101ST CONGRESS        HOUSE OF REPRESENTATIVES              REPORT
   2d Session                                                  101-877


               PROVIDING FOR THE PROTECTION OF NATIVE AMERICAN
                        GRAVES, AND FOR OTHER PURPOSES
                          __________________________


    OCTOBER 15, 1990.ýCommitted to the Committee of the Whole House on the
                                   State of
                     the Union and ordered to be printed
                         ___________________________


        Mr. UDALL, from the Committee on Interior and Insular Affairs,
                           submitted the following


                                    REPORT

                           [To accompany H.R. 5237]

         [Including cost estimate of the Congressional Budget Office]

     The Committee  on Interior and Insular  Affairs, to  whom was referred
   the bill (H.R.  5237) to provide  for the protection of  Native American
   graves,  and  for other  purposes,  having considered  the  same, report
   favorably  thereon  with an  amendment and  recommend  that the  bill as
   amended do pass.
     The amendment is as follows:

     Page 1, line  3, strike all after the  enacting clause and  insert the
   following:

   SECTION 1.  SHORT TITLE.

    This  Act may be  cited as  the "Native  American Grave  Protection and
   Repatriation Act".

   SEC. 2.  DEFINITIONS.

    For purposes of this Act, the termý
      (1) "burial  site" means any natural  or prepared physical  location,
     whether originally below, on,  or above the surface of the earth, into
     which  as  a  part  of  the  death  rite  or ceremony  of  a  culture,
     individual human remains are deposited.
      (2)  "cultural affiliation"  means that  there is  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.
      (3) "cultural items" means human remains andý
        (A) "associated  funerary objects" which shall  mean objects that,
       as  a  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.
        (B) "unassociated funerary objects" which shall mean objects that,
       as  a  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,
        (C) "sacred objects" which shall mean 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, and
        (D) "cultural patrimony" which shall mean an object 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.
      (4)    "Federal   agency"   means    any   department,   agency,   or
     instrumentality of the United  States and shall include, except as may
     be inconsistent with the provisions  of P.L. 101-185, the  Smithsonian
     Institution.
      (5) "Federal lands" means any land other than tribal lands which  are
     controlled or owned by the United States.
      (6)  "Hui Malama  I Na  Kupuna  O Hawai'i  Nei" means  the nonprofit,
     Native Hawaiian organization incorporated under  the laws of the State
     of  Hawaii  by that  name  on  April  17, 1989,  for  the  purpose  of
     providing  guidance  and expertise  in  decisions dealing  with Native
     Hawaiian cultural issues, particularly burial issues.
      (7) "Indian tribe"  shall have the meaning given such term in section
     4 of  the Indian Self Determination  and Education  Assistance Act (25
     U.S.C. 450b).
      (8) "museum"  means  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, but does not include any Federal agency.
      (9) "Native American" means of, or relating  to, a tribe, people,  or
     culture that is indigenous to the United States.
      (10) "Native  Hawaiian" means any individual  who is  a descendant of
     the  aboriginal people  who,  prior to  1778, occupied  and  exercised
     sovereignty in the area that now constitutes the State of Hawaii.
      (11) "Native Hawaiian organization" means any organization whichý
        (A) serves and represents the interests of Native Hawaiians,
        (B) has a primary and  stated purpose the provision of services to
       Native Hawaiians, and
        (C) has expertise in Native Hawaiian Affairs, and 
      shall  include the  Office of  Hawaiian Affairs  and Hui  Malama I Na
      Kupuna O Hawai'i Nei.
                             House Report 101-877
                                    page 3

      (12)  "Office  of Hawaiian  Affairs"  means  the Office  of  Hawaiian
     Affairs established by the constitution of the State of Hawaii.
      (13)  "right  of  possession"  means  possession  obtained  with  the
     voluntary consent  of an  individual or  group that  had authority  of
     alienation.   The original acquisition  of a Native American  funerary
     object, sacred object, or  object of cultural patrimony from an Indian
     tribe or Native Hawaiian  organization with  the voluntary consent  of
     an  individual or  group  with authority  to  alienate such  object is
     deemed to  give  right of  possession  of  that object.  The  original
     acquisition of  Native American  human remains  which were  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 is
     deemed to give right of  possession to those remains. Nothing  in this
     paragraph shall  affect the application of  relevant State  law to the
     right of ownership of  unassociated funerary objects,  sacred objects,
     or objects of cultural patrimony.
      (14) "Secretary" means the Secretary of the Interior.
      (15) "tribal land" meansý
        (A) all  lands  within  the  exterior  boundaries  of  any  Indian
        reservation;
        (B) all dependent Indian communities;
        (C) lands  conveyed to, or  subject to an  interim conveyance  of,
       Native Corporations pursuant to the Alaska Native Claims Settlement
       Act; and
        (D)  any lands  administered for  the benefit of  Native Hawaiians
       pursuant to the Hawaiian Homes Commission Act, 1920, and section  4
       of Public Law 86-3.

   SEC. 3. OWNERSHIP.

    (a)  NATIVE  AMERICAN  HUMAN  REMAINS  AND  OBJECTS.ýThe  ownership  or
   control  of  Native  American  cultural  items  which are  excavated  or
   discovered  on Federal or  tribal lands after  the date  of enactment of
   this Act shall be (with priority given in the order listed)ý
      (l)  in the  case of  Native  American  human remains  and associated
     funerary  objects, in  the lineal descendants  of the Native American;
     or
      (2)  in  any  case  in  which   such  lineal  descendants  cannot  be
     ascertained, and in the case  of unassociated funerary objects, sacred
     objects, and objects of cultural patrimonyý
        (A) in the  Indian tribe or Native Hawaiian organization  on whose
       tribal land such objects or remains were discovered;
        (B) in the Indian tribe or Native Hawaiian organization which  has
       the closest  cultural affiliation with such  remains or objects and
       which, upon notice, states a claim for such remains or objects; or
        (C)  if  the  cultural  affiliation  of  the   objects  cannot  be
       reasonably  ascertained  and if  the  objects  were  discovered  on
       Federal land that is  recognized by a final judgement of the Indian
       Claims Commission as the aboriginal land of some Indian tribeý
           (1) in  the  Indian tribe  that  is recognized  as  aboriginally
         occupying  the area in which the objects were discovered, if upon
         notice, such tribe states a claim for such remains or objects, or
                             House Report 101-877
                                    page 4

           (2) if  it can be shown by a  preponderance of the evidence that
         a  different tribe has a stronger  cultural relationship with the
         remains  or objects than  the tribe or  organization specified in
         paragraph  (1),  in  the Indian  tribe  that  has  the  strongest
         demonstrated relationship, if  upon notice, such  tribe states  a
         claim for such remains or objects.
    (b)  UNCLAIMED NATIVE AMERICAN HUMAN REMAINS AND OBJECTS.ýNative Ameri-
   can cultural items not claimed under subsection (a) shall be disposed of
   in  accordance   with  regulations  promulgated  by   the  Secretary  in
   consultation with  the review  committee  established under  section  8,
   Native American groups,  representatives of museums  and the  scientific
   community.
    (c) INTENTIONAL  EXCAVATION AND  REMOVAL OF NATIVE  AMERICAN HUMAN  RE-
   MAINS AND OBJECTS.ýThe intentional removal  from or excavation of Native
   American cultural items  from Federal  or tribal lands  for purposes  of
   discovery, study, or removal of such items is permitted only ifý
      (1)  such items are excavated  or removed pursuant to a permit issued
     under  section 4  of the  Archaeological Resources  Protection Act  of
     1979  (93  Stat.  721;  16  U.S.C.  470aa  et  seq.)  which  shall  be
     consistent with this Act;
      (2) such items are excavated or  removed after consultation with  or,
     in  the case  of tribal  lands, consent  of the  appropriate (if  any)
     Indian tribe or Native Hawaiian organization;
      (3)  the ownership and  right of  control of the  disposition of such
     items shall be as provided in subsections (a) and (b); and
      (4) proof of consultation or consent under paragraph (2) is shown.
    (d) INADVERTENT DISCOVERY  OF NATIVE AMERICAN REMAINS  AND OBJECTS.ý(1)
   Any person  who knows,  or  has reason  to know,  that  such person  has
   discovered Native  American cultural items  on Federal  or tribal  lands
   after the  date of enactment of  this Act shall notify,  in writing, the
   Secretary   of  the  Department,  or   head  of  any   other  agency  or
   instrumentality  of  the  United   States,  having  primary   management
   authority with respect to Federal lands and the appropriate Indian tribe
   or Native Hawaiian organization  with respect to tribal lands,  if known
   or readily ascertainable. If  the discovery occurred in connection  with
   an activity,  including  (but  not  limited  to)  construction,  mining,
   logging, and agriculture,  the person  shall cease the  activity in  the
   area of  the discovery, make  a reasonable  effort to protect  the items
   discovered  before resuming such activity, and provide notice under this
   subsection.  The activity may resume  after a reasonable  amount of time
   and following notification under this subsection.
     (2) The disposition of and  control over any cultural  items excavated
    or removed  under this subsection  shall be determined  as provided for
    in this section.
     (3) If  the Secretary of  the Interior consents, the  responsibilities
    (in whole or in part) under paragraphs (1)  and (2) of the Secretary of
    any department  (other than the Department of the Interior) or the head
    of any  other  agency  or  instrumentality  may  be  delegated  to  the
    Secretary with respect  to any land managed by such  other Secretary or
    agency head.
    (e)   RELINQUISHMENT.ýNothing  in  this   section  shall   prevent  the
   governing body of an  Indian tribe or Native Hawaiian  organization from
   expressly relinquishing control over any Native American human  remains,
   or title to or control over any funerary object, or sacred object.
                             House Report 101-877
                                    page 5

   SEC. 4. ILLEGAL TRAFFICKING.

    (a)  ILLEGAL TRAFFICKING.ýChapter 53  of title 18,  United States Code,
   is amended by adding at the end thereof the following new section:

   "SEC. 1170.    ILLEGAL TRAFFICKING IN NATIVE  AMERICAN HUMAN REMAINS AND
                  CULTURAL ITEMS
    "(a)   Whoever  knowingly  sells,   purchases,  uses   for  profit,  or
   transports for  sale or profit, the  human remains of  a Native American
   without the  right of  possession to  those remains  as provided in  the
   Native American Graves Protection and Repatriation Act shall be fined in
   accordance  with this title,  or imprisoned not more  than 12 months, or
   both,  and in the case of a second  or subsequent violation, be fined in
   accordance  with this  title, or  imprisoned not more  than 5  years, or
   both.
    "(b)   Whoever  knowingly  sells,   purchases,  uses   for  profit,  or
   transports  for sale  or  profit  any  Native  American  cultural  items
   obtained  in violation  of  the Native  American  Graves Protection  and
   Repatriation  Act  shall  be  fined  in   accordance  with  this  title,
   imprisoned not more than one year, or both, and in the case of  a second
   or subsequent  violation,  be  fined  in  accordance  with  this  title,
   imprisoned not more than 5 years, or both."

    (b) TABLE OF  CONTENTS.ýThe table of  contents for chapter 53  of title
   18,  United States  Code, is amended  by adding  at the  end thereof the
   following new item:

   "1170. Illegal Trafficking in Native American Human Remains and Cultural
   Items.".

   SECTION. 5. INVENTORY FOR HUMAN REMAINS AND ASSOCIATED FUNERARY OBJECTS.

    (a)  IN  GENERAL.ýEach  Federal  agency  and  each  museum   which  has
   possession or control  over holdings or  collections of Native  American
   human remains and associated funerary objects shall compile an inventory
   of such items and, to the extent possible based on information possessed
   by such museum or federal agency, identify the geographical and cultural
   affiliation of such item.
    (b)  REQUIREMENTS.ý(1)  The  inventories  and identifications  required
   under subsection (a) shall beý
      (A) completed  in  consultation  with  tribal government  and  Native
     Hawaiian organization officials and traditional religious leaders;
      (B)  completed by not later than  the date that is 5  years after the
     date of enactment of this Act, and
      (C)  made available both during the time they are being conducted and
     afterward to a review committee established under section 8.
    (2) Upon request  by an Indian  tribe or  Native Hawaiian  organization
   which  receives  or should  have received  notice,  a museum  or federal
   agency shall supply additional available documentation to supplement the
   information  required  by  subsection  (a) of  this  section.  The  term
   "documentation"  means a summary  of existing  museum or  Federal agency
   records, including inventories or catalogues, relevant studies, or other
   pertinent data for the  limited purpose of determining the  geographical
   origin,  cultural affiliation, and  basic facts  surrounding acquisition
                             House Report 101-877
                                    page 6

   and accession of Native  American human remains and  associated funerary
   objects subject to  this section. Such term does not  mean, and this Act
   shall not be construed to be an authorization for, the initiation of new
   scientific studies of  such remains and  associated funerary objects  or
   other means of acquiring or preserving additional scientific information
   from such remains and objects.
    (c)  EXTENSION OF TIME FOR INVENTORY.ýAny  museum which has made a good
   faith effort to  carry out  an inventory and  identification under  this
   section, but which has been  unable to complete the process,  may appeal
   to the Secretary for an extension of the time requirements  set forth in
   subsection  (b)(1)(B).  The Secretary may  extend such time requirements
   for any such museum upon  a finding of good faith effort.  An indication
   of  good faith shall include the development of  a plan to carry out the
   inventory and identification process.
    (d) NOTIFICATION.ý(1)  If the  cultural affiliation  of any  particular
   Native  American  human  remains  or  associated  funerary  objects   is
   determined  pursuant  to  this section,  the  Federal  agency  or museum
   concerned shall,  not later than  6 months after  the completion  of the
   inventory,  notify  the  affected  Indian  tribes  or  Native   Hawaiian
   organizations.
    (2) The notice required by paragraph (1) shall include informationý
      (A) which identifies each Native Amrican human  remains or associated
     funerary objects and the circumstances surrounding its acquisition;
      (B) which  lists  the human  remains or  associated funerary  objects
     that are clearly identifiable as to tribal origin; and
      (C) which  lists the  Native American  human  remains and  associated
     funerary   objects  that  are   not  clearly   identifiable  as  being
     culturally  affiliated  with  that  Indian  tribe  or  Native Hawaiian
     organization,  but   which,  given   the  totality  of   circumstances
     surrounding acquisition of the  remains or objects, are  determined by
     a reasonable  belief to be  remains or  objects culturally  affiliated
     with the Indian tribe or Native Hawaiian organization.
    (3) A copy  of each notice provided  under paragraph (1) shall  be sent
   to the Secretary who shall publish each notice in the Federal Register.
    (e) INVENTORY.ýFor the purposes of  this section, the term  "inventory"
   means  a simple itemized list that summarizes the information called for
   by this section.

   SEC. 6. SUMMARY FOR UNASSOCIATED FUNERARY  OBJECTS, SACRED OBJECTS,  AND
           CULTURAL PATRIMONY.
    (a) IN GENERAL.ýEach Federal agency  or museum which has  possession or
   control  over holdings  or collections  of Native  American unassociated
   funerary objects, sacred objects, or objects of cultural patrimony shall
   provide  a   written  summary  of  such  objects  based  upon  available
   information  held by such agency  or museum. The  summary shall 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.
    (b) REQUIREMENTS.ý(1)  The summary required under  subsection (a) shall
   beý
      (A) in lieu of an object-by-object inventory;
      (B)  followed  by  consultation  with  tribal  government and  Native
     Hawaiian  organization officials  and traditional  religious  leaders;
     and
                             House Report 101-877
                                    page 7

      (C) completed by not  later than the date that  is 3 years  after the
     date of enactment of this Act.
    (2)  Upon request,  Indian  tribes  and Native  Hawaiian  organizations
   shall  have access  to records,  catalogues, relevant  studies  or other
   pertinent data  for the limited  purposes of determining  the geographic
   origin, cultural  affiliation, and  basic facts  surrounding acquisition
   and accession of Native  American objects subject to this  section. Such
   information shall be  provided in a reasonable manner  to be agreed upon
   by all parties.

   SEC. 7. REPATRIATION.

    (a)  REPATRIATION  OF   NATIVE  AMERICAN  HUMAN  REMAINS   AND  OBJECTS
   POSSESSED  OR  CONTROLLED  BY  FEDERAL  AGENCIES  AND  MUSEUMS.ý(1)  If,
   pursuant to section 5, the cultural affiliation of Native American human
   remains and  associated funerary objects with a  particular Indian tribe
   or Native  Hawaiian organization is established, then the Federal agency
   or museum, upon the request  of a known lineal descendant of  the Native
   American or of the tribe or oranization and pursuant to subsections  (b)
   and (e) of  this section,  shall expeditiously return  such remains  and
   associated funerary objects.
    (2) If,  pursuant  to  section  6,  the  cultural  affiliation  with  a
   particular Indian  tribe or Native  Hawaiian organization is  shown with
   respect to unassociated funerary objects,  sacred objects or objects  of
   cultural  patrimony, then the Federal agency or museum, upon the request
   of  the Indian  tribe or  Native Hawaiian  organization and  pursuant to
   subsections (b), (c) and (e) of this section, shall expeditiously return
   such objects.
    (3)  The return  of cultural  items covered  by  this Act  shall be  in
   consultation  with   the  requesting  lineal  descendant   or  tribe  or
   organization  to  determine the  place and  manner  of delivery  of such
   items.
    (4) Where  cultural affiliation  of Native  American human  remains and
   funerary  objects  has not  been  established in  an  inventory prepared
   pursuant  to  section  5 or  where  Native  American  human remains  and
   funerary  objects are not included  upon any such  inventory, then, upon
   request  and pursuant  to subsections (b)  and (e)  and, in  the case of
   unassociated  funerary  objects, subsection  (c),  such  Native American
   human remains and funerary objects shall be expeditiously returned where
   the requesting  Indian tribe  or Native  Hawaiian organization can  show
   cultural  affiliation by  a  preponderance of  the  evidence based  upon
   geographical,  kinship,   biological,  archaeological,  anthropological,
   linguistic, folkloric,  oral traditional, historical, or  other relevant
   information or expert opinion.
    (5) Upon request and pursuant  to subsections (b), (c) and (e),  sacred
   objects  and  objects  of  cultural  patrimony  shall  be  expeditiously
   returned whereý
      (A) the  requesting  party is  the  direct  lineal descendant  of  an
     individual who owned the sacred object;
      (B) the requesting  Indian tribe or Native Hawaiian organization  can
     show  that  the  object  was  owned  or  controlled by  the  tribe  or
     organization; or
      (C) the requesting Indian tribe or  Native Hawaiian organization  can
     show  that the  sacred  object was  owned or  controlled  by  a member
                             House Report 101-877
                                    page 8

     thereof,  provided that in the case where a sacred object was owned by
     a  member thereof,  there  are no  identifiable lineal  descendants of
     said  member or  the lineal descendants,  upon notice,  have failed to
     make a claim for the object under this Act.
    (b)  SCIENTIFIC  STUDY.ýIf  the  lineal  descendant,  Indian  tribe, or
   Native  Hawaiian   organization  requests   the  return   of  culturally
   affiliated Native American cultural items, the Federal agency or  museum
   shall  expeditiously   return  such   items   unless  such   items   are
   indispensable for completion of a specific scientific study, the outcome
   of  which would  be of major  benefit to  the United  States. Such items
   shall be  returned by no later than 90 days  after the date on which the
   scientific study is completed.
    (c) STANDARD  OF  REPATRIATION.ýIf  a known  lineal  descendant  or  an
   Indian  tribe or  Native Hawaiian  organization requests  the return  of
   Native American unassociated funerary objects, sacred objects or objects
   of  cultural patrimony pursuant to this Act and presents evidence which,
   if standing alone before  the introduction of evidence to  the contrary,
   would support a finding that  the Federal agency or musuem did  not have
   the right of possession,  then such agency  or museum shall return  such
   objects unless  it can overcome such  inference and prove that  it has a
   right of possession to the objects.
    (d)  SHARING  OF  INFORMATION  BY  FEDERAL  AGENCIES  AND  MUSEUMS.ýAny
   Federal  agency or museum shall  share what information  it does possess
   regarding the  object  in question  with  the known  lineal  descendant,
   Indian  tribe, or  Native Hawaiian  organization to  assist in  making a
   claim under this section.
    (e)   COMPETING  CLAIMS.ýWhere   there   are  multiple   requests   for
   repatriation  of  any  cultural  item  and,  after  complying  with  the
   requirements  of this Act, the  Federal agency or  museum cannot clearly
   determine which requesting  party is the most appropriate  claimant, the
   agency or museum may retain such item until the requesting parties agree
   upon  its disposition or the  dispute is otherwise  resolved pursuant to
   the provisions of this Act or by a court of competent jurisdiction.
    (f) MUSEUM OBLIGATION.ýAny  museum which repatriates  any item in  good
   faith  pursuant  to this  Act  shall  not be  liable  for  claims by  an
   aggrieved party or for claims of breach of fiduciary duty, public trust,
   or violations of  state law that are inconsistent with the provisions of
   this Act.

   SEC. 8 REVIEW COMMITTEE.

    (a) ESTABLISHMENT.ýWithin  120 days after the date of enactment of this
   Act, the Secretary shall establish a committee to monitor and review the
   implementation   of  the   inventory  and  identification   process  and
   repatriation activities required under sections 5, 6 and 7.
    (b)  MEMBERSHIP.ý(1)  The Committee  established  under  subsection (a)
   shall be composed of 7 members,
      (A) 3 of whom  shall be appointed by  the Secretary from  nominations
     submitted   by  Indian  tribes,  Native  Hawaiian  organizations,  and
     traditional Native American religious  leaders with at least 2 of such
     persons being traditional Indian religious leaders;
      (B)  3 of whom shall  be appointed by  the Secretary from nominations
     submitted   by   national   museum   organizations    and   scientific
     organizations; and
                             House Report 101-877
                                    page 9

      (C) 1 who shall be appointed by the  Secretary from a list of persons
     developed and  consented to by all  of the  members appointed pursuant
     to subparagraphs (A) and (B).
    (2) The Secretary may  not appoint Federal officers or employees to the
   committee.
    (3) In the event vacancies shall occur, such  vacancies shall be filled
   by  the Secretary in the same  manner as the original appointment within
   90 days of the occurrence of such vacancy.
    (4) Members  of the  committee established  under subsection (a)  shall
   serve without pay but shall be  reimbursed at a rate equal to  the daily
   rate for  GS-18 of the General  Schedule for each day  (including travel
   time)  for which the member  is actually engaged  in committee business.
   Each member shall receive travel expenses, including per diem in lieu of
   subsistence,  in  accordance with  sections 5702  and  5703 of  title 5,
   United States Code.
    (c) RESPONSIBILITIES.ýThe  committee established  under subsection  (a)
   shall be responsible forý
      (1) designating one of the members of the committee as chairman;
      (2) monitoring  the  inventory and  identification process  conducted
     under sections 5 and 6 to  ensure a fair, objective consideration  and
     assessment of all available relevant information and evidence;
      (3) reviewing  upon the  request of  any affected  party and  finding
     relating toý
        (A) the identity or cultural affiliation of cultural items, or
        (B) the return of such items;
      (4) facilitating the resolution of any  disputes among Indian tribes,
     Native  Hawaiian  organizations, or  lineal  descendants  and  Federal
     agencies  or museums  relating to the  return of  such items including
     convening the parties to the dispute if deemed desirable;
      (5)  compiling  an  inventory   of  culturally  unidentifiable  human
     remains that are in the possession  or control of each Federal  agency
     and museum and recommending specific actions for  developing a process
     for disposition of such remains;
      (6)  consulting with Idian  tribes and  Native Hawaiian organizations
     and museums on matters  within the scope of the work of  the committee
     affecting such tribes or organizations;
      (7)  consulting with the  Secretary in the development of regulations
     to carry out this Act;
      (8)  performing such  other related  functions  as the  Secretary may
     assign to the committee; and
      (9) making recommendations, if  appropriate, regarding future care of
     cultural items which are to be repatriated.

    (d)  RECOMMENDATIONS   AND  REPORT.ýThe   committee   shall  make   the
   recommendations  under  paragraph  (c)(5)  in consultation  with  Indian
   tribes and Native Hawaiian organizations and appropriate scientific  and
   museum groups.

    (e) ACCESS.ýThe Secretary  shall ensure that the  committee established
   under  subsection (a) and the  members of the  committee have reasonable
   access  to Native American cultural items under review and to associated
   scientific and historical documents.

    (f) DUTIES OF SECRETARY.ýThe Secretary shallý
                             House Report 101-877
                                   page 10

      (1)  establish such rules and regulations for the committee as may be
     necessary, and
      (2)  provide  reasonable administrative  and staff  support necessary
     for the deliberations of the committee.

    (g)  ANNUAL  REPORT.ýThe  committee established  under  subsection  (a)
   shall submit an annual report to the Congress on the  progress made, and
   any barriers  encountered,  in  implementing  this  section  during  the
   previous year.

    (h) TERMINATION.ýThe committee established  under subsection (a)  shall
   terminate at  the end of  the 120-day  period beginning on  the day  the
   Secretary certifies, in a report submitted to Congress, that the work of
   the committee has been completed.

   SEC. 9. PENALTY.

    (a) PENALTY.ý(1)  Any museum that fails to comply with the requirements
   of this Act may be assessed a civil penalty by the secretary of Interior
   pursuant to procedures established by the Secretary through  regulation.
   No  penalty may be assessed under this  subsection unless such museum is
   given  notice and  opportunity  for  a  hearing  with  respect  to  such
   violation. Each violation shall be a separate offense.
    (2) The  amount of such  penalty shall be  determined under regulations
   promulgated  pursuant to this Act,  taking into account,  in addition to
   other factorsý
      (A) the  archeological, historical  or commercial value  of the  item
     involved;
      (B) the damages suffered, both economic  and non-economic, by an  ag-
     grieved party;
      (C) the number of violations that have occurred.
    (3) Any museum aggrieved  by an order assessing  a civil penalty  under
   this subsection  may file a  petition of  judicial review of  such order
   with  the United States  District Court for the  District of Columbia or
   for any other  district in which the museum is  located. Such a petition
   may  only be filed  within the 30-day  period beginning on  the date the
   order  making  such assessment  was issued.  The  court shall  hear such
   action  on the administrative record  and sustain the  imposition of the
   penalty  if  it  is supported  by  substantial  evidence  on the  record
   considered as a whole.
    (4) If any museum fails  to pay an assessment of a civil  penalty after
   a final administrative order has been issued and not appealed or after a
   final  judgement has been rendered, the Attorney General may institute a
   civil action in  a district court of the United  States for any district
   in which  such museum is located  to collect the penalty  and such court
   shall have jurisdiction to hear and decide such action. In  such action,
   the validity and amount of such penalty shall not be subject to review.
    (5)  Hearings  held during  proceedings  for  the  assessment of  civil
   penalties authorized by this subsection shall be conducted in accordance
   with section 554 of Title 5.  Subpoenas may be issued for the attendance
   and  testimony of witnesses and the production of relevant papers, books
   and  documents. Witnesses  summoned  shall be  paid  the same  fees  and
   mileage that are  paid to witnesses in the courts  of the United States.
   In the case of  contumacy or refusal to  obey a subpena served  upon any
                             House Report 101-877
                                   page 11

   person  pursuant to  this paragraph,  the district  court of  the United
   States  for any  district in which  such person  is located,  resides or
   transacts  business, upon  application by  the  United States  and after
   notice  to such  person  shall  have  jurisdiction  to  issue  an  order
   requiring such person to appear and give testimony or produce documents,
   or both, and any failure to obey such order of the court may be punished
   by such court as a contempt thereof.

   SEC. 10. GRANTS.
    (a) INDIAN TRIBES  AND NATIVE HAWAIIAN ORGANIZATIONS.ýThe  Secretary is
   authorized  to  make  grants  to  Indian  tribes  and   Native  Hawaiian
   organizations for the purpose of assisting such tribes and organizations
   in the repatriation of Native American cultural items.
    (b) MUSEUMS.ýThe  Secretary is authorized to make grants to museums for
   the purpose of assisting  the museums in conducting the  inventories and
   identification required under sections 5 and 6.

   SEC. 11. SAVINGS PROVISIONS.
   Noting in this Act shall be construed toý
     (1) limit the authority of any Federal agency or museum toý
       (A) return  or repatriate Native American cultural  items to Indian
      tribes, Native Hawaiian organizations, or individuals, and
       (B)  enter  into  any  other agreement  with  the  consent  of  the
      culturally affiliated  tribe or organization as to the disposition of
      control over items covered by this Act;
     (2)  delay actions  on repatriation requests  that are  pending on the
    date of enactment of this Act;
     (3) deny or otherwise affect access to any court;
     (4) limit any procedural or  substantive right which may  otherwise be
    secured   to   individuals  or   Indian   tribes  or   Native  Hawaiian
    organizations; or
     (5)  limit the application of  any State or Federal  law pertaining to
    theft or stolen property.

   SEC. 12.  SPECIAL RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND INDIAN
   TRIBES.
    This  Act  reflects   the  unique  relationship  between   the  Federal
   government  and  Indian tribes  and  Native  Hawaiian organizations  and
   should not be  construed to establish  a precedent  with respect to  any
   other individual, organization or foreign government.

   SEC. 13. REGULATIONS.

    The  Secretary  shall  promulgate regulations  to  carry  out  this Act
   within 12 months of enactment.

   SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

    There is  authorized to be appropriated  such sums as may  be necessary
   to carry out this Act.

                                   PURPOSE
     The purpose of  H.R. 5237 is to  protect Native American  burial sites
   and  the removal of human remains, funerary objects, sacred objects, and
                             House Report 101-877
                                   page 12

   objects of cultural  patrimony on  Federal, Indian  and Native  Hawaiian
   lands.  The Act also sets up a process by which Federal agencies 


   and  museums receiving  federal funds  will inventory  holdings of  such
   remains and objects and  work with appropriate Indian tribes  and Native
   Hawaiian  organizations  to reach  agreement  on  repatriation or  other
   disposition of these remains and objects.



                                BRIEF SUMMARY

     H.R. 5237, the Native American Grave Protection  and Repatriation Act,
   achieves two main  objectives.   The first objective  deals with  Native
   American human remains, funerary objects, sacred objects and objects  of
   cultural patrimony which are excavated or removed from Federal or tribal
   lands after the enactment of the Act.
     The Act  calls for  any persons  who wish  to excavate  such items  or
   other  archeological  items  to do  so  only  after  receiving a  permit
   pursuant  to the Archeological Resources Protection Act (P.L 96-96).  If
   any  of such remains  or objects are  found on  Federal Lands and  it is
   known which  tribe is closely related  to them, that tribe  is given the
   opportunity to  reclaim the remains or  objects.  If the  tribe does not
   want to take possession of the remains or objects, the  Secretary of the
   Interior will determine  the disposition  of the remains  or objects  in
   consultation with Native American, scientific and museum groups.
     The Act also addresses those cases involving the  incidental discovery
   of such  items on Federal  land by persons  engaged in  other activities
   such  as mining, construction, logging or other similar endeavors.  When
   one or more of these items are  found in this manner, the activity  must
   temporarily cease and a  reasonable effort must be  made to protect  the
   item.   Written notification must be made to the Federal land manager in
   charge and notification must also  be given to the appropriate tribe  or
   Native Hawaiian organization if known or easily ascertainable.
     Penalties are included  for selling, or otherwise profiting  from, any
   Native  American  human remains,  funerary  objects,  sacred objects  or
   objects of cultural patrimony acquired in violation of this Act.
     The   second  main  objective  addressed   in  this   Act  deals  with
   collections  of   Native   American  human   remains,   associated   and
   unassociated funerary  objects, sacred objects, and  objects of cultural
   patrimony currently held or controlled by Federal agencies and museums.
     Within 5  years of  enactment, all  Federal agencies  and all  museums
   which  receive federal funds, which have possession of, or control over,
   any Native American  human remains or associated  funerary object (items
   which are  found with a specific  body), are to compile  an inventory of
   such  remains or objects and, with the use of available information they
   have,   attempt  to  identify  them  as  to  geographical  and  cultural
   affiliation.  Upon completion of the inventory, the appropriate tribe or
   Native Hawaiian organization  is to be contacted.  If  it is clear which
   tribe  or  Native Hawaiian  organization is  related  to the  remains or
   objects and that  tribe or organization wishes the  return of the items,
   they are to be returned.
                             House Report 101-877
                                   page 13

     Instead  of  an  object-by-object  inventory,  a  written  summary  of
   unassociated  funerary  objects  (those  items  which  are  known to  be
   funerary  objects  but are  not connected  to  a specific  body), sacred
   objects, and objects  of cultural  patrimony which are  controlled by  a
   Federal agency or museum is to be completed.  The summary is to describe
   the collection,  the number of objects in it, and roughly how, when, and
   from  where the  collection was  received.   Following the  summary, the
   appropriate  Indian  tribe  or Native  Hawaiian  organization  is  to be
   contacted  and  the  two  sides  are  to  meet  to  discuss  the  future
   disposition of the items in question.
     This Act allows  for the  repatriation of culturally  affiliated items
   as well as any other  agreement for disposition or caretaking which  may
   be mutually agreed upon by involved parties.

                                  BACKGROUND

     Digging  and  removing the  contents  of  Native  American graves  for
   reasons  of profit  or  curiosity  has  been  common  practice.    These
   activities were at their peak during the last century and the early part
   of this century.
     In  1868,  the  Surgeon General  issued  an order  to  all  Army field
   officers to  send him Indian skeletons.   This was done  so that studies
   could be performed to determine  whether the Indian was inferior to  the
   white man due to  the size of the Indian's cranium.   This action, along
   with  an  attitude that  accepted  the desecration  of  countless Native
   American burial sites, resulted in hundreds of thousands Native American
   human remains and  funerary objects being sold or housed  in museums and
   educational institutions around the country.
     For many  years, Indian tribes have attempted  to have the remains and
   funerary objects of  their ancestors returned to them.   This effort has
   touched off  an often heated debate  on the rights of  the Indian versus
   the importance to museums  of the retention of their collections and the
   scientific value of the items.


            NATIONAL DIALOGUE ON MUSEUM/NATIVE AMERICAN RELATIONS

     In 1988, the Senate Select Committee on Indian  Affairs held a hearing
   on legislation which provided  a process for the repatriation  of Native
   American human remains.   Several witnesses requested that the Committee
   postpone further action on  the bill to  allow the museum community  and
   the  Native American  community to have  an opportunity to  enter into a
   dialogue on repatriation issues.  The Committee agreed and, during 1989,
   the Barry M.  Goldwater Center  of Cross Cultural  Communication of  the
   Heard Museum  in   Phoenix,   Arizona  sponsored the  Panel of  National
   Dialogue on Museum-Native American Relations.
     Several   museum   professionals,   college   professors    (including
   archaeologists   and   anthropologists),   and  Indian   representatives
   (including  tribal  and religious  leaders)  met  and discussed  various
   issues surrounding repatriation during this year-long dialogue.
     The panel  issued a  report citing  its findings and  recommendations.
   The panel was not unanimous on all recommendations, but all members  did
   agree that much was gained in understanding the views of others.
                             House Report 101-877
                                   page 14

     The panel recommended that  all resolutions be governed by respect for
   the human  rights of Native Americans and  the value of scientific study
   and education.   The majority  believed that "Respect  for Native  human
   rights is the paramount  principle that should govern resolution  of the
   issue when a claim is made. . .".
     The Panel was  split on what to do  about human remains  which are not
   culturally  identifiable.   Some  maintained  that  a system  should  be
   developed for repatriation while others believed that the scientific and
   educational  needs should  predominate.   The report  strongly supported
   dialogue  between museums and Indian  tribes during all  aspects of both
   the acquisition of sensitive materials, and repatriation requests.   The
   Panel concluded that Federal legislation on this matter was needed.


                  NATIONAL MUSEUM OF THE AMERICAN INDIAN ACT

     On November  28, 1989, the President  signed into  Public Law 101-185,
   the National  Museum of the American Indian Act.  This law established a
   museum for  the American Indian to  be built as part  of the Smithsonian
   Institution.     Testimony   received  during   consideration  of   this
   legislation revealed that the Smithsonian Institution held thousands  of
   Native  American human remains and funerary objects.  Several tribes and
   Native Hawaiians  having cultural and historical  affiliation with these
   remains  stressed  their  great desire  to  have  the  remains of  their
   ancestors returned to them.  After long negotiations between  interested
   parties, provisions were  included in the  legislation which  authorized
   the repatriation of identifiable remains and funerary objects.


        H.R. 1381ýNATIVE AMERICAN BURIAL SITE PRESERVATION ACT OF 1989

     On  March  14, 1989,  Representative  Charles Bennett  introduced H.R.
   1381, the  Native American Burial Site  Preservation Act of 1989.   This
   bill  would  prohibit excavations  or removal  of  any content  from any
   Native American  burial site without a State  permit.  The bill provides
   penalties  for violation  with  fines  of  not  more  than  $10,000  per
   violation.  The  bill provided that anything  taken in violation  of the
   legislation would become the property of the United States.


          H.R. 1646ýNATIVE AMERICAN GRAVE AND BURIAL PROTECTION ACT

     On March 23,  1989, Representative Morris Udall  introduced H.R. 1646,
   the Native  American Grave and Burial  Protection Act.  This  bill would
   make  it illegal to  sell, profit, or  transport across  state lines any
   Native American skeletal remains  without written consent of  the lineal
   descendants or of the governing body of the culturally affiliated tribe.
   Penalties of  fines of  not more  than $10,000  per  violation would  be
   assessed.
     The bill would  require all Federal agencies and  instrumentalities to
   list  and identify, within 2 years, all Native American skeletal remains
   and sacred ceremonial objects in their possession or control.  Within  3
   years, all  agencies would notify  appropriate tribes of  their findings
   and, within 1  year of  notification, the concerned  tribe would  decide
                             House Report 101-877
                                   page 15

   whether or not  it wanted the remains or objects returned.  If the items
   were not acquired with the consent  of the tribe or legitimate owner and
   the item is not needed for a scientific study the outcome of which would
   be of major benefit to  the United States, the items are to be returned.
   Any museum not  in compliance would not be eligible  for further Federal
   funding.




         H.R. 5237ýNATIVE AMERICAN GRAVE PROTECTION AND REPATRIATION
                                     ACT

     After   the  negotiations  by   the  museum,   Indian  and  scientific
   communities were  completed, Representative Morris Udall  introduced H.R
   5237, the Native American Grave Protection and Repatriation Act, on July
   10, 1990.   As introduced,  this bill  states that  any Native  American
   human  remains,  funerary  objects,  sacred  objects,  and  objects   of
   inalienable  communal property that are found on Federal or tribal lands
   after the date of enactment  would be considered owned or  controlled by
   (in  this order)  lineal descendants,  the tribe  on whose  land  it was
   found,  the tribe having the closest cultural affiliation with the item,
   or the tribe which aboriginally occupied the area.
     Anyone who discovered any  of the items  covered by the provisions  of
   the  bill accidentally or through activities such as mining, logging, or
   construction would have to  cease the activity, notify the  Federal land
   manager  responsible and  the appropriate  tribe, if  known, and  make a
   reasonable effort to protect the items before continuing the activity.
     Anyone who  profited in violation of the  provisions of the bill would
   be fined in accordance with title 18, United States Code, imprisoned not
   more than one year, or both, with the penalty increasing  to 5 years for
   a second violation.
    All Federal  agencies and  museums receiving  Federal funds  which have
   control over any of the items covered in the bill would, within 5 years,
   have to inventory and identify the items, notify the affected tribes and
   make arrangements to return  such items if the appropriate  tribe made a
   request.   If the  Federal  agency or  museum shows  that  the item  was
   acquired  with the consent  of the tribe  or if the  item was part  of a
   scientific  study  which was  expected  to be  of major  benefit  to the
   country, the request for repatriation could be denied.
     As  introduced,  this  bill  established  a  review  committee  to  be
   composed of 7 members, 4 of whom were to be from nominations made to the
   Secretary  of  the   Interior  from  Indian   tribes,  Native   Hawaiian
   organizations, and  traditional Native American religious  leaders.  The
   committee's  responsibilities  would be  to  monitor  the inventory  and
   repatriation  activities,  review any  questions as  to the  identity or
   return of any  items, arbitrate  among tribes any  disputes relating  to
   this Act,  and  compile  an  inventory  of  unidentifiable  remains  and
   recommend action for disposition of such remains.
     Grants  were made  available to tribes  to assist  in the repatriation
   process and to  museums to  assist in the  inventory and  identification
   process.
                             House Report 101-877
                                   page 16


                             LEGISLATIVE HEARING

     On July  17, 1990,  the Committee  held a  hearing on  H.R. 1381,  the
   Native  American Burial  Site Preservation  Act of  1989; H.R  1646, the
   Native  American Grave  and Burial  Protection Act;  and H.R.  5237, the
   Native American Grave Protection and Repatriation Act. 

     Testimony  was  presented  by   professional  scientific  and   museum
   associations,  archaeologists,  representatives  of individual  museums,
   Indian   organizations,  Tribal   religious  leaders,   Native  Hawaiian
   representatives, and private art dealers.
     Much  of the  Indian  testimony revolved  around  their rights  to the
   remains  and objects held by the museums and the information surrounding
   the  acquisition of such  items.  Some  Indian representatives testified
   that  the spirits  of  their ancestors  would not  rest  until they  are
   returned  to their homeland and  that these beliefs  have been generally
   ignored by the museums which  house the remains and objects.   There was
   testimony that non-Indian remains  which are unearthed are  treated much
   different than  those of  Indians.   The non-Indian remains  tend to  be
   quickly studied and then  reburied while so many Indian remains are sent
   to museums and curated.
     Testimony  received  from  the   scientific  community  stressed   the
   importance of human  remains to scientific  study and the need  to learn
   for the  future from the past.   They expressed concern  that if remains
   are reburied now they will be  lost to science forever and not reachable
   when future  study techniques are  developed.  Most  testimony indicated
   the  need  for strong  legislation to  protect  burial sites  from being
   looted or desecrated in the future.
     Testimony  from the  museum  community  stressed the  responsibilities
   which  museums  have to  maintain  their  collections  and  concern  for
   liability surrounding  repatriation.  One witness  described a situation
   where  a  museum  returned  Wampum  Belts   to  a  tribe.    After  long
   negotiations, a mutually agreed upon compromise was implemented  whereby
   the tribe  received the belts back to  continue their ceremonies and the
   museum  maintained  access  to  the   belts  for  legitimate  study  and
   educational  purposes.  Most agreed  that museums needed  to become more
   sensitive to the needs and desires of Native Americans whose remains and
   objects they house.
     Witnesses  representing  private  art  dealers testified  that  Native
   Americans  should not be the  sole conservators of  their cultural items
   because all  Americans have a right  to their history.   The Art dealers
   present denied dealing in human  remains per se but did admit that a war
   shirt in  very good condition containing  scalp locks could be  sold for
   $200,000 on the open market.
     Discussion  and testimony  received by the  Committee indicated that a
   process  was needed  by  which Native  Americans  could gain  access  to
   collections housed in museums and Federal agencies.



                             COMMITTEE AMENDMENT
                             House Report 101-877
                                   page 17

     The  Committee adopted an amendment in  the nature of a substitute for
   H.R  5237.   The substitute  was developed  on the  basis of  issues and
   concerns  expressed by witnesses at the Committee hearing, questions and
   positions   of  Committee   Members,   correspondence   from   concerned
   representatives  of  the Indian  community,  the  museum and  scientific
   community  and  the general  public,  and  meetings with  Administration
   officials and other interested  parties.  A detailed explanation  of the
   substitute is contained in the Section-by-Section Analysis
   portion of this report.   Certain major substantive changes  effected by
   the substitute are discussed below.



                                 DEFINITIONS

     Definitions of several key  terms used in the legislation were changed
   to tighten and clarify their meaning.
     In the  definition of "cultural  affiliation", the requirement that  a
   tribe  show  a "shared  group identity  which  can be  reasonably traced
   historically or prehistorically" is intended to ensure that the claimant
   has a reasonable connection with the materials.  Where human remains and
   associated  funerary objects are concerned,  the committee is aware that
   it may be extremely difficult, in many instances, for claimants to trace
   an  item from modern Indian  tribes to prehistoric  remains without some
   reasonable  gaps in  the  historic  or  prehistoric  record.    In  such
   instances, a finding  of cultural  affiliation should be  based upon  an
   overall evaluation  of the  totality of  the circumstances  and evidence
   pertaining to the connection between the claimant and the material being
   claimed and should  not be precluded solely because of  some gaps in the
   record.
     The  definition of  "sacred  objects"  is  intended  to  include  both
   objects needed for ceremonies currently practiced by traditional  Native
   American religious practitioners and objects needed to renew  ceremonies
   that are  part  of traditional  religions.   the operative  part of  the
   definition  is  that there  must be  "present  day adherents"  in either
   instance.  In  addition to ongoing ceremonies,  the Committee recognizes
   that the practice  of some  ceremonies has been  interrupted because  of
   governmental coercion,  adverse  societal  conditions  or  the  loss  of
   certain objects through  means beyond the  control of  the tribe at  the
   time.   It is the intent  of the Committee to  permit traditional Native
   American religious leaders to obtain such objects as are needed for  the
   renewal of ceremonies that are part of their religions.
     The   definition  of   "Federal  agency"   includes  the   Smithsonian
   Institution "except as may be inconsistent with the provisions of Public
   Law  100-185".  Public  Law 100-185  refers to  the Act  authorizing the
   addition  of  the  Museum of  the  American  Indian  to the  Smithsonian
   Institution.    The Committee  does not  wish  to change  the agreements
   reached under  the Museum of the American Indian Act with respect to the
   inventory and repatriation of native American human remains and funerary
   objects, but  does intend that  the Smithsonian fulfill  the obligations
   stipulated in H.R. 5237 regarding sacred objects and objects of cultural
   patrimony.    The   Committee  further  intends   for  the   Smithsonian
   Institution to  comply with  obligations stipulated  in  H.R. 5237  with
                             House Report 101-877
                                   page 18

   respect to unassociated funerary objects insofar  as such obligations do
   not weaken those stipulated in Public Law 100-185.
     The definition of "right of  possession" in section 2(13) of  the bill
   was  amended to include language providing that nothing in the paragraph
   is intended to affect the application of relevant State law to the right
   of ownership of unassociated funerary objects, sacred objects or objects
   of cultural patrimony.  The language was adopted to meet the concerns of
   the Justice Department about  the possibility of a 5th  amendment taking
   of the  private property of museums through the application of the terms
   of the Act.  While the Committee did not feel that implementation of the
   Act  would give rise to such a taking, the language was accepted to make
   clear its  intention.  The language is not jurisdictional in nature.  It
   does not confer or  detract from the existing jurisdiction  to determine
   ownership  of  an  item  covered  by  this  Act.    Depending  upon  the
   circumstances involved, the law  which would be applicable by  the court
   of  competent  jurisdiction could  be Federal,  State,  or tribal.   The
   definition of the right  of possession will supplement any  existing law
   in that respect.
    The term "tribal land",  as defined in  section 2(15), is for  purposes
   of this  Act only and may  be inapplicable in other  circumstances.  The
   Committee does not intend  that the definition will be  determinative of
   the status of  land owned by Native Corporations pursuant  to the Alaska
   Native Claims Settlement Act for any other purposes than for this Act.

                                  OWNERSHIP

     Section 3(d)  refers to the  inadvertent discovery of Native  American
   remains  and  objects  by  persons  engaged in  an  otherwise  unrelated
   activity.  Section 3(d)(1) states that, after  there has been compliance
   with  the other requirements of the subsection, "The activity may resume
   after a reasonable amount of time".  Although a specific  time limit was
   not added here,  the Committee  does intend to  protect the remains  and
   objects found  and does  not intend  to weaken  any provisions  of other
   laws, such as Archeological Resources Protection Act, regarding  similar
   situations.

                                  INVENTORY

     Section  5(d) refers  to  notification  of  Indian tribes  and  Native
   Hawaiian  organizations no later than  6 months after  completion of the
   inventory  requirements.     The  Committee  intends   that  tribes  and
   organizations  be notified  as soon  as possible  after an  inventory is
   completed.  The allowance of 6 months to make the notification was added
   to assist small museums with very limited staffs.

                                   SUMMARY

     Due  to the  possible high  number  of unassociated  funerary objects,
   sacred  objects,  and objects  of  cultural patrimony,  this  section is
   intended  to make  it  easier for  the  Federal agencies,  museums,  and
   institutions  of higher education to compile and survey the objects they
   have in  their possession or under  their control.  It  is also intended
   that there  be a  shorter time  frame for completion  of the  summary (3
                             House Report 101-877
                                   page 19

   years) than for  the item-by-item  inventory to  permit earlier  contact
   with the appropriate tribe so open discussions can begin.


                                 REPATRIATION

     Section 7(b) refers to scientific  studies the outcome of  which would
   be of major benefit to the  United States.  The Committee recognizes the
   importance of scientific  studies and urges the  scientific community to
   enter  into  mutually agreeable  situations  with  culturally affiliated
   tribes in such matters.
                             House Report 101-877
                                   page 20

                            SHARING OF INFORMATION

     Section  7(d) refers  to  the  sharing  of information  following  the
   preparation of the  initial inventory or summary.   Any tribe  which may
   have  a  cultural  affiliation  with   certain  items  may  request  any
   additional available information needed to pursue a claim under the Act.
   All tribes which  receive notice  pursuant to the  inventory process  or
   those that should have  received notice because of a  potential cultural
   affiliation (regardless of whether the showing of such affiliation would
   be  based upon museum records or non-museum sources) would have standing
   to request such information.

                               REVIEW COMMITTEE

     One  of the responsibilities of the Review  Committee is to compile an
   inventory  of  culturally unidentifiable  human  remains  and develop  a
   process for their  disposition.   There is general  disagreement on  the
   proper disposition  of such unidentifiable  remains.  Some  believe that
   they should be  left solely to science while  others contend that, since
   they are  not identifiable, they would  be of little use  to science and
   should be  buried and laid to rest.  The  Committee looks forward to the
   Review  Committees recommendations in this  area.  The Committee concurs
   with  the Justice  Department comments  that section  7 does  not accord
   binding legal force  to the Review  Committee's actions.   As such,  the
   bill did not have  to be amended to conform  the appointments procedures
   for the committee to the Constitution's appointments clause.

                                   PENALTY

     The  penalty provision of section  9 is not  meant to  be an exclusive
   remedy  for  any disputes  which may  arise  from the  implementation or
   interpretation of  the terms of the Act nor to preclude resort of any of
   the parties to remedies which may be available under other existing law.

                              SAVINGS PROVISIONS

     Section 11(1)(B)  preserves the  right of  all parties  to enter  into
   other mutually  agreeable arrangements than  those provided for  in this
   Act.   The Committee encourages all sides to negotiate in good faith and
   attempt  to come to agreements, where possible, which would keep certain
   items available to all those with legitimate interests.

                                 CONSULTATION

     The term  "consultation", wherever  it appears  in the  bill, means  a
   process  involving  the open  discussion  and  joint deliberations  with
   respect  to potential  issues,  changes, or  actions  by all  interested
   parties.

                         SECTION-BY-SECTION ANALYSIS
   Section 1
     This section cites this Act  as the "Native American  Grave Protection
   and Repatriation Act".
                             House Report 101-877
                                   page 21

   Section 2

     This  section  contains  definitions  of  various  terms  used  in the
   legislation.

   Section 3

     Subsection (a)  provides that the ownership or right of control of any
   Native  American  human remains,  funerary  objects,  sacred objects  or
   objects of cultural patrimony  found on Federal or tribal land after the
   date of  enactment will be under  the control of (in  this order) lineal
   descendants, the tribe or Native Hawaiian organization on whose land the
   item was  found, the tribe or Native  Hawaiian organization which is the
   most closely  affiliated with  the item,  or  with the  tribe or  Native
   Hawaiian  organization   which  is  recognized  by   the  Indian  Claims
   Commission as having aboriginally occupied the area.
     Subsection (b) provides that the  ownership of any item  covered under
   this Act which is not claimed under subsection (a) will be determined by
   regulations established by the Secretary of Interior after  consultation
   with the review committee established  in section 8 of this  Act, Native
   American  groups,   representatives  of  museums   and  the   scientific
   community.
     Subsection  (c)  provides  that  items  covered  by  this  Act  can be
   excavated from Federal or tribal lands if proof exists that a permit has
   been  acquired  in  accordance  with  section  4  of  the Archaeological
   Resources Protection  Act, that the appropriate tribe or Native Hawaiian
   organization has been consulted or (in the case of tribal land) consents
   to the excavation,  and if it is agreed that the right of control of any
   item  covered by  this  Act which  is  unearthed will  be determined  in
   accordance with subsection (a) and (b).
     Subsection (d) provides that  anyone who discovers any item covered by
   this Act accidentally, or by an otherwise unrelated activity, on Federal
   or  tribal land  shall  notify the  head of  the  Federal entity  having
   primary jurisdiction over the land in question and any appropriate tribe
   or  Native Hawaiian organization if  known or easily  ascertainable.  If
   the item was discovered  during an activity such as  logging, mining, or
   construction, the activity  must stop  and a reasonable  effort must  be
   made to protect the item before  resuming the activity.  This subsection
   further  provides that, if the Federal land managers involved agree, the
   Secretary of  Interior  can  be delegated  the  responsibility  of  such
   managers with respect to this Act.
     Subsection (e) provides that  nothing in this section will prevent the
   governing  body of any tribe or Native Hawaiian organization from giving
   up their rights to any Native American human remains, funerary object or
   sacred object.

   Section 4

     Subsection (a)  amends chapter  53 of  title 18 of  the United  States
   Code by adding a new section at the end thereof as follows:
     Subsection  (a)  of the  new  section  provides  that  any person  who
   knowingly sells, purchases, uses  for profit, or transports for  sale or
   profit  the human  remains of  a Native  American  without the  right of
   possession,  as defined  in  the Native  American  Grave Protection  and
                             House Report 101-877
                                   page 22

   Repatriation  Act, shall  be  fined  in  accordance  with  title  18  or
   imprisoned for  not more  than  12 months  or both  and, for  subsequent
   violations, fined in accordance with title 18 or imprisoned for not more
   than 5 years or both.
     Subsection (b)  of the new section  provides any  person who similarly
   deals  in  Native American  cultural items  in  violation of  the Native
   American  Grave Protection and Repatriation Act shall be liable to fines
   and prison terms similar to those provided in subsection (a).
     Subsection  (b) of section 4 of the bill amends  chapter 53 to add the
   new section title, "Illegal Trafficking in Native American Human Remains
   and Cultural Items" to the chapter table of contents.

   Section 5

     Subsection (a)  provides that any Federal  agency or  museum which has
   possession of, or  control over,  any Native American  human remains  or
   associated  funerary  objects is  to inventory  the  items and  list the
   geographic and cultural identity of each.
     Subsection (b) provides that  the inventory in subsection (a) shall be
   completed,   after  consultation   with  tribal   and  Native   Hawaiian
   organizational  officials and  traditional  religious leaders  within  5
   years and shall be made available to the review committee established in
   section  8.     This  subsection   also  uses  and   defines  the   term
   "documentation".
     Subsection  (c) provides  for an extension  of time  for the inventory
   deadline if good faith can be shown by a museum.
     Subsection (d) provides that,  following completion of  the inventory,
   all Federal agencies  and museums  shall notify the  affected tribes  or
   Native  Hawaiian   organizations  of  any  determinations   of  cultural
   affiliation within 6 months.  The notice shall include how each item was
   acquired,  a list of the  human remains and  associated funerary objects
   which are  clearly identifiable,  and a  list of  the tribal origin  all
   items which cannot be positively identified, but,  given all information
   available,  can be identified by  a reasonable belief.   This subsection
   further  stipulates that  all notices be  sent to  the Secretary  of the
   Interior and published in the Federal Register.
     Subsection (e) provides a  definition of the term "inventory" which is
   used in this section.

   Section 6

     Subsection (a)  provides that  all Federal agencies  and museums which
   possess, or have control over, any Native American unassociated funerary
   objects, sacred  objects, or objects of cultural patrimony shall provide
   a written summary of the objects.
     Subsection  (b) provides that the summary be done in lieu of the item-
   by-item inventory of Section  5 and that it be  followed by consultation
   with  tribal  and Native  Hawaiian  officials.   The  summary  is to  be
   completed within 3 years of the date of enactment of this Act.

   Section 7

     Subsection (a)  provides for the return  of human  remains, associated
   funerary objects,  unassociated  funerary objects,  sacred  objects  and
                             House Report 101-877
                                   page 23

   objects of cultural patrimony which were identified pursuant to sections
   5  and  6.    It further  calls  for  all  returns  to be  completed  in
   consultation with the  requesting descendent, tribe  or Native  Hawaiian
   organization.


     Subsection (b)  provides  that,  if an  item covered  in  this Act  is
   needed for a specific scientific study  the outcome of which would be of
   major benefit  to  the United  States,  the item  may  be kept  for  the
   duration of the study and returned within 90 days of completion.
     Subsection (c) provides that,  if a request is made for the  return of
   an unassociated  funerary object,  sacred object or  object of  cultural
   patrimony, the  requesting  tribe  or organization  must  first  make  a
   showing  that the  Federal agency  or museum  does not  have a  right of
   possession to that item.  If this showing  is made, the burden shifts to
   the agency or museum to show that it does have a  right of possession to
   the object.
     Subsection (d) provides that  the Federal agency or museum shall share
   its information with the requesting descendant, tribe or Native Hawaiian
   organization to assist in making a claim under this section.
     Subsection (e)  provides that,  where there  are legitimate  competing
   claims for  any cultural item, the  Federal agency or museum  can retain
   the  item  until  the requesting  parties  or  the  courts decide  which
   requesting party is the appropriate claimant.
     Subsection (f)  provides that  any museum  which repatriates  items in
   good  faith  will   not  be  liable  for  any  claims  because  of  that
   repatriation.



   Section 8

     Subsection (a)  provides for  the establishment,  by the Secretary  of
   the Interior, of a committee to monitor and review the implementation of
   the provisions of this Act.
     Subsection (b) provides  that the committee shall have  seven members,
   three  of whom are to be from  nominations submitted to the Secretary of
   Interior  by  tribes,  Native  Hawaiian organizations,  and  traditional
   Native  American religious leaders  with two of  those being traditional
   religious leaders.   Three are  to be from nominations  submitted to the
   Secretary by national museum  organizations and scientific organizations
   and one who  shall be appointed with the  consent of the other six.   It
   also provides  that the  members shall  serve without  pay but shall  be
   eligible for reimbursement for expenses.
     Subsection  (c)  provides for  the  responsibilities of  the committee
   which shall  be:   to  choose a  chairperson; to  monitor the  inventory
   process;  to   review  upon  request   any  findings  relating   to  the
   identification or return of any items covered by this Act; to facilitate
   the  resolution of any disputes among or between tribes, Native Hawaiian
   organizations,  lineal descendants,  Federal  agencies,  or museums;  to
   compile  an  inventory of  unidentifiable  human  remains and  recommend
   actions  for  their  disposition;  to  consult  with  tribes  and Native
   Hawaiian organizations  on anything that  affects them; to  consult with
   the Secretary of  the Interior  in developing regulations  to carry  out
                             House Report 101-877
                                   page 24

   this Act; and to  make appropriate recommendations regarding  the future
   care of cultural items to be repatriated.
     Subsection   (d)   provides  that   the   committee  shall   make  its
   recommendations regarding unidentifiable  human remains in  consultation
   with tribes, Native  Hawaiian organizations, and  museum and  scientific
   groups. 
     Subsection (e)  provides  that  the  Secretary of  the  Interior  will
   ensure  that committee members have reasonable access to the items under
   review and all relevant materials.
     Subsection  (f)  provides that  the  Secretary of  the Interior  shall
   establish rules and provide staff for the committee.
     Subsection (g) provides that  the committee submit an annual report to
   Congress.
     Subsection  (h)  provides  for   the  termination  of   the  committee
   following  certification to Congress  by the  Secretary of  the Interior
   that its work is finished.

   Section 9

     Subsection (a), paragraph (1),  provides that any museum that fails to
   comply  with  the requirements  of the  Act  shall be  assessed  a civil
   penalty by the Secretary.   No such penalty is to be assessed unless the
   museum  has been given adequate  notice and opportunity  for hearing and
   each violation is to be a separate offense.
     Paragraph (2)  provides  that the  penalty  to  be assessed  shall  be
   determined  by  regulations  promulgated  under  this  Act  taking  into
   consideration  the value of the item involved, damages suffered, and the
   number of violations.
     Paragraph (3)  authorizes the judicial review  of any penalty assessed
   under this subsection by the Federal district courts.
     Paragraph  (4) provides  that,  if any  museum  fails  to pay  such  a
   penalty after  final administrative  or  judicial action,  the  Attorney
   General may initiate appropriate action to collect such penalty.
     Paragraph  (5) establishes  powers and  procedures for  administrative
   actions to determine, assess and collect such penalties.

   Section 10

     Subsection (a)  provides for  grants  to  tribes and  Native  Hawaiian
   organizations to assist in the return of items covered in this Act.
     Subsection  (b)  provides for  grants  to  museums  to  assist in  the
   inventory and summary requirements in this Act.

   Section 11

     Section 11 provides  that nothing in this Act  should be understood as
   limiting the  authority of any  Federal agency or  museum to return  any
   items covered in this Act or to stop or limit any other agreements which
   can  be made  regarding  the  disposition of  such  items.   It  further
   provides  that this Act should  not delay any  current actions regarding
   the  return of  items.   This section  provides that  this Act  does not
   intend  to  restrict  access  to  any  court  or  limit  any  rights  of
   individuals, Indian tribes, or  Native Hawaiian organizations.  It  also
                             House Report 101-877
                                   page 25

   states  that it is not  meant to limit  the application of  any State or
   Federal law pertaining to theft or stolen property.

   Section 12

     Section 12  recognizes the  special relationship  between the  Federal
   government and Indian tribes and Native Hawaiian organizations.
   Section 13

     Section  13  provides  that  the  Secretary  of  the   Interior  shall
   promulgate regulations to carry out this Act within 12 months.

   Section 14

     Section 14  appropriates such sums  as may be  necessary to  carry out
   this Act.

                        COST AND BUDGET ACT COMPLIANCE

     The cost  and budgetary analysis  of H.R.  5237, as  evaluated by  the
   Congressional Budget Office, is set forth below:


                                      U.S. CONGRESS,
                                 CONGRESSIONAL BUDGET OFFICE,
                                 Washington, DC, October 15, 1990.

   Hon. MORRIS K. UDALL
   Chairman, Committee on Interior and Insular Affairs,
   House of Representatives, Washington, DC.

    DEAR MR. CHAIRMAN:  The  Congressional Budget Office has  reviewed H.R.
   5237, the  Native  American Grave  Protection and  Repatriation Act,  as
   ordered  reportd by  the  Committee  on  Interior and  Insular  Affiars,
   October  10, 1990.   CBO  estimates that  enactment of  this legislation
   would  cost the federal government  between $20 million  and $50 million
   over five years,  assuming appropriation  of the necessary  funds.   The
   range  of total estimated costs is wide primarily because of uncertainty
   about the cost  of compiling  an accurate inventory  of Native  American
   human remains. 
    H.R. 5237  would regulate  ownership, trade  and disposition of  Native
   American remains,  burial  objects, and  objects of  sacred or  cultural
   significance.  Human remains  of funerary objects found on  federal land
   would be returned to  the most closely affiliated tribes,  permits would
   be required for excavation of remains found on  federal or tribal lands,
   and it would be illegal to trade in Native American  remains of funerary
   objects.
    H.R. 5237 also  would require that  federal agencies  and museums  that
   receive  federal  funding  create  inventories  of  Native  remains  and
   associated burial  objects, notify tribes  of their holdings  and return
   objects to tribes upon request.  The bill would require that inventories
   be completed within five years of enactment.  Agencies and museums  also
   would be required to  summarize their holdings of other  objects covered
   by  the bill.   A review committee  would be established  to oversee the
                             House Report 101-877
                                   page 26

   process of  repatriation, mediate disputes and  review museums' progress
   in  completing inventories.  The bill  would authorize the appropriation
   of such  sums as are necessary for grants to assist museums in compiling
   inventories and to  assist tribes in pursuing their claims.  Although no
   funds  are  specifically  authorized  for  federal  agencies  that  have
   collection  of remains and other  opjects, the estimated  costs to these
   agencies (primarily the Department of the Interior and the Department of
   the   Army)  are  included  in  this  estimate.    The  largest  federal
   collectors, the 



   Smithsonia, is  already covered  by similar  provisions in the  National
   Museum of the American Indian Act. 
     The  main costs  from enactment  of  H.R. 5237  would  be the  cost to
   federal agencies of preparing  the inventories required by the  bill and
   the  cost  of  grants  to  museums  to   assist  them  in  carrying  out
   inventories.  To some  extent, the total cost is  discretionaryýthe more
   funds  made available, the more  accurate and comprehensive  will be the
   information  collected by museums.  This estimate represents the cost of
   compiling an  initial  inventory based  on  existing information.    Two
   variables  determine the cost:   the number of  remaining and associated
   objects  and the cost  to inventory each object.   This estimate assumes
   that museums  and  federal agencies  hold  between 100,000  and  200,000
   Native American remains that would have to be reviewed.
     The cost  of  preparing an  accurate  inventory  of the  original  and
   tribal affiliation of  human remains can vary  considerably depending on
   the  information  already available,  the amount  of research  needed to
   accurately   determine  tribal   affiliation  and   the  contentiousness
   surrounding individual pieces.  There is considerable disagreement about
   the  nature of  the inventory required  by H.R. 5237,  and widely varied
   estimates of costs.   Based  on the experience  of museums that  already
   have repatriated  remains, we assume costs of $50 to $150 per remain, or
   a total cost of between $5 million and $30 million over five  years, for
   museums to provide  tribes with  the basic information  required by  the
   bill.   This  estimate includes  the costs of  an inventory  of museums'
   collections,  as well as a  review of existing  information to determine
   origin.  More extensive studies costing up to $500-$600 per remain would
   be necessary to  determine the origin of  some of the remains;  however,
   such  studies generally are not required by  H.R. 5237.  If museums were
   required to identify  all of  their holdings definitvely,  the costs  of
   this bill would be significantly higher than the $30 million estimate. 
     H.R.  5237  also   would  require  an  inventory   of  bruial  objects
   associated with the human remains, and a summary by each museum of their
   holdings of unassociated funerary objects, sacred objects or  culturally
   important objects.   CBO estimates  that these  inventories and  summary
   studies would cost museums about $10 million over 5 years.  
     Finally, H.R. 5237 would  provide grants to tribes  to assist them  in
   the  repatriation of the remains and objects  covered in the bill.  This
   effort could include  assistance in  pursuing tribal claims  as well  as
   assistance  in  repatriating the  remains.   CBO  estimates costs  of $5
   million to $10 million over five years for these grants. 
     As operators  of  about one-third  of  all  museums, state  and  local
   governments  could face  costs from  enactment of  H.R. 5237.   Assuming
                             House Report 101-877
                                   page 27

   appropriation of adequate  amounts by the  federal government,  however,
   these costs would be covered by federal grants made availbale  under the
   bill. 
     If you wish further  details on this  estimate, we will be  pleased to
   provide them.  The CBO staff contact is Marta Morgan, who can be reached
   at 226-2860.  
        Sincerely,  


                                      ROBERT D. REISCHAUER,
                                                          Director.
                             House Report 101-877
                                   page 28



                        INFLATIONARY IMPACT STATEMENT

     Enactment of H.R. 5237 would have no significant impact on inflation.

                             OVERSIGHT STATEMENT

     No specific oversight activities were undertaken by  the Committee and
   no recommendations were submitted  to the Committee pursuant to  rule X,
   Clause 2.

                          COMMITTEE RECOMMENDATIONS

     The  Committee  on  Interior  and  Insular  Affairs,  by  voice  vote,
   approved the bill and recommends its enactment by the House, as amended.

                           EXECUTIVE COMMUNICATIONS

     The Committee requested a report  from the Department of  the Interior
   on  a  similar bill,  H.R. 1381,  by letters  dated  June 19,  1989, and
   February  27, 1990, and on H.R. 1646  by letter dated February 27, 1990.
   No  reports on these  bills were received  at the time of  the filing of
   this report.   Comments on H.R.  5237 from the Army  Corps of Engineers,
   the Department of Justice and the Department of the Interior follows:
     Executive communications received on this legislation are as follows:

                                      DEPARTMENT OF THE ARMY,
                                      Washington, DC, August 31, 1990.

   Hon. MORRIS K. UDALL,
   Chairman, Committee on Interior and Insular Affairs, 
   House of Representatives, Washington, DC.

     DEAR MR. CHAIRMAN:   This office is responding to your letter  of July
   13,  1990 requesting the  views of the  Army Corps of  Engineers on H.R.
   1381, 101st Congress the  "Native American Burial Site  Preservation Act
   of  1989", H.R.  1646, 101st  Congress, the  "Native American  Grave and
   Burial Protection  Act",  and H.R.  5237,  101st Congress,  the  "Native
   American Grave Protection and Repatriation Act".
     The purposes  of the bills are to protect Native American burial sites
   on  Federal  lands  from  excavation  and  vandalism;   to  prevent  the
   interstate sale of  Native American  remains; and, in  the case of  H.R.
   1646 and H.R.  5237, to provide a mechanism by  which cultural resources
   can be returned to their native tribe.
     The Department of  the Army shares your concern  for the protection of
   Native American burial sites;  however, these three bills, in  our view,
   are problematic for a number of reasons.
     First,  many  of  the   provisions  in  the  bills  overlap  with  the
   provisions of the Archaeological Resources Protection Act (ARPA),  which
   already  has a framework in place  for the protection of Indian cultural
   resources.   In  the  ARPA,  the  term "archaeological  resource"  would
   encompass  Native American burial sites, as the term means "any material
   remains of past 
                             House Report 101-877
                                   page 29



   human life or activities  which are of archaeological interest.  . . .".
   16 U.S.C. 470bb.   This Act authorizes Federal land  management agencies
   to provide permits to persons for  the purpose of excavating or removing
   archaeological resources on  public lands.  The  Act provides that if  a
   permit issued could result in harm to or destruction of any religious or
   cultural site, the  Federal land  manager must notify  any Indian  tribe
   which  may consider the site as having religious or cultural importance.
   16  U.S.C. 470cc(b),  (c).   To avoid  duplication of  existing  law and
   confusion to program managers, additional protection to Native  American
   burial sites should be framed as amendments to the ARPA.
     In addition,  we are  concerned  that some  of the  provisions in  the
   bills are untenable and conflict with the ARPA.  For instance, H.R. 1381
   would prohibit the excavation of Native American burial sites, except as
   permitted  by States  under State  law.   This provision  conflicts with
   section 4 of the ARPA, which provides for Federal permits for excavation
   of archaeological resources.   We believe that  jurisdiction for permits
   to excavate or  remove Indian  remains properly rests  with the  Federal
   Government.  The Federal government has a fiduciary obligation to ensure
   that in the execution  of laws that protect Indian property, full effect
   is given to  that purpose.   Moreover, there is  an established rule  of
   construction of the law that Congress' actions towards Indians are to be
   interpreted   in  light   of  the   special  relationship   and  special
   responsibilities of the Government towards the Indians.  In our view, to
   transfer  permitting  authority  to  States  would  usurp  the   Federal
   Government's duty  to ensure that the law be carried out for the benefit
   of Indians.  Moreover, this provision raises jurisdictional questions as
   to whether a State can issue permits for activities on Federal property.
     H.R. 1626  and H.R. 5237 also  contain provisions  that would prohibit
   excavation of Native American  remains without notice to and  consent of
   the  affiliated Indian  tribe or  organization.   From our  perspective,
   these provisions create an impossible burden for  Federal land managers.
   Whenever possible, the  Army Corps of  Engineers consults with  cultural
   descendents when  human remains and associated items are identified, and
   we enter into agreements with descendent tribes when sites are likely to
   contain  human  remains.   Nevertheless,  there  are circumstances  when
   cultural descendants may not  be present or identifiable.   By requiring
   consent from an affiliated tribe before any excavation could take place,
   these provisions could virtually stop the progress of any Corps project.
   Essentially,  we oppose  the  overly strict  requirements  in these  two
   bills, and  would favor  a  balanced approach  that  would allow  for  a
   reasonable  effort on the part of Federal  land managers to consult with
   cultural descendents before an area was excavated.
     Finally, you  requested that the Corps  include the  current number of
   Native American skeletal remains and funerary  objects in its possession
   or control and  the policy regarding those items.   At the present time,
   the  Corps does  not have  an accurate  number of  those items  for you.
   However, the Corps is currently revising its regulations on curation and
   collections management that  would require all Corps  offices to conduct
   inventories of curated cultural 
                             House Report 101-877
                                   page 30

   and human remains.  When the regulation is  further developed, the Corps
   will be able  to proceed on  a project by project  basis to conduct  the
   necessary inventories.
      Sincerely,

                                      ROBERT W. PAGE,
                                      Assistant   Secretary  of   the  Army
   (Civil Works).
                                      C. EDWARD DICKEY,
                                      Acting  Principal  Deputy   Assistant
   Secretary
                                      (Civil Works).

                            ______________________

                                 U.S. DEPARTMENT OF JUSTICE,
                                 OFFICE OF LEGISLATIVE AFFAIRS,
                                 Washington, DC, September 17, 1990.

   Hon. MORRIS K. UDALL,
   Chairman, Committee on Interior and Insular Affairs, 
   House of Representatives, Washington, DC.

     DEAR MR. CHAIRMAN:   This letter presents the  views of the Department
   of Justice on two related bills:  H.R. 5237, the  "Native American Grave
   Protection and  Repatriation Act," and  H.R. 1646, the  "Native American
   Grave and Burial Protection Act."
     H.R.  5237 and H.R. 1646 are similar in substance.  Both would protect
   and  provide for repatriation of Native  American human remains, objects
   associated with those remains, and other sacred objects. H.R. 5237 would
   also  protect and  provide  for repatriation  of  a fourth  category  of
   objectsý"inalienable communal property"ýdefined to include items "having
   historical, traditional, or  cultural importance central  to the  Native
   American group or culture . . . ." H.R. 5237, § 2(6).1
     On the  policy goals  and efficacy  of these  bills, we  defer to  the
   federal  agencies  responsible  for administration  of  Native  American
   programs, particularly the  Department of the Interior.  As to the legal
   issues  involved,  however,  we  believe  that  both  bills would  raise
   concerns under the  Takings Clause  of the Constitution.   U.S.  Const.,
   Amend.  V (". . .  nor shall private  property be taken  for public use,
   without  just compensation").  We  first discuss a  Takings Clause issue
   common to the repatriation provisions  in both H.R. 5237 and  H.R. 1646.
   We then discuss three further matters unique to one or the other bill.
     1.    Repatriation.ýBoth H.R.  5237  and  H.R.  1646  would call  upon
   private museums to return  protected objects upon request from  a Native



                              
               1A third billýH.R. 1381, the "Native American Burial
          Site Preservation Act of 1989"ýwould  prohibit excavation
          of  a Native American burial site.   H.R. 1381, § 3.  The
          Department   of   Justice   has  no   comments   on  this
          legislation.
                             House Report 101-877
                                   page 31

   American tribal body affiliated with the particular object. H.R. 5237, §
   6(a)(1) and (b)(1); H.R. 1646, § 6.2  The precise procedures 
   for  repatriation  differ  between the  two  bills.    Under H.R.  5237,
   requests addressed to  private museums would turn upon the results of an
   inventory of Native  American objects  that the museum  itself would  be
   required to  complete. H.R. 5237, §  6(a)(1).  Only if  a private museum
   establishes  the origin of a particular  protected object as part of the
   required  inventory may  a request  for repatriation  of that  object be
   made. Id.  By contrast,  H.R. 1646 would not require private  museums to
   conduct  inventories,  see H.R.  1646, §  5  (only federal  agencies and
   instrumentalities must conduct inventories), nor would it make  requests
   for repatriation to any type of museum dependent upon the results of any
   inventories.
     The two bills  also differ concerning the grounds upon which a private
   museum  may refuse  a request  for  repatriation.   Under  H.R. 5237,  a
   private museum  would need to show  "by a preponderance of  the evidence
   that  [it] has  right  of  possession  to  [the  requested]  remains  or
   objects."  H.R. 5237,  §  6(c)(1).   H.R.  5237 would  define "right  of
   possession" to mean "possession  obtained with the voluntary  consent of
   an individual or group that  had authority of alienation." H.R.  5237, §
   6(d).  Under  H.R. 1646, a private museum  need not grant a  request for
   repatriation if the object sought was  "acquired with the consent of the
   tribe or the Native American  owners of such items"  or, in the case  of
   skeletal remains, is "indispensable for  the completion of a  scientific
   study,  the outcome  of which would  be of  major benefit  to the United
   States."  H.R. 1646, § 6(1) and (2).3
     Under either bill, any  museum that fails to comply with  the relevant
   repatriation provisions  would be ineligible to  receive federal funding
   during the period of non-compliance.  H.R. 5237, § 6(f); H.R. 1646 §  6.
   Th  Supreme Court has recognized  that Congressýas part  of its spending
   powerýhas broad  authority  to  place conditions  upon  the  receipt  of

                              
               2The term "museum,"  as used in  either bill,  would
          clearly encompass private museums.  See H.R. 5237, § 2(9)
          ("museum" means  "any person, State, or  local government
          agency  .  .  .  that  receives  Federal  funds  and  has
          possession of, or control over"  protected objects); H.R.
          1646,  § 3(7)  ("museum" means  "any  museum, university,
          government agency, or other institution receiving Federal
          funds which  possesses or  has  control over  any  Native
          skeletal remains or ceremonial objects").
             Both   bills   would   also    permit   requests   for
          repatriation to  be made to federal  agencies and federal
          museums.  H.R. 5237, § 6(b); H.R. 1646, § 6.  This aspect
          of the two bills  does not implicate the  Takings Clause,
          as  the property in question is that of the United States
          and, hence, may be repatriated by Congress.  U.S. Const.,
          Art. IV,  § 3,  cl. 2  (power of  Congress to  dispose of
          "Property belonging to the United States"). 

               3By contrast, H.R.  5237 would  permit only  federal
          agencies  and  federal museums  to  refuse  a request  on
          scientific grounds.  See H.R. 5237, § 6(b).
                             House Report 101-877
                                   page 32

   federal funds.   See South Dakota v. Dole, 107 S. Ct. 2793, 2796 (1987).
   In  so doing, Congress may  seek to accomplish  objectives not otherwise
   within its Article I  powers. Id. (upholding the withholding  of federal
   highway funds to  induce States to adopt uniform drinking ages, "even if
   Congress may not  regulate drinking ages directly").   Without extensive
   elaboration, however, the Court  has noted that such conditions  may not
   be   used   to   induce   "activities   that   would   themnselves    be
   unconstitutional." Id. at 2798 (citing authorities).
     This limitation  upon the power of  Congress to  condition the receipt
   of federal  funds would  arguably be  implicated by  H.R. 5237 and  H.R.
   1646.  Although we have identified no authorities that speak directly to
   the relationship between the  spending power and the Takings  Clause, we
   believe that  a strong  argument  could be  made that  Congress may  not
   exercise the  spending power  to accomplish  an uncompensated  taking of
   private property, as such action would contravene the Constitution.  Cf.
   Nollan  v.  California  Coastal  Comm'n,  483  U.S.  825  (1987)  (state
   commission may  not, absent  just compensation,  condition  a permit  to
   rebuild house upon  transfer of  easement to the  public across  owner's
   property).
     By  its terms,  the  Takings Clause  provides that  "private property"
   shall not  be  taken  for  "public  use" absent  the  payment  of  "just
   compensation."   U.S. Const., Amend. V.   We discuss first  the "private
   property" requirement.
     Both H.R. 5237 and H.R.  1646 recognize that a private museum need not
   return a protected object acquired with the consent of a person or tribe
   with  authority to transfer that  particular object. H.R.  5237, § 6(d);
   H.R.  1646, §  6(1).   There may,  however, be  other  means by  which a
   private  museum might have acquired  a property interest  in a protected
   object.
     For example,  the Antiquities Act of 1906 provides that a permit shall
   be  required for "excavation of  archaeological sites" on federal lands.
   16 U.S.C. § 432.   As a condition for receipt of a permit, the applicant
   must  provide  for "permanent  preservation  [of  excavated objects]  in
   public museums." Id.  A privatre museum open to the public would  have a
   strong  argument that  protected  objects  duly  obtained  in  the  past
   pursuant to such federal permits constitute museum property.  Apart from
   laws concerning federal lands,  property interests may be  recognized by
   state law as  well.  For example, a private  museum might have purchased
   protected objects  that were  accidentally discovered in  the course  of
   construction work or other excavation upon private land.
     As currently drafted, however,  H.R. 5237 and H.R. 1646  do not appear
   to  exclude from repatriation  objects acquired  other than  through the
   consent of the relevant Native Americans.  Section 6 of H.R. 1646 states
   that  only  "the tribe  or the  Native  American owners  oif [protected]
   items"  may consent to their  acquisition.  The  equivalent provision of
   H.R. 5237 refers more broadly to "consent of an individual or group that
   had  authority  of  alienation,"  but  the  examples  that  follow  this
   statement  are restricted  to consent  involving Native  Americans. H.R.
   5237 § 6(d).  The language of both bills would appear to exclude consent
   by  a governmental  or  private landowner  that  leadsýby design  or  by
   accidentýto  the discovery of  Native American artifacts  that are later
   transferred to a private museum.  In short, consent by the United States
   to excavation on federal  lands (or, alternatively consent by  a private
   landowner  to excavation on his property) may confer a property interest
                             House Report 101-877
                                   page 33

   in  the objects discovered  but would  not appear  to protect  a private
   museum from the  repatriation requirement.   The bills  thus may  affect
   private property and thereby call into play the Takings Clause.
     This problem  could be  resolved by  an amendment  to exclude  private
   museumsýand, hence, private  propertyýfrom repatriation.  Alternatively,
   the  provisions under which  a private  museum may  decline repatriation
   might  be broadened  to exempt  all objects  in which  the museum  has a
   property  interest  cognizable  under federal  or  state  law.   Similar
   legislation introduced in the Senate, for example, would permit a museum
   to refuse repatriation if  it has "legal title" to the requested object.
   See S. 1980, § 5(c)(1).  Either revision, however, would  reduceýperhaps
   significantlyýthe  number of protected objects that would be returned to
   Native Americans.
     Absent such  revisions, further issues  would arise under the  "public
   use"  and "just compensation" requirements  of the Takings  Clause.  The
   courts  generally   will  defer  to  Congress'   detremination  of  what
   constitutes  a "public  use" of  private property.   See  Hawaii Housing
   Authority v. Midkiff,  467  U.S. 229, 240 (1984).  The  Government "does
   not  itself have to use property to  legitimate the taking," id. at 224;
   transfers of property from one private party to another have been upheld
   when designed by the legislature to further a public purpose, see, e.g.,
   id.   Here, however, Congress  has inserted  no findings in  either H.R.
   5237 or H.R. 1646 to explain  how the transfer of protected objects from
   private  museums to Native American tribes will advance the public good.
   Should Congress wish to  reach private property through these  bills, it
   would be advisable that such findings be included.
     Finally, the Takings Clause requires that "just  compensation" be paid
   for  the  taking of  private property.   The  absence of  a compensation
   procedure in either  H.R. 5237 or H.R. 1646 would  not prevent a private
   museum  from  obtaining  compensation in  the  event  that  a taking  is
   effected by either  bill.  Under  the Tucker Act,  a private museum  may
   seek  such compensation  in  the  Claims  Court.  28  U.S.C.  §  1491(a)
   (jurisdiction to resolve claims against the United States based upon the
   Constitution).   The  payment of compensation  to private  museums would
   increase the  cost of repatriation  legislation.  Absent  such payments,
   however,  the  conditioning  of  federal  funding  upon  consent  to  an
   uncompensated   takingýas   we    have   explainedýmay   well    be   an
   unconstitutional exercise of the spending power.

     2.  Ownership  Provision of H.R. 1646.ýAs  currently drafted,  section
   4(c) of  H.R. 1646  would implicate the  Takings Clause.   That  section
   would declare that "[a]ny grave goods or sacred ceremonial objects found
   on public  or tribal  land shall  be deemed  to be  owned by the  tribe"
   associated  with  those objects.   To  avoid  the implication  that this
   section would transfer ownership of objects found in  the past such that
   compensation would be due to the previous owners, we recommend amendment
   of this section to apply only to objects "found after the date  this Act
   becomes law."  Such an amendment  would clarify that section 4(c),  like
   the protections for  Native American artifacts  elsewhere in section  4,
   will have only a prospective application.

     3.  Appointment of  Review Committee in H.R. 5237.ýUnder  section 7 of
   H.R. 5237,  the Secretary of the Interior would be required to establish
   a  "review committee" that  "shall be composed  of 7 members,  4 of whom
                             House Report 101-877
                                   page 34

   shall be appointed by the Secretary from nominations submitted by Indian
   tribes, Native Hawaiian  organizations, and traditional  Native American
   religious leaders." H.R.  5237 §  7(b)(1).  The  committee shall,  inter
   alia,  "review[]  upon the  request of  any  affected party  any finding
   relating to" the  identification of a protected object or  the return of
   such an object. H.R. 5237, § 7(c)(2)
     As  drafted, the  bill  would not  accord binding  legal force  to the
   committee's review. Should Congress intend otherwise, section 7(b)(1) of
   the  bill  would  need  to be  amended  to  conform  the procedures  for
   appointment of  the review committee to  the Constitution's Appointments
   Clause.  See U.S.  Const., Art. II,  § 2, cl. 2;  Buckley v. Valeo,  424
   U.S.  1, 126,  141 (1976)  (officials exercising  "significant authority
   pursuant to the laws of the United States" 
   must  be  appointed pursuant  to the  Appointments  Clause).   While the
   Appointments  Clause  permits  Congress  to  vest  the  appointment   of
   "inferior Officers"  in the President alone,  we do not believe  that it
   sanctions  limitations upon the power  of appointment by  reference to a
   fixed  list of  nominees, because  such a  requirement would  permit the
   creator of the listýhere, Native American  organizationsýto share in the
   appointment power. 

     4.  Access  Requirement of H.R. 5237.ýSection  7(e) of H.R. 5237  also
   concerns the review committee.  This section would require the Secretary
   of the  Interior to "ensure" that the committee will have "full and free
   access" to  any protected objects  necessary for their  review.  In  its
   current form, the language  of section 7(e) might implicate  the Takings
   Clause  in  particular  situations.    A  court  will  ask  whether  the
   particular  intrusion "unreasonably  impair[s]"  the economic  value  of
   private property.  PruneYard Shopping Center v. Robins, 447  U.S. 74, 83
   (1980).  In this "ad hoc inquiry," the court will regard several factors
   as "particularly significantýthe economic impact of the regulation,  the
   extent to  which it interferes with  investment-backed expectations, and
   the character  of  the governmental  action.   Loretto  v.  Teleprompter
   Manhattan CATV Corp., 458 U.S. 419, 432 (1982). 
     Here, a requirement of  "full and free"  access might be read  broadly
   to authorize the sequestration of protected objects that would otherwise
   be  part of a major exhibition in a private museum.  Although the result
   would turn largely  upon the  particular facts, a  private museum  would
   have  a substantial argument that such an intrusion constitutes a taking
   and, thus, must be accompanied by the payment of just  compensation.  To
   avoid  such a  situation,  we recommend  amendment  of section  7(e)  to
   provide  merely for "reasonable access" to protected items by the review
   committee.
       Sincerely, 
                                      BRUCE C. NAVARRO, 
                                 Deputy Assistant Attorney General.

                         ___________________________

                                 U.S. DEPARTMENT OF THE INTERIOR,
                                 OFFICE OF THE SECRETARY,
                                 Washington, DC, October 2, 1990. 

   Hon. MORRIS K. UDALL,
                             House Report 101-877
                                   page 35

   Chairman, Committee on Interior and Insular Affairs, 
   House of Representatives, Washington, DC.

     DEAR MR.  CHAIRMAN: This  is to  provide you  with our  views on  H.R.
   5237, the "Native American Grave Protection and Repatriation Act".
     We support the goal of H.R. 5237,  but would oppose it unless  amended
   as we suggest below.  In addition, we oppose provisions in the bill that
   would authorize  open-ended and unlimited  grants to tribes  and museums
   involved in the  repatriation process.   H.R. 5237  also raises  serious
   constitutional problems  that must be satisfactorily  addressed prior to
   enactment. We defer to the Department  of Justice for an analysis of the
   legal  issues  associated with  this  bill,  which  has been  previously
   provided to the Committee.



     H.R.  5237 would establish  criminal penalties  for anyone  selling or
   transporting Native American skeletal remains without the consent of the
   heirs of the  deceased or the tribe which  is culturally affiliated with
   the  remains.   The bill would  also establish ownership  of grave goods
   found  on pubic  or tribal  lands.   It would  require  Federal agencies
   having possession  of Native  American  skeletal remains  or  ceremonial
   objects (1) within  five years  to inventory them  and determine  tribal
   origin; and (2) within  six months to notify each tribe of  the items in
   the  agency's  possession  or control.    Tribes  would  be provided  an
   opportunity to decide  if they  wished the items  returned, and  Federal
   agencies would be required to return  them unless they are obtained with
   the  consent of  the  tribal entity,  or  are indispensable  for  study.
   Similar requirements  for return of  such items would  be levied  on any
   museum  which receives  Federal  funds.   A  review committee  would  be
   established to monitor  and review the  implementation of the  inventory
   and identification process required by this bill.
     In March  of this  year, Secretary  Lujan directed  the National  Park
   Service to develop a new policy and revise an existing  guideline on the
   treatment  of human  remains and  funerary objects.   The  National Park
   Service already  has been  informally reviewing  the current  policy and
   guidelines at the staff level for over a year.  This informal review has
   included meetings with representatives of Indian groups, as well as with
   archaeological  and museum groups.  The specifics of the Interior policy
   and guidelines remain to be defined following more detailed consultation
   with  Indian,  archaeological,  museum,  and  other  interested  groups.
   However,  we have identified certain basic principles that we would need
   to see incorporated in any legislation which we would support.
     Secretary Lujan  wants a  more sensitive  treatment of  archaeological
   human remains, funerary  objects, sacred objects, and  objects of Native
   American cultural patrimony  by managers  on Interior lands.   He  wants
   other  Federal, State and local  agencies that look  to the Secretary of
   the  Interior  for  guidance  to  adopt  similar  sensitive  approaches.
   However, the Secretary  has indicated that he wants to  affirm the right
   of each tribe to determine the treatment  that is afforded human remains
   and associated  objects  that are  affiliated clearly  with that  Tribe.
   This right is central to the purpose of H.R.. 5237.
     Although the Federal government  legally owns human remains, it is our
   position   that   the   government   should   have    only   stewardship
                             House Report 101-877
                                   page 36

   responsibilities for human remains and other cultural items which should
   be  held in  trust for  culturally affiliated  groups who  can establish
   rights to  their  ownership  and  for  the  scientific  and  educational
   benefits derived from some of these cultural items.
     We  recognize   the  legitimate   interests  of   contemporary  Native
   Americans,  tribes  and  tribal components,  including  extended  family
   groups, in making a claim.  Therefore, in cases where  human remains and
   associated  funerary  objects  can  be  linked  to  contemporary  Native
   Americans  and  a  claim  is  made  and  substantiated,  the  culturally
   affiliated group should determine ultimate disposition.
     We further  believe that in cases  where human  remains and associated
   funerary  objects  can  be  linked  to  contemporary  Native  Americans,
   justifiable scientific and humanistic studies may be undertaken with the
   permission of the  acknowledged kin group or  tribal representatives who
   will  decide  about  the  appropriate  conditions  of  study  and  final
   disposition of the human remains and associated funerary objects.
     Under present  policy, in  cases where  human  remains and  associated
   funerary objects  cannot be linked  to contemporary Native  Americans or
   when a  claim is  not made, the  Federal government  would maintain  its
   stewardship  role,  providing  the  opportunity  for  future  evaluation
   whenever additional evidence of cultural affiliation is forthcoming  and
   claims  are made.    In this  area, however,  the  outcome of  Secretary
   Lujan's policy review is not yet certain.  We support the effort to stem
   the removal of these cultural items from their resting places by looting
   and inadvertent modern disturbances and to halt the trafficking in these
   items.
     We  believe that  H.R.  5237  would largely  incorporate  these  basic
   principles. However,  the following  amendments  would be  necessary  in
   order for us to support this bill.

       In cases where human remains and associated funerary objects cannot
      be linked to contemporary Native Americans, or where  a claim has not
      been made,  we believe it is  appropriate for  the Federal government
      to maintain its stewardship role over  these remains, but provide the
      opportunity for future evaluation  of cultural affiliation  if future
      claims  are made.   Therefore,  we  recommend section  3(a)(2)(B)  be
      changed   to  read,   "in  the   Indian  tribe  or   Native  Hawaiian
      organization  which is  affiliated with  such objects  or remains and
      which, upon notice, states a claim for such objects or remains."

       We  believe it would not be proper to  use aboriginal occupation as
      the sole  criteria  for establishing  affinity where  no affinity  to
      contemporary groups can be  established. In some cases this criterion
      will  be  reasonable, in  other  cases  it  will  not. Therefore,  we
      recommend section 3(a)(2)(C) be deleted.

       We  agree  that  the  Secretary  of  the  Interior  should  develop
      regulations  for  the treatment  and  disposition  of items  that are
      determined  to  be  unaffiliated  with  any  modern  Native  American
      entity.  The stewardship  role over these items can result in a  wide
      variety of  treatments, ranging  from museum curation of  remains and
      objects to  reburial.   If  the regulations  contemplated in  section
      3(b) of the bill (providing procedures  to be followed in determining
      proper treatment  for unclaimed items) are  intended to provide  such
                             House Report 101-877
                                   page 37

      broad  authority,  report   language  establishing  this  intent   is
      necessary.

       In order  for repatriation or continued  government stewardship  of
      cultural  items   to  operate  effectively,  inventories  of  present
      collections in  Interior and other Federal  agencies are  needed.  In
      order to ensure that cultural items  are returned to the  appropriate
      Native American  entity, it  will sometimes  be  necessary to  gather
      evidence   of    relatedness,   which   would   include   appropriate
      combinations of forensic, ethnographic,  archaeological, and archival
      information. Therefore, we  recommend that  section 5(b)(2),  dealing
      with inventory  requirements,  be  amended  to allow  for  additional
      studies  where  necessary  to   ensure  a  correct  determination  of
      affinity.   We  want to  ensure, to  the best  of our  ability,  that
      remains and  objects are returned  to the correct contemporary groups
      and  those  that  stay   under  Federal  stewardship  are  identified
      properly.

       The time and  costs for  Federal agencies  and curation  facilities
      could be substantial.  Federal agencies will need to begin evaluating
      collections for  which they have  responsibility in  order to develop
      plans  and  cost estimates.    The  new  regulations  on curation  of
      Federal archaeological  collections (36  CFR 79),  which will  become
      effective  on   October  12,  1990,  will  be  helpful  for  agencies
      beginning to organize their  efforts. Scheduling for the repatriation
      of human remains and associated funerary  objects must be  realistic.
      Therefore,  we recommend  that  Federal  agencies have  available the
      same   provisions  for  extension   of  the   time  requirements  for
      completing their  inventories  as  museums  are provided  in  section
      5(c).

       Although we  believe that  many human remains  and funerary objects
      will be  identified  with  affiliated  groups through  the  inventory
      required  by  the  bill,  we  are  not  confident  that  the  broader
      categories  of "scared objects"  and "objects  of cultural patrimony"
      could  be  treated along  these  same  lines.   These  terms  and the
      concepts  they represent  are too  broad and unformulated  to include
      within this legislation.

       We have  had  experiences with  legislation where  the  definitions
      embodied concepts that were too broad  to be dealth with  effectively
      by the agencies that had to implement  the law.  During the mid-1960s
      the  concepts  of  adaptive   use  and  rehabilitation   of  historic
      structures were similarly broad, and only  by working on the concepts
      and learning the  necessary limits of use and rehabilitation  through
      trial and error during  the 1960s and  1970s were we able to  produce
      the standards and guidelines that direct much of this work today.   A
      similar  period   of  development   concerning  the   identification,
      treatment, and  use of Native  American sacred  objects and  cultural
      patrimony would  provide the same grounds  for developing useful  and
      widely accepted standards and guidelines.

       Tribal  preservation programs working in consensus and consultation
      with  Federal  agencies  and  national preservation  programs,  would
                             House Report 101-877
                                   page 38

      resolve  issues  of  ownership,  control,  or  possession  of  sacred
      objects and cultural patrimony.  We expect the  appropriate concepts,
      relationships,  and procedures concerning sacred objects and cultural
      patrimony will emerge during the next  few years as Tribes, agencies,
      and  other   interested  organizations   work  within  the   existing
      framework on  these  issues. We  urge that  decisions about  stronger
      legislation  concerning  sacred  objects  and  cultural patrimony  be
      postponed until this process has occurred.

       We would support the creation of a review committee as contemplated
      by this  bill. However, this committee  should be  purely advisory in
      nature.    Therefore,  the  review  committee  should  be  limited to
      providing  oversight and  facilitation of  the repatriation  process.
      Accordingly, at a minimum, we recommend deletion of section  7(c)(4),
      which would require the review committee  to complies an inventory of
      identifiable  human  remains  that  are  under  the  control of  each
      Federal agency or museum.

     In conclusion, the Department of  the Interior is very  concerned that
   archaeological  human remains,  funerary  objects,  sacred objects,  and
   objects of  Native  American cultural  patrimony  are treated  with  the
   respect  and sensitivity which they  deserve.  However,  we would oppose
   H.R.  5237  unless  amended  as we  described  above  including  serious
   constitutional problems and  new, open-ended, unlimited grant  programs.
   We look forward to working with the Congress and the  affected groups to
   ensure that we indeed live up to our responsibilities in this area.

    The  Office  of Management  and Budget  has  advised that  there  is no
   objection to the presentation of this report from the  standpoint of the
   Administration's programs.
       Sincerely,
                                      SCOTT SEWELL,
                                 Deputy Assistant Secretary.

                           CHANGES IN EXISTING LAW

     In compliance with clause 3 of Rule XIII of the Rules of the House  of
   Representatives,  changes in existing law made by the bill, as reported,
   are shown as follows (existing law proposed to be omitted is enclosed in
   black  brackets, new matter is printed  in italic, existing law in which
   no change is proposed is shown in roman):

                         TITLE 18, UNITED STATES CODE

                             CHAPTER 53. INDIANS

   Section 1151.  Indian country defined

       *    *    *     *   *    *    *    *    *    *    *    *
   ý.   Illegal Trafficking in  Native American Human  Remains and Cultural
   Items

   § 1151.  Indian country defined
                             House Report 101-877
                                   page 39

       *    *    *     *   *    *    *    *    *    *    *    *
     SEC.  ý.ILLEGAL  TRAFFICKING  IN  NATIVE  AMERICAN  HUMAN  REMAINS AND
   CULTURAL ITEMS.ý
      (a)    Whoever  knowingly  sells,  purchases,  used  for  profit,  or
     transports for sale or profit, the human  remains of a Native American
     without the right of  possession to those remains, as provided  in the
     Native  American Grave Protection and Repatriation Act, shall be fined
     in  accordance with this title, or imprisoned not more than 12 months,
     both, and in  the case of a  second or subsequent violation,  be fined
     in accordance with this  title, or imprisoned not  more than 5  years,
     or both.
      (b)    Whoever  knowingly  sells,  purchases,  uses  for  profit,  or
     transports  for  sale or  profit  any Native  American  cultural items
     obtained  in violation  of the  Native American  Grave Protection  and
     Repatriation  Act  shall  be  fined  in accordance  with  this  title,
     imprisoned  not more than  one year,  or both,  and in  the case  of a
     second  or subsequent  violation,  be fined  in  accordance with  this
     title, imprisoned not more than 5 years, or both.
                                      °

[Back to Top]