officials,
and traditional religious leaders. The summary was to describe the
scope of the collection, kinds of objects included, reference to
geographical location, means and period of acquisition and cultural
affiliation, where readily ascertainable. After a valid claim is
received by an agency or museum, and if the other terms and conditions
in the act are met, a notice of intent to repatriate must be published
in the Federal Register before any item identified in a summary can be
repatriated.[Footnote 19] In contrast to a notice of inventory
completion for NAGPRA items listed in inventories, notices of intent
to repatriate for NAGPRA items listed in summaries are not published
until after an Indian tribe or Native Hawaiian organization has
submitted a claim for an item.
* Repatriate culturally affiliated human remains and objects. Section
7 of NAGPRA and its implementing regulations generally require that,
upon the request of an Indian tribe or Native Hawaiian organization,
all culturally affiliated NAGPRA items be returned to the applicable
Indian tribe or Native Hawaiian organization expeditiously--but no
sooner than 30 days after the applicable notice is published in the
Federal Register--if the terms and conditions prescribed in the act
are met. Furthermore, the regulations require federal agencies and
museums to adopt internal procedures adequate to permanently document
the content and recipients of all repatriations.[Footnote 20]
Review Committee Established by NAGPRA:
Section 8 of NAGPRA required the Secretary of the Interior to
establish a Review Committee to monitor and review the implementation
of the inventory and identification process and repatriation
activities under the act.[Footnote 21] The Review Committee is
composed of seven members appointed by the Secretary. Three members
are to be appointed from nominations submitted by Indian tribes,
Native Hawaiian organizations, and traditional Native American
religious leaders. At least two of these members must be traditional
Indian religious leaders. Three members are to be appointed from
nominations submitted by national museum organizations and scientific
organizations. The seventh member is to be appointed from a list of
persons developed and consented to by all of the other members. Among
other functions, the Review Committee is responsible for (1) upon
request, reviewing and making findings related to the identity or
cultural affiliation of cultural items or the return of such items;
[Footnote 22] (2) facilitating the resolution of any disputes among
Indian tribes, Native Hawaiian organizations, and federal agencies or
museums relating to the return of such items;[Footnote 23] and (3)
compiling an inventory of culturally unidentifiable human remains and
recommending specific actions for developing a process for disposition
of such remains.
The Review Committee is a federal advisory committee subject to the
requirements of the Federal Advisory Committee Act and its
implementing regulations.[Footnote 24] The Federal Advisory Committee
Act establishes requirements for advisory committees subject to the
act, including broad requirements for balance, independence, and
transparency. Specifically, the Federal Advisory Committee Act
requires that the membership of committees be "fairly balanced in
terms of points of view represented and the functions to be performed
by the advisory committee." Members of advisory committees subject to
the Federal Advisory Committee Act are generally appointed as special
government employees or representatives. Special government employees
are appointed to provide advice on behalf of the government on the
basis of their best judgment and must meet certain federal
requirements pertaining to freedom from conflicts of interest.
[Footnote 25] Representatives, in contrast, provide stakeholder
advice--that is, advice reflecting the views of the entity or interest
group they are representing, such as industry, labor, or consumers--
and are not subject to the same conflict of interest requirements.
NAGPRA Review Committee members are appointed as special government
employees. The Federal Advisory Committee Act also requires the
Secretary of the Interior to appoint a Designated Federal Officer for
the NAGPRA Review Committee. Among other things, the officer must
approve or call the meetings of the committee, approve the agendas,
and attend the meetings.
The NAGPRA Review Committee differs from most advisory bodies subject
to the Federal Advisory Committee Act in two important ways. First,
while most agencies have broad discretion in balancing their
committees, NAGPRA limits this discretion because of its requirements
both for the types of members that can serve (i.e., the requirement
that at least two members be traditional Indian religious leaders) and
the entities that can nominate them. Second, according to Interior
officials, most federal advisory committees are not tasked with the
dispute resolution function performed by the Review Committee.
NPS's National NAGPRA Program Office:
NAGPRA also assigned duties to the Secretary of the Interior that are
carried out by the National NAGPRA Program Office (National NAGPRA)
within Interior's NPS Cultural Resources program. National NAGPRA has
a staff of 5.75 full-time equivalent employees and one contractor. Its
annual operating budget, which includes the operating expenses for the
Review Committee, is about $1 million. One of the duties assigned to
National NAGPRA is to help fill vacancies on the Review Committee.
National NAGPRA is also responsible for developing NAGPRA's
implementing regulations and it provides administrative support to the
Review Committee. The main body of the regulations was proposed in
1993 and became effective in 1996.[Footnote 26]
The Evolution of National NAGPRA:
NAGPRA required the Secretary of the Interior to perform a number of
functions, which the Secretary initially delegated to the Departmental
Consulting Archeologist, a position within NPS that provides
coordination, leadership, technical assistance, and guidance to all
federal agencies with responsibility for archaeological resources.
According to agency officials, this position was housed within the
Archaeological Assistance Division under the Associate Director for
Cultural Resources. Officials further stated that, from 1990 to the
mid-1990s, the Departmental Consulting Archeologist and other support
staff within the Archaeological Assistance Division were responsible
for facilitating NAGPRA compliance governmentwide (such as reviewing
inventories and summaries and publishing notices) and the Anthropology
Division, also within the Cultural Resources Program, was responsible
for conducting NPS's compliance activities to meet NAGPRA requirements
(such as completing inventories and summaries and drafting notices).
Both offices reported to the Associate Director of Cultural Resources.
Officials said that in the mid-1990s, the Archaeological Assistance
Division and Anthropology Division were merged into a new unit--the
Archeology and Ethnography Program--under the Departmental Consulting
Archeologist, who then conducted both activities until 2000.
In 2000, due to concerns voiced by NAGPRA practitioners over a
conflict of interest between NPS's facilitation of governmentwide
NAGPRA implementation and its own NAGPRA compliance, the Director of
NPS split these functions by creating a National NAGPRA office to
handle the facilitation of NAGPRA governmentwide and a Park NAGPRA
office to handle NPS compliance with the act. However, the two offices
still reported to the Associate Director for Cultural Resources. New
staff were brought in for National NAGPRA; the Departmental Consulting
Archeologist continued to lead Park NAGPRA efforts and both NAGPRA
programs reported to the manager of the Center for Cultural Resources,
under the Associate Director for Cultural Resources.
Additional changes were made in 2004 due to continued concerns about
the two offices reporting to the same manager under the Associate
Director for Cultural Resources. The Secretary removed Park NAGPRA
from the Cultural Resources Program and placed it within the Office of
Indian Affairs and American Culture in NPS's Intermountain Region;
this office then reported to the Regional Director. In addition to
being organizationally moved, Park NAGPRA was physically moved from
Washington, D.C., to the Intermountain Region located in Denver,
Colorado. National NAGPRA was removed from the Center for Cultural
Resources and placed directly under the Associate Director for
Cultural Resources, but it remained in Washington, D.C.[Footnote 27]
As a result of these changes, the Departmental Consulting Archeologist
and the Archeology Program, as it is currently known, no longer has
any NAGPRA responsibilities.
National NAGPRA's Grant Program:
National NAGPRA operates a grants program established by section 10 of
NAGPRA that amounts to about $2 million per year. The grants are for
two purposes--consultation and repatriation.[Footnote 28] Consultation
grants are competitively awarded to Indian tribes, Native Hawaiian
organizations, and museums to consult and document human remains and
objects. They are not awarded for activities related to excavations or
inadvertent discoveries under section 3 of NAGPRA, cultural items in
the control of a foreign institution, or activities associated with
the Smithsonian Institution, among other things. For fiscal year 2010,
consultation grant awards can range from $5,000 to $90,000. National
NAGPRA issues an annual call for consultation grants that provides a
deadline for applications. In contrast, repatriation grants are non-
competitive and are awarded to defray the expenses associated with
repatriating human remains and objects, such as the packaging,
transportation, and documenting the condition and treatment history of
cultural items to mitigate potential health risks. Applications for
repatriation grants are accepted on a rolling basis year round.
Once received, National NAGPRA staff review the applications for
consultation and repatriation grants to ensure they meet the
eligibility requirements. For consultation grants, a panel, selected
by National NAGPRA and consisting of federal government employees
familiar with repatriation issues, reviews and scores grant
applications and provides recommendations on which grants to award.
The Assistant Secretary of Fish, Wildlife, and Parks ultimately makes
the award decisions. According to the National NAGPRA Program Manager,
consultation and repatriation grants are neither available to federal
agencies nor to Indian tribes or Native Hawaiian organizations seeking
to consult with and repatriate items from federal agencies.
Federally Recognized Tribes and Alaska Native Villages:
In accordance with NAGPRA's implementing regulations, National NAGPRA
has developed a list of Indian tribes and Native Hawaiian
organizations for the purposes of carrying out the act. The list is
comprised of federally recognized tribes, Native Hawaiian
organizations, and, at various points in the last 20 years,
corporations established pursuant to the Alaska Native Claims
Settlement Act (ANCSA).[Footnote 29] The term "recognize" means the
federal government acknowledges that a particular Native American
group is a tribe by conferring specific legal status on that group,
establishing a government-to-government relationship between the
United States and the tribe, imposing on the government a fiduciary
trust relationship to the tribe and its members and imposing specific
obligations on the federal government to provide benefits and services
to the tribe and its members.[Footnote 30] National NAGPRA's list has
evolved over time as additional tribes have either been granted
federal recognition or had their federal recognition restored.
[Footnote 31] Since NAGPRA was enacted, 28 Indian tribes have been
newly recognized or restored (see app. II). In addition, hundreds of
Indian groups that are currently not federally recognized have
expressed an interest to BIA in seeking federal recognition.
Since the enactment of two recognition laws in 1994,[Footnote 32] BIA
has regularly published a comprehensive list of recognized tribes--
commonly referred to as the list of federally recognized tribes--that
federal agencies are supposed to use to identify federally recognized
tribes. As of August 11, 2009, there were 564 federally recognized
tribal entities--339 in the continental United States and 225 in
Alaska--recognized and eligible for funding and services from BIA by
virtue of their status as Indian tribes.[Footnote 33] Indian groups
not included in the list are commonly referred to as "non-federally
recognized tribes."
The recognition of Alaska Native entities eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians has been controversial. Since a 1993 legal
opinion by the Solicitor of the Department of the Interior,[Footnote
34] BIA's list of federally recognized tribes has not included any
ANCSA group, regional, urban, and village corporations. These
corporations, chartered under state law, were the vehicle for
distributing land and monetary benefits to Alaska Natives to provide a
fair and just settlement of aboriginal land claims in Alaska.
ANCSA defined Alaska Native villages by referring to the lists of
villages contained in sections 11 and 16 of ANCSA. ANCSA required the
Secretary of the Interior to review the section 11 list and add or
delete villages that did not meet specified requirements. The
Secretary's review produced a so-called modified list, which included
Alaska Native villages defined in or established under section 11 of
ANCSA and the villages listed in section 16. Interior's Solicitor has
noted that a number of post-ANCSA statutes have included Alaska Native
villages within their definition of Indian tribe by reference to the
ANCSA definition of Native village and that these references are to
this modified ANCSA list.
Key Federal Agencies Have Not Fully Complied with NAGPRA for Their
Historical Collections:
While the eight key federal agencies we reviewed generally prepared
their summaries and inventories by the statutory deadlines, the amount
of work put into identifying their NAGPRA items and the quality of the
documents prepared varied widely. For some of the human remains and
associated funerary objects that these eight key federal agencies,
along with other federal agencies, have culturally affiliated, they
have published notices of inventory completion, although some notices
have encountered delays. In addition, not all of the culturally
affiliated human remains and associated funerary objects have been
published in a Federal Register notice as required. Officials for the
eight agencies also identified challenges that they faced complying
with NAGPRA, which included lack of funding and staff only working on
NAGPRA compliance for historical collections as a collateral duty.
Key Federal Agency Summaries and Inventories were Generally Prepared
on Time, but the Amount of Work Conducted and the Quality Varied
Widely:
While federal agencies compiled hundreds of summaries and inventories,
generally by the statutory deadlines, the amount of work conducted and
the quality of the documents prepared varied widely and in some cases
did not provide reasonable assurance of compliance with the act. When
NAGPRA was enacted, the task facing each federal agency varied
depending on several factors, including the size of their historical
collections, the extent of centralized records in existence for their
collections and institutional knowledge of repositories in possession
of their collections, how dispersed their collections were both
geographically and among different repositories, and each agency's
structure, staffing, and resources available for cultural resources
management.
For most agencies, the task of identifying their NAGPRA items within
the larger universe of their historical collections was complicated by
long-standing challenges with the curation and management of their
archaeological collections.[Footnote 35] For example, in 1981, we
reported that Interior's efforts to guide and coordinate many federal
archaeological activities were characterized by "disorder, confusion,
and controversy."[Footnote 36] More recently, a December 2009 report
by Interior's Office of Inspector General described similar
deficiencies with the management of Interior's museum collections
(including NAGPRA items) and stated that Interior is failing to
fulfill its stewardship responsibilities over museum collections,
which are second in size only to the Smithsonian Institution.[Footnote
37] The Inspector General report noted that for fiscal year 2007, 53
percent of Interior's museum collections, or 78 million objects, were
not catalogued, and that Interior "had little idea" what collections
non-Interior repositories held.
Officials at several of the eight agencies that we focused on during
our review said NAGPRA compliance involved a large amount of work and
because they had different levels of resources to expend, they took
varied approaches to meet the act's requirements for their historical
collections. Of these eight agencies, the Corps, the Forest Service,
and NPS did the most extensive work to identify their NAGPRA items,
and therefore they have the highest confidence level that they have
identified all of them and included them in summaries and inventories
(see table 3). In contrast, relative to the top three agencies, BLM,
BOR, and FWS were moderately successful in identifying their items and
including them in summaries and inventories, and BIA and TVA have done
the least amount of work. As a result, these five agencies have less
confidence that they have identified all of their NAGPRA items and
included them in summaries and inventories.
Table 3: Examples of Eight Federal Agencies' Activities to Identify
NAGPRA Items and Prepare Summaries and Inventories:
Agencies that have done the most work and have the highest confidence
that all their NAGPRA items have been identified:
Agency: Corps of Engineers;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Requested funding. According to Corps staff, before NAGPRA's
enactment, the agency proactively requested additional funding to
identify archaeological collections. As of the end of fiscal year
2008, the Corps' Mandatory Center of Expertise for the Curation and
Management of Archaeological Collections (Center) for NAGPRA estimated
that it had attained about 80 percent compliance (complete summaries
and inventories and publication of relevant notices);
* Examined records and performed physical inspections. The Corps'
Center staff examined historical records and archaeological permits at
the Smithsonian Institution, the National Archives, and State Historic
Preservation Offices, and performed physical inspections of non-
federal repositories. They determined that the Corps has confirmed
collections in 166 repositories around the country;
* Centralized reporting. All Corps components must consult with the
Center in compiling NAGPRA summaries and inventories, and the Center
has prepared full collection audits on non-federal repositories'
curation of the Corps units' NAGPRA items;
* Maintains compliance data. The Corps Center maintains agencywide
data for the Corps on NAGPRA compliance status and activities,
including repatriations;
* Funding levels. For fiscal year 2009, the Corps' Center expended
over $1.55 million for NAGPRA compliance activities.
Agency: Forest Service;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Region 3 controls most NAGPRA collections. According to Forest
Service staff, 90 percent of the Forest Service's NAGPRA items are
under the control of Region 3, which covers portions of the
Southwestern United States. Staff also stated that in 1991, the Forest
Service hired a NAGPRA coordinator for Region 3, who later became the
Forest Service's agencywide NAGPRA coordinator, and expanded the
search for archeological permits and collections to all the other
Forest Service regions;
* Examined records and contacted repositories. In the early 1990s, the
NAGPRA Coordinator retrieved all the archeological records for Region
3 from the Smithsonian Institution and the National Archives that
could have involved NAGPRA items. According to the NAGPRA Coordinator,
copies of the records were then sent to all the relevant non-federal
repositories for verification, and he followed up on discrepancies
that emerged from their responses;
* Maintains compliance data. The Forest Service's NAGPRA Coordinator
collects and maintains agencywide data for the Forest Service on
NAGPRA compliance, status, activities, and completed repatriations;
* Funding levels. For fiscal year 2009 the Forest Service expended
$210,000 for NAGPRA compliance work and repatriations.
Agency: NPS;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Maintained collections before NAGPRA. According to NPS officials,
NPS units curate a major portion of their archeological collections in
their own facilities before and since NAGPRA. This factor gave NPS an
initial advantage in achieving NAGPRA compliance, and enabled NPS to
compile more complete summaries and inventories;
* Maintains compliance data. Park NAGPRA maintains agencywide data for
NPS on NAGPRA compliance status and activities, including
repatriations;
* Funding and staffing levels. Park NAGPRA manages a $850,000
agencywide budget for NAGPRA activities, approximately $500,000 of
which it awards to NPS regions through a competitive, needs-based
process, according to NPS staff. The office has a Program Manager with
collateral duties and one additional full-time employee.
Agencies that have done some work and have less confidence that all
their NAGPRA items have been identified:
Agency: BLM;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Relied on BLM State Offices and the Corps to identify collections.
According to BLM staff, BLM relied on its state offices to contact the
repositories in the western states directly and for the eastern half
of the country BLM contracted with the Corps' Center to compile a list
of non-federal repositories in possession of BLM's archeological
collections. Some of these efforts led to successful NAGPRA
compliance, but in some cases the agency encountered significant
challenges in determining its NAGPRA collections--for example in the
states of Utah, California, and Alaska;
* Building centralized compliance data. The first centralized
reporting and data collection for BLM NAGPRA compliance was started in
2006. The BLM NAGPRA Coordinator has since been able to create a
baseline of data and also stated that the agency has accelerated its
efforts to comply with NAGPRA;
* Funding levels. For fiscal year 2009, BLM had a budget over $15.7
million for its cultural resources budget, of which $69,286 was
expended for NAGPRA compliance.
Agency: BOR;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Identified repositories, but additional work to identify NAGPRA item
remains. According to BOR's Federal Preservation Officer and NAGPRA
Coordinator, BOR has been able to identify the non-federal and BOR
repositories that maintain archeological collections, but has not
verified if the repositories contain NAGPRA items;
* Faced challenges in compiling inventories. Some BOR regions were
able to compile complete summaries and inventories. However, the Great
Plains and Mid-Pacific Regions have faced considerable challenges in
NAGPRA compliance because complicated land ownership issues and
discrepancies in land ownership records must first be addressed to
determine whether BOR controls the item;
* Building compliance data. There is no centralized BOR tracking of
NAGPRA compliance, although BOR's NAGPRA Coordinator said a database
is in the process of being developed.
Agency: FWS;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Identified repositories, but additional work to identify NAGPRA
items remains. According to agency officials, FWS contracted with the
Corps' Center to identify all non-federal repositories in possession
of FWS archeological material. The FWS Service Archaeologist (the
national NAGPRA coordinator for FWS) stated that 80 percent of FWS's
collections have not been comprehensively reviewed (i.e., compared
against records, examined, catalogued) to identify NAGPRA items;
* Lacks compliance data. Although FWS did submit summaries and
inventories, the FWS NAGPRA coordinator said it is unlikely that the
documents are complete because the agency is not fully aware of the
contents of its collections;
* Funding levels. FWS provides approximately $385,000 annually for all
museum property management functions, which includes NAGPRA compliance.
Agencies that have done the least work and have low confidence that
all their NAGPRA items have been identified:
Agency: BIA;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Scope of BIA's compliance responsibility was ambiguous and remains
unsettled. In 1998 BIA headquarters officials requested a legal
opinion from Interior's Office of the Solicitor regarding whether BIA
owned NAGPRA items removed from Indian lands under the Antiquities Act
of 1906 and therefore would have to comply with NAGPRA for those
items. The Solicitor has not issued a legal opinion but has discussed
the matter with BIA. As a result of these discussions, BIA has, in
some cases, issued joint notices with the non-federal repositories in
possession of NAGPRA items. BIA reports that in the past it has
contracted with the Corps Center to produce reports assessing its
nationwide curation needs;
* Lacks compliance data. BIA's Chief of Environmental and Cultural
Resources Management (the national NAGPRA coordinator for BIA) stated
that BIA Regional Offices act independently to implement NAGPRA and
that centralized tracking of NAGPRA compliance data for the agency was
started in 1997, but has not yet been completed due to staff turnover
and lack of resources;
* Funding levels. For fiscal year 2009, BIA had a budget of $300,000
for its museum program, $150,236 of which funded contracts with
museums for NAGPRA compliance.
Agency: TVA;
Agency activities to identify their NAGPRA items and prepare summaries
and inventories:
* Relied on repositories to compile and submit inventory and summary
documents. TVA relied on its own records and those of its repositories
to identify the locations of its archeological collections. TVA
generally relied on repositories in possession of its collections to
compile the agency's summaries and inventories. The repositories
prepared these documents more than 10 years ago. For TVA's collections
at the University of Alabama, TVA has not conducted specific
consultations on cultural affiliations. As a result, TVA considers its
inventories to be preliminary since the required consultations have
not yet occurred;
* Lacks compliance data and faces other challenges. According to TVA's
NAGPRA coordinator, a database of TVA's NAGPRA collections is being
developed. TVA cultural resources management staff stated that due to
gaps in communications, a lack of consultations, and other challenges,
TVA has not been able to establish final cultural affiliations for any
of the NAGPRA items in its historical collections. In addition, for
NAGPRA items that were excavated during the course of TVA projects
several decades ago, some ambiguity may exist as to which entity--TVA
or the museum that curates the items--has legal control over the
items, according to TVA;
* Funding levels. As of fiscal year 2009, TVA did not specifically
track costs associated with NAGPRA.
Source: GAO analysis of NAGPRA activities for the eight federal
agencies.
[End of table]
While some agencies have done more than others to comply with the
requirements of the act, it does not appear that any of the eight
agencies we reviewed are in full compliance. The act and its
implementing regulations did not provide a specific list of activities
or actions that federal agencies and museums had to take in order to
identify their NAGPRA items. However, the act clearly stated that the
summaries and inventories had to contain the NAGPRA items each agency
or museum was in possession or control of. We believe that without
conducting a level of activities that would provide a federal agency
with a reasonable assurance that the summaries and inventories were
complete, federal agencies cannot be confident that they have complied
with NAGPRA's inventory and summary requirements. Even those agencies
that have done the most work acknowledge that they still have some
individual units that have more work to do. For example, the Corps
reports that as of the end of fiscal year 2009 the Louisville,
Nashville, Mobile, and Tulsa Districts have not yet produced their
inventories. Additionally, some agencies said they do not know exactly
how much work is left in order to be confident that they have
identified all of their NAGPRA items.
In addition to the completeness of agency summaries and inventories,
we found that two other important requirements affecting the quality
of these documents--consultations with Indian tribes and Native
Hawaiian organizations and the establishment of cultural affiliations--
were also lacking in some instances. We found that the confusion over
when consultations should occur and when cultural affiliations should
be established appeared to be rooted in the confusion among some
NAGPRA practitioners about the differences between summaries and
inventories. Specifically, summaries described collections, and
consultation was to occur after the summary document was prepared; and
cultural affiliations were to be included in summaries where readily
ascertainable.[Footnote 38] In contrast, inventories were item-by-item
descriptions, consultation was to occur before the inventory document
was completed, and cultural affiliations were to be made to the extent
possible. However, we found examples where agency officials treated
inventories like summaries in that the consultation occurred and
cultural affiliation determinations were made after the preparation of
the inventory. Also, several tribal officials stated that the
frequency and thoroughness of consultations throughout the NAGPRA
process for historical collections varied widely depending on the
agency and agency personnel involved. However, agency officials also
reported challenges in consulting with tribes, such as certain tribes
not wanting to attach any cultural affiliations to NAGPRA items
because of deeply-held spiritual beliefs. If agencies did not perform
these initial critical steps to fully identify and disclose the NAGPRA
items that they have in their historical collections, the repatriation
process cannot move forward.
Publication of Some Notices of Inventory Completion Has Been Delayed,
and Some Agencies Have not Published All Required Notices:
According to information from National NAGPRA's database, as of
September 30, 2009, 16,302 Native American human remains, or 55
percent of all the Native American human remains inventoried by
agencies, had been published in notices of inventory completion and
13,519 had been listed in inventories for federal collections as
culturally unidentifiable (see table 4). Of the associated funerary
objects inventoried by federal agencies, 193,324 objects, or 74
percent, had been published in a notice of inventory completion and
66,918 had been listed as culturally unidentifiable.
Table 4: Native American Human Remains and Associated Funerary Objects
Published in Notices of Inventory Completion and Those Listed in
Federal Agency Inventories as Culturally Unidentifiable, as of
September 30, 2009:
Agency: Department of the Interior;
Culturally unidentifiable[A]: Associated funerary objects: [Empty].
Agency: Department of the Interior; NPS;
Published in notices of inventory completion:
Number of original notices: 86;
Number of corrections: 10;
Human remains[B]: 4,053;
Associated funerary objects: 77,927;
Culturally unidentifiable[A]: Human remains[B]: 1,304;
Culturally unidentifiable[A]: Associated funerary objects: 14,656.
Agency: Department of the Interior; BLM;
Published in notices of inventory completion:
Number of original notices: 55;
Number of corrections: 1;
Human remains[B]: 1,565;
Associated funerary objects: 16,615;
Culturally unidentifiable[A]: Human remains[B]: 399;
Culturally unidentifiable[A]: Associated funerary objects: 249.
Agency: Department of the Interior; BOR;
Published in notices of inventory completion:
Number of original notices: 7;
Number of corrections: 2;
Human remains[B]: 550;
Associated funerary objects: 3,330;
Culturally unidentifiable[A]: Human remains[B]: 122;
Culturally unidentifiable[A]: Associated funerary objects: 38.
Agency: Department of the Interior; BIA;
Published in notices of inventory completion:
Number of original notices: 32;
Number of corrections: 1;
Human remains[B]: 464;
Associated funerary objects: 9,621;
Culturally unidentifiable[A]: Human remains[B]: 56;
Culturally unidentifiable[A]: Associated funerary objects: 18.
Agency: Department of the Interior; FWS;
Published in notices of inventory completion:
Number of original notices: 14;
Number of corrections: 0;
Human remains[B]: 127;
Associated funerary objects: 626;
Culturally unidentifiable[A]: Human remains[B]: 765;
Culturally unidentifiable[A]: Associated funerary objects: 5,123.
Agency: Department of the Interior; Indian Arts and Crafts Board;
Published in notices of inventory completion:
Number of original notices: 2;
Number of corrections: 0;
Human remains[B]: 2;
Associated funerary objects: 0;
Culturally unidentifiable[A]: Human remains[B]: 0;
Culturally unidentifiable[A]: Associated funerary objects: 0.
Agency: Department of the Interior; Subtotal;
Published in notices of inventory completion:
Number of original notices: 196;
Number of corrections: 14;
Human remains[B]: 6,761;
Associated funerary objects: 108,119;
Culturally unidentifiable[A]: Human remains[B]: 2,646;
Culturally unidentifiable[A]: Associated funerary objects: 20,084.
Agency: Department of Defense; Department of the Navy;
Published in notices of inventory completion:
Number of original notices: 8;
Number of corrections: 1;
Human remains[B]: 3,397;
Associated funerary objects: 7,734;
Culturally unidentifiable[A]: Human remains[B]: 214;
Culturally unidentifiable[A]: Associated funerary objects: 0.
Agency: Department of Defense; Corps of Engineers;
Published in notices of inventory completion:
Number of original notices: 27;
Number of corrections: 1;
Human remains[B]: 722;
Associated funerary objects: 40,869;
Culturally unidentifiable[A]: Human remains[B]: 1,508[A];
Culturally unidentifiable[A]: Associated funerary objects: 9,955[A].
Agency: Department of Defense; U.S. Army;
Published in notices of inventory completion:
Number of original notices: 8;
Number of corrections: 2;
Human remains[B]: 105;
Associated funerary objects: 1,557;
Culturally unidentifiable[A]: Human remains[B]: 172;
Culturally unidentifiable[A]: Associated funerary objects: 753.
Agency: Department of Defense; U.S. Air Force;
Published in notices of inventory completion:
Number of original notices: 4;
Number of corrections: 1;
Human remains[B]: 38;
Associated funerary objects: 85;
Culturally unidentifiable[A]: Human remains[B]: 3;
Culturally unidentifiable[A]: Associated funerary objects: 0.
Agency: Department of Defense; National Museum of Health and Medicine;
Published in notices of inventory completion:
Number of original notices: 8;
Number of corrections: 0;
Human remains[B]: 16;
Associated funerary objects: 0;
Culturally unidentifiable[A]: Human remains[B]: 158;
Culturally unidentifiable[A]: Associated funerary objects: 0.
Agency: Department of Defense; Subtotal;
Published in notices of inventory completion:
Number of original notices: 55;
Number of corrections: 5;
Human remains[B]: 4,278;
Associated funerary objects: 50,245;
Culturally unidentifiable[A]: Human remains[B]: 2,055;
Culturally unidentifiable[A]: Associated funerary objects: 10,708.
Agency: Forest Service;
Published in notices of inventory completion:
Number of original notices: 47;
Number of corrections: 9;
Human remains[B]: 5,246;
Associated funerary objects: 33,618;
Culturally unidentifiable[A]: Human remains[B]: 757;
Culturally unidentifiable[A]: Associated funerary objects: 15,157.
Agency: Department of Justice;
Published in notices of inventory completion:
Number of original notices: 5;
Number of corrections: 0;
Human remains[B]: 9;
Associated funerary objects: 2;
Culturally unidentifiable[A]: Human remains[B]: 2;
Culturally unidentifiable[A]: Associated funerary objects: 1.
Agency: Department of Energy;
Published in notices of inventory completion:
Number of original notices: 4;
Number of corrections: 0;
Human remains[B]: 6;
Associated funerary objects: 1,340;
Culturally unidentifiable[A]: Human remains[B]: 20;
Culturally unidentifiable[A]: Associated funerary objects: 97.
Agency: Department of Homeland Security;
Published in notices of inventory completion:
Number of original notices: 2;
Number of corrections: 0;
Human remains[B]: 2;
Associated funerary objects: 0;
Culturally unidentifiable[A]: Human remains[B]: 0;
Culturally unidentifiable[A]: Associated funerary objects: 0.
Agency: TVA;
Published in notices of inventory completion:
Number of original notices: [C];
Number of corrections: [C];
Human remains[B]: [C];
Associated funerary objects: [C];
Culturally unidentifiable[A]: Human remains[B]: 8,030[A];
Culturally unidentifiable[A]: Associated funerary objects: 20,870[A].
Agency: Environmental Protection Agency;
Published in notices of inventory completion:
Number of original notices: [C];
Number of corrections: [C];
Human remains[B]: [C];
Associated funerary objects: [C];
Culturally unidentifiable[A]: Human remains[B]: 9;
Culturally unidentifiable[A]: Associated funerary objects: 1.
Agency: Total;
Published in notices of inventory completion:
Number of original notices: 309;
Number of corrections: 28;
Human remains[B]: 16,302;
Associated funerary objects: 193,324;
Culturally unidentifiable[A]: Human remains[B]: 13,519;
Culturally unidentifiable[A]: Associated funerary objects: 66,918.
Source: National NAGPRA.
Note: In a few cases, notices of inventory completion were published
listing culturally unidentifiable human remains after the Secretary
made a recommendation in response to a disposition request submitted
to the Review Committee.
[A] Numbers in the culturally unidentifiable columns are from National
NAGPRA's database, which, as noted in appendix I, may be unreliable.
Several agencies that maintain their own data have asserted that the
numbers reported for them in this table do not match their own data.
For example, the Corps reports 87 human remains and 422 associated
funerary objects, and TVA reports that while they do not have exact
numbers, their estimates are not close to what National NAGPRA's
reports. Officials from both agencies indicated that they will
continue to work with National NAGPRA to reconcile these numbers.
[B] Human remains are counted using the "minimum number of
individuals" approach. The minimum number of individuals refers to the
fewest possible number of people in a skeletal assemblage. This is
often used in forensic anthropology and osteology to determine an
estimate of how many individuals are represented in a cluster of
bones. While there are formulae that can be applied to determining the
minimum number of individuals, making this determination is
essentially based on logic. Counts of the minimum number of
individuals are based on age, sex, and repeat skeletal elements. For
example, if there are three right humerus bones, that implies there
were at least three individuals. If those all three happen to be male,
and there is a clearly female skull, then that adds one more
individual to the count. A count of one could be for a complete
skeleton of over 200 bones or one fragment of a bone from one
individual.
[C] As of September 30, 2009, TVA and the Environmental Protection
Agency had not published any notices of inventory completion. The
inventory for the Environmental Protection Agency did not include any
culturally affiliated NAGPRA items and therefore no notice was
required.
[End of table]
However, we found that in some cases the publication of these notices
encountered significant delays. When agencies made cultural
affiliation determinations for Native American human remains and
associated funerary objects listed in their inventories, they were
required to notify the affiliated Indian tribe(s) or Native Hawaiian
organization(s) within 6 months and at the same time submit a copy of
the notice to National NAGPRA for publication in the Federal Register.
[Footnote 39] NAGPRA and its implementing regulations do not contain a
deadline for when the notice actually had to be published. If a notice
of inventory completion is published and later is found to be
inaccurate or new information emerges, agencies are to work with
National NAGPRA to publish a correction notice. Through fiscal year
2009, federal agencies had published 309 notices of inventory
completion and 28 corrections (see figure 1).
Figure 1: Number of Notices of Inventory Completion and Corrections
Published by Federal Agencies, by Fiscal Year:
[Refer to PDF for image: stacked vertical bar graph]
Fiscal Year: 1992;
Notices of inventory completion: 2;
Corrections: 0.
Fiscal Year: 1993;
Notices of inventory completion: 0;
Corrections: 0.
Fiscal Year: 1994;
Notices of inventory completion: 2;
Corrections: 0.
Fiscal Year: 1995;
Notices of inventory completion: 5;
Corrections: 0.
Fiscal Year: 1996;
Notices of inventory completion: 32;
Corrections: 0.
Fiscal Year: 1997;
Notices of inventory completion: 22;
Corrections: 1.
Fiscal Year: 1998;
Notices of inventory completion: 19;
Corrections: 2.
Fiscal Year: 1999;
Notices of inventory completion: 8;
Corrections: 1.
Fiscal Year: 2000;
Notices of inventory completion: 25;
Corrections: 1.
Fiscal Year: 2001;
Notices of inventory completion: 43;
Corrections: 1.
Fiscal Year: 2002;
Notices of inventory completion: 22;
Corrections: 4.
Fiscal Year: 2003;
Notices of inventory completion: 15;
Corrections: 2.
Fiscal Year: 2004;
Notices of inventory completion: 18;
Corrections: 0.
Fiscal Year: 2005;
Notices of inventory completion: 10;
Corrections: 6.
Fiscal Year: 2006;
Notices of inventory completion: 15;
Corrections: 3.
Fiscal Year: 2007;
Notices of inventory completion: 6;
Corrections: 1.
Fiscal Year: 2008;
Notices of inventory completion: 39;
Corrections: 2.
Fiscal Year: 2009;
Notices of inventory completion: 26;
Corrections: 4.
Source: GAO analysis of National NAGPRA data.
[End of figure]
According to agency officials and National NAGPRA, several reasons
contributed to the delays in publishing notices of inventory
completion. First, during its review process National NAGPRA
determined that some inventories had not been properly prepared and,
as a result, agencies had prepared improper draft notices. For
example, one improperly prepared draft notice included unassociated
funerary objects, which are to be included in summaries and notices of
intent to repatriate. This may have been partly because the regulation
for the inventory process was not finalized until December 4, 1995,
after the deadline for preparing inventories had passed.[Footnote 40]
National NAGPRA officials said they returned improperly prepared draft
notices to the agencies. A second reason for delays in publishing
notices, according to some agency officials, was the highly complex
nature of their consultations with the tribes, which resulted in the
agencies needing additional time to finalize their cultural
affiliations before publishing their notices. Third, some agencies
treated inventories like summaries and waited for a culturally
affiliated entity to request repatriation before submitting a notice
for publication. Fourth, some agencies relied on non-federal
repositories (such as universities and museums) that held their
historical collections to compile the summary and inventory documents
and submit them directly to National NAGPRA. According to one former
National NAGPRA official, in one case the P.A. Hearst Museum at the
University of California, Berkeley was granted an extension to the 5-
year deadline for compiling inventories for their own collections, and
some agencies believed that this extension also applied to their
federal collections held by the museum.[Footnote 41]
Additionally, we found that a number of federal agencies have not
fully complied with NAGPRA's requirement to publish notices of
inventory completion for all of their culturally affiliated human
remains and associated funerary objects in the Federal Register,
thereby complicating efforts of Indian tribes or Native Hawaiian
organizations to make repatriation requests for those items (see table
5). Agency officials provided several reasons for their lack of
compliance with this requirement. For example, TVA staff stated that,
because of personnel turnover and poor communication--with a
repository and with National NAGPRA in the 1990s--320 human remains
preliminarily culturally affiliated to the Creek and Cherokee tribes
have not yet been published in notices. In addition, an official at
BOR's Great Plains Regional Office stated that, even though the office
had listed culturally affiliated human remains in its inventory,
National NAGPRA rejected the inventory in the 1990s because it was not
properly formatted. The BOR official stated that resources have not
been available to revise the inventory and publish the required
notices.
Table 5: Examples of Federal Agencies' Units That Still Need to
Publish Notices of Inventory Completion for Culturally Affiliated
Human Remains:
Agency component: BOR, Great Plains Region, Nebraska-Kansas Area
Office;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 61.
Agency component: BOR, Pacific Northwest Region;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 15.
Agency component: NPS, Glen Canyon National Recreation Area;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 13.
Agency component: FWS, Buenos Aires National Wildlife Refuge;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 4.
Agency component: FWS, Upper Mississippi National Wildlife and Fish
Refuge;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 4.
Agency component: Forest Service, Gifford Pinchot National Forest[B];
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 3.
Agency component: Department of Defense, Naval Air Station Fallon;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 2.
Agency component: FWS, Sevilleta National Wildlife Refuge;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 2.
Agency component: Indian Arts and Crafts Board;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: 1.
Agency component: FWS, Eufaula National Wildlife Refuge;
Culturally affiliated human remains that have not been published in a
notice of inventory completion[A]: unknown.
Source: GAO analysis of National NAGPRA data and agency documents.
Note: TVA officials stated that they consider the cultural
affiliations for the 320 human remains in the 1999 inventory for their
NAGPRA items at the Alabama Museum of National History to be
"preliminary" because the required consultations with the relevant
Indian tribes has not been performed. The officials stated that TVA
can not move forward with the publication of a notice of inventory
completion in the Federal Register for these human remains until
consultations have occurred and the inventory and the cultural
affiliations have been finalized. According to TVA officials, TVA had
preliminary discussions with federally recognized tribes regarding
TVA's NAGPRA compliance in 2002 and 2007, but there has been no
specific consultation with tribes regarding the preliminary cultural
affiliations for these items.
[A] Human remains were counted using the "minimum number of
individuals" method.
[B] The Gifford Pinchot National Forest has submitted a draft notice
of inventory completion to National NAGPRA and it is working with the
office on publication of the notice.
[End of table]
National NAGPRA and the Makah Indian tribe, with the National
Association of Tribal Historic Preservation Officers, have conducted
studies to identify culturally affiliated human remains and associated
funerary objects listed in agency NAGPRA inventories but for which no
notices of inventory completion have been published. However, our
analysis has shown that none of these studies has been comprehensive
and complete. National NAGPRA is currently in the process of
reconciling all the inventories submitted with its electronic database
in order to determine which culturally affiliated human remains and
associated funerary objects have not been included in a notice of
inventory completion. Program officials expect this effort to be
completed by October 2010. Until federal agencies have published
notices of inventory completion in the Federal Register for culturally
affiliated human remains and associated funerary objects that they
have listed in inventories, items cannot be repatriated according to
the provisions of NAGPRA. Although National NAGPRA will have more
information on the level of compliance by federal agencies from the
reconciliation of data, this may not lead to improved compliance
because NAGPRA and its implementing regulations do not provide
National NAGPRA or any other federal office with authority to ensure
federal agency compliance with the act. See appendix III for a
discussion of NAGPRA enforcement.
Federal Agencies Identified a Number of Challenges That Inhibit Their
Efforts to Comply with NAGPRA:
Officials with the eight agencies that we reviewed identified a number
of challenges that their agencies have faced in complying with NAGPRA.
First and foremost, officials at all of the eight key federal agencies
that we spoke with and a December 2009 Interior Inspector General
report all noted that the lack of funding is one of the most
significant challenges to complying with NAGPRA. Officials noted that
without funding, their cultural resources management programs have not
been adequately staffed to comply with NAGPRA. For example, BIA has
one curator for the estimated 5.7 million items in its collections
across the entire agency, and FWS's Service Archaeologist estimated
that it would cost $35 million and take 28 years to properly review
all of FWS's historical collections for NAGPRA items. Second, NAGPRA
compliance for historical collections is generally a collateral duty
among all the other tasks that agency cultural resource staff must
perform, including section 3 NAGPRA responsibilities for new
intentional excavations and inadvertent discoveries.[Footnote 42]
Officials at almost all of the eight agencies we reviewed confirmed
that compliance with sections 5 and 6 of NAGPRA for historical
collections is a collateral duty for most federal agency staff that
work in this area. For example, BLM staff stated that their state
archaeologists prioritize compliance with section 3 of NAGPRA, section
106 of the National Historic Preservation Act,[Footnote 43] and the
National Environmental Policy Act.[Footnote 44] Even the national-
level NAGPRA coordination staff at many agencies, such as BLM, BOR,
FWS, and BIA, told us that they do not spend the majority of their
time on NAGPRA compliance. Third, as discussed earlier, poor curation
practices by agencies and repositories, in general, along with poor
historical records and documentation, have also made NAGPRA compliance
a challenge.
The Review Committee Has Monitored Compliance with NAGPRA
Implementation, Made Recommendations with Mixed Success, and Continues
to Face Challenges:
To fulfill its responsibilities under NAGPRA, the Review Committee has
monitored federal agency and museum compliance, made recommendations
to improve implementation, and assisted the Secretary in the
development of regulations. While the Review Committee's
recommendations to facilitate the resolution of disposition requests
involving culturally unidentifiable human remains have generally been
implemented, recommendations to facilitate the resolution of disputes
over the disposition of NAGPRA items have generally not been fully
implemented. Moreover, some actions recommended by the Committee have
exceeded NAGPRA's scope and, until recently, letters from the
Designated Federal Officer informing parties of the Committee's
recommendations did not clearly indicate whether the Secretary of the
Interior had concurred with the Committee's recommendations after an
independent assessment of the disposition request. In addition, the
Review Committee has faced a number of challenges, in trying to
effectively fulfill its role under the act.
The Review Committee Has Monitored Compliance with NAGPRA
Implementation and Made Recommendations with Mixed Success:
As part of its role in implementing NAGPRA, the Review Committee has
(1) undertaken various activities, such as monitoring compliance with
the act; (2) made recommendations on the disposition of culturally
unidentifiable human remains; and (3) made recommendations on disputes.
The Review Committee Has Undertaken Various Activities in Its Role
under NAGPRA:
The Review Committee has undertaken various activities and provided
information and advice to the Secretary and Congress on a wide range
of NAGPRA issues:
* Monitoring compliance. Since its first meeting in 1992, the Review
Committee has monitored agency and museum efforts to comply with
NAGPRA using data provided by National NAGPRA and from status reports
presented by agency, museum, and tribal representatives at Review
Committee meetings. National NAGPRA has provided periodic information
to the Review Committee on the quantity of agency and museum
submissions of summaries, inventories, and publications in the Federal
Register. Also in two meetings in the late 1990s, the Review Committee
heard reports from representatives of more than 13 federal departments
and agencies about their efforts to comply with NAGPRA's requirements,
consult with Indian tribes, and determine the cultural affiliation of
human remains and objects. Officials from some agencies and museums,
including NPS and the Forest Service have also regularly attended
Review Committee meetings and provided updates on their efforts. The
Review Committee has used this information in its annual reports to
Congress and has noted that federal agency efforts to comply with
NAGPRA have been uneven, complex to measure, and lacking in
transparency.
* Making recommendations to Congress. In its annual reports to
Congress, the Review Committee has recommended several amendments to
NAGPRA but none have been enacted to date. For example, first, in its
annual reports covering 2002 through 2008, the Review Committee
recommended that Congress amend the definition of the term "Native
American" to add the words "or was" so that the definition would read:
"Native American means of, or relating to, a tribe, people or culture
that is, or was, indigenous to the United States." [Emphasis added]
The members wanted this change made in response to a court case.
[Footnote 45] While legislation has been introduced that would make
this change, it has not yet been enacted. Similarly, in its annual
reports to Congress covering 1995 through 2001, the Review Committee
recommended that Congress amend NAGPRA to include language that would
protect Native graves on state or private lands from grave robbing and
destructive activities. An amendment adding this language to NAGPRA
has not yet been enacted. Finally, to help eliminate some of the
barriers to NAGPRA implementation, the Review Committee has made
recommendations to Congress about appropriating funding for federal
agencies, Indian tribes, Native Hawaiian organizations, and museums to
implement the act's requirements.
* Assisting in the development of regulations. The Review Committee
has assisted in developing regulations to implement NAGPRA. In its
early years, the Review Committee, in conjunction with Interior's
Office of the Solicitor spent substantial amounts of time developing
the main rule. After assisting with the main rule, in 1997, the Review
Committee turned its attention to providing input into the rule
addressing the disposition of culturally unidentifiable human remains
(see appendix IV for a discussion of this rule), and in 2002 to the
rules addressing civil penalties for noncompliant museums, and the
future applicability rule for newly recognized tribes and other
situations.
Most Review Committee Recommendations on the Disposition of Culturally
Unidentifiable Human Remains Were Implemented, but Some Actions
Recommended Exceeded NAGPRA's Scope:
Through fiscal year 2009, the Review Committee has made
recommendations to the Secretary on 61 disposition requests for
culturally unidentifiable human remains. We found that 52, or about 85
percent, of the Committee's disposition recommendations had been fully
implemented by the parties after the Secretary concurred with the
Committee's recommendation.[Footnote 46] Of the remaining 9
disposition recommendations, 3 have been partially implemented, 3 have
been not implemented, and the status of 3 is unknown (see table 6).
Twenty-two of the 61 requests involved federal agencies, and 19 of the
22, were fully implemented. Parties generally agreed in advance to
their preferred manner of disposition and, in accordance with the
regulations, came to the Review Committee to complete the process and
obtain a final recommendation from the Secretary. The two most common
recommendations made by the Review Committee were (1) disposition to a
federally recognized tribe or group of tribes and (2) the need for
additional consultation or documentation.
Table 6: Unresolved Cases of Culturally Unidentifiable Human Remains
Brought before the Review Committee as of September 30, 2009:
Partially implemented:
Year: 1997;
Federal agency or museum: Baylor University, Strecker Museum;
Review Committee recommendation[A]: Conduct additional consultation;
Status of Review Committee recommendation: Museum attempted to consult
with Indian tribe, but received no response.
Year: 1997;
Federal agency or museum: Henry County Historical Society, Indiana;
Review Committee recommendation[A]: Conduct additional consultation;
Status of Review Committee recommendation: Museum attempted to consult
with Indian tribes, but they indicated they were not interested in
receiving the human remains.
Year: 1998;
Federal agency or museum: California Department of Parks and
Recreation;
Review Committee recommendation[A]: Conduct additional consultation;
Status of Review Committee recommendation: Museum attempted to consult
with non-federally recognized Indian group, but received no response.
Not implemented:
Year: 1997;
Federal agency or museum: Oakland Museum, California[B];
Review Committee recommendation[A]: Conduct additional consultation;
Status of Review Committee recommendation: Museum did not attempt to
conduct additional consultation with Indian tribes or non-federally
recognized Indian groups.
Year: 1997;
Federal agency or museum: De Anza College, California[B];
Review Committee recommendation[A]: Conduct additional consultation;
Status of Review Committee recommendation: Museum did not attempt to
conduct additional consultation with Indian tribes or non-federally
recognized Indian groups.
Year: 1997;
Federal agency or museum: City of Santa Clara, California;
Review Committee recommendation[A]: Conduct additional consultation;
Status of Review Committee recommendation: Museum determined that
human remains were culturally affiliated to a non-federally recognized
Indian group, but the human remains are still in the museum.
Status unknown:
Year: 1995;
Federal agency or museum: Department of Defense, U.S. Army, Fort
Hunter-Leggett;
Review Committee recommendation[A]: Disposition to non-federally
recognized Indian group;
Status of Review Committee recommendation: Current staff at agency not
aware of status.
Year: 1997;
Federal agency or museum: Department of Energy, Fernald Site;
Review Committee recommendation[A]: Agency should retain human remains
until identification of mechanism for disposition;
Status of Review Committee recommendation: Site closed down and agency
office re-organized.
Year: 1998;
Federal agency or museum: NPS, Fort Clatsop National Memorial;
Review Committee recommendation[A]: Solicitation of letters of support
from federally recognized Indian tribe;
Status of Review Committee recommendation: Agency staff stated that
non-federally recognized Indian group affiliated with the NAGPRA items
declined to work with federally recognized Indian tribes.
Source: GAO analysis and museum and federal officials.
[A] Recommendations in this column relate directly to the recommended
disposition of the NAGPRA items, and are not inclusive of all of the
Committee's recommendations for these requests.
[B] Two requests where museums did not implement the Review
Committee's recommendations--Oakland Museum, California, and De Anza
College, California--involved the same collection of human remains.
[End of table]
In reviewing the recommendations made by the Review Committee, we
noted that some of the actions recommended by the Review Committee
were outside the scope of NAGPRA (see table 7). These recommendations
were made prior to the new regulation on the disposition of culturally
unidentifiable human remains.[Footnote 47]
Table 7: Review Committee Recommended Actions for Disposition of
NAGPRA Items That Fell Outside the Scope of NAGPRA, 1994 through 2008:
Date ranges for when the recommendations were made: Between 1994 and
2001;
Recommendation outside the scope of NAGPRA: Repatriate culturally
unidentifiable human remains to non-federally recognized Indian
groups[A];
Number NAGPRA items: 387 human remains[B].
Date ranges for when the recommendations were made: Between 1998 and
2008;
Recommendation outside the scope of NAGPRA: Repatriate culturally
unidentifiable human remains to non-federally recognized tribal
entities, such as coalitions of tribes[C];
Number NAGPRA items: 156 human remains[B].
Date ranges for when the recommendations were made: Between 1994 and
2006;
Recommendation outside the scope of NAGPRA: Repatriate funerary
objects associated with culturally unidentifiable human remains[D];
Number NAGPRA items: 29 associated funerary objects.
Source: GAO analysis of Review Committee recommendations.
[A] In Bonnichsen v. United States, the district court noted that "a
non-federally recognized band is not a proper NAGPRA claimant" and
that the Secretary of the Interior had acknowledged that. 217 F. Supp.
2d 1116, 1141 (D. Or. 2002). Accord Castro Romero v. Becken, 256 F.3d
349 (5th Cir. 2001). Cf. Abenaki Nation of Mississquoi v. Hughes, 805
F. Supp. 234, 251 (D. Vt. 1992) (holding that Abenaki Nation, which is
not a federally recognized tribe, meets the definition of "Indian
tribe" under NAGPRA, but failing to address the statutory phrase
"which is recognized as eligible for special programs and services
provided by the United States to Indians because of their status as
Indians" appearing in NAGPRA's definition of "Indian tribe").
[B] Human remains were counted using the "minimum number of
individuals" method.
[C] In Bonnichsen v. United States, the district court noted that the
Secretary of the Interior's conclusion that a coalition of tribes is a
proper claimant contradicts the plain language of the statute, which
identifies the appropriate recipient in the singular as the Indian
tribe. 217 F. Supp. 2d 1116, 1141-2 (D. Or. 2002). The court noted
that, although there may be instances in which two tribes both have
valid claims, because, for example, they descended from the same
identifiable earlier group and have a shared group identity, under any
circumstance, the claims of coalition members must be independently
meritorious. Id.
[D] Interior has noted the statute's silence regarding culturally
unidentifiable associated funerary objects.
[End of table]
We found that the Review Committee recommended actions that fell
outside the scope of NAGPRA for four primary reasons:
* Committee members were acting in accordance with the Review
Committee's principles of agreement, which outline the criteria that
members are to use when considering requests for disposition of
culturally unidentifiable human remains.[Footnote 48] According to
former Review Committee members we spoke with, the principles of
agreement stated that appropriate repatriation solutions included the
return of human remains that were culturally unidentifiable for which
there was a shared group identity with a non-federally recognized
Indian group. The Review Committee had concluded that NAGPRA intended
and did not prohibit funerary objects associated with culturally
unidentifiable human remains from being repatriated.
* In instances where human remains were deemed culturally
unidentifiable because they were culturally affiliated to non-
federally recognized Indian groups, Review Committee members believed
that it would be scientifically dishonest to recommend disposition to
Native Americans not culturally affiliated with the human remains,
thus they recommended dispositions to non-recognized Indian groups.
* Review Committee members recommended disposition of objects
accompanying culturally unidentifiable human remains because they had
heard from tribal representatives that it was culturally unacceptable
to separate human remains from the objects buried with them.
* Some members lacked strong knowledge of the complexities of the law.
Although attorneys with Interior's Office of the Solicitor attend
Review Committee meetings and provide legal advice, one attorney
stated that the Solicitor's Office allowed Review Committee members
wide leeway with regard to their recommendations because the
Committee's recommendations are not binding.
Nevertheless, we found that the Review Committee has not recommended
dispositions to a non-federally recognized Indian group since 2001,
and the Review Committee, National NAGPRA, and Interior officials have
generally addressed the issue of the Review Committee recommending
actions that are outside the scope of NAGPRA. First, for the
culturally unidentifiable associated funerary objects, since 2008,
letters from the Designated Federal Officer to the affected parties
informing them of the Review Committee's recommendations have included
the stipulation that NAGPRA does not authorize disposition of these
objects. The letters state that a federal agency or museum may choose
to repatriate such objects under other authorities they may have.
Under the recently issued rule on the disposition of culturally
unidentifiable human remains, agencies may repatriate these objects if
state or federal law does not preclude it. Further, an attorney with
Interior's Office of the Solicitor reported advising the Review
Committee of this in the late 1990s. Second, according to National
NAGPRA officials, since the fall of 2008, the Designated Federal
Officer has requested that all parties seeking Review Committee
consideration describe the issue that they wish to present. The
officer reports using this information to help determine what type of
issue is being presented and whether the issue is outside the scope of
NAGPRA and therefore ineligible for consideration. In addition, with
regard to tribal coalitions, attorneys with Interior's Office of the
Solicitor told us that they believe NAGPRA authorizes repatriations to
coalitions of tribes as long as agency or museum records indicate that
actual repatriation was made to a federally recognized tribe.
We also found that, through January 2007, letters from the Review
Committee's Designated Federal Officer to the parties receiving a
recommendation did not clearly indicate whether the Secretary of the
Interior's recommendation was the result of an independent assessment
of the facts, NAGPRA, and the Review Committee's recommendations. The
importance of whether the Secretary's recommendation is the result of
Interior's independent assessment of the request is two-fold. First,
the Review Committee is advisory and its recommendations cannot bind
the Department or the parties. Second, NAGPRA regulations require that
agencies and museums retain possession of culturally unidentifiable
human remains pending promulgation of an applicable regulation, unless
legally required to do otherwise, or recommended to do otherwise by
the Secretary.[Footnote 49] An attorney with Interior's Office of the
Solicitor confirmed to us that the Secretary's recommendation reflects
Interior's independent assessment of the disposition requests for
culturally unidentifiable human remains, and the Review Committee's
recommendations. However, we found that letters sent between 1994 and
January 2007 did not clearly state that the Secretary had considered
the facts or whether the Secretary had independently assessed the
requests in concurring with the Review Committee recommendation.
Letters sent since January 2007 have clarified the Secretary's
independent assessment of and concurrence with the Review Committee's
recommendations and in two cases stated that Interior disagreed in
part with the Review Committee's recommendation and did not recommend
disposition.[Footnote 50]
Few Review Committee Recommendations on Disputes Were Fully
Implemented:
In contrast to the amicable nature of disposition requests, disputes
are generally contentious and the Review Committee's recommendations
have had a low implementation rate. Through the end of fiscal year
2009, the Review Committee had considered 12 disputes brought by
Indian tribes and Native Hawaiian organizations--three against federal
agencies and nine against museums. We found agencies and museums
usually did not implement some elements of the recommendations in
disputes. In particular, the Review Committee recommended four times
that agencies and museums revise the cultural affiliation of human
remains or the classification of objects, but these recommendations
were never implemented. Of the 12 disputes that we reviewed, the
Review Committee's recommendations were fully implemented for 1
dispute, partially implemented in 3 others, not implemented for 5, and
the status of 3 cases is unknown. Furthermore, three of these cases
have resulted in lawsuits, which further illustrates the Review
Committee's difficulties in fulfilling its statutory responsibility to
facilitate the resolution of disputes. See appendix V for more
information on the status of the Review Committee's recommendations on
the 12 disputes.
The Review Committee Faces a Number of Challenges in Fulfilling Its
Responsibilities under NAGPRA:
According to officials of museums and scientific organizations, the
Review Committee and its annual reports, the Committee has faced a
number of challenges in fulfilling its NAGPRA responsibilities. These
challenges fall into the following four categories:
* Perception that the Review Committee favors tribal interests.
Officials from museums and scientific organizations and some Committee
members themselves that we spoke with said that the Review Committee
favors tribal interests over the interests of the museum and
scientific community. This has led some to question the Committee's
objectivity. One official representing a museum that had previously
been a party to a dispute considered by the Review Committee stated
that she considered engaging with the Committee as one of the least
preferred methods to achieve resolution on NAGPRA issues because of
the perceived lack of balance. At the same time, some Committee
members told us that the Review Committee acknowledges there may be
some bias and regarded it as understandable because they believe the
intent of NAGPRA was to serve Native American interests and overcome
years of bias against tribal interests by museums and scientific
organizations. Regardless, the issue of the Review Committee's actual
and perceived objectivity is a concern because it could impact the
Review Committee's ability to carry out its responsibilities. We have
previously reported that to be effective, federal advisory committees
must be--and, just as importantly, be perceived as--independent and
balanced as a whole.[Footnote 51] If federal agencies and museums
perceive the Review Committee as lacking objectivity and heavily
favoring tribal interests, they may disengage from the process.
* Lack of data on federal agency compliance. In its annual reports to
Congress from 2006 through 2009, the Review Committee has cited the
lack of data on federal agency compliance as a significant challenge.
From 2006 through 2009, the Review Committee regularly reported that
the lack of data prevented it from assessing whether required
consultations between Indian tribes and federal agencies were taking
place. Further, in its annual report covering 2008, the Review
Committee requested that Congress hold open hearings for agencies, as
well as museums and tribes to provide the Review Committee and other
stakeholders with more information on the challenges that NAGPRA
practitioners have encountered. National NAGPRA officials noted that
in addition to the biennial reports provided to the Review Committee
on the status of NAGPRA compliance, National NAGPRA also produced a
2006 report on the status of Native American human remains in the
control of federal agencies.[Footnote 52]
* Limited resources. According to annual reports prepared by the
Review Committee and Committee members that we spoke with, the
Committee lacks the resources it needs to effectively fulfill its
responsibilities under NAGPRA. According to these sources, the
Committee's travel budget only allows it to hold two face-to-face
meetings per year; therefore, it is unable to devote the attention
needed to adequately cover all the agenda items. Two Review Committee
members also told us that given their busy schedules, they have
limited time to review particularly voluminous documents for
disposition requests and disputes.
* Lack of administrative support provided by National NAGPRA. Several
current and former Review Committee members expressed dissatisfaction
with the level of administrative support provided by National NAGPRA
to the Committee. For example, some stated that National NAGPRA did
not provide Review Committee members briefing packets in a timely
manner. These materials are essential for the proper preparation of
meeting activities, particularly for complex disputes and disposition
requests. National NAGPRA officials stated that they make efforts to
provide the materials at least 15 days prior to the meeting. To
accomplish this, they request that parties provide documents to
National NAGPRA 30 days in advance, but, in some cases, presenters
have come to the meetings with additional information that must then
be provided to Committee members. In addition, two Committee members
stated that in the past, National NAGPRA has been slow to reimburse
the cost of travel to meetings, which has placed a financial burden on
members.
National NAGPRA Has, in Some Cases, Not Effectively Carried Out Its
Responsibilities:
National NAGPRA has taken several actions to help the Secretary carry
out responsibilities under NAGPRA. Overall, while most of the actions
performed by National NAGPRA were consistent with the act, we did
identify concerns with a few actions. Specifically, National NAGPRA
has promulgated a number of regulations to implement NAGPRA, but
failed to meet the statutory deadline for promulgation. In addition,
National NAGPRA has developed a list of Indian tribes for the purposes
of carrying out NAGPRA, but at various point in the last 20 years the
list has not been consistent with BIA's policy or a Solicitor legal
opinion analyzing the status of Alaska Native villages as Indian
tribes. Also, National NAGPRA has not always properly screened
nominations for the Review Committee and, in 2004, 2005, and 2006,
inappropriately recruited nominees for the Review Committee and, in
one case, recommended the nominee to the Secretary for appointment.
National NAGPRA Has Taken Actions Consistent with the Act, such as
Publishing Notices, Administering a Grants Program, and Supporting the
Review Committee:
National NAGPRA has taken a number of actions that are consistent with
the act. For example, National NAGPRA has published federal agency and
museum notices in the Federal Register; increasing this number in
recent years while reducing a backlog of notices awaiting publication.
Furthermore, it has administered a NAGPRA grants program that from
fiscal years 1994 through 2009 has resulted in 628 grants awarded to
Indian tribes, Native Hawaiian organizations, and museums totaling $33
million. Other actions include the development of publicly available
databases and providing training and educations materials to NAGPRA
practitioners. See appendix VI for more details on these activities.
National NAGPRA, primarily through the Review Committee's Designated
Federal Officer, has also assisted the Review Committee in several
areas such as developing meeting agendas in concert with the Review
Committee Chair and maintaining a list of culturally unidentifiable
human remains.[Footnote 53] To assist parties that wish to bring
issues before the Review Committee, National NAGPRA staff have
produced templates for needed documents that, according to agency
officials, help the parties organize materials for the review, focus
presentations before the Review Committee, and simplify committee
actions. Other activities have included publishing Federal Register
notices of upcoming Review Committee meetings, issuing letters
conveying Review Committee recommendations to affected parties, and
providing logistical support to Review Committee members, such as
reimbursing their travel expenses to attend Review Committee meetings.
National NAGPRA has also administered the nomination process for
Review Committee members.[Footnote 54]
Some Actions Taken by National NAGPRA Raise Concerns:
We have concerns with (1) the time frames in which the regulations
have been promulgated and the inclusion of ANCSA corporations as
Indian tribes in National NAGPRA's list of Indian tribes for the
purposes of carrying out NAGPRA at various points in the last 20
years, and (2) the screening of Review Committee nominations and
questionable recruiting practices.
National NAGPRA Was Late in Promulgating NAGPRA Regulations and Treats
ANCSA Corporations as "Indian Tribes" Contrary to BIA Policy and a
Solicitor Legal Opinion:
As shown in table 8, National NAGPRA has promulgated regulations to
implement NAGPRA in four main sections. While section 13 of NAGPRA
required the Secretary to promulgate regulations within 12 months of
the law's enactment, the main body of the regulations was not
published in final form until December 4, 1995; several years after
the statutory deadline. Also, the regulations were not effective until
January 3, 1996, which was after the 1993 and 1995 deadlines for the
completion of summaries and inventories, respectively.
Table 8: NAGPRA Regulations and Related Information Published in the
Federal Register, as of April 2010:
Main rule:
Action: Notice of proposed rulemaking;
Date of publication in the Federal Register: May 28, 1993;
Federal Register citation: 58 Fed. Reg. 31122.
Action: Final rule;
Date of publication in the Federal Register: Dec. 4, 1995;
Federal Register citation: 60 Fed. Reg. 62134.
Action: Correcting amendments to final regulations;
Date of publication in the Federal Register: Aug. 1, 1997;
Federal Register citation: 62 Fed. Reg. 41292.
Action: Final rule;
technical amendment;
Date of publication in the Federal Register: Sept. 30, 2005;
Federal Register citation: 70 Fed. Reg. 57177.
Action: Correcting amendment;
Date of publication in the Federal Register: Apr. 3, 2006;
Federal Register citation: 71 Fed. Reg. 16500.
Civil penalties for noncompliant museums:
Action: Interim rule;
Date of publication in the Federal Register: Jan. 13, 1997;
Federal Register citation: 62 Fed. Reg. 1820.
Action: Final rule;
Date of publication in the Federal Register: Apr. 3, 2003;
Federal Register citation: 68 Fed. Reg. 16354.
Rule regarding future applicability following statutory deadlines for
summary and inventory completion:
Action: Proposed rule;
Date of publication in the Federal Register: Oct. 20, 2004;
Federal Register citation: 69 Fed. Reg. 61613.
Action: Final rule;
Date of publication in the Federal Register: Mar. 21, 2007;
Federal Register citation: 72 Fed. Reg. 13184.
Disposition of culturally unidentifiable human remains[A]:
Action: Draft Review Committee recommendations;
Date of publication in the Federal Register: June 20, 1995;
Federal Register citation: 60 Fed. Reg. 32163.
Action: Draft Review Committee recommendations;
Date of publication in the Federal Register: Aug. 20, 1996;
Federal Register citation: 61 Fed. Reg. 43071.
Action: Draft principles of agreement;
Date of publication in the Federal Register: June 23, 1999;
Federal Register citation: 64 Fed. Reg. 33502.
Action: Draft principles of agreement;
Date of publication in the Federal Register: July 29, 1999;
Federal Register citation: 64 Fed. Reg. 41135.
Action: Review Committee recommendations;
Date of publication in the Federal Register: June 8, 2000;
Federal Register citation: 65 Fed. Reg. 36462.
Action: Proposed rule;
Date of publication in the Federal Register: Oct. 16, 2007;
Federal Register citation: 72 Fed. Reg. 58582.
Action: Final rule with request for comments[B];
Date of publication in the Federal Register: Mar. 15, 2010;
Federal Register citation: 75 Fed. Reg. 12378.
Source: Federal Register.
[A] In addition to these actions published in the Federal Register,
according to the preamble for the final regulation on the disposition
of culturally unidentifiable human remains, the Review Committee also
(1) sent comments to the Secretary of the Interior on the issue in
2000, 2003, and 2008; (2) considered drafts of the proposed rule at
its May 31-June 2, 2002, and November 8-9, 2002, meetings; and (3)
reviewed the actual proposed rule at its January 8, 2008,
teleconference. 75 Fed. Reg. 12378 (Mar. 15, 2010).
[B] The rule became effective on May 14, 2010.
[End of table]
In addition, National NAGPRA must still promulgate regulations for two
remaining sections--disposition of unclaimed human remains, funerary
objects, sacred objects, or objects of cultural patrimony (section
10.7) and failure to claim where no repatriation or disposition has
occurred (section 10.15(b)). Furthermore, according to agency
officials, National NAGPRA plans to revisit the NAGPRA regulations in
their entirety, opening them up for public comment. However, the
officials could not provide us with specific dates for when these
additional rulemaking activities would occur.
In accordance with the regulations, National NAGPRA developed a list
of Indian tribes for the purposes of carrying out NAGPRA that includes
federally recognized tribes and, at various point in the last 20
years, ANCSA corporations. National NAGPRA's inclusion of ANCSA
corporations in its list of Indian tribes does not appear to be
consistent with Interior's legal and policy positions regarding the
status of Alaska Native villages and ANCSA corporations. Specifically,
the inconsistency stems from the inclusion of village, regional,
group, and urban corporations established pursuant to ANCSA that are
not on BIA's list of federally recognized Indian tribes or the
modified ANCSA list of Alaska Native villages.
NAGPRA's enactment and National NAGPRA's original development of the
list of Indian tribes for the purpose of carrying out NAGPRA coincided
with an ongoing debate within Interior about the status of ANCSA
corporations. Although BIA currently does not recognize any of the
ANCSA corporations as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians, at various times they have been included in BIA's list of
federally recognized tribes. For example, in 1982--the first time
Alaska Native entities were included in the BIA list--the ANCSA
corporations were excluded because they are not governments. However,
the 1988 BIA list included ANCSA corporations, raising a number of
questions with respect to the effects of the list, as BIA later
recognized. After a 1993 legal opinion by the Solicitor that concluded
that ANCSA corporations do not qualify as Indian tribes for the
purposes of federal law,[Footnote 55] BIA published a revised list in
1993 that did not include any ANCSA corporations. Subsequent lists
also have not included ANCSA corporations. Accordingly, BIA has not
recognized and does not treat ANCSA corporations as federally
recognized tribes.[Footnote 56]
Moreover, none of the ANCSA corporations are included in the modified
ANCSA list of Alaska Native villages. The Solicitor has noted that a
number of post-ANCSA statutes, such as NAGPRA, have included Alaska
Native villages within their definition of Indian tribe by reference
to the ANCSA definition of Native village and that these references
are to this modified ANCSA list. Therefore, the inclusion of ANCSA
corporations in National NAGPRA's list is at odds with the Solicitor's
legal position that the Alaska Native villages on the modified ANCSA
list are Indian tribes for purposes of federal law. Under this
interpretation, the inclusion of Alaska Native villages in NAGPRA's
definition of Indian tribe refers to the villages on the modified
ANCSA list that were subsequently included in BIA's list of federally
recognized tribes and not the ANCSA corporations.
However, because National NAGPRA's list of Indian tribes for purposes
of carrying out NAGPRA has included ANCSA corporations, at various
times over the past 20 years, the office as well as other federal
agencies and museums, have considered them eligible to make
nominations for Review Committee positions, receive NAGPRA grants, and
request repatriation of NAGPRA items.
National NAGPRA Has Not Always Properly Screened Review Committee
Nominations and Has Engaged in Questionable Recruiting Practices:
We found that in its administration of the Review Committee nomination
process, National NAGPRA has not always properly screened nominees to
ensure that they were nominated by one of the required entities
specified in NAGPRA. During the first several rounds of nominations,
we found numerous instances of this. For example, in 1991, National
NAGPRA forwarded to the Secretary the names of a number of nominees
that were submitted by ineligible entities, such as individual
university staff members, tribal consortia, a non-profit organization,
and a federal agency official. We identified similar, albeit fewer,
problems in the 1996 and 2000 nominating rounds. As a result of this
improper screening, the Secretary has appointed members who were
nominated by ineligible entities several times since 1991.
National NAGPRA has taken steps to improve the screening process. For
example, in its April 2002 Federal Register notice soliciting
nominations, National NAGPRA included the requirements for both
nominators and nominees and required submission of additional
information with nominations.[Footnote 57] Specifically, the notice
required (1) nominations submitted by Indian tribes or Native Hawaiian
organizations to be signed by the leader of the tribe or organization
and (2) that traditional religious leaders making nominations identify
themselves as such. It also clearly stated that nominations from other
individual tribal members could not be considered. Also, beginning in
2002, National NAGPRA began to confirm the status of Native American
traditional religious leaders, both as nominators and nominees, by
contacting both sources to verify this information. The June 2003
nomination notice further required that nominations from Indian tribes
or museum and scientific organizations include a statement indicating
that the official is authorized to make the nomination.[Footnote 58]
Moreover, it required that nominations from traditional Native
American religious leaders include a statement by the nominator that
the nominee is a traditional Native American religious leader. The
August 2006 nomination notice further required that the nominator
explain how he or she meets the definition of traditional religious
leader.[Footnote 59]
Despite National NAGPRA's efforts to improve the screening process,
some issues still remain. For example, two nominees forwarded to the
Secretary recently were nominated by ineligible individuals or
entities. In the first case, an individual was nominated by a tribe's
director of cultural resources and the nomination letter did not
include a statement that the director was authorized by the tribe to
make the nomination. This individual was appointed by the Secretary
and currently serves on the Review Committee. After we brought this
issue to their attention, National NAGPRA officials contacted the
tribe and obtained an official letter from the chairman of the tribe
supporting the individual's nomination. In the other case, a
nomination was made by a non-federally recognized tribe. Interior
officials confirmed that nominations must be submitted by a federally
recognized tribe. Again, we alerted National NAGPRA to this issue, and
officials responded that although the individual's name was on the
list sent to the Secretary, he was not actually considered because he
was not eligible.
In addition to its lack of adequate screening of nominating entities,
National NAGPRA has also bypassed the nomination process by
essentially making its own nominations. In one case in 2004, National
NAGPRA actively recruited a nominee and the nominee accepted the offer
6 months after the deadline for submitting nominations had passed.
National NAGPRA then sought and received permission from a nominating
entity to use a 7-year-old nomination for the current nominating round
even though the entity had already nominated a different individual in
response to the solicitation. The Secretary appointed the individual
recruited and recommended by National NAGPRA. According to an Interior
official involved in this recruitment effort, National NAGPRA became
involved in recruiting efforts because the Federal Register
solicitations had garnered an inadequate pool of nominees,[Footnote
60] and some National NAGPRA officials believed that the Review
Committee had become too weighted toward the interests of the museum
and scientific communities and was seeking an individual more
favorable to tribal interests. In addition to this case, we identified
two other instances in 2005 and 2006 where National NAGPRA recruited
nominees. Both were appointed to the Review Committee. The National
NAGPRA Program Manager pointed out that in these latter two instances,
the nominees initiated the contact and pursued the position.
The lack of adequate screening and recruitment issues surrounding the
nomination process has damaged the credibility of both National NAGPRA
and the Review Committee and has contributed to the perception of a
lack of objectivity cited by some museum officials and Review
Committee members that we interviewed. For example, several Review
Committee members said that the appointment process is not transparent
and fair and some, referred to it as a "black box" because they are
not aware of what happens to nominations once they are submitted to
National NAGPRA. The National NAGPRA Program Manager clarified that
current policy is to collect and forward all of the nomination
submissions, to the NPS Policy Office and subsequently to the
Secretary of the Interior for further review.
Many NAGPRA Items Have Been Repatriated, but Repatriations Are Not
Tracked or Reported Governmentwide:
According to agency data and our survey results, a total of 55 percent
of human remains and 68 percent of associated funerary objects have
been repatriated as of September 30, 2009. While agencies are required
to permanently document their repatriations, they are not required to
compile and report that information to anyone. Of the federal agencies
that have published notices of inventory completion, only three have
tracked and compiled agencywide data on their repatriations. These
three agencies, however, along with other federal agencies that have
published notices of inventory completion, do not regularly report
comprehensive data on their repatriations to National NAGPRA, the
Review Committee, or Congress. Agency officials identified several
reasons why some human remains and associated funerary objects have
not been repatriated, including a lack of a repatriation request from
a culturally affiliated entity, repatriation requests from disputing
parties, a lack of reburial sites, and a lack of financial resources
to complete the repatriation. Federal agencies have also published 78
notices of intent to repatriate covering 34,234 unassociated funerary
objects, sacred objects, or objects of cultural patrimony.
Agencies Have Repatriated 67 Percent of Culturally Affiliated NAGPRA
Items, but Repatriations Are Not Tracked or Reported on a
Governmentwide Basis:
Federal agencies reported repatriating 141,027 of the 209,626 NAGPRA
items published in their notices of inventory completion, or 67
percent, as of the end of fiscal year 2009. The repatriation rates by
agency ranged from 0 percent to 100 percent and they represent 55
percent of the human remains and 68 percent of the associated funerary
objects in federal agencies' notices of inventory completion,
according to agency reported data and our survey results (see table
9).[Footnote 61]
Table 9: Human Remains and Associated Funerary Objects Repatriated for
Notices of Inventory Completion Published as of September 30, 2009:
Agency reported data[B:
Agency: Forest Service;
Human remains published in notices[A]: 5,246;
Human remains repatriated[A]: 796;
Percentage: 15.17%;
Associated funerary objects published in notices: 33,618;
Associated funerary objects repatriated: 16,464;
Percentage: 48.97%.
Agency: NPS;
Human remains published in notices[A]: 4,053;
Human remains repatriated[A]: 3,416;
Percentage: 84.28%;
Associated funerary objects published in notices: 77,927;
Associated funerary objects repatriated: 37,823;
Percentage: 48.54%.
Agency: Corps of Engineers;
Human remains published in notices[A]: 722;
Human remains repatriated[A]: 623;
Percentage: 86.29%;
Associated funerary objects published in notices: 40,869;
Associated funerary objects repatriated: 40,340;
Percentage: 98.71%.
GAO survey data[C]:
Agency: Department of the Navy;
Human remains published in notices[A]: 3,397;
Human remains repatriated[A]: 1,802;
Percentage: 53.05%;
Associated funerary objects published in notices: 7,734;
Associated funerary objects repatriated: 7,127;
Percentage: 92.15%.
Agency: BLM[D];
Human remains published in notices[A]: 1,565;
Human remains repatriated[A]: 1,056;
Percentage: 67.48%;
Associated funerary objects published in notices: 16,615;
Associated funerary objects repatriated: 14,237;
Percentage: 85.69%.
Agency: BOR;
Human remains published in notices[A]: 550;
Human remains repatriated[A]: 550;
Percentage: 100.00%;
Associated funerary objects published in notices: 3,330;
Associated funerary objects repatriated: 3,327;
Percentage: 99.91%.
Agency: BIA;
Human remains published in notices[A]: 464;
Human remains repatriated[A]: 443;
Percentage: 95.47%;
Associated funerary objects published in notices: 9,621;
Associated funerary objects repatriated: 9,609;
Percentage: 99.88%.
Agency: FWS;
Human remains published in notices[A]: 127;
Human remains repatriated[A]: 63;
Percentage: 49.61%;
Associated funerary objects published in notices: 626;
Associated funerary objects repatriated: 246;
Percentage: 39.30%.
Agency: U.S. Army[E];
Human remains published in notices[A]: 105;
Human remains repatriated[A]: 103;
Percentage: 98.10%;
Associated funerary objects published in notices: 1,557;
Associated funerary objects repatriated: 1,551;
Percentage: 99.61%.
Agency: U.S. Air Force;
Human remains published in notices[A]: 38;
Human remains repatriated[A]: 29;
Percentage: 76.32%;
Associated funerary objects published in notices: 85;
Associated funerary objects repatriated: 61;
Percentage: 71.76%.
Agency: National Museum of Health and Medicine;
Human remains published in notices[A]: 16;
Human remains repatriated[A]: 10;
Percentage: 62.50%;
Associated funerary objects published in notices: 0;
Associated funerary objects repatriated: 0;
Percentage: 0.
Agency: Department of Justice[F];
Human remains published in notices[A]: 9;
Human remains repatriated[A]: 2;
Percentage: 22.22%;
Associated funerary objects published in notices: 2;
Associated funerary objects repatriated: 1;
Percentage: 50.00%.
Agency: Department of Energy;
Human remains published in notices[A]: 6;
Human remains repatriated[A]: 6;
Percentage: 100.00%;
Associated funerary objects published in notices: 1,340;
Associated funerary objects repatriated: 1,340;
Percentage: 100.00%.
Agency: Department of Homeland Security;
Human remains published in notices[A]: 2;
Human remains repatriated[A]: 2;
Percentage: 100.00%;
Associated funerary objects published in notices: 0;
Associated funerary objects repatriated: 0;
Percentage: 0.
Agency: Indian Arts and Crafts Board;
Human remains published in notices[A]: 2;
Human remains repatriated[A]: 0;
Percentage: 0;
Associated funerary objects published in notices: 0;
Associated funerary objects repatriated: 0;
Percentage: 0.
Agency: Total;
Human remains published in notices[A]: 16,302;
Human remains repatriated[A]: 8,901;
Percentage: 54.60%;
Associated funerary objects published in notices: 193,324;
Associated funerary objects repatriated: 132,126;
Percentage: 68.34%.
Source: Corps, Forest Service, and NPS databases and agency responses
to GAO survey.
Note: The TVA and the Environment Protection Agency have not published
any notices of inventory completion so they are not included in this
table. The table also does not include any repatriations that federal
agencies may have performed prior to the enactment of NAGPRA or for
new or inadvertent discoveries and intentional excavations under
section 3 of NAGPRA. For example, TVA reported that it repatriated 137
sets of human remains from the Tellico project prior to NAGPRA's
enactment.
[A] Human remains are counted using the "minimum number of
individuals" approach. The minimum number of individuals refers to the
fewest possible number of people in a skeletal assemblage. This is
often used in forensic anthropology and osteology to determine an
estimate of how many individuals are represented in a cluster of
bones. While there are formulae that can be applied to determining the
minimum number of individuals, making this determination is
essentially based on logic. Counts of the minimum number of
individuals are based on age, sex, and repeat skeletal elements. For
example, if there are three right humerus bones, that implies there
were at least three individuals. If those all three happen to be male,
and there is a clearly female skull, then that adds one more
individual to the count. A count of one could be for a complete
skeleton of over 200 bones or one fragment of a bone from one
individual.
[B] These three agencies provided consolidated agencywide data on
repatriations.
[C] We surveyed four of the eight key agencies that did not have
consolidated repatriation data, as well as eight other federal
agencies that had published notices of inventory completion. We did
not survey TVA as it had not published any notices of inventory
completion through fiscal year 2009.
[D] BLM's California State Office survey response reported
repatriating 18 unassociated funerary objects listed in a notice of
inventory completion. These were not counted in our analysis because
this type of object did not belong in an inventory.
[E] The U.S. Army survey response for Fort Kamehameha, Hawaii,
reported 83 more human remains repatriated than the 9 that were
published in the notice of inventory completion. An Army official
explained that 82 human remains were actually excavated or discovered
since November 16, 1990, NAGPRA's date of enactment. We deducted 82
from the total repatriated because they were returned under section 3
of NAGPRA and 1 other because it was not in a corrected notice.
[F] The Department of Justice's Federal Bureau of Investigation office
in Louisville, Kentucky, did not respond to our survey with regard to
two published notices that included five human remains and one
associated funerary object.
[End of table]
Of the eight key agencies we reviewed, the Forest Service and FWS had
the lowest repatriation rates for human remains among the key agencies
with published notices of inventory completion. In addition, through
fiscal year 2009, TVA has not published any notices of inventory
completion and as a result, it has not repatriated any Native American
human remains or associated funerary objects.
One of NAGPRA's purposes was to set up a process by which federal
agencies and museums receiving federal funds would inventory their
holdings and work with culturally affiliated Indian tribes and Native
Hawaiian organizations to repatriate certain Native American human
remains and objects in their historical collections. However, as noted
in the data above only three of the eight key agencies with
significant historical collections presently consolidate agencywide
data on the extent of their repatriations. In addition, as they are
not required to do so, these agencies and others generally do not
regularly report comprehensive repatriation data by notice to National
NAGPRA, the Review Committee, or Congress.[Footnote 62] Therefore,
policymakers do not have an overall sense of how federal agency
repatriation of NAGPRA items is progressing. Similarly, Indian tribes
and Native Hawaiian organizations do not have readily available
information on which human remains and objects have been culturally
affiliated with them but have not been repatriated. Regulations
implementing NAGPRA require that federal agencies and museums must
permanently document the content and recipients of all repatriations,
but do not require museums and agencies to compile these data and make
them available to the public or to National NAGPRA. Because neither
National NAGPRA nor the Review Committee receive this information,
they cannot include it in their annual reports. Without repatriation
data, we believe that National NAGPRA, the Review Committee, and
Congress are lacking valuable information on the progress of NAGPRA
implementation toward the overall goal of returning control of human
remains and objects to affiliated groups.
The 2008 report on NAGPRA implementation by the Makah Indian tribe and
the National Association of Tribal Historic Preservation Officers
found that Congress has no means of periodically assessing the
effectiveness of NAGPRA implementation. The report recommended that
federal agencies and National NAGPRA compile information on all
completed repatriations reported by agencies and that National NAGPRA
develop a database to hold this information.
National NAGPRA has started a "Culturally Affiliated Native American
Inventories Database," which is to provide a snapshot on the current
status of human remains and associated funerary objects that have been
culturally affiliated as a result of consultation with Indian tribes
and Native Hawaiian organizations. National NAGPRA reports that all
the human remains and objects that are eventually listed in this
database should be represented in a notice of inventory completion.
National NAGPRA reported that the database was 75 percent complete as
of April 1, 2010, and expected it to be fully populated by summer
2010. Completion of the database would provide reports on the minimum
number of individuals culturally affiliated but not yet in notices.
Because data on completed repatriations of culturally affiliated
remains and objects are already being documented by federal agencies,
and National NAGPRA already tracks the number of human remains and
objects listed in each notice, National NAGPRA staff told us that they
could include the repatriation status of the items appearing in each
inventory and notice in their database. National NAGPRA staff could
collect voluntary repatriation data from all agencies to provide a
consolidated report, but there were no specific plans or time frames
for this.
Some NAGPRA Items Have Not Been Repatriated Due to a Lack of Tribal
Requests, Tribal Disputes, and Availability of Reburial Sites:
A total of 7,401 human remains and 61,198 associated funerary objects
published in a notice of inventory completion had not been repatriated
as of September 30, 2009. Repatriations did not occur for a variety of
reasons.
The most common reason that repatriations did not occur is that the
culturally affiliated Indian tribe(s) or Native Hawaiian
organization(s) did not make a request for the return of the human
remains and associated funerary objects, according to agency NAGPRA
program officials and our survey results. For example, Forest Service
NAGPRA staff told us that the most significant challenge to
repatriations has been the lack of requests from culturally affiliated
entities. They noted that tribes are often not prepared to deal with
repatriation for a variety of reasons. In some cases, Forest Service,
NPS, and tribal officials told us that tribes lack cultural protocols
to deal with NAGPRA, and specific cultural protocols and new
ceremonies need to be developed before a request or transfer of human
remains and objects can be made. Responses to our survey of 12
agencies to obtain the repatriation status of human remains and
associated funerary objects included in 147 notices of inventory
completion show that the lack of a request from culturally-affiliated
Indian tribes and Native Hawaiian organizations has prevented
repatriations of human remains in 25 percent of the cases.
Another reason repatriations did not occur is because, in some cases,
multiple competing repatriation requests were received, and the
federal agency could not clearly determine which requesting party is
the most appropriate. Section 7(e) of NAGPRA provides that in these
situations the federal agency may retain the item until the requesting
parties reach agreement on its disposition or the dispute is resolved
under NAGPRA's provisions or in court.[Footnote 63] For example, in a
case involving human remains that represent approximately 1,400
individuals removed from the Tonto National Forest in Arizona, there
is a disagreement among some of the culturally affiliated tribes over
the place and manner of the final disposition of the human remains.
According to the Forest Service, because this involves differing
cultural views among culturally affiliated tribes, it is leaving the
matter to the tribes to resolve. As a result, the repatriation cannot
proceed until the disagreement is resolved.
The availability of an acceptable burial site is also an important
reason why some repatriations were not completed promptly. This has
been challenging, in part, due to the federal agencies' reburial
policies on their lands, which have varied over time. Most of the key
federal agencies that manage land where NAGPRA items were found
currently have policies that allow the reburial of the remains and
objects on the land they manage (see table 10). BOR does not allow
reburial on land that it manages. Tribes have cited the lack of
reburial sites as a challenge to repatriation.
Table 10: Reburial Policies for Eight Key Federal Agencies:
Agency: BIA;
Reburial policy: BIA does not have a policy because the federal
government holds the land in trust for the benefit of the tribal or
individual Indian landowners, who make decisions about reburial on
their lands. BIA reported it does not play an active part in these
decisions other than to ensure that all landowners are in agreement
with the reburial and that an appropriate environmental review is
done, if necessary;
Source of policy: No written policy;
Effective date: Not applicable.
Agency: BLM;
Reburial policy: Current guidance allows for NAGPRA materials
encountered during the course of disturbance activities to be reburied
as close as possible to the site. The guidance also states that
reburial of NAGPRA items repatriated from BLM collections may be made
on the public lands. This is a discretionary authority and reburial
proposals are evaluated on a case-by-case basis;
Source of policy: BLM Instruction Memorandum No. 2007-002;
Effective date: Oct. 11, 2006.
Agency: BOR;
Reburial policy: BOR does not allow burials on BOR facilities, lands,
or water bodies;
Source of policy: 43 C.F.R. § 423.28;
Effective date: Dec. 11, 2008.
Agency: Corps of Engineers;
Reburial policy: A 2000 act allows the Secretary of the Army to
identify and set aside areas at civil works projects for the reburial
of Native American human remains, at federal expense, when the remains
were discovered on project land initially;
Source of policy: Pub. L. No. 106-541, § 208 (2000), codified at 33
U.S.C. § 2338;
Effective date: Dec. 11, 2000.
Agency: Forest Service;
Reburial policy: The Forest Service policy is to support, where
appropriate, requests from Indian tribes or lineal descendants for
reburial of human remains and objects on Forest Service lands. The
Forest Service will provide an explanation to the affected Indian
tribe or lineal descendant for any request that is denied;
Source of policy: Pub. L. No. 110-246, Subtitle B, § 8103 (2008),
codified at 25 U.S.C. § 3053; and Forest Service Manual Interim
Directive 1560-2009-1;
Effective date: June 18, 2008 (Law) and June 30, 2009 (Interim
Directive).
Agency: FWS;
Reburial policy: There is no specific policy regarding reburials, but
FWS said that its Compatibility Policy on the uses of a national
wildlife refuge will allow reburials on a case-by-case basis;
Source of policy: FWS Compatibility Policy;
Effective date: Nov. 17, 2000.
Agency: NPS;
Reburial policy: Reburial of Native American human remains in the same
park unit from which they were removed may be permitted under current
NPS policy;
Source of policy: Management Policies 2006, 5.3.4 and 6.3.8;
Effective date: Aug. 31, 2006.
Agency: TVA;
Reburial policy: TVA reported that it has no written policy on
reburial of NAGPRA items on TVA land but it has entered into
discussions with Indian tribes on the issue. TVA also noted that is
has allowed the reburial of newly discovered or intentionally
excavated NAGPRA items (section 3 of NAGPRA) to be reburied on federal
land that it manages;
Source of policy: No written policy;
Effective date: Not applicable.
Source: Documents from and interviews with each agency.
[End of table]
The lack of financial resources may also prevent or delay
repatriations. Repatriations may involve a variety of expenses,
including preparing a reburial site, transporting the items from their
present location to the reburial site, access roads, grave markers and
security measures, preparation of remains, and travel expenses of
tribal officials involved with the reburial. For example, officials
from the Confederated Tribes of the Umatilla Reservation said that
funding for repatriation work is their largest challenge. They said
that one of the few sources of relief is National NAGPRA grants, but
that these grants are difficult to get. The Caddo Nation historic
preservation staff also told us that their office relies on federal
grants to carry out NAGPRA repatriation work and said more funding is
needed. In their 2008 report on NAGPRA implementation, the Makah
Indian tribe and the National Association of Tribal Historic
Preservation Officers recommended Congress provide more funding at the
federal and tribal levels. They found that many Indian tribes or
Native Hawaiian organizations do not have resources for training or
repatriation activities. As previously mentioned, the Review Committee
has also recommended additional funding for the grant program. The
National NAGPRA program has awarded an average of $53,893 annually in
repatriation grants to Indian tribes and Native Hawaiian
organizations. On average about six tribes per year receive these
grants to help with expenses associated with repatriating NAGPRA items
from museums. Repatriation grants are not available to tribes for
repatriations from federal agencies, according to National NAGPRA
staff.
The key federal agencies that we reviewed had different policies on
the extent to which they would fund repatriation expenses and reburial
of items from their historical collections (see table 11). For
example, the Corps' policy includes a specific list of allowed
expenditures, while BIA and FWS have no formal policy but will fund
some expenses on a case-by-case basis. BOR will fund only tribal
activities, such as consultation, that occur prior to repatriation.
Table 11: Policies or Practices for Funding Tribal Repatriation and
Reburial Expenses by Eight Federal Agencies for Their Historical
Collections:
Agency: BIA;
Funding available? Yes;
Allowed purposes:
* Case-by-case basis;
Written policy, if any: No written policy.
Agency: BLM;
Funding available? Yes;
Allowed purposes:
* Preparation and packaging of items being repatriated;
* Transportation of items being repatriated;
Written policy, if any: Multiple BLM instruction memoranda and
handbooks.
Agency: BOR;
Funding available? Yes;
Allowed purposes:
* BOR policy allows compensation of lineal descendants, tribes, and
organizations for activities, such as consultation, that occur prior
to repatriation;
Written policy, if any: Guidelines for Payment of Consultation Fees
Relating to Native American Graves Protection and Repatriation Act,
Aug. 7, 1995.
Agency: Corps of Engineers;
Funding available? Yes;
Allowed purposes:
* Food and water in very limited situations;
* Reimbursement of travel expenses when invited by the federal
government to retrieve items or attend reburial ceremony;
* Determination and preparation of burial site;
* Access roads, grave markers, and security measures;
* Preparation of remains;
Written policy, if any: Director of Civil Works Memorandum endorsed
July 7, 2009, Northwestern Division Policy on "Costs Associated with
Repatriation and Reburial."
Agency: Forest Service;
Funding available? Yes;
Allowed purposes:
* In all regions, except Region 3, the Forest Supervisors have the
discretionary authority to cover tribal expenses for repatriations. In
Region 3 the Regional Forester has the authority;
Written policy, if any: Forest Service Handbook 1509.13 - American
Indian and Alaska Native Relations Handbook. Chapter 10 - Consultation
With Tribes, Mar. 3, 2004.
Agency: FWS;
Funding available? Yes;
Allowed purposes:
* Although there is no funding set aside for repatriation expenses, it
may be available on a case-by-case basis by refuge managers. No formal
policy or allowed purposes available;
Written policy, if any: None.
Agency: NPS;
Funding available? Yes;
Allowed purposes:
* Tribal repatriation expenses, including consultation costs, covered
whenever possible and as appropriate;
Written policy, if any: No written policy.
Agency: TVA;
Funding available? No;
Allowed purposes:
* To date, TVA has not funded tribal expenses specifically for
repatriations because they have not yet repatriated any items under
NAGPRA;
Written policy, if any: None.
Source: Documents from and interviews with officials from each agency.
[End of table]
Federal Agencies Have Published 78 Notices of Intent to Repatriate
Covering 34,234 Objects:
As of the end of fiscal year 2009, federal agencies had published 78
notices of intent to repatriate in the Federal Register covering
34,234 objects--unassociated funerary objects, sacred objects, or
objects of cultural patrimony (see table 12). An agency official said
that almost all of these repatriations will proceed because, in
accordance with NAGPRA, the notices are based on the summaries, the
agency already had consulted and culturally affiliated the items, and
that an Indian tribe or Native Hawaiian organization had made a
repatriation claim prior to the publication of the notice of intent to
repatriate. In some cases, where multiple groups are affiliated with
the items, the groups must reach consensus on who will receive the
items before the repatriation can proceed.
Table 12: Objects Included in Notices of Intent to Repatriate as of
September 30, 2009:
Agency: Department of the Interior: BIA;
Number of notices of intent to repatriate: 6;
Unassociated funerary objects: 24,200;
Sacred objects: 3;
Objects of cultural patrimony: 0;
Total number of objects: 24,203.
Agency: Department of the Interior: NPS;
Number of notices of intent to repatriate: 26;
Unassociated funerary objects: 3,352;
Sacred objects: 2,470;
Objects of cultural patrimony: 2;
Total number of objects: 5,824.
Agency: Department of the Interior: BLM;
Number of notices of intent to repatriate: 3;
Unassociated funerary objects: 408;
Sacred objects: 0;
Objects of cultural patrimony: 0;
Total number of objects: 408.
Agency: Department of the Interior: FWS;
Number of notices of intent to repatriate: 9;
Unassociated funerary objects: 4;
Sacred objects: 0;
Objects of cultural patrimony: 94;
Total number of objects: 98.
Agency: Department of the Interior: BOR;
Number of notices of intent to repatriate: 1;
Unassociated funerary objects: 74;
Sacred objects: 0;
Objects of cultural patrimony: 0;
Total number of objects: 74.
Agency: Department of the Interior: Indian Arts and Crafts Board;
Number of notices of intent to repatriate: 1;
Unassociated funerary objects: 0;
Sacred objects: 0;
Objects of cultural patrimony: 0;
Total number of objects: 0.
Agency: Subtotal;
Number of notices of intent to repatriate: 46;
Unassociated funerary objects: 28,038;
Sacred objects: 2,473;
Objects of cultural patrimony: 96;
Total number of objects: 30,607.
Agency: Department of Defense: Corps of Engineers;
Number of notices of intent to repatriate: 6;
Unassociated funerary objects: 339;
Sacred objects: 0;
Objects of cultural patrimony: 0;
Total number of objects: 339.
Agency: Department of Defense: U.S. Army;
Number of notices of intent to repatriate: 1;
Unassociated funerary objects: 8;
Sacred objects: 0;
Objects of cultural patrimony: 0;
Total number of objects: 8.
Agency: Subtotal;
Number of notices of intent to repatriate: 7;
Unassociated funerary objects: 347;
Sacred objects: 0;
Objects of cultural patrimony: 0;
Total number of objects: 347.
Agency: Forest Service;
Number of notices of intent to repatriate: 19;
Unassociated funerary objects: 1,793;
Sacred objects: 201;
Objects of cultural patrimony: 620;
Total number of objects: 2,614.
Agency: Department of Energy;
Number of notices of intent to repatriate: 4;
Unassociated funerary objects: 343;
Sacred objects: 296;
Objects of cultural patrimony: 0;
Total number of objects: 639.
Agency: Department of Justice;
Number of notices of intent to repatriate: 2;
Unassociated funerary objects: 26;
Sacred objects: 1;
Objects of cultural patrimony: 0;
Total number of objects: 27.
Agency: Total;
Number of notices of intent to repatriate: 78;
Unassociated funerary objects: 30,547;
Sacred objects: 2,971;
Objects of cultural patrimony: 716;
Total number of objects: 34,234.
Source: National NAGPRA database.
Note: TVA and other federal agencies have not published any notices of
intent to repatriate for summary items--unassociated funerary objects,
sacred objects, and objects of cultural patrimony--as of September 30,
2009.
[End of table]
Conclusions:
After passage of the act, many federal agencies faced a monumental
task in trying to identify all of their NAGPRA items and culturally
affiliating them, to the extent possible, within the statutory
deadlines. The difficulty of the task was compounded at some agencies
by overall poor management and oversight of their museum collections
over the years. NAGPRA compliance was generally assigned to cultural
resources staff as a collateral duty, and trying to resolve the status
of an item that the agency may have had for over 100 years was
frequently a low priority when weighed against more immediate
deadlines. While the act authorizes the Secretary of the Interior to
assess civil penalties against museums for noncompliance, no
enforcement mechanism exists to ensure federal agency compliance
except through litigation by private parties. Despite the fact that
key federal agencies have now had almost 20 years to comply with the
act, they still have not fully complied. Furthermore, it is difficult
for policymakers to determine how much work the federal agencies have
left to achieve full compliance because the agencies generally do not
have an estimate of the remaining work nor their needs for staff and
resources to complete their NAGPRA activities for their historical
collections.
In the cases where the federal agencies have completed inventories
with culturally affiliated human remains and associated funerary
items, much of the compliance work has already been accomplished.
However, for a variety of reasons, over the years, the publication of
notices of inventory completion for some of these items in the Federal
Register did not occur. Until agencies publish notices of inventory
completion for the remaining culturally affiliated human remains and
associated funerary objects in the Federal Register, they cannot be
repatriated.
NAGPRA's enactment and National NAGPRA's original development of the
list of Indian tribes for the purpose of carrying out NAGPRA coincided
with an ongoing debate within Interior about the status of ANCSA
corporations. However, Interior's Solicitor has since clarified the
status of the ANCSA corporations, and they are no longer on BIA's list
of federally recognized tribes. Accordingly, the rationale for
National NAGPRA continuing to include them as Indian tribes for the
purpose of carrying out NAGPRA is unclear.
Because repatriation involves addressing both the interests of Native
Americans who want the remains of their ancestors and their cultural
and sacred objects returned to them and the scientific and research
interests of museums, it is important that all sides continue to be
fully engaged in the process and it is important that the Review
Committee and National NAGPRA be viewed as objective, balanced, and
fair. In setting up the Review Committee with three members nominated
from each side, the act tried to balance the interests of Native
Americans and museums. However, actions by National NAGPRA have fueled
concerns about not only its but also the Review Committee's
objectivity and transparency, especially through the inappropriate
interference in the nomination process and failing to ensure that all
the nominations considered for appointment meet the act's requirements.
In addition, data on repatriations are not centrally tracked and
reported or readily available to affected Indian tribes and Native
Hawaiian organizations. As a result, neither National NAGPRA nor the
Review Committee can report this information in their annual reports
to Congress. Without this information, policymakers cannot assess the
overall effectiveness of the act. Furthermore, not making this
information readily accessible to Indian tribes and Native Hawaiian
organizations is an impediment to repatriation because a list of
published items not yet repatriated would allow tribes to easily
identify items that have been affiliated to them and allow them to
request more information and, in turn, perhaps request repatriation.
Recommendations for Executive Action:
We are making the following five recommendations to improve NAGPRA
implementation:
To enhance federal agency NAGPRA compliance, we recommend that the
Secretaries of Agriculture, Defense, and the Interior, and the Chief
Executive Officer of the Tennessee Valley Authority direct their
cultural resource management programs to develop and provide to
Congress:
* a needs assessment listing specific actions, resources, and time
needed to complete the inventories and summaries required by NAGPRA
sections 5 and 6 for their historical collections; and:
* a timetable for the expeditious publication in the Federal Register
of notices of inventory completion for all remaining Native American
human remains and associated funerary objects that have been
culturally affiliated in inventories.
To clarify which entities are eligible under NAGPRA, we recommend that
National NAGPRA, in conjunction with Interior's Office of the
Solicitor, reassess whether ANCSA corporations should be considered as
eligible entities for the purposes of carrying out NAGPRA given the
Solicitor's opinion and BIA policy concerning the status of ANCSA
corporations.
To improve the confidence in the Review Committee and its support
among NAGPRA practitioners, we recommend the Secretary of the Interior
direct National NAGPRA to strictly adhere to the nomination process
prescribed in the act and, working with Interior's Office of the
Solicitor as appropriate, ensure that all Review Committee nominations
are properly screened to confirm that the nominees and nominating
entities meet statutory requirements.
To provide policymakers with information to assess the overall
effectiveness of the act and to provide Indian tribes and Native
Hawaiian organizations readily accessible information on items that
are available for repatriation, we recommend that the Secretaries of
Agriculture, Defense, the Interior, and the Chief Executive Officer of
the Tennessee Valley Authority direct their cultural resource
management programs to report their repatriation data to National
NAGPRA on a regular basis, but no less than annually, for each notice
of inventory completion they have or will publish. Furthermore,
National NAGPRA should make this information readily available to
Indian tribes and Native Hawaiian organizations and the Review
Committee should publish the information in its annual report to
Congress.
Agency Comments and Our Evaluation:
We provided a draft of this report for review and comment to the
Departments of Agriculture, Defense, and the Interior as well as TVA.
In their written comments, officials from Agriculture's U.S. Forest
Service, Interior, and TVA agreed with the report's conclusions and
recommendations. Their written comments are reprinted in appendixes
VII, VIII, and IX, respectively. Interior and TVA also provided
technical comments, which we incorporated into the report as
appropriate. The Department of Defense did not provide comments.
Interior's comments also included specific responses to each of the
five recommendations in the report, and identified actions that it
either has underway or will undertake in the future to implement four
of the recommendations. However, regarding the recommendation
involving ANCSA corporations specifically; Interior's response did not
reflect the long-standing nature of our concern. The definition of
"Indian tribe" in the NAGPRA regulations published in 1995 included
ANCSA corporations, even though Interior's Solicitor and BIA had
previously determined that the ANCSA corporations are not federally
recognized tribes. Moreover, at various points in the past 20 years,
ANCSA corporations have been included in National NAGPRA's list of
Indian tribes for the purposes of carrying out NAGPRA and have been
treated as eligible to make nominations for the Review Committee,
receive NAGPRA grants, and make repatriation requests and claims. For
example, on October 27, 1997, National NAGPRA updated its list and
ANCSA corporations were included in it. In addition, prior to that
list's publication, ANCSA corporations had made nominations for the
Review Committee, received NAGPRA grants, and been the recipients of
at least four separate repatriations. Following publication of the
1997 list, ANCSA corporations continued to make nominations for the
Review Committee, receive NAGPRA grants, and have items repatriated to
them. As of March 30, 2010, the list maintained by National NAGPRA did
not contain ANCSA corporations but they were added in April 2010.
After we discussed the issue with National NAGPRA and the Interior's
Office of the Solicitor, National NAGPRA removed the ANCSA
corporations from the list in May 2010. However, a notice of inventory
completion published on May 4, 2010, stated that repatriation of human
remains to an ANCSA corporation would proceed unless other claimants
came forward. To the extent that federal agencies and museums continue
to treat ANCSA corporations as eligible "Indian tribes" for NAGPRA
purposes, we believe that our recommendation remains valid.
We are sending copies of this report to the appropriate congressional
committees; the Secretaries of Agriculture, Defense, and the Interior;
the Chief Executive Officer of the Tennessee Valley Authority; and
other interested parties. In addition, this report is available at no
charge on the GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staff members have any questions about this report,
please contact me at (202) 512-3841 or mittala@gao.gov. Contact points
for our Offices of Congressional Relations and Public Affairs may be
found on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix X.
Signed by:
Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
This appendix details the methods we used to examine the
implementation of the Native American Graves Protection and
Repatriation Act (NAGPRA). We were asked to determine:
(1) the extent to which federal agencies have complied with NAGPRA's
requirements for their historical collections;
(2) the activities taken by the Review Committee to fulfill its role
under NAGPRA and what challenges, if any, it faces;
(3) the actions taken by National NAGPRA to fulfill its
responsibilities under NAGPRA; and:
(4) the extent to which federal agencies reported repatriating Native
American human remains and objects.
We examined NAGPRA implementation in detail for eight federal agencies
with significant historical collections: the Department of the
Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management
(BLM), Bureau of Reclamation (BOR), U.S. Fish and Wildlife Service
(FWS), and the National Park Service (NPS); the U.S. Army Corps of
Engineers (Corps); the Department of Agriculture's U.S. Forest
Service; and the Tennessee Valley Authority (TVA). We reviewed NAGPRA
and its implementing regulations in 43 C.F.R. Part 10 and the final
rule on the disposition of culturally unidentified human remains
published recently in the Federal Register.[Footnote 64] For each
agency we reviewed records on NAGPRA compliance, such as inventories,
summaries, Federal Register notices, consultations, and agreements
with Indian tribes or Native Hawaiian organizations, collection
records and repatriation forms or letters, other correspondence,
agency databases, if any, and the National NAGPRA database and paper
files. To check the reliability of the data on published notices in
the National NAGPRA database (officially called "NAGPRA 20"), we
compiled this data into one table and compared it to actual notices of
inventory completion and notices of intent to repatriate published in
the Federal Register. Of the 419 notices contained in the table we
created using NAGPRA 20 data, we found a small number of data entry
errors that we corrected. This data provides the basis for overall
statistics on the program and the universe of notices for which we
needed to seek repatriation data because not all of the agencies
involved tracked and reported it.
Considering that NAGPRA implementation happens at field locations
around the country as well as at headquarters, we planned visits to
some of these locations. We compiled a list of agency field locations
with significant NAGPRA collections and activities. Based on these
lists, we selected a judgmental sample of six areas for site visits
that would allow us to visit as many of the key agencies as possible.
Table 13 identifies the geographic areas and the levels of agency
officials we met with in each location as well as tribal and museum
officials.
Table 13: Types of Federal, Tribal, and Museum Officials That GAO Met
with During Site Visits:
Site visit location: St. Louis, MO and Springfield, IL;
Agencywide NAGPRA coordinator: Corps;
Regional, district, or state-level staff: Corps;
Local or field office staff: None;
Tribal cultural resource management staff: [Empty];
Multi-tribe listening sessions: [Empty];
Museum officials: [Check].
Site visit location: Knoxville, TN;
Agencywide NAGPRA coordinator: TVA;
Regional, district, or state-level staff: None;
Local or field office staff: None;
Tribal cultural resource management staff: [Empty];
Multi-tribe listening sessions: [Empty];
Museum officials: [Check].
Site visit location: Albuquerque and Pecos, NM;
Agencywide NAGPRA coordinator: Forest Service;
Regional, district, or state-level staff: Forest Service;
Local or field office staff: Forest Service and NPS;
Tribal cultural resource management staff: [Check];
Multi-tribe listening sessions: [Check];
Museum officials: [Empty].
Site visit location: Denver area and Loveland, CO;
Agencywide NAGPRA coordinator: NPS and BOR;
Regional, district, or state-level staff: BOR, BLM, and FWS;
Local or field office staff: BOR;
Tribal cultural resource management staff: [Empty];
Multi-tribe listening sessions: [Empty];
Museum officials: [Empty].
Site visit location: Phoenix and Tucson, AZ;
Agencywide NAGPRA coordinator: None;
Regional, district, or state-level staff: BIA, BLM, and NPS;
Local or field office staff: Forest Service and BOR;
Tribal cultural resource management staff: [Check];
Multi-tribe listening sessions: [Check];
Museum officials: [Check].
Site visit location: Portland, OR area and Centralia, WA;
Agencywide NAGPRA coordinator: None;
Regional, district, or state-level staff: Corps, Forest Service, BLM,
NPS, and FWS;
Local or field office staff: Forest Service and NPS;
Tribal cultural resource management staff: [Check];
Multi-tribe listening sessions: [Check];
Museum officials: [Empty].
Source: GAO summary of site visit locations and meetings.
[End of table]
In total we met with the national-level NAGPRA coordination staffs for
each of the eight key agencies in our review, as well as staff with
NAGPRA responsibilities at either regional, state, district, local, or
field levels for the key agencies, as applicable. Because we selected
a judgmental sample of locations to visit, the information we obtained
during these visits may not be generalized to all federal agencies and
jurisdictions across the country. However, because we selected a
variety of locations, the information we obtained at these locations
provided us with a good perspective on the actual NAGPRA
implementation efforts by federal agencies.
During our review we interviewed officials from Indian tribes, tribal
organizations, museums, and scientific organizations as well as
current and former Review Committee members. During our interviews
with these officials we asked questions regarding one or more of our
objectives. During our review we maintained an open door policy and we
accommodated any Indian tribe, museum, organization, or Review
Committee member that wanted to meet with us or provide information in
writing. As a result, our methodology was supplemented by meetings
with additional Indian tribes, museums, and Review Committee members
that approached us on an ad hoc basis. While we had specific
discussion topics for each of these interviews related to one or more
of our four objectives, we did not impose a limit on the topics that
could be discussed. The interviews and visits for this review included:
* We interviewed officials from Indian tribes and tribal organizations
either in conjunction with on our site visits, in Washington, D.C., or
by telephone, including, the Caddo Nation of Oklahoma, the Four
Southern Tribes (Gila River Indian Community of the Gila River Indian
Reservation, Arizona; Salt River Pima-Maricopa Indian Community of the
Salt River Reservation, Arizona; Ak-Chin Indian Community of the
Maricopa (Ak Chin) Indian Reservation, Arizona; and Tohono O'odham
Nation of Arizona), the Navajo Nation of Arizona, New Mexico and Utah;
the Santa Clara Pueblo of New Mexico; Big Pine Band of Owens Valley
Paiute Shoshone Indians of the Big Pine Reservation, California;
Pyramid Lake Paiute Tribe of the Pyramid Lake Reservation, Nevada;
Seneca Nation of New York; Confederated Tribes of the Umatilla
Reservation, Oregon; and the Western Apache NAGPRA Working Group (San
Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto
Apache Tribe of Arizona, White Mountain Apache Tribe of the Fort
Apache Reservation, Arizona; and the Yavapai-Apache Nation of the Camp
Verde Indian Reservation, Arizona); the Affiliated Tribes of Northwest
Indians; the Inter Tribal Council of Arizona, Inc.; the Morning Star
Institute; the Native Association of Tribal Historic Preservation
Officers; and the Native American Rights Fund.
* We visited nonfederal entities (museums) serving as repositories for
federal archeological collections in Illinois (Illinois State Museum),
Tennessee (Frank H. McClung Museum at the University of Tennessee),
and Arizona (Arizona State Museum at the University of Arizona in
Tucson, Arizona). In addition, we interviewed other officials from
museums and scientific organizations either in conjunction with our
site visits, in Washington, D.C., or by telephone, including the
American Museum of Natural History in New York, New York; the Field
Museum in Chicago, Illinois; the Phoebe A. Hearst Museum of
Anthropology at the University of California in Berkeley, California;
the Peabody Museum of Archaeology and Ethnology at Harvard University
in Cambridge, Massachusetts; the Heard Museum in Phoenix, Arizona; the
American Association of Physical Anthropologists; and the Society for
American Archeology. Since the focus of our report was on federal
agencies' implementation of NAGPRA, these interviews provided
background information and we did not attempt to interview a
representative sample of museum officials.
* We selected nine current and past members of the Review Committee
for interviews through a network analysis based on four factors: (1)
the entity that nominated them, (2) the length of their tenure on the
Committee, (3) the period during which they served, and (4) whether
they chaired the Committee. One of the selected members declined to be
interviewed. We interviewed two additional members during the course
of our review.
Also related to all four of our objectives, we reviewed our prior
reports on agency archeological resource preservation, relevant
Interior Inspector General reports, academic sources, and the 2008
report by the Makah Indian tribe and the National Association of
Tribal Historic Preservation Officers on NAGPRA implementation. We
also attended the Arizona State University conference "Repatriation at
Twenty" in January 2010.
For our first objective, to determine the extent to which federal
agencies have complied with their NAGPRA requirements for their
historical collections, we obtained data from the NAGPRA 20 database
on the federal agencies' notices of inventories and summaries as
published in the Federal Register notices through the end of fiscal
year 2009. The database contained the dates that National NAGPRA
received inventories and summaries from federal agencies and museums.
To assess whether summaries and inventories were generally prepared on
time by agencies we did the following. We determined that because the
NAGPRA database did not contain the date that the documents were
prepared, it was only partially useful for determining compliance with
the statutory deadlines. Therefore, if the summaries and inventories
were received by National NAGPRA before and near the statutory
deadline, we determined that the documents had been completed in
compliance with the act. We also reviewed agency files and interviewed
agency officials in the eight key agencies involved in our review for
information on timeliness. We used all of these sources to assess
whether summaries and inventories were generally prepared on time by
agencies.
We analyzed the NAGPRA 20 database for reliability and verified all of
the database information on notices of inventory completion, notices
of intent to repatriate, and corrections of this information contained
in the database. In addition, we assessed the reliability of relevant
fields in the tables for summaries and inventories in the database by
electronically testing for obvious errors in accuracy and
completeness, reviewing information about the data and the system that
produced them, and interviewing National NAGPRA officials
knowledgeable about the data. When we found logical inconsistencies in
the data, we clarified these with National NAGPRA officials before
conducting our analyses. We determined that the data were sufficiently
reliable for the purposes of using several fields related to when
agencies submitted inventories and summaries. However, we found the
database to be unreliable for purposes of tracking culturally
unidentifiable human remains and objects because the items entered
into the culturally unidentifiable portion of the NAGPRA 20 database
are not deleted when they are affiliated. Rather, in some cases, a
notation is made in the notes field. We analyzed text recorded in the
notes fields of the inventory data to assess whether human remains and
objects listed as culturally unidentifiable had been culturally
affiliated.
In addition to Inspector General, and other reports, we considered
relevant reports identified in literature searches or recommended by
NAGPRA experts, including a study by a National NAGPRA intern, the
Corps' Mandatory Center for Expertise for the Curation and Management
of Archeological Collections, several academic journal articles and
other materials concerning the curation of archeological collections,
NAGPRA implementation, and cultural resource management.
To track agency compliance with NAGPRA, we reviewed each agency's
records at headquarters and the field, such as inventories, summaries,
Federal Register notices, and other documents. On our site visits, we
interviewed national, regional, state, and local agency staff about
their implementation of NAGPRA, in particular about the procedures
they followed to identify their historical NAGPRA collections, to
determine their level of confidence with their identification of
NAGPRA items in their archeological collections. Our analysis is based
both on the testimonial evidence and documents from agencies
supplemented by Inspector General reports. In addition, we interviewed
selected tribal and museum officials for their views on these efforts.
In order to identify cases in which human remains and associated
funerary objects that were culturally affiliated in agency
inventories, but not yet published in Federal Register notices, we
examined information from three sources: (1) the June 2008 report by
the Makah Indian tribe and the National Association of Tribal Historic
Preservation Officers, (2) a report on the topic by a National NAGPRA
intern, and (3) inventory data from NPS's "NAGPRA 20" database. We
could not rely on National NAGPRA data alone because it was
incomplete. We created a list of federal agency units mentioned in two
or three of these reports, and then examined records at National
NAGPRA offices, including the original inventories and published
notices of inventory completion, to determine which units had in fact
not published the relevant notices. In order to reduce the risk of
undercounting, we examined the full agency-submitted inventories for
each of the agency units listed in our examples. Through our analysis,
we discovered that some agency units were listed erroneously in
previous reports because of typing errors, or because the affiliated
human remains had actually been correctly published in notices of
intended disposition.[Footnote 65]
To address our second objective to determine the actions taken by the
Review Committee to fulfill its role under NAGPRA and the challenges
it faces, we analyzed the Committee's annual reports to Congress,
meeting minutes, and reports by National NAGPRA. We reviewed
documentation outlining Review Committee policies and procedures
including Review Committee charters. We reviewed the Federal Advisory
Committee Act and regulations, and our prior reports on the topic to
understand the Review Committee's role as a federal advisory
committee.[Footnote 66] We interviewed current and former Review
Committee members and National NAGPRA officials to learn more about
the Review Committee's activities and the extent and quality of the
support provided by National NAGPRA. We attended two Review Committee
meetings (Seattle, Washington, in May 2009, and Sarasota, Florida, in
October 2009) and observed an online training course on the role of
the Review Committee in February 2010.
To understand primary functions of the Review Committee--
recommendations in cases of (1) requests for dispositions of
culturally unidentifiable human remains and in (2) disputes--we
reviewed files maintained by National NAGPRA on behalf of the Review
Committee. We reviewed Federal Register notices describing the Review
Committee's findings of fact and recommendations with regard to these
disputes and requests for disposition of culturally unidentifiable
human remains. We interviewed officials with Interior's Office of the
Solicitor and National NAGPRA about the role of the Review Committee
on behalf of the Department of the Interior. With respect to
dispositions, we examined letters from the designated federal officer
informing interested parties of the Committee's recommendations to
determine the extent of the department's independent review of and
concurrence with the recommendations. Based on the sources above, we
determined that for dispositions, the Review Committee issued distinct
recommendations regarding particular culturally unidentifiable human
remains in 61 cases. National NAGPRA reports that the Committee
considered 66 requests related to culturally unidentifiable human
remains as of September 30, 2009. National NAGPRA listed some of these
requests with additional subparts because the Committee considered the
facts of the request at more than one meeting. In one case, the
Committee issued distinct recommendations for each of two subparts, so
we counted that request as two cases. We reviewed all the requests and
subparts and determined that the Committee issued distinct
recommendations 67 times. To focus our analysis on requests related to
the disposition of particular culturally unidentifiable human remains
we excluded 6 requests from our analysis. In 2 of these, the Committee
recommended approval of a protocol, and no particular culturally
unidentifiable human remains were involved. In 3 of these, the
Committee deferred issuing a recommendation, and 1 request involved
only objects (no human remains). Thus, we analyzed 61 cases where the
Review Committee made distinct recommendations regarding the
disposition of particular culturally unidentifiable human remains. We
determined the status of Review Committee recommendations in
disposition cases, and disputes by contacting officials with the
involved museums and federal agencies, and reviewing documents they
provided.
We identified challenges that the Review Committee faces and the
perceptions of the Review Committee through interviews of current and
former Review Committee members, officials from museum and scientific
organizations, Indian tribes, and tribal organizations.
To address our third objective to determine the actions National
NAGPRA has taken to facilitate federal agency implementation of
NAGPRA, we reviewed the act and its implementing regulations for the
duties assigned to National NAGPRA, as delegated to it by the
Secretary of the Interior. We interviewed National NAGPRA staff,
including the Program Manager and staff responsible for publishing
notices, administering the Review Committee, running the grants
program, and developing and maintaining National NAGPRA's databases.
To learn more about Interior's decision to include Alaska Native
corporations in the definition of Indian tribe, as provided for in the
regulations, we interviewed staff from Interior's Office of the
Solicitor, reviewed Review Committee meeting minutes and transcripts,
and analyzed National NAGPRA's "List of Indian tribes for the purposes
of carrying out NAGPRA and Native Hawaiian organizations that have
appeared in notices." With regard to National NAGPRA's actions
regarding the nomination process we reviewed files on the 14 times
nominations were solicited for Review Committee openings since NAGPRA
was enacted.[Footnote 67]
We reviewed NPS budget justifications for the NAGPRA program as well
as National NAGPRA annual reports. We reviewed a table developed by
National NAGPRA that provided information on 79 draft notices
withdrawn by museums (55) and federal agencies (24). We used this
information, along with supporting documents, to determine the status
of the 24 draft notices withdrawn by federal agencies. We obtained and
reviewed data on the grants program and interviewed three grants
panelists to understand the grants process. We determined that the
grants data was sufficiently reliable to provide a table with key
grants data over time by Indian tribe and museum, including numbers of
applications submitted and awarded and the funding requested and
awarded. We attended two online training courses (i.e., webinars)
presented by National NAGPRA--one on notices provided in January 2010
and one on the Review Committee provided in February 2010--and
discussed students' training evaluations with National NAGPRA staff to
learn more about the training program. In addition, we attended the
NAGPRA Basics day-long training sessions before the Review Committee's
meeting in Seattle, Washington, (May 2009) and Sarasota, Florida,
(October 2009). We reviewed information contained on the National
NAGPRA Web site, including the various databases provided.
For our fourth objective to determine the extent to which federal
agencies have reported repatriating Native American human remains and
objects for notices of inventory completion published in the Federal
Register, we obtained data from the three agencies that track their
repatriations--the Corps, the Forest Service, and NPS. For the other
five key federal agencies and others publishing NAGPRA notices of
inventory completion, we determined that there were no readily
available sources of data on their repatriations. We have examined the
reliability of the data from the three agencies that reported on
repatriations and the data from National NAGPRA database. We
interviewed agency staff that compiled the data on their methods and
checks for accuracy to assess reliability of the data.
We deployed a survey asking contacts in four key agencies and eight
other agencies with published notices that did not collect data about
whether the number of human remains or associated funerary objects
included in each notice of inventory completion had actually been
repatriated through fiscal year 2009, and if not, why not. We did not
survey TVA because they had not published any notices of inventory
completion through fiscal year 2009. We sent initial notification
emails to test e-mail addresses. We also notified agency contacts by e-
mail on how to access the survey and asked for responses within 2
weeks. After the survey had been available for 2 weeks, we reminded
respondents by e-mail to complete surveys, and followed the e-mail
with personal phone calls beginning a few days later. Through these
efforts we obtained a 99 percent response rate. Respondents filled in
surveys on 145 of 147 published notices of inventory completion.
Because this survey was not based on a sample, there were no sampling
errors. However, the practical difficulties of conducting any survey
may introduce errors, commonly referred to as non-sampling errors. For
example, difficulties in how a particular question is interpreted, in
the sources of information that are available to respondents, or in
how the data were entered into a database or were analyzed can
introduce unwanted variability into the survey results. We took steps
in the development of the questionnaire, the data collection, and the
data analysis to minimize these non-sampling errors. For instance, a
survey specialist designed the questionnaire in collaboration with GAO
staff that have subject-matter expertise. Further, the draft
questionnaire was pretested with a number of agency officials to
ensure that the questions were relevant, clearly stated, and easy to
comprehend. When the data were analyzed, a second, independent analyst
checked all computer programs.
We also sought information on the challenges to repatriation of human
remains or objects through interviews and documents from agency
officials, and from representatives of Indian tribes and Native
Hawaiian organizations. In addition, we asked agency officials for
their policies on reburial of human remains and objects on their lands
and the extent to which the agency would assist tribes with the
expenses of repatriation--as both were identified as factors affecting
the ability of native groups to accept repatriations and rebury
remains and objects. We sought data on the extent of National NAGPRA
grants to tribes for the purposes of repatriation.
We conducted this performance audit from July 2009 to July 2010 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
[End of section]
Appendix II: List of 28 New and Restored Indian Tribes Since NAGPRA
Was Enacted:
The regulation on future applicability, which became effective on
April 20, 2007, in part, established deadlines for federal agencies
and museums to prepare summaries and inventories for new tribes added
to BIA's official list of federally recognized tribes.[Footnote 68]
Specifically, agencies and museums have 6 months to prepare a summary
and 2 years to prepare an inventory after the new tribe's placement on
the BIA list, or after the effective date of the future applicability
rule, whichever is later.
In November 2001, we reported on BIA's process for recognizing new
tribes.[Footnote 69] At that time, we identified 47 newly recognized
tribes and 37 restored tribes, for a total of 84 newly recognized or
restored tribes since 1960. While our November 2001 report contained
detailed information on the 47 newly recognized tribes in a table on
pages 25 to 26, it did not contain similar information on the 37
restored tribes. We provided detailed information on the 37 restored
tribes in a table on pages 13 to 14 of an October 2006 report.
[Footnote 70] In the October 2006 report, we also updated the
cumulative number of newly recognized and restored tribes. While no
additional tribes were restored between our November 2001 report and
our October 2006 report, the Delaware Tribe of Indians of Oklahoma--a
newly recognized tribe--was removed from BIA's official list of
federally recognized tribes during that time period and the Cowlitz
Indian Tribe in the state of Washington was added as a newly
recognized tribe. By deleting one tribe and adding another, in our
October 2006 report, the total number of newly recognized or restored
tribes remained at 84--47 newly recognized tribes and 37 restored
tribes.
Since our October 2006 report, the Delaware Tribe of Indians of
Oklahoma has been added back on the list, the Mashpee Wampanoag Tribe
in the state of Massachusetts has been newly recognized, and the
Wilton Rancheria in California has been restored. These actions bring
the total of new or restored tribes since 1960 to 87--49 newly
recognized tribes and 38 restored tribes--as of BIA's last official
list of federally recognized tribes published on August 11, 2009.
[Footnote 71]
Twenty-eight of the 87 new or restored tribes have been recognized or
restored since NAGPRA was enacted on November 16, 1990 (see table 14).
Table 14: List of 28 New and Restored Indian Tribes Since NAGPRA Was
Enacted:
Tribe: Guidiville Rancheria of California;
Newly recognized or restored: Restored;
Date recognized or restored: Sept. 6, 1991;
How the tribe was recognized or restored: Federal court restoration,
Scotts Valley Band of Pomo Indians of the Sugar Bowl Rancheria v.
United States, No. C-86-3660-WWS (N.D. Cal. 1991)[A].
Tribe: Lytton Rancheria of California;
Newly recognized or restored: Restored;
Date recognized or restored: Sept. 6, 1991;
How the tribe was recognized or restored: Federal court restoration,
Scotts Valley[ A].
Tribe: Scotts Valley Band of Pomo Indians of California;
Newly recognized or restored: Restored;
Date recognized or restored: Sept. 6, 1991;
How the tribe was recognized or restored: Federal court restoration,
Scotts Valley[ A].
Tribe: Aroostook Band of Micmac Indians of Maine;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Nov. 26, 1991;
How the tribe was recognized or restored: Congressional recognition,
Pub. L. No. 102-171, 105 Stat. 1143 (1991).
Tribe: Mechoopda Indian Tribe of Chico Rancheria, California;
Newly recognized or restored: Restored;
Date recognized or restored: Apr. 17, 1992;
How the tribe was recognized or restored: Federal court restoration,
Scotts Valley[B].
Tribe: Catawba Indian Nation;
Newly recognized or restored: Restored;
Date recognized or restored: Oct. 27, 1993;
How the tribe was recognized or restored: Congressional restoration,
Pub. L. No. 103-116, 107 Stat. 1118 (1993).
Tribe: Ione Band of Miwok Indians of California;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Mar. 22, 1994;
How the tribe was recognized or restored: Decision by Interior's
Assistant Secretary-Indian Affairs.
Tribe: Mohegan Indian Tribe of Connecticut;
Newly recognized or restored: Newly recognized;
Date recognized or restored: May 14, 1994;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Pokagon Band of Potawatomi Indians, Michigan and Indiana;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Sept. 21, 1994;
How the tribe was recognized or restored: Congressional recognition,
Pub. L. No. 103-323, 108 Stat. 2152 (1994).
Tribe: Little River Band of Ottawa Indians, Michigan;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Sept. 21, 1994;
How the tribe was recognized or restored: Congressional recognition,
Pub. L. No. 103-324, 108 Stat. 2156 (1994).
Tribe: Little Traverse Bay Bands of Odawa Indians, Michigan;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Sept. 21, 1994;
How the tribe was recognized or restored: Congressional recognition,
Pub. L. No. 103-324, 108 Stat. 2156 (1994).
Tribe: United Auburn Indian Community of the Auburn Rancheria of
California;
Newly recognized or restored: Restored;
Date recognized or restored: Oct. 31, 1994;
How the tribe was recognized or restored: Congressional restoration,
Pub. L. No. 103-434, 108 Stat. 4533 (1994).
Tribe: Central Council of the Tlingit & Haida Indian Tribes;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Nov. 2, 1994;
How the tribe was recognized or restored: Congressional recognition,
Pub. L. No. 103-454, 108 Stat. 4792 (1994).
Tribe: Paskenta Band of Nomlaki Indians of California;
Newly recognized or restored: Restored;
Date recognized or restored: Nov. 2, 1994;
How the tribe was recognized or restored: Congressional restoration,
Pub. L. No. 103-454, 108 Stat. 4793 (1994).
Tribe: Jena Band of Choctaw Indians, Louisiana;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Aug. 29, 1995;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Huron Potawatomi, Inc., Michigan;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Mar. 17, 1996;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Samish Indian Tribe, Washington;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Apr. 26, 1996;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Match-e-be-nash-she-wish Band of Potawatomi Indians of Michigan;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Aug. 23, 1999;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Snoqualmie Tribe, Washington;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Oct. 6, 1999;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Shawnee Tribe, Oklahoma;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Dec. 27, 2000;
How the tribe was recognized or restored: Congressional recognition,
Pub. L. No. 106-568, 114 Stat. 2913 (2000).
Tribe: Federated Indians of Graton Rancheria, California;
Newly recognized or restored: Restored;
Date recognized or restored: Dec. 27, 2000;
How the tribe was recognized or restored: Congressional restoration,
Pub. L. No. 106-568, 114 Stat. 2939 (2000).
Tribe: Lower Lake Rancheria, California;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Dec. 29, 2000;
How the tribe was recognized or restored: Decision by Interior's
Assistant Secretary-Indian Affairs (reaffirmation of recognition).
Tribe: King Salmon Tribe;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Dec. 29, 2000;
How the tribe was recognized or restored: Decision by Interior's
Assistant Secretary-Indian Affairs (reaffirmation of recognition).
Tribe: Sun'aq Tribe of Kodiak;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Dec. 29, 2000;
How the tribe was recognized or restored: Decision by Interior's
Assistant Secretary-Indian Affairs (reaffirmation of recognition).
Tribe: Cowlitz Indian Tribe, Washington;
Newly recognized or restored: Newly recognized;
Date recognized or restored: Jan. 4, 2002;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Mashpee Wampanoag Tribe, Massachusetts;
Newly recognized or restored: Newly recognized;
Date recognized or restored: May 23, 2007;
How the tribe was recognized or restored: Administrative recognition
under 25 C.F.R. pt. 83.
Tribe: Delaware Tribe of Indians, Oklahoma;
Newly recognized or restored: Newly recognized;
Date recognized or restored: May 27, 2009;
How the tribe was recognized or restored: Direct government-to-
government relations were reestablished with the Delaware Tribe of
Indians through its reorganization under the Oklahoma Indian Welfare
Act. The reorganization of its tribal government, separate from that
of the Cherokee Nation, Oklahoma, was pursuant to a Memorandum of
Agreement between the two tribes[C].
Tribe: Wilton Rancheria, California;
Newly recognized or restored: Restored;
Date recognized or restored: June 8, 2009;
How the tribe was recognized or restored: Federal court restoration,
Wilton Miwok Rancheria and Dorothy Andrews v. Salazar, No. C-07-02681
(JF) (PVT), and Me-Wuk Indian Community of the Wilton Rancheria v.
Salazar, No. C-07-05706 (JF) (N.D. Cal. 2009)[D].
Source: GAO-02-49, GAO-07-23R, and the Federal Register.
Note: On June 18, 2010, BIA published its final determination to
acknowledge the Shinnecock Indian Nation. 75 Fed. Reg. 34760 (June 18,
2010). Two interested parties requested reconsideration of the final
determination by the Interior Board of Indian Appeals so the
determination is not yet effective.
[A] 57 Fed. Reg. 5214 (Feb. 12, 1992).
[B] 57 Fed. Reg. 19133 (May 4, 1992).
[C] In 1996, BIA published a notice (1) retracting the 1979
determination that the Department would engage in government-to-
government relations with the Delaware Tribe only through the Cherokee
Nation and (2) recognizing the Delaware Tribe. These actions were
overturned in court. See Cherokee Nation of Oklahoma v. Norton, 389
F.3d 1074 (10th Cir. 2004), cert. denied 126 S. Ct. 333 (2005). As a
result, in 2005, the Delaware Tribe of Indians was removed from the
BIA's list of federally recognized tribes published in the Federal
Register. See 70 Fed. Reg. 71194 (Nov. 25, 2005).
[D] 74 Fed. Reg. 33468 (July 13, 2009). The district court's
jurisdiction to enter into the stipulated agreement restoring the
tribe is the subject of a current appeal to the 9th Circuit. If the
9th Circuit Court of Appeals finds that the district court lacked
jurisdiction, the stipulated agreement and restoration is void.
[End of table]
Federal agencies and museums were required to prepare summaries and
inventories for the 25 tribes that were recognized or restored after
NAGPRA's enactment and before the effective date of the future
applicability rule by October 20, 2007, and April 20, 2009,
respectively. For the three most recent newly recognized or restored
tribes--the Mashpee Wampanoag Tribe, the Delaware Tribe of Indians,
and the Wilton Rancheria--the deadline for summaries was 6 months
after the tribe was included in BIA's list of federally recognized
tribes and for inventories is 2 years after the tribe's inclusion in
the BIA list. The Mashpee Wampanog Tribe was first included in the BIA
list published on April 4, 2008; the Delaware Tribe and the Wilton
Rancheria were first included in the August 11, 2009, list.[Footnote
72]
[End of section]
Appendix III: National NAGPRA's Lack of Authority to Ensure Federal
Agency Compliance with NAGPRA:
National NAGPRA is charged with assisting federal agencies and others
with the NAGPRA process. NAGPRA and its implementing regulations do
not provide National NAGPRA or any other federal entity with tools to
encourage or ensure that federal agencies within or outside of the
Department of the Interior comply with the act. The civil penalties
established in section 9 of NAGPRA do not apply to federal agencies;
only to museums. Absent such tools, there are limited options for
holding agencies that are not in compliance with the act accountable.
In addition, the mechanism that NAGPRA specifically provides to ensure
federal agency compliance--lawsuits by nonfederal parties, such as
Indian tribes, against federal agencies--is rarely used.
In contrast to its role vis-à-vis federal agency compliance, National
NAGPRA does have authority to encourage and ensure museum compliance.
[Footnote 73] Through fiscal year 2009, 248 counts of alleged failure
to comply with NAGPRA had been made against 43 museums. The number of
allegations has increased substantially in recent years. In fiscal
years 2008 and 2009 alone, 141 counts were alleged. National NAGPRA,
in coordination with the NPS Law Enforcement Program, has investigated
126 of the 248 counts and has found over three-quarters of those
investigated--108--to be unsubstantiated. At the end of fiscal year
2009, there was a significant backlog of 122 counts to be
investigated. These investigations have resulted in penalties totaling
$38,490 levied against six museums through fiscal year 2009. The first
notice of failure to comply was served on a museum in 2006 and,
according to National NAGPRA officials, has resulted in museums taking
compliance more seriously and also in the increase in allegations.
There has been some discussion over where to house National NAGPRA or
whether to create a new compliance oversight office all together. As
discussed in the background section of this report, amid conflict of
interest concerns, the Secretary separated the functions of National
NAGPRA into Park NAGPRA, to handle NPS compliance, and National
NAGPRA, to facilitate NAGPRA implementation governmentwide. After this
separation, National and Park NAGPRA were housed in different places
within NPS and reported up a separate chain of command. Some believe
there is still a conflict of interest in having National NAGPRA housed
within NPS, as it is also an agency that must comply with the act.
They have suggested it be removed from NPS, eliminating any conflict
issues, and elevated in stature by, for example, placing it within the
Office of the Secretary of the Interior. The June 2008 report by the
Makah Indian tribe and the National Association of Tribal Historic
Preservation Officers suggested an even greater elevation,
recommending the establishment of an Inter-Agency NAGPRA
Implementation Council within the executive branch--possibly within
the Office of Management and Budget--that would assure federal agency
compliance, among other things. This continues to be an issue of some
debate.
[End of section]
Appendix IV: Information on the Recent Regulation Addressing
Disposition of Culturally Unidentifiable Human Remains:
Section 8(c)(5) of NAGPRA made the Review Committee responsible for
recommending specific actions for developing a process for the
disposition of culturally unidentifiable human remains in the
possession or control of museums and federal agencies. The Review
Committee published its first draft of recommendations regarding the
disposition of culturally unidentifiable human remains and associated
funerary objects for public comment in June 1995. In response to
comments, the Committee published a revised draft for public comment
in August 1996. Subsequently, the Committee published draft principles
of agreement regarding the disposition of culturally unidentifiable
human remains in 1999. The Committee published its final
recommendations in June 2000. (See table 8 in the body of the report
for the citations for these actions.) In addition, the Review
Committee submitted comments to the Secretary in 2000, 2003, and 2008.
In October 2007, Interior published a proposed rule for public comment
regarding the disposition of culturally unidentifiable human remains.
The proposed rule generated over 100 comments from various interested
parties, such as Indian tribes, museums, and museum or scientific
organizations. Many have noted that the proposed rule departed from
the Review Committee's final 2000 recommendations. While some
commenters--both tribes and museums--were generally supportive of the
proposed rule and welcomed its publication, some commenters also
raised concerns with the proposed rule that resulted in Interior
making extensive revisions to the rule before issuing a final rule on
March 15, 2010. For example, several commenters were concerned by the
proposed rule's requirement for museums and federal agencies to
consult with and offer to transfer control of culturally
unidentifiable human remains under certain circumstances to the Indian
tribe or Native Hawaiian organization with a cultural relationship to
the region from which the human remains were removed. The final rule
does not contain this requirement.
Given the rulemaking's long history and the volume of comments
Interior received on the proposed rule, this appendix describes
certain provisions of the final rule, presents certain comments
Interior received on the proposed rule that are available on
[hyperlink, http://www.regulations.gov], and provides Interior's
response to the comments. This appendix does not and is not intended
to serve as a summary of all the comments Interior received on the
proposed rule; the preamble to the final rule discusses all of the
comments.
Statutory Authority:
Several museums and scientific organizations' comments argued that
Interior lacked authority to promulgate this rule for two reasons.
First, they argued that section (8)(c)(5) is a clear instruction for
the Review Committee to make recommendations to Congress for possible
future legislative action, but does not authorize Interior to take any
regulatory action itself. They note that the committee report
accompanying the version of the bill debated on the House floor stated
that the House Committee on Interior and Insular Affairs looks forward
to the Review Committee's recommendations on the process for
disposition of culturally unidentifiable human remains.[Footnote 74]
Second, museums and scientific organizations argued that NAGPRA
clearly limited repatriation to human remains that could be culturally
affiliated because the act balanced the interests of Indian tribes and
Native Hawaiians with those of museums and scientists. In their view,
the rule impermissibly expands the scope of the act.
Indian tribes either did not comment on Interior's statutory authority
or stated that they believed the rule was authorized. One tribe noted
that 25 U.S.C. § 9 authorizes the President to prescribe such
regulations as he may think fit for carrying into effect the various
provisions of any act relating to Indian affairs and that Congress has
routinely delegated broad authority to the Executive Branch to manage
Indian affairs. Based on these other laws and NAGPRA's language and
structure, this tribe argued that the culturally unidentifiable rule
is authorized as long as the rule was consistent with and not
precluded by the plain language of the act. Furthermore, the tribe
stated that the culturally unidentifiable rule was plainly designed to
carry out the act, reasonably related to the act's purposes, and not
precluded by the act.
Interior contends that section 13 of NAGPRA, which authorizes Interior
to promulgate regulations implementing the act, provides the statutory
authority for the rule. The preamble to the final rule explains that
section (8)(c)(5) of the act made the Review Committee responsible for
recommending specific actions for developing a process for disposition
of culturally unidentifiable human remains because Congress
anticipated that not all items could be geographically or culturally
affiliated with an Indian tribe or Native Hawaiian organization.
Therefore, Interior interpreted the intent of Congress as authorizing
the Secretary of the Interior to promulgate regulations governing the
disposition of culturally unidentifiable human remains after
considering the Review Committee's recommendations.
Interior has noted that an earlier version of the bill that became
NAGPRA directed the Review Committee to provide its recommendations
regarding the disposition of culturally unidentifiable human remains
to the Secretary and Congress. However, the language regarding the
Secretary and Congress was subsequently stricken from the bill.
Interior has interpreted this sequence of changes and the act's
requirement that the Secretary consult with the Review Committee in
the development of regulations as authorizing Interior to promulgate
regulations governing the disposition of culturally unidentifiable
human remains after considering the Review Committee's recommendations
on the matter. Moreover, Interior has stated that even if Congress did
not expressly delegate authority or responsibility to implement a
particular provision or fill a particular gap in the act, it can still
be apparent from an agency's generally conferred authority and other
statutory directives that Congress would expect the agency to be able
to speak with the force of law when the agency addresses ambiguities
in the statute or fills a gap in the enacted law.
In addition, Interior notes that 25 U.S.C. § 9 authorizes the
Secretary to make such regulations as he may think fit for carrying
into effect the various provisions of any act relating to Indian
Affairs. Interior argues that "because NAGPRA is Indian law, the
Secretary may promulgate any regulations needed to implement it under
the broad authority to supervise and manage Indian affairs given by
Congress."[Footnote 75]
Consultation:
The final rule, among other things, requires museums and federal
agencies to consult with (1) an Indian tribe(s) or Native Hawaiian
organization(s) that makes a disposition request for culturally
unidentifiable human remains and (2) with federally recognized Indian
tribes and Native Hawaiian organizations from whose tribal or
aboriginal lands the remains were removed before offering to transfer
control of the culturally unidentifiable human remains.[Footnote 76]
Some museums questioned the imposition of this extra burden of
consultation because National NAGPRA's online database of culturally
unidentifiable human remains contains sufficient information for
Indian tribes and Native Hawaiian organizations to submit requests.
Interior has said that this provision restates the consultation
required under section 5 of the act and 43 C.F.R. § 10.9, which
requires museums and federal agencies to consult with Indian tribes
from whose tribal lands the human remains and associated funerary
objects originated, that are or are likely to be culturally affiliated
to the remains and objects, and from whose aboriginal lands the humans
and objects originated while preparing their inventories. Therefore,
Interior has said that museums and federal agencies that consulted
with Indian tribes and Native Hawaiian organizations about the
culturally unidentifiable human remains while compiling their
inventories are not required by this new rule to consult again unless
a disposition request is made.
Right of Possession and Transfer of Control:
If the museum or federal agency cannot prove that it has a right of
possession, the final rule also requires them to offer to transfer
control of the culturally unidentifiable human remains in accordance
with the priority order listed in the regulation.[Footnote 77] NAGPRA
defines right of possession as "possession obtained with the voluntary
consent of an individual or group that had authority of alienation."
[Footnote 78] Museums and federal agencies have right of possession
for Native American human remains that were originally acquired,
excavated, exhumed, or otherwise obtained with full knowledge and
consent of the next of kin or the official governing body of the
appropriate culturally affiliated Indian tribe or Native Hawaiian
organization.
Museums and scientific organizations generally commented that right of
possession could never be established for culturally unidentifiable
human remains because neither the next of kin or an appropriate
culturally affiliated Indian tribe or Native Hawaiian organization
could have consented to the original acquisition. Museums argued that
NAGPRA's definition of right of possession ignores state property laws
that give museums legal title to human remains and items removed from
private property with the consent of landowners. Because museums have
legal title to these human remains and items, these groups argue that
the return of culturally unidentifiable human remains would violate
the Takings Clause of the Constitution.[Footnote 79] Museums and
scientific organizations also note that this rule would deprive the
world of scientific information on the biological and cultural
development of humans and would impact many museums' ability to
educate the public about these issues.
Interior has noted that NAGPRA's definition of right of possession
created an ownership presumption and that as a federal law it would
preempt any state property law on the same subject matter under the
Supremacy Clause of the Constitution.[Footnote 80] Interior also
observed that the regulatory requirement to offer to transfer control
of culturally unidentifiable human remains did not apply in
circumstances where a court of competent jurisdiction has determined
that the repatriation of the human remains in the possession or
control of a museum would result in a taking of property without just
compensation within the meaning of the Fifth Amendment.
In addition to the right of possession issue, some museums and
scientific organizations also assert that the final rule requires
museums and federal agencies to offer to transfer control of
culturally unidentifiable human remains absent any request or claim
from an Indian tribe or Native Hawaiian organization. These museums
and scientific organizations state that this requirement is
inconsistent with NAGPRA and greatly exceeds the statute's scope
because the act's requirement to repatriate culturally affiliated
human remains and objects is triggered only upon a request being made.
According to Interior, the requirement to offer to transfer control is
not triggered until an Indian tribe or Native Hawaiian organization
listed in the priority order makes a disposition request. Absent such
a request, Interior said that museums and federal agencies are not
required to offer to transfer control of culturally unidentifiable
human remains, however, Interior noted that 43 C.F.R. § 10.11(b)(ii)
allows museums and federal agencies to initiate the repatriation
process without a request, especially if they identify the tribes that
occupied the land from which the remains originated.
Non-federally Recognized Tribes:
If none of the Indian tribes or Native Hawaiian organizations in the
priority order agrees to accept control, the final rule allows museums
and federal agencies to transfer control of the culturally
unidentifiable human remains to other Indian tribes or Native Hawaiian
organizations or to non-federally recognized Indian tribes, if the
Secretary of the Interior recommends the transfer.[Footnote 81] In
their comments, some tribes objected to this provision because it
makes the transfer of control voluntary and at the discretion of the
museum or federal agency. These tribes wanted the rule to require
museums and federal agencies to transfer control to non-federally
recognized tribes from whose tribal or aboriginal lands the remains
were removed.
At least one Indian tribe, however, only wanted the rule to permit
repatriation of culturally unidentifiable human remains to federally
recognized Indian tribes. Museum and scientific organizations echoed
this comment by questioning Interior's authority in requiring museums
to obtain the Secretary's prior recommendation when the Secretary
lacked authority over non-federally recognized Indian tribes or noting
the difficulty museums and federal agencies would have in identifying
which non-federally recognized tribes had a legitimate claim.
Interior responded by noting that it followed the lead of Congress in
expanding the possible recipients of culturally unidentifiable human
remains to include non-federally recognized tribes both in assuring
that the remains went to the Indian group that had the closest
cultural connection to the remains, even if that group is not
federally recognized, and in maintaining the priority position of the
government-to-government relationship, by not making disposition to
non-federally recognized tribes mandatory. In addition, Interior
acknowledged that mandating the return of culturally unidentifiable
human remains to non-federally recognized Indian tribes would be
contrary to the terms of NAGPRA and the government-to-government
relationship between the United States and federally recognized
tribes, but that nothing in the act prohibited the voluntary transfer
of human remains to non-federally recognized tribes with appropriate
safeguards for the rights of federally recognized tribes. Interior has
said that the Secretary will continue the current practice of asking
the Review Committee for a recommendation on disposition requests from
non-federally recognized Indian tribes.
Associated Funerary Objects:
The final rule allows museums and federal agencies to transfer control
of funerary objects associated with culturally unidentifiable human
remains and recommends that such transfers occur if not precluded by
federal or state law.[Footnote 82] Several museums and scientific
organizations objected to this provision because it lacked a statutory
basis and stated that this "recommendation" inappropriately pressured
museums and agencies to divest themselves of objects in their
collection that do not have any demonstrated cultural affiliation with
NAGPRA claimants.
Tribes requested that the final rule require museums and federal
agencies to transfer control of the associated funerary objects
belonging to culturally unidentifiable human remains. Tribes argued
that funerary objects represent offerings intended as gifts and
spiritual offerings to the deceased and are understood to be the
property of the deceased. For Indian tribes, separation of the human
remains from the funerary objects is a grievous spiritual injury to
the deceased and grievous emotional injury to Native Americans. One
tribe said that requiring museums and federal agencies to transfer
control of associated funerary objects reflects the canons of
construction for Indian laws--that the law be liberally construed in
favor of Indians and all ambiguities resolved in favor of the Indians.
Tribes also argued that some museums would never return the associated
funerary objects unless required to do so.
Section (8)(c)(5) of the act, which is the only provision in the act
that refers to or uses the term culturally unidentifiable, makes the
NAGPRA Review Committee responsible for recommending specific actions
for developing a process for disposition of culturally unidentifiable
human remains but does not mention associated funerary objects.
Interior has said that it did not consider it appropriate to make the
provision to transfer culturally unidentifiable associated funerary
objects mandatory because of the statute's silence, common law
regarding human remains and associated funerary objects, and the right
of possession and takings issues that a mandatory disposition of
associated funerary objects would raise which are not clearly resolved
in the statute or legislative history.
[End of section]
Appendix V Status of Review Committee Recommendations Made in 12
Disputes:
Year: 1993;
Federal agency or museum: P.A. Hearst Museum UCLA-Berkeley;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Hui Malama I Na Kupuna O Hawai'i Nei;
Review Committee finding[A]: A relationship of shared group identity
can be reasonably traced between present day Native Hawaiian
organizations and the human remains;
Review Committee recommendations: Museum should revise determination
of cultural affiliation for human remains and notify Native Hawaiian
organizations directly and by Federal Register notice that the human
remains are available for repatriation;
Status of Review Committee's recommendations: Partially implemented.
Museum published a Federal Register notice and repatriated the human
remains. We did not determine whether the museum changed the cultural
affiliation determination.
Year: 1993;
Federal agency or museum: P.A. Hearst Museum UCLA-Berkeley;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Hui Malama I Na Kupuna O Hawai'i Nei;
Review Committee finding[A]: The Committee was unable to determine
that the preponderance of the evidence indicates that there is a
relationship of shared group identity that can be reasonably traced
between present day Native Hawaiian organizations and the human
remains;
Review Committee recommendations: Museum should transfer the human
remains to a museum in Hawaii for future consideration of cultural
affiliation and care;
Status of Review Committee's recommendations: Fully implemented.
Museum transferred the human remains to the Bishop Museum.
Subsequently, the Bishop Museum determined there was a shared group
identity and subsequently repatriated the remains.
Year: 1997;
Federal agency or museum: City of Providence, RI;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Hui Malama I Na Kupuna O Hawai'i Nei, and the state of
Hawaii's Office of Hawaiian Affairs;
Review Committee finding[A]: The object is a sacred object and a
relationship of shared group identity can be reasonably traced between
the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i
Nei and the Native Hawaiians who created and used it;
Review Committee recommendations: Museum should reconsider its
determination of the object's classification. The object should be
considered a sacred object. Museum should repatriate the object to a
Native Hawaiian organization;
Status of Review Committee's recommendations: Status unknown. The
museum did not publish a Federal Register notice and we did not
determine whether the museum reconsidered its determination of the
object's classification or whether the museum repatriated the object.
Dispute resulted in litigation.
Year: 1999;
Federal agency or museum: NPS's Chaco Culture National Historical Park;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Hopi Tribe of Arizona;
Review Committee finding[A]: Tribes were not given adequate
opportunity to consult on a one-to-one basis and make concerns known
outside of a public forum. Agency applied a looser criterion of
cultural relationship to geographical place as a basis for determining
cultural affiliation than it should have. Agency needs to do more to
evaluate and weigh evidence pertaining to cultural affiliation;
Review Committee recommendations: Agency should withdraw its published
notice and reassess its determination of cultural affiliation. Agency
should not use collective consultation in lieu of individual tribal
consultation when requested by an Indian tribe;
Status of Review Committee's recommendations: Not implemented. Agency
declined to withdraw its published notice and reassess its
determination of cultural affiliation.[B].
Year: 2001;
Federal agency or museum: BLM's Nevada State Office;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Paiute-Shoshone Tribe of the Fallon Reservation and Colony,
Nevada;
Review Committee finding[A]: State Office has not given fair and
objective consideration and assessment of all the available
information and evidence in the dispute. The preponderance of the
evidence indicates a relationship of shared group identity that can be
reasonably traced between the Paiute-Shoshone Tribe of the Fallon
Reservation and Colony, Nevada, and the human remains and associated
funerary objects from Spirit Cave in Nevada;
Review Committee recommendations: Agency should repatriate human
remains and associated funerary objects;
Status of Review Committee's recommendations: Not implemented. Agency
has not repatriated the human remains. We did not determine whether
agency repatriated the objects. Dispute resulted in litigation.
Year: 2002;
Federal agency or museum: Denver Art Museum;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Western Apache NAGPRA Working Group;
Review Committee finding[A]: The information and statements submitted
and presented by the Museum and the Working Group is sufficient to
establish by a preponderance of the evidence that the items are both
sacred objects and objects of cultural patrimony. Further, they are
culturally affiliated with the constituent tribes of the Working Group;
Review Committee recommendations: Museum should consider the oral
testimony provided by the Working Group, consult anthropological
literature, re-evaluate the determination for repatriation, and inform
the Committee of the museum's findings within 90 days;
Status of Review Committee's recommendations: Not implemented. Museum
published a notice of intent to repatriate in the Federal Register
describing the items as sacred objects to which the museum holds the
right of possession. Although an official from the Western Apache
Working Group reported that the museum followed the letter of the
recommendation by considering the Group's oral testimony and
consulting anthropological literature, the museum did not follow the
spirit of the recommendations which was, according to the official, to
reclassify the object.
Year: 2003;
Federal agency or museum: Bishop Museum;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Royal Hawaiian Academy of Traditional Arts;
Review Committee finding[A]: Museum's repatriation process for the
items was flawed and is incomplete. The place and manner of the return
of the items was not consistent with NAGPRA. Museum is responsible for
the completion of the repatriation process for the items;
Review Committee recommendations: Museum should recall the loan of the
items to Hui Malama I Na Kupuna O Hawai'i Nei, make the items
available to all consulting parties, and renew the consultation
process for repatriation;
Status of Review Committee's recommendations: Not implemented.
According to an official with the Royal Hawaiian Academy of
Traditional Arts, Hui Malama I Na Kupuna O Hawai'i Nei denied the
Bishop Museum's request for the items. Dispute led to litigation.[C]
Funerary objects were removed from cave and are in possession of the
Bishop Museum.
Year: 2005;
Federal agency or museum: Bishop Museum;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Hui Malama I Na Kupuna O Hawai'i Nei;
Review Committee finding[A]: The Review Committee declines to come to
a finding about whether the objects are objects of cultural patrimony.
Further, the Committee believes that the current location of the
objects is appropriate;
Review Committee recommendations: Museum and Hui Malama o Mo'omomi
should work together to revise memorandum of agreement to require
consent of Hui Malama o Mo'omomi prior to the removal of the objects
from the Island of Molokai;
Status of Review Committee's recommendations: Status unknown. Items
are still under the control of the Bishop Museum.
Year: 2005;
Federal agency or museum: Bishop Museum;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Hui Malama I Na Kupuna O Hawai'i Nei;
Review Committee finding[A]: Museum failed to overcome the inference
that the museum did not have the right of possession to the object.
Museums and federal agencies must repatriate cultural items within 90
days of receipt of a written request for repatriation that satisfies
NAGPRA requirements;
Review Committee recommendations: Museum should continue process of
consultation to determine appropriate claimant(s) for unassociated
funerary objects. Once repatriation has taken place, the transaction
must be documented in a way consistent with Hawaii state law;
Status of Review Committee's recommendations: Status unknown. Items
are still under the control of the Bishop Museum.
Year: 2005;
Federal agency or museum: NPS's Hawaii Volcanoes National Park;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Hui Malama I Na Kupuna O Hawai'i Nei;
Review Committee finding[A]: Agency has been very slow in going
through the NAGPRA process. The number of potential claimants for the
items has grown over time. Agency has not sufficiently investigated
right of possession. Agency should expand the involvement of Native
Hawaiian participation and testimony;
Review Committee recommendations: Agency should initiate consultation
with all claimants and interested parties, investigate the right of
possession issue, and take steps to complete repatriation by 2005;
Status of Review Committee's recommendations: Partially implemented.
According to an agency official, the agency has conducted consultation
and has considered the right of possession issue. Further the agency
has issued a notice of intent to repatriate, but repatriation has not
taken place because claimants disagree on disposition and agency
cannot determine the most appropriate claimant.
Year: 2006;
Federal agency or museum: Field Museum;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: White Mountain Apache Tribe of the Fort Apache Reservation,
Arizona;
Review Committee finding[A]: The items are consistent with the
definition of object of cultural patrimony. Museum has not presented
evidence sufficient to overcome the inference that the museum does not
have a right of possession to the items;
Review Committee recommendations: Museum should consider the oral
testimony and written evidence provided by the White Mountain Apache
Tribe and change its determination of the items to recognize their
status as objects of cultural patrimony. Museum should acknowledge
that it lacks right of possession to the items;
Status of Review Committee's recommendations: Not implemented. Museum
did not change its determination of the items and did not state that
it lacked right of possession.
Year: 2008;
Federal agency or museum: New York State Museum;
Indian tribe, group, or Native Hawaiian organization that brought the
dispute: Onondaga Nation of New York;
Review Committee finding[A]: The preponderance of the evidence shows a
relationship of shared group identity between the Onondaga Nation (and
the greater Haudenosaunee Confederacy, of which the Nation is a member-
nation) and the human remains;
Review Committee recommendations: Museum should expeditiously
repatriate human remains to the Onondaga Nation. Further, museum
should reevaluate the cultural affiliation of all Native American
human remains in its possession or under its control that had been
determined to be culturally unidentifiable using the preponderance of
the evidence to determine cultural affiliation;
Status of Review Committee's recommendations: Partially implemented.
Museum repatriated the human remains. A museum official said that it
has been and continues to be a policy of the museum to use a
preponderance of all evidence as the standard for deciding cultural
affiliation. However, it is unclear whether the museum has reevaluated
the cultural affiliation of all of its culturally unidentifiable
Native American human remains.
Source: GAO analysis based on discussions with federal agency, museum,
Native American, and National NAGPRA officials; and Federal Register
notices.
Note: This appendix contains the status of Review Committee
recommendations on 12 disputes brought before the Review Committee as
of September 30, 2009. As part of our review, we did not assess
whether agencies or museums reassessed or re-evaluated cultural
affiliations for NAGPRA items when the Review Committee recommended
they do so. For our analysis, we relied on National NAGPRA information
provided to the Review Committee on the status of disputes, Federal
Register notices stating the Review Committee's recommendations and
findings of fact for each dispute and any notices that resulted from
the dispute.
[A] Findings in this column relate directly to the Review Committee's
recommendations and are not inclusive of all the Review Committee's
findings for these disputes.
[B] In this dispute, National NAGPRA data indicates that the items
have been repatriated.
[C] In the legal settlement, among other things, the court directed
that (1) the 83 items to be removed from the cave; (2) the Bishop
Museum be given possession of the items; and (3) the Bishop Museum
restart consultation and repatriation.
[End of table]
[End of section]
Appendix VI: Other Activities Conducted by National NAGPRA:
In addition to promulgating regulations and providing administrative
support to the Review Committee, National NAGPRA has conducted a
number of activities to carry out the responsibilities assigned by
NAGPRA to the Secretary of the Interior. This appendix summarizes
these other activities.
Inventories, Summaries, and Federal Register Notices:
National NAGPRA has received federal agency and museum inventories and
summaries and published notices in the Federal Register, as NAGPRA's
implementing regulations require. According to its Fiscal Year 2009
Annual Report, from fiscal years 1992 through 2009, National NAGPRA
received inventories from 1,317 federal agencies and museums and
summaries from 1,551 federal agencies and museums and has entered some
of this information into a database. Along with the inventories,
federal agencies and museums also submit draft notices of inventory
completion and draft notices of intent to repatriate, which National
NAGPRA prepares for publication. National NAGPRA's Annual Report also
states that, during this same period, it published 1,295 notices of
inventory completion and 477 notices of intent to repatriate in the
Federal Register for federal agencies and museums.
National NAGPRA has increased the number of notices it has published
in the Federal Register in recent years. Specifically, the number of
notices published in the Federal Register increased to 180 in fiscal
year 2008 and to 200 in fiscal year 2009 compared to about 100 per
fiscal year in 2003 through 2007. Furthermore, according to the
National NAGPRA Program Manager, notice publications have increased
with fewer staff--there has been only one staff person dedicated to
publishing notices from 2005 through 2009 while there have been
multiple staff assigned to this task in previous years. In our
interviews with federal agency officials and Review Committee members,
a number of them complimented National NAGPRA on its increased
efficiency in publishing notices.
In addition to recent increases in the number of notices published,
National NAGPRA has reduced a backlog of notices that were awaiting
publication. In 2004, the year the current National NAGPRA Program
Manager started in her position, there were about 300 draft notices
awaiting publication, some of which had been submitted close to a
decade earlier. These notices needed some action by the originator
before they could proceed to publication. Prior National NAGPRA
management had an "on-hold" category for such notices and had taken
them out of the publication process, in a sense leaving them in limbo.
In 2005, National NAGPRA eliminated the "on-hold" status and set out
to clear this backlog by contacting the originating entity of each
notice and requesting that they contact National NAGPRA to resolve it.
National NAGPRA's correspondence further stated that notices would be
considered withdrawn if the originating entity did not respond within
a specified time frame. Through fiscal year 2009, over 220 had been
published, 21 were awaiting publication, and 79 were withdrawn--24 by
federal agencies (see table 15). Notices were withdrawn by agencies
and museums for a variety of reasons, including:
* the items had already been included in a published notice;
* the agency or museum had revised the cultural determination to
culturally unidentifiable; and:
* the agency or museum was actually not in control of the items.
The withdrawal of these notices has been controversial and was the
subject of discussion at a congressional hearing in October 2009.
Table 15: Draft Federal Register Notices Withdrawn by Federal Agencies
and their Status as of June 2010:
Federal agency: National Park Service (NPS): San Juan Island National
Historic Park;
Human remains in the draft notices[A]: unknown;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: June 3, 2008;
Status as of June 2010: Items covered in a published notice.
Federal agency: National Park Service (NPS): Tumacacori National
Historic Park;
Human remains in the draft notices[A]: 24;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 27, 2007;
Status as of June 2010: Items covered in a published notice.
Federal agency: National Park Service (NPS): Dinosaur National
Monument;
Human remains in the draft notices[A]: 8;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Apr. 4, 2006;
Status as of June 2010: Revised determination to culturally
unidentifiable.
Federal agency: National Park Service (NPS): Hawaii Volcanoes National
Park;
Human remains in the draft notices[A]: 1;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: July 5, 2006;
Status as of June 2010: Other[B].
Federal agency: National Park Service (NPS): Canyon de Chelly National
Monument;
Human remains in the draft notices[A]: 193;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 30, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): El Morro National
Monument;
Human remains in the draft notices[A]: 17;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 27, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): Glen Canyon National
Recreation Area;
Human remains in the draft notices[A]: about 10;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 27, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): Grand Canyon National
Park;
Human remains in the draft notices[A]: 28;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 30, 2007;
Status as of June 2010: Requested disposition of culturally
unidentifiable remains at October 2009 Review Committee meeting.
Federal agency: National Park Service (NPS): Hovenweep National
Monument;
Human remains in the draft notices[A]: 4;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 27, 2007;
Status as of June 2010: Items covered in a published notice.
Federal agency: National Park Service (NPS): Lake Mead National
Recreation Area;
Human remains in the draft notices[A]: 33;
Date draft notice received for publication processing: Nov. 6, 1995;
Date draft notice removed from publication processing: Nov. 30, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): Mesa Verde National Park;
Human remains in the draft notices[A]: unknown;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Jan. 27, 2006;
Status as of June 2010: Items covered in a published notice.
Federal agency: National Park Service (NPS): Montezuma Castle National
Monument;
Human remains in the draft notices[A]: 11;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 30, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): Petrified Forest National
Park;
Human remains in the draft notices[A]: 7;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 27, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): Tuzigoot National
Monument;
Human remains in the draft notices[A]: about 412;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 30, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): Walnut Canyon National
Monument;
Human remains in the draft notices[A]: 34;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 27, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: National Park Service (NPS): Wupatki National Monument;
Human remains in the draft notices[A]: 60;
Date draft notice received for publication processing: Nov. 16, 1995;
Date draft notice removed from publication processing: Nov. 27, 2007;
Status as of June 2010: No new notice submitted for publication[C].
Federal agency: Bureau of Reclamation (BOR): Mid-Pacific Region;
Human remains in the draft notices[A]: 36;
Date draft notice received for publication processing: Oct. 1, 1998;
Date draft notice removed from publication processing: Feb. 1, 2008;
Status as of June 2010: BOR not in control.
Federal agency: Bureau of Reclamation (BOR): Mid-Pacific Region;
Human remains in the draft notices[A]: 9;
Date draft notice received for publication processing: Aug. 31, 1999;
Date draft notice removed from publication processing: Feb. 1, 2008;
Status as of June 2010: No new notice submitted for publication.
Federal agency: Bureau of Reclamation (BOR): Mid-Pacific Region;
Human remains in the draft notices[A]: 4;
Date draft notice received for publication processing: June 30, 2000;
Date draft notice removed from publication processing: Feb. 1, 2008;
Status as of June 2010: No new notice submitted for publication.
Federal agency: Bureau of Reclamation (BOR): Mid-Pacific Region;
Human remains in the draft notices[A]: 1;
Date draft notice received for publication processing: Nov. 20, 1995;
Date draft notice removed from publication processing: Nov. 21, 2008;
Status as of June 2010: BOR not in control.
Federal agency: U.S. Army: Aberdeen Proving Ground;
Human remains in the draft notices[A]: 5;
Date draft notice received for publication processing: Feb. 17, 1999;
Date draft notice removed from publication processing: Sept. 2, 2008;
Status as of June 2010: Revised determination to culturally
unidentifiable.
Federal agency: U.S. Army: Waianae Army Recreation Center;
Human remains in the draft notices[A]: unknown;
Date draft notice received for publication processing: Oct. 26, 1999;
Date draft notice removed from publication processing: Aug. 3, 2006;
Status as of June 2010: Other[ D].
Federal agency: BIA;
Human remains in the draft notices[A]: not applicable;
Date draft notice received for publication processing: Dec. 6, 2001;
Date draft notice removed from publication processing: June 19, 2007;
Status as of June 2010: Items covered in a published notice.
Federal agency: Forest Service's Siuslaw National Forest;
Human remains in the draft notices[A]: 1;
Date draft notice received for publication processing: Mar. 21, 2001;
Date draft notice removed from publication processing: Feb. 20, 2008;
Status as of June 2010: New notice submitted is pending publication.
Source: National NAGPRA.
Note: All of the notices were notices of inventory completion except
for the BIA notice which was a notice of intent to repatriate.
[A] Human remains were counted using the "minimum number of
individuals" method.
[B] According to a National NAGPRA official, the human remains listed
in the draft notice of inventory completion were actually incorporated
into an unassociated funerary object. The official said that, as such,
they are not a "human remains" under NAGPRA, but rather an
unassociated funerary object. Because of this, the draft notice should
have been for a notice of intent to repatriate. However, no claim had
been made and, therefore, the Hawaii Volcanoes National Park removed
it from the publication process. In commenting on a draft of this
report, NPS stated that the original inventory was submitted in error
and that this unassociated funerary object was subsequently published
in a notice of intent to repatriate:
[C] In commenting on a draft of this report, NPS stated that although
NPS has not submitted a new notice for publication, the park unit has
received NAGPRA project funds, hired interns, and/or utilized park
funds in support of tribal consultation, updating the inventory, and
finalizing and publishing the notice of inventory completion.
[D] According to a National NAGPRA official, the human remains were
part of an ongoing interment that began prior to NAGPRA enactment. The
Waianae Army Recreation Center subsequently reinterred the human
remains according to an agreement that had been reached prior to
NAGPRA and in the same place as the other remains.
[End of table]
National NAGPRA's Grants Program:
National NAGPRA has administered a grants program to assist Indian
tribes, Native Hawaiian organizations, and museums in conducting
consultations and repatriations. Since the inception of the grants
program through fiscal year 2009, National NAGPRA has received 1,341
grant applications from tribes, Native Hawaiian organizations, and
museums and awarded 628 grants totaling about $33 million. Of the
total awarded, $22.4 million, or about 68 percent, has gone to tribes
and Native Hawaiian organizations and $10.5 million, or about 32
percent, has gone to museums (see table 16). Further, 513 grants worth
about $31.8 million have been awarded for consultation grants and 115
grants worth about $1.2 million have been awarded for repatriation
grants.
Table 16: NAGPRA Grant Applications Submitted by and Awarded to Tribes
and Native Hawaiian Organizations and Museums, Fiscal Years 1994
through 2009:
Fiscal year: 1994;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 103;
Amount requested: $5,917,848;
Number of applications awarded: 15;
Amount awarded: $986,200;
Museums:
Number of applications submitted: 113;
Amount requested: $6,698,044;
Number of applications awarded: 25;
Amount awarded: $1,116,800.
Fiscal year: 1995;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 62;
Amount requested: $3,769,680;
Number of applications awarded: 24;
Amount awarded: $1,387,925;
Museums:
Number of applications submitted: 56;
Amount requested: $2,408,169;
Number of applications awarded: 19;
Amount awarded: $854,075.
Fiscal year: 1996;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 53;
Amount requested: $3,416,799;
Number of applications awarded: 20;
Amount awarded: $1,150,985;
Museums:
Number of applications submitted: 33;
Amount requested: $1,530,039;
Number of applications awarded: 19;
Amount awarded: $946,905.
Fiscal year: 1997;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 54;
Amount requested: $3,148,112;
Number of applications awarded: 27;
Amount awarded: $1,425,600;
Museums:
Number of applications submitted: 20;
Amount requested: $1,055,915;
Number of applications awarded: 10;
Amount awarded: $550,650.
Fiscal year: 1998;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 62;
Amount requested: $3,552,820;
Number of applications awarded: 29;
Amount awarded: $1,562,700;
Museums:
Number of applications submitted: 23;
Amount requested: $1,025,062;
Number of applications awarded: 16;
Amount awarded: $775,720.
Fiscal year: 1999;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 57;
Amount requested: $3,296,265;
Number of applications awarded: 32;
Amount awarded: $1,648,220;
Museums:
Number of applications submitted: 22;
Amount requested: $2,251,416;
Number of applications awarded: 11;
Amount awarded: $687,780.
Fiscal year: 2000;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 84;
Amount requested: $4,814,432;
Number of applications awarded: 31;
Amount awarded: $1,629,170;
Museums:
Number of applications submitted: 28;
Amount requested: $1,276,775;
Number of applications awarded: 14;
Amount awarded: $622,830.
Fiscal year: 2001;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 53;
Amount requested: $3,048,378;
Number of applications awarded: 33;
Amount awarded: $1,802,180;
Museums:
Number of applications submitted: 20;
Amount requested: $1,042,261;
Number of applications awarded: 13;
Amount awarded: $635,820.
Fiscal year: 2002;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 57;
Amount requested: $3,460,873;
Number of applications awarded: 31;
Amount awarded: $1,708,268;
Museums:
Number of applications submitted: 16;
Amount requested: $961,775;
Number of applications awarded: 9;
Amount awarded: $537,552.
Fiscal year: 2003;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 60;
Amount requested: $3,681,184;
Number of applications awarded: 31;
Amount awarded: $1,690,502;
Museums:
Number of applications submitted: 12;
Amount requested: $668,730;
Number of applications awarded: 9;
Amount awarded: $497,806.
Fiscal year: 2004;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 41;
Amount requested: $2,369,685;
Number of applications awarded: 29;
Amount awarded: $1,535,659;
Museums:
Number of applications submitted: 17;
Amount requested: $1,037,649;
Number of applications awarded: 11;
Amount awarded: $646,341.
Fiscal year: 2005;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 41;
Amount requested: $2,404,899;
Number of applications awarded: 20;
Amount awarded: $918,560;
Museums:
Number of applications submitted: 17;
Amount requested: $1,060,299;
Number of applications awarded: 8;
Amount awarded: $471,669.
Fiscal year: 2006;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 53;
Amount requested: $3,074,228;
Number of applications awarded: 29;
Amount awarded: $1,500,965;
Museums:
Number of applications submitted: 16;
Amount requested: $750,172;
Number of applications awarded: 10;
Amount awarded: $393,893.
Fiscal year: 2007;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 36;
Amount requested: $2,092,697;
Number of applications awarded: 23;
Amount awarded: $1,312,868;
Museums:
Number of applications submitted: 16;
Amount requested: $815,239;
Number of applications awarded: 12;
Amount awarded: $548,825.
Fiscal year: 2008;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 29;
Amount requested: $1,694,314;
Number of applications awarded: 20;
Amount awarded: $1,091,687;
Museums:
Number of applications submitted: 12;
Amount requested: $557,579;
Number of applications awarded: 11;
Amount awarded: $488,164.
Fiscal year: 2009;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 47;
Amount requested: $2,630,918;
Number of applications awarded: 24;
Amount awarded: $1,092,787;
Museums:
Number of applications submitted: 28;
Amount requested: $1,709,913;
Number of applications awarded: 13;
Amount awarded: $753,809.
Fiscal year: Total;
Tribes and Native Hawaiian organizations:
Number of applications submitted: 892;
Amount requested: $52,373,131;
Number of applications awarded: 418;
Amount awarded: $22,444,276;
Number of applications submitted: 449;
Amount requested: $24,849,037;
Number of applications awarded: 210;
Amount awarded: $10,528,639.
Source: National NAGPRA.
[End of table]
The grants program has been controversial in part due to confusion
over how much funding was actually available for grants. NPS has
allocated a portion of the NAGPRA grants budget request line item to
cover a portion of National NAGPRA's operating expenses (another
portion has been provided by NPS's Cultural Resources Program), but
did not indicate this in its budget justifications until fiscal year
2011. Two investigations by Interior's Office of Inspector General on
the alleged improper use of NAGPRA funds found a lack of clarity over
the use of the grants budget request line item. Specifically, the
Inspector General responded to allegations that (1) NPS had illegally
diverted millions in grant funding for purposes not covered by NAGPRA
and (2) the National NAGPRA Program Manager had improperly
reprogrammed grant funds for administrative purposes. Both
investigations found no wrongdoing, stating that NPS and National
NAGPRA had discretion to use the funds as it did. NPS's fiscal year
2011 budget justification has addressed this issue by moving the
operating expenses out of the grants budget request and into the NPS
Cultural Resources Program budget request, thus separating the funding
for grants and operating expenses. Table 17 shows the enacted line
item for grants and NPS's use of it for grants and operating expenses
from fiscal years 1994 through 2009.
Table 18: Enacted NAGPRA Grants Funding, Amount Used for Grants, and
Their Difference, Fiscal Years 1994 through 2009:
Dollars in thousands:
Fiscal year: 1994;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,300[B];
Amount NPS used for grants: $2,103;
Difference: $197.
Fiscal year: 1995;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,296[B];
Amount NPS used for grants: $2,242;
Difference: $54.
Fiscal year: 1996;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,296[C];
Amount NPS used for grants: $2,098;
Difference: $198.
Fiscal year: 1997;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,296[C];
Amount NPS used for grants: $1,976;
Difference: $320.
Fiscal year: 1998;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,496[C];
Amount NPS used for grants: $2,338;
Difference: $158.
Fiscal year: 1999;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,496[C];
Amount NPS used for grants: $2,336;
Difference: $160.
Fiscal year: 2000;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,472[C];
Amount NPS used for grants: $2,252;
Difference: $220.
Fiscal year: 2001;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,467;
Amount NPS used for grants: $2,438;
Difference: $29.
Fiscal year: 2002;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,467;
Amount NPS used for grants: $2,246;
Difference: $221.
Fiscal year: 2003;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,451;
Amount NPS used for grants: $2,188;
Difference: $263.
Fiscal year: 2004;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,437;
Amount NPS used for grants: $2,182;
Difference: $255.
Fiscal year: 2005;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,403;
Amount NPS used for grants: $1,390;
Difference: $1,013[D].
Fiscal year: 2006;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,368;
Amount NPS used for grants: $1,895;
Difference: $473.
Fiscal year: 2007;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,368;
Amount NPS used for grants: $1,862;
Difference: $506.
Fiscal year: 2008;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,331;
Amount NPS used for grants: $1,580;
Difference: $751[E].
Fiscal year: 2009;
Enacted NAGPRA grant budget request line item in NPS's annual budget
justification[A]: $2,331;
Amount NPS used for grants: $1,847;
Difference: $484.
Source: NPS Budget Justifications and National NAGPRA.
Note: According to National NAGPRA's Annual Reports for fiscal years
2005 through 2009, NPS provided funds annually for National NAGPRA
operating expenses from its Cultural Resources Program budget ranging
from $162,000 to $350,000. Also, in fiscal year 2009, NPS Law
Enforcement provided an additional $45,000 for enforcement support and
training.
[A] In addition to the grant budget request line item, NPS's annual
budget justification includes a separate budget request line item for
grant administration that has ranged from about $150,000 to about
$190,000 annually.
[B] This figure is the amount enacted to date provided in the budget
justification.
[C] This figure is the estimate provided in the budget justification.
[D] In fiscal year 2005, Interior used $667,800 of NAGPRA funding to
pay Department of Justice legal fees in its defense for Bonnichsen v.
United States, also known as the "Kennewick Man" case.
[E] This amount includes $300,000 that NPS had originally allocated to
grants but instead used for a cooperative agreement for the
development of video and training and associated technical support.
According to National NAGPRA's Fiscal Year 2008 Annual Report and the
National NAGPRA Program Manager, the funding was shifted away from
grants because the grants recommended by the NAGPRA grants panel for
funding were less than the amount available and because of a strong
recommendation from the NAGPRA grants panel to use the funds to build
tribal and museum grant writing capacity. In addition, according to a
grants panelist and the National NAGPRA Program Manager, a number of
applications in 2008 were of relatively low quality.
[End of table]
National NAGPRA Databases:
National NAGPRA has made progress in making data available to tribes,
museums, federal agencies, and the general public. It currently
maintains six online searchable databases, such as a Native American
consultation database and databases for published notices, and has
plans to develop a summaries database. According to the National
NAGPRA Program Manger, National NAGPRA had developed only one database
as of 2005. While these databases are providing more information to
NAGPRA practitioners, some federal agencies and museums have
complained about the databases containing incorrect information. The
National NAGPRA Program Manager told us that she is aware of this
issue and is working to correct the problems. The program manager
explained that part of this problem stems from earlier efforts to
expedite the publication of notices, but without reconciling data.
Specifically, NPS staff as well as contract employees hired in 2000 to
publish notices did not reconcile the numbers of human remains and
objects listed in the notices with those listed in inventories and
summaries, and this left data inaccuracies. For example, an agency or
museum might have listed human remains as culturally unidentifiable in
an inventory, but later affiliated and repatriated those remains and
not informed National NAGPRA so they could update their database. By
not reconciling this information, data in the culturally
unidentifiable database would be incorrect.
National NAGPRA Training and Educational Materials:
National NAGPRA has provided training to and developed educational
materials for Indian tribes, museums, and federal agencies to improve
NAGPRA implementation. Course titles include Determining Cultural
Affiliation and Writing and Managing a Successful Grant. A NAGPRA
Basics course is typically offered the day before the beginning of
each Review Committee meeting. These courses are taught by National
NAGPRA staff as well as contractors and are offered in various
locations across the country, as posted on National NAGPRA's Web site.
Also, starting in June 2009, National NAGPRA began offering
"webinars," which are interactive online courses. Participants follow
the course online as well as via telephone and can ask questions
either orally or by submitting them on the Web site. In fiscal year
2009, National NAGPRA and its contractors provided 15 courses to 612
participants. According to a National NAGPRA official, feedback
obtained on these courses has generally been positive and has been
used to improve training. For example, based on feedback that its
NAGPRA Basics course was too simplistic for some and too complex for
others, National NAGPRA now plans to offer two basics courses--one for
newcomers and one for more experienced NAGPRA practitioners.
In terms of educational materials, National NAGPRA is developing a
series of videos to create a training series on NAGPRA-related issues.
National NAGPRA has conducted about 50 interviews with tribal, museum,
and federal agency officials and Review Committee members to create a
historic archive of resources on consultation, notices, and
repatriation, among other things. Also, in 2009, National NAGPRA
published a brochure on the history of the grants program that
included data as well as stories about specific grants and what they
accomplished.[Footnote 83]
Despite National NAGPRA's training efforts, we found a general lack of
knowledge about NAGPRA requirements among federal agencies. For
example, TVA completed inventories prior to consulting with
potentially affiliated Indian tribes; whereas NAGPRA requires that
consultation be conducted prior to completing inventories.[Footnote
84] Further, Corps and FWS officials stated that, in some instances,
their agencies had only begun developing notices of inventory
completion after receiving a repatriation request from an Indian tribe
for remains or associated funerary objects that had been culturally
affiliated in the agency's inventory; whereas NAGPRA requires
publication of these notices regardless of whether a repatriation
request has been received.[Footnote 85]
[End of section]
Appendix VII: Comments from the Department of Agriculture:
USDA:
Caring for the Land and Serving People:
United States Department of Agriculture:
Forest Service:
Washington Office:
1400 Independence Avenue, SW:
Washington, DC 20250:
File Code: 2300/1420:
Date: July 15, 2010:
Ms. Anu K. Mittal:
Director, Natural Resources and Environment:
Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Ms. Mittal:
We appreciate the opportunity to review and comment on the draft
Government Accountability Office (GAO) report, GA0-10-768, "Native
American Graves Protection and Repatriation Act: After Almost 20
Years, Key Federal Agencies Still Have Not Fully Complied with the
Act." In general, the Forest Service agrees with the findings,
conclusions and recommendations in the report.
We appreciate and note careful consideration given by the GAO auditors
to all of our suggestions on technical corrections and clarifications
of facts. As a result, we do not need to burden this response with
those matters.
We appreciate your recognition in your report that the Forest Service
is one of the agencies that did the most extensive work to identify
NAGPRA items.
We find the proposed executive actions to be reasonable, and our
agency anticipates fully implementing those proposed executive actions.
If you have any questions, please contact Donna M. Carmical, Chief
Financial Officer, at 202-205-1321 or dcarmical@fs.fed.us.
Sincerely,
Signed by:
Thomas L. Tidwell:
Chief:
cc: Michael Kaczor, Sandy T Coleman, Frank E Wozniak, Kathleen A
Clemens:
[End of section]
Appendix VIII: Comments from the Department of the Interior:
United States Department of the Interior:
Office Of The Secretary:
Washington, DC 20240:
July 20, 2010:
Ms. Anu K. Mittal:
Director, Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548:
Dear Ms. Mittal:
Thank you for providing the Department of the Interior the opportunity
to review and comment on the draft Government Accountability Office
Report entitled, Native American Graves Protection And Repatriation
Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully
Complied with the Act (GA0-10-768).
The Department appreciates the diligent work of the Government
Accountability Office (GAO) team that prepared the report and
collected a large amount of data. We believe GAO has produced an
informative summation of the complex issues associated with the Native
American Graves Protection and Repatriation Act Program (NAGPRA).
The Department generally concurs with the recommendations. Please find
enclosed the actions that have already been taken and that are
underway to address GAO's recommendations. Also enclosed are bureau-
specific comments and technical comments that should be considered for
the final report.
It is important to recognize the substantial progress of the Federal
agencies within Interior to step up NAGPRA compliance activities
including progress in training and consultation with tribes and Native
Hawaiian organizations. A full analysis of compliance with the Act
should include the past and current programs, as well as processes and
policies that an agency has in place for responding to the Acts
requirements.
As the GAO states, the Federal agencies acknowledge that they still
have more work to do. We are committed to fully complying with NAGPRA.
Because of the complexities of the activities required by the Act, our
progress towards compliance with NAGPRA will be a focused and on-going
effort. The varied and interrelated complexities of NAGPRA”completion
of inventories and summaries, consultation with tribes and Native
Hawaiian organizations, determination of affiliation, analysis of
claims to identify the most appropriate claimant, handling items newly
discovered in collections or other museums, consultation and dealing
with inadvertent discoveries, etc., require an ongoing process for
Federal land managers.
For additional information, please contact the NAGPRA Program
Director, Sherry Hutt, at (202)354-1479.
Sincerely,
Signed by:
Rhea Suh:
Assistant Secretary:
Policy, Management and Budget:
[End of letter]
Enclosure:
Government Accountability Office Draft Report:
Native American Graves Protection And Repatriation Act: After Almost
20 Years, Key Federal Agencies Still Have Not Fully Complied with the
Act (GA0-10-7613):
Status of Recommendations:
Recommendation 1: Direct the cultural resource management programs to
develop and provide Congress a needs assessment listing specific
actions, resources, and time needed to complete the inventories and
summaries required by NAGPRA sections 5 and 6 for their historical
collections.
Response: This is underway in most of the bureaus within Interior.
Interior is committed to completing this process. However, one of the
greatest challenges in completing summaries and inventories of all
NAGPRA items is locating collections and acquiring information from
repositories. Federal collections are curated in public museums,
universities, and other repositories at the direction of the
Antiquities Act of 1906 and the Archaeological Resources Protection
Act of 1979 (ARPA). Museums are also in possession of collections from
public lands that were not collected under permit or were moved from
the repository originally designated in the permit, and therefore not
traceable through the federal permit records. These instances
illustrate the importance of repositories notifying agencies upon
discovery of Federal collections in their possession.
The NAGPRA needs assessment components that necessitate coordination
with nonfederal repositories curating DOI museum collections must be
integrated with the DOI corrective action plan. The corrective action
plan was developed in response to the findings in the Office of the
Inspector General's (OIG) report entitled, Department of the Interior
Museum Collections: Accountability and Preservation (C-1N-M0A-0010-
2008).
In addition to the requisite resources, the needs assessment should
recognize that the completion of NAGPRA summaries and inventories of
all Native American human remains, funerary objects, sacred objects,
and objects of cultural patrimony in DOI control will only be possible
with the cooperation and assistance of repositories that possess DOI
collections and with effective, responsive consultation with Indian
tribes and Native Hawaiian organizations.
Recommendation 2: Direct the cultural resource management programs to
develop and provide Congress a timetable for expeditious publication
in the Federal Register of notices of inventory completion for all
remaining Native American human remains and associated funerary
objects that have been culturally affiliated in inventories.
Response: Interior bureaus are at varied levels of completion based on
the respective size of their collections. As the lack of sufficient
resources is a challenge, Interior will develop a timetable that
considers this challenge in completing the needs assessment and in
meeting any timetable.
Recommendation 3: To clarify the list of Indian tribes eligible under
NAGPRA, the National NAGPRA in conjunction with Interior's Office of
the Solicitor, reassess whether ANCSA corporations should be
considered as eligible entities for the purposes of carrying out
NAGPRA given the Solicitor's opinion and BIA policy concerning the
status of ANCSA corporations.
Response: The ANCSA corporations were put on the National NAGPRA
Program list of tribes for consultation in April 2010, and they were
removed in May 2010.
Recommendation 4: To improve the confidence in the Review Committee
and its support among NAGPRA practitioners, National NAGPRA should
strictly adhere to the nomination process prescribed in the act and,
working with Interior's Office of the Solicitor as appropriate, ensure
that all Review Committee nominations are properly screened to confirm
that the nominees and nominating entities meet statutory requirements.
Response: The Review Committee nomination procedures were revised in
2008 to ensure full transparency. Interior will ask the Solicitor's
Office to review these procedures.
Recommendation 5: To provide policymakers with information to assess
the overall effectiveness of NAGPRA and provide Indian tribes and
Native Hawaiian organizations readily accessible information on items
available for repatriation, the GAO recommends that the Secretaries of
Agriculture, Defense, and the Interior, and the Chief Executive
Officer to the Tennessee Valley Authority direct their cultural
resource management programs to report their repatriation data to
National NAGPRA on a regular basis, but no less than annually, for
each notice of inventory completion they have published or plan to
publish.
Response: After review and acceptance of an annual reporting template
from National NAGPRA, DOI bureaus will work toward completing an
annual report beginning in 2011. National NAGPRA will then compile an
annual summary report of agency data.
[End of section]
Appendix IX: Comments from the Tennessee Valley Authority:
Tennessee Valley Authority:
Anda A. Ray:
Senior Vice President, Environment and Technology:
400 W. Summit Hill Drive:
Knoxville, Tennessee 37902:
July 15, 2010:
Ms. Anu K. Mittal:
Director, Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street Northwest:
Washington, DC 20548:
Dear Ms. Mittal:
We appreciate the opportunity to provide comments on draft report (GA0-
10-768), prepared by the General Accountability Office, entitled,
Native American Graves Protection and Repatriation Act: After Almost
20 Years, Key Federal Agencies Still Have Not Fully Complied with the
Act. Our substantive and technical comments on this draft report are
provided in the enclosure to this letter.
The Tennessee Valley Authority (TVA) agrees with the conclusions and
recommendations of the draft report, subject to a few reservations
noted in the enclosed comments. The assessment of needs to complete
the inventories and summaries required under sections 5 and 6 of the
Native American Graves Protection and Repatriation Act (NAGPRA), and
the development of a timetable for the publication of notices for
inventory completion would help the agency in its efforts to establish
the cultural affiliation of the NAGPRA items in TVA's collection.
Determining the cultural affiliations will, in turn, facilitate the
repatriation of these items. We have listed below some of TVA's
accomplishments in moving towards the goal of repatriating the NAGPRA
items in its collection.
* While work still remains in establishing cultural affiliations, TVA
has high confidence in the identification of a vast majority of the
NAGPRA items in its collections at museums in Alabama, Kentucky, and
Tennessee.
* TVA hosted a Tribal Consultation Workshop in May 2002, at which the
contents of TVA's NAGPRA collections were discussed with
representatives of federally recognized tribes with interest in the
Southeastern United States.
* TVA hosted a second Tribal Consultation Workshop in May 2007 to
further consult with tribes regarding the contents of the NAGPRA
collection; the tribal representatives were provided a compact disc of
the preliminary NAGPRA inventory.
* TVA contributed funds for the creation of a digital base of the
NAGPRA items curated in the University of Tennessee's McClung Museum.
* TVA created a database of NAGPRA items from written records supplied
by the Alabama Museum of Natural History at the University of Alabama.
* TVA staff traveled to North Carolina and Oklahoma during FY 2005 to
conduct face-to-face meetings with representatives of nine federally
recognized tribes.
* TVA staff traveled to Alabama, Louisiana, Missouri, Mississippi,
Oklahoma, and Texas during FY 2006 to conduct face-to-face meetings
with representatives of 11 federally recognized tribes.
* TVA assigned an employee in 2005 to serve part-time as the Native
American Liaison; subsequently, a full time position of Native
American Liaison was created in May 2009.
* In April 2009, TVA created a new position of senior specialist whose
primary function is NAGPRA coordination.
* TVA has conducted multiple dispositions (post-1990) of Native
American human remains that were either inadvertent discoveries or the
result of intentional excavations.
* For FY 2010, as of June 2010, TVA has spent approximately $55,000 on
NAGPRA compliance.
* Prior to the enactment of NAGPRA, TVA repatriated 137 sets of human
remains from its Tellico project.
We respectfully request that the GAO modify the draft report to
accommodate TVA's comments as outlined herein or include this letter
(and enclosure) in the appendix of the final report.
If there are questions, please contact Wayne R. Gildroy, Assistant
General Counsel, at (865) 632-7361.
Sincerely,
Signed by:
Anda A. Ray:
Enclosure:
[End of section]
Appendix X: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anu K. Mittal at (202) 512-3841 or mittala@gao.gov:
Staff Acknowledgments:
In addition to those named above, Jeffery D. Malcolm, Assistant
Director; Allison Bawden; Pamela Davidson; Catherine Hurley; Mark
Keenan; Jill Lacey; David Schneider; John Scott; Ben Shouse; Jeanette
Soares; and Maria Soriano made key contributions to this report.
[End of section]
Footnotes:
[1] Pub. L. No. 101-601, 104 Stat. 3048-58 (1990), codified at 25
U.S.C. §§ 3001-3013. The implementing regulations for the act are at
43 C.F.R. pt. 10. The items covered by NAGPRA are defined in table 1.
[2] NAGPRA has a separate provision for Native American items newly
excavated or discovered on federal or tribal lands after the date of
enactment, referred to as new or inadvertent discoveries and
intentional excavations. New or inadvertent discoveries and
intentional excavations are covered in section 3 of the act (25 U.S.C.
§ 3002) and the identification and repatriation of NAGPRA items within
collections that existed on or before the date of enactment, referred
to as historical collections, are covered in sections 5, 6, and 7 (25
U.S.C. §§ 3003-3005). In accordance with NAGPRA's implementing
regulations, section 5, 6, and 7 also apply to collections federal
agencies and museums acquire, from sources other than federal or
tribal land, after NAGPRA's enactment. This report focuses on
historical collections.
[3] "Native American" means of, or relating to, a tribe, people, or
culture that is indigenous to the United States. 25 U.S.C. § 3001(9).
[4] "Indian tribe" means any tribe, band, nation, or other organized
group or community of Indians, including any Alaska Native village (as
defined in, or established pursuant to, the Alaska Native Claims
Settlement Act) which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians. 25 U.S.C. § 3001(7). "Native Hawaiian
organization" means any organization which (1) serves and represents
the interests of Native Hawaiians, (2) has as a primary and stated
purpose the provision of services to Native Hawaiians, and (3) has
expertise in Native Hawaiian affairs, and shall include the Office of
Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei. 25 U.S.C. §
3001(11).
[5] NAGPRA requires repatriation to lineal descendants under certain
circumstances, for example when a direct lineal descendant of an
individual who owned a sacred object requests repatriation. In this
report, we refer to repatriation of culturally affiliated human
remains and objects to Indian tribes and Native Hawaiian organizations
but intend that reference to include lineal descendants when
applicable.
[6] Makah Indian Tribe and the National Association of Tribal Historic
Preservation Officers, Federal Agency Implementation of the Native
American Graves Protection and Repatriation Act (Washington, D.C.:
June 30, 2008).
[7] As of September 30, 2009, there were 20 living current and former
Review Committee members; 3 former members are deceased.
[8] The federal government has come into possession of collections,
and Native American collections in particular, through other means.
For example, in the late 1880s, the Surgeon General issued a directive
for military personnel in the field to gather the skulls of Native
Americans killed in battle for the purposes of scientific study. The
remains were first stored and studied at the Army Medical Museum, then
later became part of the Smithsonian Institution's collections.
[9] A repository is a facility such as a museum, archeological center,
laboratory or storage facility that is managed by a university,
college, museum, or other educational or scientific institution, a
federal, state, or local government agency, or Indian tribe that can
provide professional, systematic, and accountable curatorial services
on a long-term basis. 36 C.F.R. § 79.4(j).
[10] According to TVA officials, its NAGPRA items are confined to the
collections in Alabama, Kentucky, and Tennessee.
[11] The Smithsonian Institution's repatriation requirements were
established in 1989 and amended in 1996. See National Museum of the
American Indian Act, Pub. L. No. 101-185, §§ 11-17, 103 Stat. 1336,
1343-7 (1989); Pub. L. No. 104-278, §§ 3-5, 110 Stat. 3355-7 (1996)
(codified as amended at 20 U.S.C. §§ 80q-9 to -15).
[12] "Possession" means having physical custody of human remains,
funerary objects, sacred objects, or objects of cultural patrimony
with a sufficient legal interest to lawfully treat the objects as part
of its collection for purposes of these regulations (43 C.F.R. §
10.2(a)(3)(i)); and "control" means having a legal interest in human
remains, funerary objects, sacred objects, or objects of cultural
patrimony sufficient to lawfully permit the federal agency or museum
to treat the objects as part of its collection for purposes of these
regulations whether or not the human remains, funerary objects, sacred
objects, or objects of cultural patrimony are in the physical custody
of the federal agency or museum (43 C.F.R. § 10.2(a)(3)(ii)). Often
collections controlled by federal agencies are in the possession of a
nonfederal repository.
[13] 25 U.S.C. § 3001(4) (federal agency); and 25 U.S.C. § 3001(8)
(museum).
[14] The Antiquities Act of 1906 authorized the Secretaries of the
Interior, Agriculture, and Army to issue permits for the examination
of ruins, excavation of archeological sites, and the gathering of
objects of antiquity on lands under their jurisdiction. Pub. L. No. 59-
209, 34 Stat. 225 (1906), codified at 16 U.S.C. §§ 431-433. These
three departments adopted joint regulations that authorized the
Secretaries to issue the permits after receiving a recommendation on
the permit application from the Smithsonian Institution. The
Archaeological Resources Protection Act of 1979 replaced the
Antiquities Act of 1906. Pub. L. No. 96-95, 93 Stat. 721 (1979),
codified at 16 U.S.C. §§ 470aa-mm. In 1981, when the Archaeological
Resources Protection Act process came into effect, NPS issued permits
for all government agencies, and some agencies eventually began
issuing permits themselves.
[15] Federal regulations regarding how agencies should oversee and
manage these collections removed from federal lands but preserved in
public museums were not promulgated until September 1990, 2 months
before NAGPRA was enacted. 55 Fed. Reg. 37616 (Sept. 12, 1990).
[16] U.S. Department of the Interior, Office of the Inspector General,
Department of the Interior - Museum Collections: Accountability and
Preservation, Report No. C-IN-MOA-0010-2008 (Washington, D.C.: Dec.
16, 2009).
[17] 25 U.S.C. § 3001(2).
[18] NAGPRA's implementing regulations direct federal agencies and
museums to retain possession of culturally unidentifiable human
remains pending promulgation of 43 C.F.R. § 10.11 (the regulation to
govern the disposition of culturally unidentifiable human remains)
unless legally required to do otherwise, or recommended to do
otherwise by the Secretary of the Interior. Recommendations regarding
the disposition of culturally unidentifiable human remains may be
requested prior to final promulgation of 43 C.F.R. § 10.11. 43 C.F.R.
§ 10.9(e)(6). The regulation to govern the disposition of culturally
unidentifiable human remains, 43 C.F.R. § 10.11, was promulgated on
March 15, 2010, and became effective on May 14, 2010. 75 Fed. Reg.
12378 (Mar. 15, 2010). Appendix IV further discusses this regulation.
[19] 43 C.F.R. § 10.8(f).
[20] 43 C.F.R. § 10.10(f)(1).
[21] 25 U.S.C. § 3006.
[22] Pub. L. No. 101-601, § 8(c)(3) (1990), codified at 25 U.S.C. §
3006(c)(3).
[23] Pub. L. No. 101-601, § 8(c)(4) (1990), codified at 25 U.S.C. §
3006(c)(4). The Review Committee's authority under sections 8(c)(3)
and section 8(c)(4) is separate and distinct from the Review
Committee's authority to hear and make recommendations regarding the
disposition of culturally unidentifiable human remains. We refer to
these findings, recommendations, and facilitating the resolution of
disputes that do not involve culturally unidentifiable human remains
simply as "disputes" in this report.
[24] Pub. L. No. 92-463, 86 Stat. 770 (1972) (classified at 5 U.S.C.
app. 2); 41 C.F.R. pt. 102-3.
[25] Federal conflict-of-interest statutes (18 U.S.C. § 201),
including the principal criminal financial conflict-of-interest
statute (18 U.S.C. § 208), apply to regular and, in large part,
special government employees.
[26] 58 Fed. Reg. 31122 (May 28, 1993) (proposed rule); and 60 Fed.
Reg. 62134 (Dec. 4, 1995) (final rule). The final rule was effective
on January 3, 1996.
[27] Although its location within NPS has changed over time, and it
has been called different things over time, for simplicity in our
report we will refer to the office that has carried out the Secretary
of the Interior's national responsibilities under NAGPRA since 1990 as
National NAGPRA.
[28] Although consultation grants are technically referred to as
consultation/documentation grants, for the purposes of this report, we
will refer to them as consultation grants.
[29] Pub. L. No. 92-203, 85 Stat. 688 (1971), codified as amended at
43 U.S.C. §§ 1601-1629h. ANCSA directed the establishment of 12 for-
profit regional corporations--1 for each geographic region in Alaska
comprised of Natives having a common heritage and sharing common
interests--and over 200 village corporations. It also allowed
nonresident Alaska Natives to elect to establish a 13th regional
corporation. In addition, ANCSA section 14(h)(2) allowed groups that
did not qualify to form an Alaska Native village corporation to form
Alaska Native "group" corporations and ANCSA section 14(h)(3) allowed
Alaska Natives living in Sitka, Kenai, Juneau, and Kodiak to establish
"urban" corporations.
[30] H.R. Rep. No. 103-781 at 2-3 (1994).
[31] For additional information on BIA's administrative process for
granting federal recognition see GAO, Indian Issues: Improvements
Needed in Tribal Recognition Process, [hyperlink,
http://www.gao.gov/products/GAO-02-49] (Washington, D.C.: Nov. 2,
2001). Also see enclosure II of GAO, Indian Issues: BLM's Program for
Issuing Individual Indian Allotments on Public Lands Is No Longer
Viable, [hyperlink, http://www.gao.gov/products/GAO-07-23R]
(Washington, D.C.: Oct. 20, 2006), for information on new and restored
tribes.
[32] The Federally Recognized Indian Tribe List Act of 1994, Pub. L.
No. 103-454, Title I (1994), recognizes that the Secretary of the
Interior is charged with keeping a list of all federally recognized
tribes that should be accurate and regularly updated since it is used
by the various departments and agencies of the United States to
determine the eligibility of certain groups to receive services from
the United States and that the list should reflect all of the
federally recognized Indian tribes in the United States that are
eligible for the special programs and services provided by the United
States because of their status as Indians. Additionally, in response
to the omission of the Central Council of Tlingit and Haida Indian
Tribes of Alaska from BIA's 1993 list, Congress passed the Tlingit and
Haida Status Clarification Act to reaffirm and acknowledge that the
Council is a federally recognized tribe. Pub. L. No. 103-454, Title II
(1994). The Council has been included in subsequent BIA lists of
federally recognized tribes.
[33] 74 Fed. Reg. 40218 (Aug. 11, 2009).
[34] Op. Sol. Int. M-36975 (Jan. 11, 1993).
[35] Curation is the process of managing and preserving a collection
according to professional museum and archival practices.
[36] GAO, Are Agencies Doing Enough or Too Much for Archaeological
Preservation? Guidance Needed, [hyperlink,
http://www.gao.gov/products/CED-81-61] (Washington, D.C.: Apr. 22,
1981).
[37] U.S. Department of the Interior, Office of the Inspector General,
Department of the Interior - Museum Collections: Accountability and
Preservation, Report No. C-IN-MOA-0010-2008 (Washington, D.C.: Dec.
16, 2009).
[38] 25 U.S.C. § 3004.
[39] Six months after the November 16, 1995, deadline for the
completion of inventories was May 16, 1996.
[40] 60 Fed. Reg. 62134 (Dec. 4, 1995). National NAGPRA did issue
guidance prior to the promulgation of the regulation, including
summary and inventory templates to agencies, but agencies stated that
they were not always received by the appropriate agency staff.
[41] See 25 U.S.C. § 3003(c).
[42] Federal agency officials told us that they generally place a
higher priority on compliance with NAGPRA section 3 (new or
inadvertent discoveries and intentional excavations) versus sections 5
and 6 (historical collections) for a variety of factors. First, unlike
historical collections, section 3 does not allow human remains and
objects to be classified as culturally unidentifiable, and it provides
a priority order for determining ownership, control, and transfer of
custody. Second, while substantial research may be required to
determine the locations in which historical collections were
originally excavated or found, agencies already have this information
for new or inadvertent and intentional discoveries. Third, if
discoveries are made during the course of major projects, such as
construction, the project must be temporarily halted to comply with
NAGPRA.
[43] Pub. L. No. 89-665, 80 Stat. 915 (1966), codified as amended at
16 U.S.C. §§ 470 to 470x-6.
[44] Pub. L. No. 91-190, 83 Stat. 852 (1970), codified at 42 U.S.C. §§
4321, 4331-4335.
[45] In this case, originally filed in 1996 and commonly known as the
Kennewick Man case, recreational spectators found human skeletal
remains outside of Kennewick, Washington, on land managed by the
Corps. Four federally recognized tribes and one non-federally
recognized tribe claimed the remains were of an ancestor. The court
ruled that the statutory text was written in the present tense ("of,
or relating to, a tribe, people, or culture that is indigenous") and
thus unambiguously required that human remains bear some relationship
to a presently existing tribe, people, or culture to be considered
Native American. Bonnichsen v. United States, 367 F.3d 864 (9th Cir.
2004). The remains are currently held at the Burke Museum at the
University of Washington.
[46] For additional information on our analysis of disposition
requests for culturally unidentifiable human remains, see appendix I.
[47] 75 Fed. Reg. 12378 (Mar. 15, 2010).
[48] In June 2000, the Review Committee published its principles of
agreement in the Federal Register after it had already made
recommendations on 15 disposition requests involving culturally
unidentifiable human remains. 65 Fed. Reg. 36462 (June 8, 2000).
[49] 43 C.F.R. § 10.9(e)(6).
[50] In these two instances, Interior did not concur with the Review
Committee's determination that the human remains were more likely than
not Native American.
[51] GAO, Federal Advisory Committee Act: Issues Related to the
Independence and Balance of Advisory Committees, [hyperlink,
http://www.gao.gov/products/GAO-08-611T] (Washington, D.C.: Apr. 2,
2008).
[52] U.S. Department of the Interior, NPS, National NAGPRA Program,
Federal Agency NAGPRA Statistics (Washington, D.C.: Oct. 31, 2006).
[53] NAGPRA requires that the Review Committee maintain a list of
culturally unidentifiable human remains. 25 U.S.C. § 3006(c)(5). The
Review Committee tasked National NAGPRA with this responsibility and
the office maintains an online searchable database.
[54] Since NAGPRA's enactment, National NAGPRA has published 10
nomination solicitations for Review Committee members in the Federal
Register; the first in August 1991 and the most recent in March 2010.
National NAGPRA has also administered the nomination process for the
consensus member. This does not require a solicitation in the Federal
Register as the list of nominees is developed and consented upon by
the other Review Committee members.
[55] Op. Sol. Int. M-36975 (Jan. 11, 1993).
[56] Because the BIA list is limited to entities found to be Indian
tribes, as that term is defined and used in 25 C.F.R. Part 83, it does
not include a number of non-tribal Native entities in Alaska that
contract with or receive services from BIA pursuant to specific
statutory authority, including ANCSA village and regional corporations
and various tribal organizations.
[57] 67 Fed. Reg. 18033 (Apr. 12, 2002).
[58] 68 Fed. Reg. 33964 (June 6, 2003).
[59] 71 Fed. Reg. 47512 (Aug. 17, 2006).
[60] In addition to publishing solicitations in the Federal Register
for nominations to the Review Committee, National NAGPRA has, at
times, also conducted other activities aimed at a broad audience to
solicit nominations. For example, National NAGPRA has sent mailings to
all Indian tribes eligible under NAGPRA to solicit nominations. We
have no concerns with this process because it is broad-based and
inclusive and allows for greater participation in the process.
[61] Federal agencies define repatriation as the transfer of control
(legal title). Repatriation does not necessarily include the transfer
of physical possession of the human remains and/or objects, as long
the place and manner of repatriation is determined in consultation
with the Indian tribe or Native Hawaiian organization making the
repatriation request.
[62] Forest Service officials stated that it and some other federal
agencies have periodically presented aggregate repatriation data at
Review Committee meetings. The information presented to the Review
Committee would also be available to National NAGPRA.
[63] 25 U.S.C. § 3005(e).
[64] 75 Fed. Reg. 12378 (Mar. 15, 2010).
[65] Notices of intended disposition are published in certain
newspapers by the federal agencies responsible for NAGPRA items that
were intentionally excavated or inadvertently discovered on federal
lands after NAGPRA's enactment. Unlike notices of inventory completion
and notices of intent to repatriate, they are not published in the
Federal Register.
[66] GAO, Federal Advisory Committees: Additional Guidance Could Help
Agencies Better Ensure Independence and Balance, [hyperlink,
http://www.gao.gov/products/GAO-04-328] (Washington, D.C.: Apr. 16,
2004); and GAO, Federal Advisory Committee Act: Issues Related to the
Independence and Balance of Advisory Committees, [hyperlink,
http://www.gao.gov/products/GAO-08-611T] (Washington, D.C.: Apr. 2,
2008).
[67] Of the 14 nominations, 10 were published in the Federal Register
because National NAGPRA was seeking to fill positions that required
the nomination by an Indian tribe, a Native Hawaiian organization, or
a traditional Native American religious leader, or national museum or
scientific organization. Because the remaining four positions were
filled by the Secretary appointing an individual from a list developed
and approved by the other Review Committee members, a Federal Register
notice was not required.
[68] 43 C.F.R. § 10.13(c)(1).
[69] GAO, Indian Issues: Improvements Needed in Tribal Recognition
Process, [hyperlink, http://www.gao.gov/products/GAO-02-49]
(Washington, D.C.: Nov. 2, 2001).
[70] GAO, Indian Issues: BLM's Program for Issuing Individual Indian
Allotments on Public Lands Is No Longer Viable, [hyperlink,
http://www.gao.gov/products/GAO-07-23R] (Washington, D.C.: Oct. 20,
2006).
[71] 74 Fed. Reg. 40218 (Aug. 11, 2009). On June 18, 2010, BIA
published its final determination to acknowledge the Shinnecock Indian
Nation. 75 Fed. Reg. 34760 (June 18, 2010). Two interested parties
requested reconsideration of the final determination by the Interior
Board of Indian Appeals so the determination is not yet effective.
[72] 73 Fed. Reg. 18553 (Apr. 4, 2008); and 74 Fed. Reg. 40218 (Aug.
11, 2009).
[73] 25 U.S.C. § 3007.
[74] H.R. Rep. 101-877, at 16 (1990).
[75] 75 Fed. Reg. 12378, 12398 (Mar. 15, 2010) (citations omitted).
[76] 43 C.F.R. § 10.11(b)(1), (2).
[77] 43 C.F.R. § 10.11(c)(1).
[78] 25 U.S.C. § 3001(13).
[79] U.S. Const., amend. V.
[80] U.S. Const., Art. VI, cl. 2.
[81] 43 C.F.R. § 10.11(c)(2).
[82] 43 C.F.R. § 10.11(c)(4).
[83] U.S. Department of the Interior, National Park Service, Journeys
to Repatriation: 15 Years of NAGPRA Grants, 1994-2008 (Washington,
D.C.: August 2009).
[84] 25 U.S.C. § 3003(b)(1)(A).
[85] NAGPRA requires agencies to notify Indian tribes and Native
Hawaiian organizations that have been culturally affiliated with human
remains and/or associated funerary objects within 6 months after the
completion of the inventory. 25 U.S.C. § 3003(d)(1). A copy of the
notice must be provided to National NAGPRA for publication in the
Federal Register (a notice of inventory completion). 25 U.S.C. §
3003(d)(3).
[End of section]
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