COMMENTS ON INTERIM GUIDELINES FOR THE IMPLEMENTATION OF THE NATIVE
AMERICAN GRAVES PROTECTION AND REPATRIATION ACT OF 1990

Submitted by
The Society for American Archaeology
Task Force on Repatriation

June 11, 1991


   Thank you for giving the SAA Task Force on Repatriation an opportunity
to comment on the preliminary draft of the interim guidelines for the
implementation of NAGPRA.  Since we had only a few days to prepare our
response, several Task Force members were unable to submit their comments.
We will undoubtedly have additional suggestions for improving the
guidelines as the process of drafting the final document progresses.

   We feel that this preliminary draft provides a good starting point for
the development of the final guidelines.  Some of the sections are in much
better shape than others.  For example, we see few problems with the
sections dealing with intentional and inadvertent discovery and the
interaction between NAGPRA and other laws dealing with archaeological
remains.  Our main concerns are with sections III, IV, and V.  First, I
will summarize the major problems we see with these sections.  This is
followed a section-by-section analysis of the document with specific
suggestions for changes in language.


General Comments

   The draft guidelines appear to be based upon several assumptions that
were not the intent of the legislation.  In several instances they give more
power and authority to the Review Committee than is written into the
legislation.  They also incorrectly assume that the goal of the statute is
total repatriation unless otherwise proven.  The guidelines also ignore the
principle of a case-by-case request procedure for material in museums and
other repositories.

   The guidelines fail to deal with several significant issues. The most
important of these is the absence of detailed information about the criteria
that museums should use to determine cultural affiliation or the lack of it.
There is no mention of the important role that data on chronology and
cultural period should have in determining cultural affiliation.
Archaeological and physical anthropological evidence frequently show that
different groups occupied the same geographic area at different times in the
past.  These types of data should be mentioned in the guidelines as relevant
for determining cultural affiliation.

   The guidelines make no provision for maintaining the security of known
archaeological sites.  We are concerned that widely distributing information
on site locations as part of the  notification process may have the
inadvertent result of increasing the rate at which sites are damaged through
looting.

   The following is an article-by-article analysis of the proposed
guidelines in which these problems are discussed in more detail.
Suggestions for alternative language are also provide where appropriate.
Section-by-Section Analysis


Sec. III.A., par. 4

   This section notes that eligible Indian tribes can be a larger list than
those tribes recognized by the Bureau of Indian Affairs.  It lists such
groups as "national or regional incorporated nonprofit Native American
organizations" and "urban Indian centers."  Yet Section III.A.1. suggests
that "groups of Native Americans of diverse backgrounds who associate
together for some purpose or purposes are not viewed as proper claimants
under the provisions of the statute."  The guidelines should clarify the
kinds of tribes that are eligible to make repatriation requests.

   There are cases in which families of documented descendants are not
members of a federally recognized tribe or other formal organization.  The
guidelines should acknowledge this type of community as an appropriate group
to be involved in the repatriation process.


Sec. III.A.1., par. 1

   This paragraph states that section III of the act defines and establishes
"a hierarchy for cultural affiliation .... if Tribes are to...be successful
claimants of cultural items in repatriation requests."

   This implies that section III refers to repatriation requests from
museums; it does not.  Section III only is concerned with NEWLY DISCOVERED
OBJECTS.  The listed priority order, which includes "Indian tribes
recognized as aboriginally occupying the area" does not apply to human
remains nor other cultural items in museum collections.


Sec. III.A.1., par. 1, sen. 4

   Do you mean "familial" here instead of "familiar"?  The word "familiar,"
in any regard, could have several unintended interpretations.  Minimally,
the word "familiar" should be changed to "familial," which is far less
equivocal.

   We would feel a bit more comfortable with this passage if it required not
just a "tie," but a "direct tie."  How about this for an alternative
wording: " ... this term is taken to mean a direct genetic or familial tie
reasonably established between generations ...."

   The rationale for this change is simply to make clear that overall
genetic similarity, or simple membership in a clan (which may be based on
filiation rather than descent) are not enough to establish the "tie" of
lineal descent.


Sec. III.B., par. 2,

   Here and elsewhere (eg. Sec. V.A.1, par. 7) it should be made clear that
"cultural items" refers only to objects that have the potential to be
repatriated under the terms and definitions of this act.
The last sentence in this paragraph should read:
"Museums are required to conduct inventories or written summaries of all
cultural items (as defined in section IV) within their collections
regardless of their means of accession or geographical point of origin."


Sec. III.D., Duties of DCA #(4)

   The implication in the "if one is developed" clause is that a
grants-in-aid-program may not be developed.  We find this very disturbing.
The legislation calls for a grants program.  We assume that this along with
all of the other provisions of the legislation will be implemented.  This
conditional phrase is thus inappropriate and should be removed from the
guidelines.

   The availability of these grants is essential to the compliance process.
The amount of work demanded by the legislation and the guidelines will leave
museums destitute unless funds are available to conduct the inventory, to
contact Native American groups, to negotiate any claims, and to go through
the expense of actually returning material.  Even the simplest case will
cost at least $2000.  Large museums with complex collections such as the
Lowie Museum estimate their costs to be as much as $9,000,000,000.  There is
no way that they can bear such costs unless the grant program is established
VERY SOON.

   The administration and procedure of applying for the grants should be
spelled out in the guidelines.  If no money is budgeted for these grants,
then the extensions of the five year deadline for the inventory of
collections will need to be granted with great leniency.


Sec. III.E., par. 2

   This section of the guidelines calls for the Review Committee to
inventory unaffiliated materials and make recommendations for their
disposition.  THIS PROVISION AND POWER ARE NOT IN THE LEGISLATION.  The
Committee was not empowered to act independently and it has no claims on any
material in museums.  Their role, as stated in the legislation, is to
develop a PROCESS, not to develop specific recommendations.

    Furthermore, this language is vague.  It does not define what without
cultural affiliation means.  Is Clovis lacking cultural affiliation?  Does
the Committee want an inventory of such material?  Surface finds?  The
report to Congress describes the activities of the Committee, not what it
discovered in the museums of America.

The sentence:

"The Committee also must compile an inventory of items without cultural
affiliation held by museums and Federal agencies, and recommend disposition
actions."

should read:

"The Committee also must compile an inventory of CULTURALLY UNIDENTIFIABLE
HUMAN REMAINS held by museums and Federal agencies, and recommend specific
actions for DEVELOPING A PROCESS FOR DISPOSITION OF SUCH REMAINS."


Sec. IV.A., par. 2-3

   The meaning of these paragraphs is unclear.  Few museums keep skeletal
remains in the same storage unit as artifact associations, so does this mean
that these artifacts are not meant to be associated funerary objects?  The
essential point to make here concerns whether documentation exists to
indicate that an association existed when the remains were discovered in an
archaeological context.  Even with such a correction in wording, a more
explicit statement would be helpful since some spatial associations of
artifacts with skeletal remains are incidental.  The preponderance of
evidence should show that associations were purposeful.

   Delete the last clause, starting with "and that there has been no
post-removal separation ..."  The whole issue of post-removal separation is
irrelevant.  For example, if the human remains were separated after removal,
BUT LATER WERE REUNITED WITH THE FUNERARY OBJECTS, then the latter would
still be considered "associated" under the terms of this legislation.


Sec. IV.A., par. 6

   The use of the word "traditional" here is unclear.  How significant is
temporal duration in the definition of traditional?  Is a religious practice
traditional if it is only 10 years old?  Some clarification of the meaning
of this term would be helpful.


Sec. IV.A.1

   It should be the responsibility of the federal agencies to contact
museums about the status of their collections.  Since these collections are
on loan to museums, the agency should take full responsibility for the cost
of any repatriation, including the cost of packaging and shipping.


Sec. V.A., par. 1

   The last line of this section creates a false expectation.  Objects of
cultural patrimony DO NOT HAVE TO BE REPATRIATED until the request procedure
is exhausted.  Just because a request comes to a museum for an object does
not mean that it has to be returned.  Many items are open to debate because
they were obtained legally and full claim and restitution must be met.  The
guidelines forget that items in museums are accessioned and cataloged.  To
deaccession any object in most museums is a legal procedure and very time
consuming.  The guidelines do not acknowledge this at any point and they
have to.  Otherwise false expectations will be created.  The guidelines must
be more aware of museum procedures that must be followed before any item can
be repatriated, even if the request is acceptable.


Sec. V.A.1.

   The sentence "Consultations... needed throughout the inventory process"
goes beyond what the law says.  Why are they needed?  Consultation is not
required by the law.  It may be desirable but it is not required.  This
should be changed to "Consultations... DESIRABLE throughout the inventory
process."


Sec. V.A.1., par. 1

   How can museums notify culturally affiliated tribes before they complete
the inventory that will serve as a basis for determining the groups that may
possibly be culturally affiliated?  This section assumes that museums know
the cultural affiliation of the objects in their collections.  In many cases
this relationship will not be discovered until the inventory is well
underway.  To call for consultation before the fact is unworkable,
particularly for museums with large collections from areas with complex
culture histories.


Sec. V.A.1., par. 7

The sentence:

"Cultural items under scientific study also must be returned expeditiously
upon request, unless..."

should read:

"Cultural items under scientific study also must be returned
expediently upon request by affiliated Native American groups
unless these items..."

   Clarification would be helpful here about the types of scientific studies
that might be considered "of major benefit to the United States."


Sec. V.A.2.

   The description of the inventory process is inconsistent with the law.
The statutory language describes "a plan to carry out the inventory and
identification process."  Moreover, this plan IS NOT REQUIRED in statute; it
is only a requirement for institutions wishing to demonstrate a good faith
effort in order to get an extension for the 5 years to complete an
inventory.  It is not a specific requirement to apply for a grant under the
statute.

   The statute does require consultation with tribal government and
traditional religious leaders.  The guidelines state that museums must
identify tribes that have "an interest in components of their collection";
"likely Native American affiliates for the items to be inventoried"; and
form a "consultation group for each of the various accessions or components
of the collection."  These requirements and recommendations go beyond the
requirements of statute and place an unworkable burden on museums.

   The guidelines should make it clear that the consultation process is
different from the notification process.  Notification is to involve a large
universe of potential claimants; potential claimants who are not notified
("should have been notified") are also permitted to make inquiries and
request information during this part of the process.  The consultation
process, on the other hand, is to involve Indian representation but in a
small enough and broad enough manner that it permits the inventory process
to proceed.

   A museum should not be expected to search out and use many dozens or even
hundreds of Native American representatives as consultants, which could be
the situation for large museums with diverse collections.  Setting up all
these groups is unworkable.  There is no reason to have all of these people
in on it at the beginning.  The museums will NOTIFY large numbers of tribes,
triblets, rancherias, etc. during the notification process.

   In many cases, cultural affiliation will be unknown until the inventory
procedure is completed.  The guidelines should spell-out how to do the
inventory.   They should say consultation with Native American groups should
begin as soon as cultural affiliation is established.


Sec. V.A.2.(1)

   The heading "develop a repatriation plan" is inappropriate language.
What needs to be developed is an INVENTORY PLAN.  There is nothing in the
legislation that says all material must be repatriated.  The responsibility
of the museum is to have an inventory plan.  The guidelines should define
the repatriation procedure on a case-by-case basis.  There is no reference
in the legislation to the repatriation of anything unless requested.  There
is a requirement to perform an inventory and to make that information
available.


Sec. V.A.2.(2)

   The Guidelines require much broader access to documentation than does the
legislation.  The law states that Indian tribes that receive or should have
received notice may request additional documentation; it does not state that
this "broad access" needs to be given to consulting Native Americans.

   The term "broad access" could be interpreted to include information on
specific sites where material was acquired.  This information is often held
in confidence in order to prevent sites from being looted.  The guidelines
need to be modified to state that level of public information to be provided
should be sufficient to establish cultural affiliation without risking
disclosure of specific site locations.

   The sentence "The initiation of studies to acquire new scientific
information is not part of the inventory" should be modified to read:
"The initiation of studies to acquire new scientific information  is not
required as part of the inventory."


Sec. V.B., par. 3, sen. 3

   The requirement that "tribes are to be provided with access to
information regarding collections "at any time during or after the
inventory" is too broad.  Again, information access is part of the
notification process, which can be conducted in a way that may involve
several potential claimants.  Random requests for information are likely to
delay the inventory process, especially for major collections.


Sec. V.B., par. 3, sen. 6

   Here is a typo that your spelling checker will miss that should be
changed as soon as possible:

 "Naive Hawaiians" should be "Native Hawaiians"!


Sec. V.B.1., par. 3

   Again these constraints on museum activities are not part of the
legislation.  If there are no claims to material, the guidelines have no
control over what a museum does with them.  Museums do have their own
policies that are sensitive to this issue.  Obviously a Hopewell pipe was a
sacred object but why should it not be displayed.  It is one of the great
cultural achievements of humankind and now the government says it cannot be
exhibited?  This was not the intent of the legislation and this paragraph
should be struck.  Similarly, unclaimed items are unclaimed and remain the
property of the museum.  The Review Committee has no right to them, only
Native American and Native Hawaiian groups can make claims, not the federal
government or its agents.  The government will be in court often if this
provision remains in the guidelines.

   In the next-to-last sentence "Exhibitry" is not in our dictionary.  The
word should be changed to "Exhibiting."

The last sentence should be clarified to state:

"The regulations will identify ways to dispose of any items not claimed
under the provisions of the statute THAT THE AGENCY OR MUSEUM DOES NOT WISH
TO RETAIN."


Sec. V.B.1.3.

   There has to be a limit on the time during which claimants have to
respond.  It would be reasonable to set such a limit in the guidelines.  In
this way the repatriation process could be brought to a timely closure.  How
else can museums develop collections management procedures and plan for the
future?


Sec. V.C.2., par. 3, sen. 3

   The phrase "as the preferred orientation" makes no sense in this context.
Perhaps it should be replaced by, "is the preferred solution".


Typographical Errors

   Finally, here are a few typographical errors that we noted in the
document:

Sec. I, par. 4, sen. 2
"advice ON carrying out key provisions ..."

Sec. II, par. 3, sen. 1
"... existing ARCHEOLOGICAL Resources ..."

Sec. III.A.1, last sentence
"claims, among THEM anthropological ..."

Sec. IV.D, par. 1, sen. 2
"Such MEMORANDUM would ..."

Sec. IV.D, par. 2
Hyphenate "30-day"; "... the following EXPANSION.."