In the smaller scope of conscience: the Native American Graves Protection & Repatriation Act twelve years after.

• Author: McKeown, C. Timothy

I.

THE TRUE COMPROMISE

Standing before the United States Senate on October 26, 1990, Senator John McCain asked the approval of his colleagues to consider H.R. 5237, the Native American Graves Protection and Repatriation Act (1) (NAGPRA). "The passage of legislation marks the end of a long process for many Indian tribes and museums. The subject of repatriation," stressed McCain, "is charged with high emotions in both the Native American community and the museum community. I believe this bill represents a true compromise." (2) H.R. 5237 had originally been introduced by McCain's fellow Arizonan, Representative Morris Udall. With McCain's urging, the Senate passed the bill by a voice vote. The House of Representatives passed the amended version by unanimous consent the next day.

Congress was not acting unilaterally in supporting NAGPRA. A May 11, 1990 letter to House and Senate members urging passage of repatriation legislation was signed by representatives of the American Baptist Churches, American Ethical Union, Church of the Bretheren, Church Women United, Evangelical Lutheran Church in America, Friends Committee on National Legislation, Episcopal Church, Jesuit Social Ministries, Mennonite Central Committee, Presbyterian Church, Unitarian Universalist Association of Congregations, United Church of Christ, and the United Methodist Church. (3) An October 12, 1990 letter from the American Association of Museums also indicated its support of H.R. 5237. (4) An October 17, 1990 letter to members of Congress further broadened support for H.R. 5237 to include representatives of the American Civil Liberties Union, American Jewish Committee, American Jewish Congress, Central Conference of American Rabbis, National Council of Jewish Women, and Union of American Hebrew Congregations. (5) A November 2, 1990 letter urging President George Bush to sign the bill into law further added and diversified parties to this compromise. (6) The letter was signed by the heads of the Society for American Archaeology, American Anthropological Association, American Association of Physical Anthropologists, Archaeological Institute of America, Association on American Indian Affairs, Native American Rights Fund, National Conference of State Historic Preservation Officers, National Congress of American Indians, National Trust for Historic Preservation, Preservation Action, Society for Historical Archaeology, and Society of Professional Archaeologists.

The long process of which McCain spoke began in 1986, as Congress sought to reconcile four major areas of federal law. As civil rights legislation, Congress wished to acknowledge that throughout U.S. history, Native American human remains and funerary objects suffered from disparate treatment as compared with the human remains and funerary objects of other groups. (7) Congress also wanted to recognize that the loss of sacred objects by Indian tribes and Native Hawaiian organizations to unscrupulous collectors negatively impacted Native American religious practices. (8) In making this Indian law, Congress founded its efforts on an explicit Constitutional recognition of tribal sovereignty and the government-to-government relationship between the United States and Indian tribes. (9) Regarding property law, Congress wanted to clarify the unique status of the dead as well as highlight the failure of American law to adequately recognize traditional concepts of communal property in use by some Indian tribes. (10) Lastly, in trams of administrative law, Congress would direct the Department of the Interior to implement Congress' mandate, including the promulgation of regulations to ensure due process, awarding of grants, and assessment of civil penalties. (11) In all, 26 separate bills were proposed or introduced, and two public laws were enacted over a four-year period as a compromise on these multiple issues was negotiated. (12)

NAGPRA reconciled these various concerns by establishing three sets of provisions. Following an introductory section and definitions, Section 3 establishes procedures in the United States Code upon the discovery and, if necessary, excavation or removal of Native American human remains and "cultural items" (including funerary objects, sacred objects, or objects of cultural patrimony) on federal or tribal lands after November 16, 1990. (13) Section 4 makes it a crime to traffic in Native American human remains or cultural items under certain conditions. (14) Sections 5 through 10 establish procedures to allow lineal descendants, Indian tribes, and Native Hawaiian organizations to repatriate Native American human remains and cultural items from museum and federal agency collections. (15)

McCain's "true compromise" went into effect on November 16, 1990. However, interpretation of this or any other law is guided not by continued efforts at compromise but rather by established canons of interpretation. The legal effect of a statute must be determined by either the internal definitions, where supplied, or by the ordinary meaning of the words used in the text. (16) For example:

* Every word must be given legal effect. (17)

* A word used several times in a statute must be interpreted identically in each place. (18)

* In contrast, different words used in a statute may not be interpreted to have the same meaning. (19)

* Where an ambiguity is identified in the statutory language, the legislative history may be used to resolve the ambiguity. (20)

* The sequence of changes in a statute prior to enactment provides strong evidence of the meaning of the enacted statute. (21)

* Newer or more specific usage of a word prevails over older or more general usage. (22)

* Ambiguous words may not be interpreted in a way that would bring the constitutionality of the statute into question. (23)

* Statutes passed for the benefit of Indian tribes must be construed in favor of Indian interests. (24)

Responsibility for implementing NAGPRA was assigned to the Secretary of the Interior. (25) The following overview of NAGPRA's provisions is based on the final rule promulgated by the Department of the Interior and published in the Code of Federal Regulations, (26) as well as other administrative and judicial opinions over the 12 years since NAGPRA became law. (27)

II.

WHO MUST COMPLY WITH THE STATUTE?

Questions of jurisdiction are usually the first asked of any legislation. Congress has limited jurisdiction to place the responsibility for compliance with the statute upon two broad categories of institutions: 1) federal agencies and 2) institutions that receive federal funds. In NAGPRA, Congress has chosen to extend responsibility for compliance to the full extent of its domain.

The statute defines a federal agency as "any department, agency, or instrumentality of the United States." (28) This definition includes all components of the executive, legislative, and judicial branches of the United States government that either manage land or hold collections of Native American human remains or cultural items, with only one exception: the Smithsonian Institution. The National Museum of the American Indian Act established basic repatriation provisions for the Smithsonian Institution in 1989. (29) The more elaborate repatriation provisions established under NAGPRA were also intended to apply to the Smithsonian Institution until just prior to the bill's passage when procedural concerns were raised by the Senate Committee on Rules and Administration. (30) Separate legislation to apply some NAGPRA terms and procedures to the Smithsonian was introduced immediately prior to NAGPRA's passage in 1990 but was not voted on by Congress. (31) Some of these provisions eventually became law in 1996. (32)

All federal agencies, except the Smithsonian Institution, must complete summaries and inventories of Native American collections in their control (33) and ensure compliance regarding inadvertent discoveries and intentional excavations conducted on federal or tribal lands. (34) Federal agencies are responsible for the appropriate treatment and care of all collections from federal lands being held by non-governmental repositories. (35)

A museum is defined in the statute 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." (36) As used in this definition, "possession" means having physical custody of such objects with sufficient legal interest to lawfully treat them as part of the museum's collection. (37) "Generally, a museum would not be considered to have possession of human remains [or cultural items] on loan from another individual, museum, or Federal agency." (38) "Control" means "having a legal interest in human remains [or cultural items] sufficient to lawfully permit the museum or Federal agency to treat the objects as part of its collection," whether or not the objects are in the physical custody of the museum. (39) "Generally, a museum that has loaned human remains [or cultural items] to another individual, museum, or Federal agency is considered to retain control of [those objects]." (40) "Receives Federal funds" means "the receipt of funds by a museum after November 16, 1990 from a Federal agency through any grant, loan, contract (other than a procurement contract), or other arrangement by which a federal agency makes or made available to a museum aid in the form of funds." (41) Procurement contracts are not considered a form of federal-based assistance but are provided to a contractor in exchange for a specific service or product. Federal funds provided for any purpose that are received by a larger entity of which the museum is a part are considered federal funds for purposes of these regulations. "For example, if a museum is a part of a State or local government or private university and [that entity] receives Federal funds for any purpose, the museum is...