January 13, 1993

Dr. Frank McManamon
Departmental Consulting Archaeologist
PO Box 37127
National Park Service
Washington DC 20013

Re: NAGPRA Regulations, Second Draft 4 (10/10/92)


Dear Frank:

       Some time ago, I received a copy of the a new draft 4 of the NAGPRA
regulations from Phil Walker.  Attached is a summary of my preliminary review
of the new draft.  (In the future it might be well not to have two different
drafts with the same number.)  This appears to be a substantial improvement
over the earlier draft 4 (10/2/92), although there remain some errors and
problems.  For ease of reference, I'll present my comments serially; I think
their relative importance is clear.  If you would like to discuss any of these
comments, please let me know.

       As I know you expect to publish the regulations soon, I felt it
important to get these comments to you immediately.  I have not yet had the
opportunity to get feedback on these comments from the rest of the SAA Task
Force but will notify you of any additions or changes they suggest.  I hope it
will be useful.

       Also, I would appreciate it if you would place me on a mailing list to
automatically receive new drafts of the regulations and related notices.


Sincerely,


Keith Kintigh, Co-chair
Society for American Archaeology Task Force on Repatriation

cc:    Jack Trope
       Walter Echo-hawk





Comments on Draft 4 (10/10/92)
Keith Kintigh, SAA Task Force, January 13, 1993


10.2 DEFINITIONS

Tribe
     10.2(a)(9) (page 4).  The descriptive language starting at the top of page
4 seems a bit overstated.  The word "continuous" was specifically removed from
the definition of "cultural affiliation" during the legislative process and
should not be reintroduced here.  Also, throughout history" might be
interpreted broadly so as to include prehistory, in which case it is overly
burdensome (to say the least).

Traditional Religious Leader
     10.2(a)(13) (page 4).  With this definition, in many groups, every member
or every initiated member of the tribe would qualify under criterion (i).  The
"or" at the end of (i) should be "and".  That is, a leadership role not just
participation should be required.

Lineal Descendent
     10.2(a)(14) (page 5).  It may be a tricky business mixing traditional
kinship systems with the definition of lineal descent.  The legislative intent
was that lineal descent be determined in conformance with ordinary English
usage.  Insofar as the traditional systems informs on such issues as adoption,
it may be useful.  However, a radically divergent interpretation of lineal
descent would not be allowable.  Raising the whole difficult issue of
translation or lack thereof, between the English language category of "lineal
descendent" and traditional categories of reckoning descent should not be done
lightly.

Human Remains
     10.2(b)(1) (page 5).  What about human remains, not freely given, that are
incorporated into objects that are not cultural items, such as scalp shirts.

Cultural Items
     10.2(b)(2) (page 5).  This definition does not conform with the definition
in the act.

Associated Funerary Objects
     10.2(b)(3)(ii) (page 6).  This would be clarified if a parenthetical
statement were appended, e.g. "(whether or not the associated human remains
are currently in possession or control of a museum or Federal agency.)"  The
difference between (i) and (ii) is otherwise difficult to see.

Objects of Cultural Patrimony
     10.2(b)(6) (page 6).  Creates a circularity in definition.  "Cultural
items" in the first line should be replaced by "items".

Cultural Affiliation
     10.2(c)  It would add to clarity if the definition would encompass the
relationships for objects as well as people, since the act uses it in that
way.  This shouldn't create any problems.

Tribal Lands
     10.2(d)(2) The definition of tribal land ought to deal explicitly with
three different land classes: 1) tribally owned reservation land 2) allotted
(individually owned) tribal land and 3) tribally owned non-reservation land.
The question is: Does the Act apply to each of the second and third classes of
land?  It seems to me that Jack Trope's point in his 11/30/92 letter to you
regarding the unwarranted exclusion of private lands is well taken.  In any
case, these land status issues should be clarified in the regulations.

Possession and Control
     10.2(e)(5),(6) It might be argued that this begs the question.  I think
Walter Echo-hawk has argued that under common law, museums do NOT have a
sufficient legal interest in human remains to do anything with them.  In any
event, this act specifically redefines the ownership.


10.4 INADVERTENT DISCOVERY

Discovery.
     10.4(b) (page 12) This well-intentioned section is overly broad.  It
appears to compel people who have nothing whatsoever to do with the
disturbance or discovery to report it.  It should refer to people engaged in
some sort of land-disturbing undertaking on Federal or Tribal land, not to
everyone.

Federal Lands
     10.4(d)(2) (page 13)  Change to: notify within one working day the Indian
Tribe or Tribes known or likely to be....  Also, it is not clear why "any
other Indian Tribe that is reasonably known to have a relationship to the
human remains or cultural items" should be notified if they are not candidates
for being culturally affiliated.  If they are potentially affiliated, then
they should be notified, otherwise they have no legitimate interest.


10.5 CONSULTATION

Programmatic Agreements
     10.5(f) (page 16)  While programmatic agreements may facilitate the
workings of the bureaucratic machinery, I do not believe they should, at this
stage, be encouraged: "Whenever possible, ...".  Surely they will serve the
interests of the bureaucracy but not the interests of the Indian Tribes or the
scientific community or the broader public.  Until some real experience with
repatriation exists, people are not in an informed position to decide on all
of the abstract issues that will be thrown at them in the programmatic
agreement.
     Time and again, the experience shows that if one asks, in the abstract "Is
digging of burials permissible?", the answer will be "no".  However, if one
asks, "Is it permissible (or even advisable) to excavate this particular
threatened burial that we see here in the ground?", the answer will be "yes."
If you ask the abstract question, "Can we publish drawings of a burial?", a
group might say "no" when they would assent to or encourage the publication of
a specific drawing that they can review.
     When faced with making blanket agreements all of the implications of which
are not foreseeable (far from it), the intelligent reaction (of anyone, not
just Indian people) is to exercise extreme caution and be quite conservative.
In making decisions on specific cases, people can see the implications and
will often make quite different decisions and I think better informed.
     Thus, it is premature to encourage programmatic agreements, indeed, I
think they should be actively discouraged until there has been some amount of
case-by-case working through of repatriation decisions.  It will take more
time and more money this way, but Indian and public interests (and the
legislative intent) will be better served.


10.8 SUMMARIES & 10.9 INVENTORIES

Consultation
     10.8(d)(1)(ii), 10.9(b)(1)(ii) (pages 21 & 24) Parties (A) and (B) are
legally irrelevant to the decisions regarding museum and agency collections
(they only apply to intentional excavations and inadvertent discovery).  In
the relevant section of the act, cultural affiliation is the only relevant
criterion.  Thus, the groups who should be consulted are only those that are
potentially affiliated.  If the tribes on whose lands or aboriginal lands the
items were found are affiliated or potentially affiliated, then they should be
consulted because of the affiliation relationship.


10.10 REPATRIATION

Exceptions
     10.10(c)(3) (page 32)  Under the Act the issue of fifth amendment taking
does not apply to human remains and associated funerary objects (contrary to
these regulations).  In the Act, this language appears under the definition of
right of possession.  The relevant phrase is "unless the phrase [right of
possession] so defined would, as applied in section 7(c) result in a Fifth
Amendment taking by the United states as determined by the United States
Claims Court pursuant to 28 USC 1491..."  Section 7(c) of the act has to do
with the standard of repatriation only for "unassociated funerary objects,
sacred objects, or objects of cultural patrimony."  Thus, there is no
justification for extending this to human remains and associated funerary
objects.  Further, I note the argument presented by Jack Trope in his 11/30/92
letter to you concerning the importance of the statute's reference to a
determination by the United States Claims court.