Indian Issues
Key Federal Agencies' and the Smithsonian Institution's Efforts to Identify and Repatriate Indian Human Remains and Objects Gao ID: GAO-11-755T June 16, 2011The National Museum of the American Indian Act of 1989 (NMAI Act), as amended in 1996, generally requires the Smithsonian Institution to inventory and identify the origins of its Indian and Native Hawaiian human remains and objects placed with them (funerary objects) and repatriate them to culturally affiliated Indian tribes upon request. According to the Smithsonian, two of its museums--the American Indian and the Natural History Museums--have items that are subject to the NMAI Act. The Native American Graves Protection and Repatriation Act (NAGPRA), enacted in 1990, includes similar requirements for federal agencies and museums. The National NAGPRA office, within the Department of the Interior's National Park Service, facilitates the governmentwide implementation of NAGPRA. Each act requires the establishment of a committee to monitor and review repatriation activities. GAO's testimony is based on its July 2010 report on NAGPRA implementation (GAO-10-768) and its May 2011 report on Smithsonian repatriation (GAO-11-515). The testimony focuses on the extent to which key federal agencies have complied with NAGPRA's requirements and the extent to which the Smithsonian has fulfilled its repatriation requirements.
GAO found that almost 20 years after NAGPRA was enacted, eight key federal agencies with significant historical collections--Interior's Bureau of Indian Affairs (BIA), Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service and National Park Service; Agriculture's U.S. Forest Service; the U.S. Army Corps of Engineers; and the Tennessee Valley Authority--have not fully complied with the requirements of the act. All of the agencies acknowledged that they still have additional work to do and some 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. In addition, GAO found two areas of concern with the National NAGPRA office's activities. First, National NAGPRA had developed a list of Indian tribes for the purposes of carrying out NAGPRA that was inconsistent with BIA's official list of federally recognized tribes and an Interior legal opinion. Second, National NAGPRA did not always screen nominations for NAGPRA Review Committee positions properly. GAO found that repatriations were generally not tracked or reported governmentwide. However, based on GAO's compilation of federal agencies' repatriation data, through September 30, 2009, federal agencies had repatriated 55 percent of the human remains and 68 percent of the associated funerary objects that had been published in notices of inventory completion. The relevant agencies agreed with the recommendations in both reports and GAO is making no new recommendations at this time.
GAO-11-755T, Indian Issues: Key Federal Agencies' and the Smithsonian Institution's Efforts to Identify and Repatriate Indian Human Remains and Objects
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United States Government Accountability Office:
GAO:
Testimony:
Before the Committee on Indian Affairs, U.S. Senate:
For Release on Delivery:
Expected at 2:15 p.m. EDT:
Thursday, June 16, 2011:
Indian Issues:
Key Federal Agencies' and the Smithsonian Institution's Efforts to
Identify and Repatriate Indian Human Remains and Objects:
Statement of Anu K. Mittal, Director:
Natural Resources and Environment:
GAO-11-755T:
GAO Highlights:
Highlights of GAO-11-755T, a statement before the Committee on Indian
Affairs, U.S. Senate.
Why GAO Did This Study:
The National Museum of the American Indian Act of 1989 (NMAI Act), as
amended in 1996, generally requires the Smithsonian Institution to
inventory and identify the origins of its Indian and Native Hawaiian
human remains and objects placed with them (funerary objects) and
repatriate them to culturally affiliated Indian tribes upon request.
According to the Smithsonian, two of its museums”-the American Indian
and the Natural History Museums-”have items that are subject to the
NMAI Act. The Native American Graves Protection and Repatriation Act
(NAGPRA), enacted in 1990, includes similar requirements for federal
agencies and museums. The National NAGPRA office, within the
Department of the Interior‘s National Park Service, facilitates the
governmentwide implementation of NAGPRA. Each act requires the
establishment of a committee to monitor and review repatriation
activities.
GAO‘s testimony is based on its July 2010 report on NAGPRA
implementation (GAO-10-768) and its May 2011 report on Smithsonian
repatriation (GAO-11-515). The testimony focuses on the extent to
which key federal agencies have complied with NAGPRA‘s requirements
and the extent to which the Smithsonian has fulfilled its repatriation
requirements.
The relevant agencies agreed with the recommendations in both reports
and GAO is making no new recommendations at this time.
What GAO Found:
GAO found that almost 20 years after NAGPRA was enacted, eight key
federal agencies with significant historical collections”Interior‘s
Bureau of Indian Affairs (BIA), Bureau of Land Management, Bureau of
Reclamation, U.S. Fish and Wildlife Service and National Park Service;
Agriculture‘s U.S. Forest Service; the U.S. Army Corps of Engineers;
and the Tennessee Valley Authority”have not fully complied with the
requirements of the act. All of the agencies acknowledged that they
still have additional work to do and some 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. In addition, GAO found two
areas of concern with the National NAGPRA office‘s activities. First,
National NAGPRA had developed a list of Indian tribes for the purposes
of carrying out NAGPRA that was inconsistent with BIA‘s official list
of federally recognized tribes and an Interior legal opinion. Second,
National NAGPRA did not always screen nominations for NAGPRA Review
Committee positions properly. GAO found that repatriations were
generally not tracked or reported governmentwide. However, based on
GAO‘s compilation of federal agencies‘ repatriation data, through
September 30, 2009, federal agencies had repatriated 55 percent of the
human remains and 68 percent of the associated funerary objects that
had been published in notices of inventory completion.
With regard to the repatriation activities of the Smithsonian, GAO
found that since the NMAI Act was enacted more than 21 years ago, the
Smithsonian has offered to repatriate about 5,000 human remains, which
account for approximately one third of the total estimated human
remains in its collections. GAO found that the Smithsonian has adopted
a lengthy and resource-intensive inventory and identification process,
which may account for the slow progress of repatriation at the
museums. In some cases, through this process, the Smithsonian did not
offer to repatriate human remains and objects because it determined
that they could not be culturally affiliated with a tribe. GAO also
found that the Smithsonian established a Repatriation Review Committee
to monitor and review the repatriation activities of the Natural
History Museum but not those of the American Indian Museum. Although
the Smithsonian believes Congress intended to limit the committee‘s
jurisdiction to the Natural History Museum, the statutory language and
its legislative history do not support that view. GAO also found that
neither the Smithsonian nor the review committee had provided regular
information to Congress on the repatriation progress at the
Smithsonian, and the Smithsonian had no independent administrative
appeals process by which tribes could challenge a repatriation
decision in the event of a dispute. Through December 31, 2010, the
Smithsonian estimated that, of the items it had offered for
repatriation, about three-quarters of the Indian human remains (4,330
out of 5,980) and about half of the funerary objects (99,550 out of
212,220) have been repatriated. In addition, the Smithsonian had not
offered to repatriate approximately 340 human remains and 310 funerary
objects it could not culturally affiliate, and it does not have a
policy on the disposition of these items.
What GAO Recommends:
View [hyperlink, http://www.gao.gov/products/GAO-11-755T] or key
components. For more information, contact Anu K. Mittal at (202) 512-
3841 or mittala@gao.gov.
[End of section]
Chairman Akaka, Vice Chairman Barrasso, and Members of the Committee:
I am pleased to be here today to participate in your hearing on
federal efforts to repatriate Indian and Native Hawaiian human remains
and certain cultural objects. Many federal agencies have acquired
thousands of Indian human remains, funerary objects, sacred objects,
and objects of cultural patrimony over hundreds of years. Similarly
the Smithsonian Institution has acquired its collections since its
establishment in 1846. These human remains and cultural objects have
long been a concern for many Indian tribes and Native Hawaiian
communities, who have been determined to provide an appropriate
resting place for their ancestors. The National Museum of the American
Indian Act (NMAI Act) and the Native American Graves Protection and
Repatriation Act (NAGPRA) were enacted, in 1989 and 1990 respectively,
in part to address these concerns.[Footnote 1] The acts generally
require the Smithsonian Institution and federal agencies to take
certain actions to identify the Indian and Native Hawaiian human
remains and cultural objects in their collections, affiliate those
remains and objects to a tribe, and upon request repatriate the items
to the tribes.[Footnote 2]
In July 2010, we reported on the implementation of NAGPRA by eight key
federal agencies with significant historical collections.[Footnote 3]
These agencies included 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 National
Park Service (NPS); the Department of Agriculture's U.S. Forest
Service; the U.S. Army Corps of Engineers (Corps); and the Tennessee
Valley Authority (TVA). In May 2011, we reported on the Smithsonian
Institution's implementation of the NMAI Act's repatriation
requirements as they relate to the collections held by the National
Museum of the American Indian and the National Museum of Natural
History.[Footnote 4] Our testimony today summarizes the findings of
both of these reports and also includes information on some recent
actions that the agencies have taken in response to the
recommendations we made in our reports. Both of these reports were
performance audits that were conducted in accordance with generally
accepted government auditing standards. A detailed description of our
scope and methodology is presented in each issued report.
Background:
NAGPRA Requirements:
NAGPRA requires federal agencies to (1) identify their Native American
human remains, funerary objects, sacred objects, and objects of
cultural patrimony, (2) try and determine if a cultural affiliation
exists with a present day Indian tribe or Native Hawaiian
organization, 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.
NAGPRA covers five types of Native American cultural items (see table
1).
Table 1: Five Types of Native American Cultural Items Covered by
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).
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).
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).
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).
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]
NAGPRA's requirements for federal agencies, museums, and the Secretary
of the Interior, particularly the ones most relevant to their
historical collections, which were the focus of our July 2010 report,
include the following:
* Compile an inventory and establish cultural affiliation. Section 5
of NAGPRA requires 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 requires 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 5]
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 requires 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 6]
* Compile a summary of other NAGPRA items. Section 6 of NAGPRA
requires 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 requires that the summaries be completed no later
than 3 years after its enactment--by November 16, 1993. Preparation of
the summaries was to be followed by federal agency consultation with
tribal government officials, Native Hawaiian organization officials,
and traditional religious leaders. 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 7]
* 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.
NAGPRA assigns certain duties to the Secretary of the Interior, which
are carried out by the National NAGPRA Program Office (National
NAGPRA) within NPS. 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 8] Since the enactment of two
recognition laws in 1994,[Footnote 9] 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. 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
10] BIA's list of federally recognized tribes has not included any
ANCSA group, regional, urban, and village corporations.
Finally, NAGPRA requires the establishment of a committee to monitor
and review the implementation of inventory, identification and
repatriation activities under the act. Among other things, the Review
Committee is responsible for, upon request, reviewing and making
findings related to the identity or cultural affiliation of cultural
items or the return of such items and facilitating the resolution of
any disputes among Indian tribes, Native Hawaiian organizations, and
federal agencies or museum relating to the return of such items. We
refer to these findings, recommendations and facilitation of disputes
that do not involve culturally unidentifiable human remains simply as
disputes; the Review Committee also makes recommendations regarding
the disposition of culturally unidentifiable human remains. The NAGPRA
Review Committee was established in 1991.
NMAI Act Requirements:
The NMAI Act sections 11 and 13 generally require the Smithsonian to
(1) inventory the Indian and Native Hawaiian human remains and
funerary objects in its possession or control, (2) identify the
origins of the Indian and Native Hawaiian human remains and funerary
objects using the "best available scientific and historical
documentation," and (3) upon request repatriate them to lineal
descendants or culturally affiliated Indian tribes and Native Hawaiian
organizations. As originally written, the act did not set a deadline
for the completion of these tasks, but amendments in 1996 added a June
1, 1998, deadline for the completion of inventories.[Footnote 11] The
1996 amendments also require the Smithsonian to prepare summaries for
unassociated funerary objects, sacred objects, and objects of cultural
patrimony by December 31, 1996.
The NMAI Act uses the same definitions as NAGPRA for unassociated
funerary objects, sacred objects, and objects of cultural patrimony,
[Footnote 12] but the NMAI Act does not define human remains and it
does not use the term associated funerary objects. Instead, the NMAI
Act requires Indian funerary objects--which it defines as objects
that, as part of the death rite or ceremony of a culture, are
intentionally placed with individual human remains, either at the time
of death or later--to be included in inventories and unassociated
funerary objects to be included in summaries.
The Smithsonian has identified two museums that hold collections
subject to the NMAI Act: the National Museum of the American Indian
and the National Museum of Natural History. Final repatriation
decisions for the American Indian Museum are made by its Board of
Trustees and the Secretary of the Smithsonian has delegated
responsibility for making final repatriation decisions for the Natural
History Museum to the Smithsonian's Under Secretary for Science.
According to Smithsonian officials, when new collections are acquired,
the Smithsonian assigns an identification number--referred to as a
catalog number--to each item or set of items at the time of the
acquisition or, in some cases, many years later. A single catalog
number may include one or more human bones, bone fragments, or
objects, and it may include the remains of one or more individuals.
All of this information is stored in the museums' electronic catalog
system, which is partly based on historical paper card catalogs.
Generally, each catalog number in the electronic catalog system
includes basic information on the item or set of items, such as a
brief description of the item, where the item was collected, and when
it was taken into the museum's collection. Since the NMAI Act was
enacted, the Smithsonian has identified approximately 19,780 catalog
numbers that potentially include Indian human remains (about 19,150
within the Natural History Museum collections and about 630 within the
American Indian Museum collections). Finally, like NAGPRA, the NMAI
Act requires the establishment of a committee to monitor and review
the inventory, identification, and return of Indian human remains and
cultural objects. The Smithsonian Review Committee was established in
1990 for this purpose.[Footnote 13]
After Almost 20 Years, Key Federal Agencies Still Have Not Fully
Complied with NAGPRA:
As we reported in July 2010, federal agencies have not yet fully
complied with all of the requirements of NAGPRA. Specifically, we
found that while the eight key federal agencies generally prepared
their summaries and inventories on time, they had not fully complied
with other NAGPRA requirements. In addition, we found that while the
NAGPRA Review Committee had conducted a number of activities to
fulfill its responsibilities under NAGPRA, its recommendations have
had mixed success. Furthermore, while National NAGPRA has taken
several actions to implement the act's requirements, in some cases it
has not effectively carried out its responsibilities. Finally,
although the key agencies have repatriated many NAGPRA items,
repatriation activity has generally not been tracked or reported
governmentwide.
Key Federal Agencies Have Not Fully Complied with NAGPRA for Their
Historical Collections:
The eight key federal agencies we reviewed in our July 2010 report
generally prepared their summaries and inventories by the statutory
deadlines, but the amount of work put into identifying their NAGPRA
items and the quality of the documents prepared varied widely. Of
these eight agencies, the Corps, the Forest Service, and NPS did the
most extensive work to identify their NAGPRA items, and therefore they
had the highest confidence level that they had identified all of them
and included them in the summaries and inventories that they prepared.
In contrast, relative to these agencies, we determined that BLM, BOR,
and FWS were moderately successful in identifying their NAGPRA items
and including them in their summaries and inventories, and BIA and TVA
had done the least amount of work. As a result, these five agencies
had less confidence that they had identified all of their NAGPRA items
and included them in summaries and inventories. In addition, not all
of the culturally affiliated human remains and associated funerary
objects had been published in a Federal Register notice as required.
For example, at the time of our report, BOR had culturally affiliated
76 human remains but had not published them in a Federal Register
notice. All of the agencies acknowledged that they still have
additional work to do and some had 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.
As a result of these findings, we recommended the agencies develop and
provide to Congress a needs assessment listing specific actions,
resources, and time needed to complete the inventories and summaries
required by NAGPRA. We further recommended that the agencies develop 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. The Departments of Agriculture
and the Interior and TVA agreed with our recommendations. For example,
Interior stated that this effort is under way in most of its bureaus
and that it is committed to completing the process. It added that one
of the greatest challenges to completing summaries and inventories of
all NAGPRA items is locating collections and acquiring information
from the facilities where the collections are stored.
The NAGPRA Review Committee Has Monitored Compliance with NAGPRA
Implementation and Made Recommendations with Mixed Success:
We found that the NAGPRA Review Committee, to fulfill its
responsibilities under NAGPRA, had monitored federal agency and museum
compliance, made recommendations to improve implementation, and
assisted the Secretary in the development of regulations. As we
reported, the committee's recommendations to facilitate the resolution
of disposition requests involving culturally unidentifiable human
remains have generally been implemented (52 of 61 requests has been
fully implemented). In disposition requests, parties generally agreed
in advance to their preferred manner of disposition and, in accordance
with the regulations, came to the committee to complete the process
and obtain a final recommendation from the Secretary. In contrast to
the amicable nature of disposition requests, disputes are generally
contentious, and we found that the NAGPRA Review Committee's
recommendations have had a low implementation rate. Specifically, of
the 12 disputes that we reviewed, the 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.
Moreover, we found that some actions recommended by the committee
exceeded NAGPRA's scope, such as recommending repatriation of
culturally unidentifiable human remains to non-federally recognized
Indian groups. However, we found that the committee, National NAGPRA,
and Interior officials had since taken steps to address this issue.
National NAGPRA Has, in Some Cases, Not Effectively Carried Out Its
Responsibilities:
We reported that National NAGPRA had taken several actions to help the
Secretary carry out responsibilities under NAGPRA. For example,
National NAGPRA had published federal agency and museum notices in the
Federal Register; increasing this number in recent years, while
reducing the backlog of notices awaiting publication. Furthermore, it
had administered a NAGPRA grants program that from fiscal years 1994
through 2009 resulted in 628 grants awarded to Indian tribes, Native
Hawaiian organizations, and museums totaling $33 million. It had also
administered the nomination process for NAGPRA Review Committee
members.
Overall, we found that most of the actions performed by National
NAGPRA were consistent with the act, but we identified concerns with a
few actions. Specifically, National NAGPRA had developed a list of
Indian tribes for the purposes of carrying out NAGPRA, but at various
points in the last 20 years the list had not been consistent with
BIA's policy or an Interior Solicitor legal opinion analyzing the
status of Alaska Native villages as Indian tribes. As a result, we
recommended 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. Interior agreed with this recommendation and, after our report
was issued, Interior's Office of the Solicitor issued a memorandum in
March 2011 stating that NAGPRA clearly does not include Alaska
regional and village corporations within its definition of Indian
tribes and that the legislative history confirms that this was an
intentional omission on the part of Congress. The memorandum also
states that while the National NAGPRA Program's list of Indian tribes
for purposes of NAGPRA must not include ANCSA regional and village
corporations, National NAGPRA is currently bound by its regulatory
definition of Indian tribe that contradicts the statutory definition
by including ANCSA corporations. Because of this, the Solicitor
suggests that the regulatory definition be changed as soon as
feasible, followed by a corresponding change in the list.
We also found that National NAGPRA did not always properly screen
nominations for the NAGPRA Review Committee and, in 2004, 2005, and
2006, inappropriately recruited nominees for the committee, in one
case recommending the nominee to the Secretary for appointment. As a
result, we recommended that 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 NAGPRA Review Committee
nominations are properly screened to confirm that the nominees and
nominating entities meet statutory requirements. Interior agreed with
this recommendation, stating that the committee nomination procedures
were revised in 2008 to ensure full transparency and that it will ask
the Solicitor's Office to review these procedures.
Repatriations Are Not Tracked or Reported Governmentwide, but
According to Data Collected by GAO, Many NAGPRA Items Have Been
Repatriated:
In July 2010 we reported that while agencies are required to
permanently document their repatriation activities, they are not
required to compile and report that information to anyone. Of the
federal agencies that have published notices of inventory completion,
we determined that only three have tracked and compiled agencywide
data on their repatriations--the Forest Service, NPS, and the Corps.
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 NAGPRA Review Committee, or Congress. Through data provided by
these three agencies, along with our survey of other federal agencies,
we found that federal agencies had repatriated a total of 55 percent
of human remains and 68 percent of associated funerary objects that
had been published in notices of inventory completion as of September
30, 2009. Agency officials identified several reasons why some human
remains and associated funerary objects had not been repatriated,
including the lack of repatriation requests from culturally affiliated
entities, repatriation requests from disputing parties, a lack of
reburial sites, and a lack of financial resources to complete the
repatriation. Federal agencies had also published 78 notices of intent
to repatriate that covered 34,234 unassociated funerary objects,
sacred objects, or objects of cultural patrimony.
Due to a lack of governmentwide reporting, we recommended 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 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, we recommended that National NAGPRA make this information
readily available to Indian tribes and Native Hawaiian organizations
and that the NAGPRA Review Committee publish the information in its
annual report to Congress. The Departments of Agriculture and the
Interior and TVA agreed with this recommendation, and Interior stated
that its agencies will work toward completing an annual report
beginning in 2011.
The Smithsonian Still Has Much Work to Do to Identify and Repatriate
Indian Human Remains and Objects:
In our May 2011 report we found that the Smithsonian Institution still
had much work remaining with regard to the repatriation activities
required by the NMAI Act. Specifically, we found that while the
American Indian and Natural History Museums generally prepared
summaries and inventories within the statutory deadlines the process
that the Smithsonian relies on is lengthy and resource intensive.
Consequently, after more than 2 decades, the museums have offered to
repatriate the Indian human remains in only about one-third of the
catalog numbers identified as possibly including such remains since
the act was passed. In addition, we found that the Smithsonian
established a Review Committee to meet the statutory requirements, but
limited its oversight of repatriation activities. Finally, we found
that while the Smithsonian has repatriated most of the human remains
and many of the objects that it has offered for repatriation, it has
no policy on how to address items that are culturally unidentifiable.
Since 1989, the Smithsonian Has Prepared Required Summaries and
Inventories and Has Offered to Repatriate about One-Third of Its
Indian Human Remains:
We found that while the American Indian and Natural History Museums
had generally prepared summaries and inventories within the deadlines
established in the NMAI Act, their inventories and the process they
used to prepare them have raised questions about their compliance with
some of the act's statutory requirements. The first question was the
extent to which the museums prepared their inventories in consultation
and cooperation with traditional Indian religious leaders and
government officials of Indian tribes, as required by the NMAI Act.
Section 11 of the act directs the Secretary of the Smithsonian, in
consultation and cooperation with traditional Indian religious leaders
and government officials of Indian tribes, to inventory the Indian
human remains and funerary objects in the possession or control of the
Smithsonian and, using the best available scientific and historical
documentation, identify the origins of such remains and objects.
However, the Smithsonian generally began the consultation process with
Indian tribes after the inventories from both museums were
distributed. The Smithsonian maintains that it is in full compliance
with the statutory requirements for preparing inventories and that
section 11 does not require that consultation occur prior to the
inventory being completed.
The second question is the extent to which the Natural History
Museum's inventories--which were finalized after the 1996 amendments--
identified geographic and cultural affiliations to the extent
practicable based on available information held by the Smithsonian, as
required by the amendments. The museum's inventories generally
identified geographic and cultural affiliations only where such
information was readily available in the museum's electronic catalog.
However, the Smithsonian states that it does not interpret section 11
as necessarily requiring that the inventory and identification process
to occur simultaneously, and therefore it has adopted a two-step
process to fulfill section 11's requirements. The legislative history
of the 1996 amendments provides little clear guidance concerning the
meaning of section 11. However, we also found that the two-step
process that the Smithsonian has adopted is a lengthy and resource-
intensive one and that, at the pace that the Smithsonian is applying
this process, it will take several more decades to complete this
effort.
As a result of the identification and inventory process the
Smithsonian is using, since the passage of the NMAI Act in 1989
through December 2010, the Smithsonian estimates that it has offered
to repatriate approximately one-third of the estimated 19,780 catalog
numbers identified as possibly including Indian human remains. The
American Indian Museum had offered to repatriate human remains in
about 40 percent (about 250) of its estimated 630 catalog numbers. The
Natural History Museum had offered to repatriate human remains in
about 25 percent (about 5,040) of its estimated 19,150 catalog numbers
containing Indian human remains. In some cases, through this process,
the Smithsonian did not offer to repatriate human remains and objects
because it determined that they could not be culturally affiliated
with a tribe. The congressional committee reports accompanying the
1989 act indicate that the Smithsonian estimated that the
identification and inventory of Indian human remains as well as
notification of affected tribes and return of the remains and funerary
objects would take 5 years.[Footnote 14] However, more than 21 years
later, these efforts are still under way. In light of this slow
progress, we suggested that Congress may wish to consider ways to
expedite the Smithsonian's repatriation process including, but not
limited to, directing the Smithsonian to make cultural affiliation
determinations as efficiently and effectively as possible.
The Smithsonian Review Committee's Oversight and Reporting Are Limited:
In May 2011, we reported that the Smithsonian Review Committee had
conducted numerous activities to implement the special committee
provisions in the NMAI Act, but its oversight and reporting activities
have been limited. For example, we found that contrary to the NMAI
Act, the committee does not monitor and review the American Indian
Museum's inventory, identification, and repatriation activities,
although it does monitor and review the Natural History Museum's
inventory, identification, and repatriation activities. Although the
law does not limit the applicability of the Smithsonian Review
Committee to the Natural History Museum, the Secretary established a
committee to meet this requirement in 1990 that oversees only the
Natural History Museum's repatriation activities and is housed within
that museum. Although the Smithsonian believes Congress intended to
limit the committee's jurisdiction to the Natural History Museum, the
statutory language and its legislative history do not support that
view. The Smithsonian provided several reasons to support this
contention but, as we reported in May 2011, these reasons are
unpersuasive. Therefore, we recommended that the Smithsonian's Board
of Regents direct the Secretary of the Smithsonian to expand the
Smithsonian Review Committee's jurisdiction to include the American
Indian Museum, as required by the NMAI Act, to improve oversight of
Smithsonian repatriation activities. With this expanded role for the
committee, we further recommended that the Board of Regents and the
Secretary should consider where the most appropriate location for the
Smithsonian Review Committee should be within the Smithsonian's
organizational structure. The Smithsonian agreed with this
recommendation, stating that the advisory nature of the committee
could be expanded to include consultation with the American Indian
Museum.
In our May 2011 report, we also found that neither the Smithsonian nor
the Smithsonian Review Committee submits reports to Congress on the
progress of repatriation activities at the Smithsonian. Although
section 12 of the NMAI Act requires the Secretary, at the conclusion
of the work of the committee, to so certify by report to Congress,
there is no annual reporting requirement similar to the one required
for the NAGPRA Review Committee. As we stated earlier, in 1989, it was
estimated that the Smithsonian Review Committee would conclude its
work in about 5 years and cease to exist at the end of fiscal year
1995. Yet the committee's monitoring and review of repatriation
activities at the Natural History Museum has been ongoing since the
committee was established in 1990. As a result, we recommended that
the Board of Regents, through the Secretary, direct the Smithsonian
Review Committee to report annually to Congress on the Smithsonian's
implementation of its repatriation requirements in the NMAI Act. The
Smithsonian agreed with this recommendation, stating that it will
submit, on a voluntary basis, annual reports to Congress. The
Smithsonian further stated that although the format and presentation
are matters to be discussed internally, it intends to use the National
NAGPRA report as a guide and framework for its discussion and report.
Finally, during our review of the Smithsonian Review Committee
activities we determined that no independent administrative appeals
process exists to challenge the Smithsonian's cultural affiliation and
repatriation decisions, in the event of a dispute. As a result, we
recommended that the Board of Regents establish an independent
administrative appeals process for Indian tribes and Native Hawaiian
organizations to appeal decisions to either the Board of Regents or
another entity that can make binding decisions for the Smithsonian
Institution to provide tribes with an opportunity to appeal cultural
affiliation and repatriation decisions made by the Secretary and the
American Indian Museum's Board of Trustees. The Smithsonian agreed
with this recommendation, stating that it will review its dispute
resolution procedures, with the understanding that the goal is to
ensure that claimants have proper avenues to seek redress from
Smithsonian repatriation decisions, including a process for the review
of final management determinations.
Most Human Remains and Many Objects Offered for Repatriation Have Been
Repatriated, but the Smithsonian Has No Policy on Culturally
Unidentifiable Items:
In May 2011 we reported that the Smithsonian estimates that, of the
items it has offered for repatriation, as of December 31, 2010, it has
repatriated about three-quarters (4,330 out of 5,980) of the Indian
human remains, about half (99,550 out of 212,220) of the funerary
objects, and nearly all (1,140 out of 1,240) sacred objects and
objects of cultural patrimony. Some items have not been repatriated
for a variety of reasons, including tribes' lack of resources,
cultural beliefs, and tribal government issues.
In addition, we found that, in the inventory and identification
process, the Smithsonian determined that some human remains and
funerary objects were culturally unidentifiable. In some of those
cases it did not offer to repatriate the items and it does not have a
policy on how to undertake the ultimate disposition of such items.
Specifically, our report found that according to Natural History
Museum officials about 340 human remains and about 310 funerary
objects are culturally unidentifiable. The NMAI Act does not discuss
how the Smithsonian should handle human remains and objects that
cannot be culturally affiliated, and neither museum's repatriation
policies describe how they will handle such items. In contrast, a
recent NAGPRA regulation that took effect in May 2010 requires, among
other things, federal agencies and museums to consult 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 15] Although Smithsonian officials told us that the
Smithsonian generally looks to NAGPRA and the NAGPRA regulations as a
guide to its repatriation process, where appropriate, in a May 2010
letter commenting on the NAGPRA regulation on disposition of
culturally unidentifiable remains, the Directors of the American
Indian and Natural History Museums cited overall disagreement with the
regulation, suggesting that it "favors speed and efficiency in making
these dispositions at the expense of accuracy." Nevertheless, in our
May 2011 report, we recommended that the Smithsonian's Board of
Regents direct the Secretary and the American Indian Museum's Board of
Trustees to develop policies for the Natural History and American
Indian Museums for the handling of items in their collections that
cannot be culturally affiliated to provide for a clear and transparent
repatriation process. The Smithsonian agreed with this recommendation,
stating that both the American Indian and Natural History Museums, in
the interests of transparency, are committed to developing policies in
this regard and that such policies will give guidance to Native
communities and the public as to how the Smithsonian will handle and
treat such remains.
In conclusion, Chairman Akaka, Vice Chairman Barrasso, and Members of
the Committee, our two studies clearly show that while federal
agencies and the Smithsonian have made progress in identifying and
repatriating thousands of Indian human remains and objects, after 2
decades of effort, much work still remains to be done to address the
goals of both NAGPRA and the NMAI Act. In this context, we believe
that it is imperative for the agencies to implement our
recommendations to ensure that the requirements of both acts are met
and that the processes they employ to fulfill the requirements are
both efficient and effective.
This concludes my prepared statement. I would be pleased to answer any
questions that you may have at this time.
GAO Contacts and Acknowledgments:
For further information about this testimony, please contact Anu K.
Mittal 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 statement. Jeffery D. Malcolm, Assistant
Director; Mark Keenan; and Jeanette Soares also made key contributions
to this statement. In addition, Allison Bawden, Pamela Davidson, Emily
Hanawalt, Cheryl Harris, Catherine Hurley, Rich Johnson, Sandra Kerr,
Jill Lacey, Anita Lee, Ruben Montes de Oca, David Schneider, John
Scott, Ben Shouse, and Maria Soriano also made key contributions to
the reports on which this statement is based.
[End of section]
Footnotes:
[1] National Museum of the American Indian Act, Pub. L. No. 101-185,
103 Stat. 1336-47 (1989), codified as amended at 20 U.S.C. §§ 80q to
80q-15. Native American Graves Protection and Repatriation Act, Pub.
L. No. 101-601, 104 Stat. 3048-58 (1990), codified at 25 U.S.C. §§
3001-3013. NAGPRA uses the term Native American, while the NMAI Act
uses the term Indian. In this statement's discussion of each law, we
will use the term used in that law. In the rare instances where we
refer to the items covered by both acts collectively, we will simply
use the term Indian.
[2] NAGPRA defines a federal agency as any department, agency, or
instrumentality of the United States, except the Smithsonian
Institution. NAGPRA also applies to museums and defines them 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, Native American cultural items, except
the Smithsonian Institution. In addition, unless otherwise specified,
in this statement the terms objects and cultural objects refer to
funerary objects, sacred objects, and objects of cultural patrimony.
[3] GAO, Native American Graves Protection and Repatriation Act: After
Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied
with the Act, [hyperlink, http://www.gao.gov/products/GAO-10-768]
(Washington, D.C.: July 28, 2010). 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.
Our July 2010 report focused on federal agencies' historical
collections.
[4] GAO, Smithsonian Institution: Much Work Still Needed to Identify
and Repatriate Indian Human Remains and Objects, [hyperlink,
http://www.gao.gov/products/GAO-11-515] (Washington, D.C.: May 25,
2011).
[5] 25 U.S.C. § 3001(2).
[6] 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).
[7] 43 C.F.R. § 10.8(f).
[8] Pub. L. No. 92-203, 85 Stat. 688 (1971), codified as amended at 43
U.S.C. §§ 1601-1629h.
[9] The Federally Recognized Indian Tribe List Act of 1994, Pub. L.
No. 103-454, Title I (1994); Tlingit and Haida Status Clarification
Act, Pub. L. No. 103-454, Title II (1994).
[10] Op. Sol. Int. M-36975 (Jan. 11, 1993).
[11] National Museum of the American Indian Act Amendments of 1996,
Pub. L. No. 104-278, 110 Stat. 3355 (1996). Unless noted otherwise,
subsequent references in this report to the NMAI Act are references to
the act as amended.
[12] 20 U.S.C. § 80q-9a(a).
[13] The Smithsonian refers to its Review Committee as the
Repatriation Review Committee. In this statement, we will refer to it
as the Smithsonian Review Committee to clearly differentiate it from
the NAGPRA Review Committee.
[14] H. Rep. No. 101-340(I), at 33 (1989); H. Rep. No. 101-340(II), at
42 (1989).
[15] 75 Fed. Reg. 12378 (Mar. 15, 2010). The final rule also 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.
[End of section]
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