National Indian Law Library ( NILL No. 010049/199(1) ,qq./

Repatriation Act Protects Native Burial Remains and Artifacts

Introduction their collections of Native American human remains and associated funerary objects. Where The Smithsonian Institution is often fondly known, the tribe of origin must then be notified referred to as the "nation's attic." While this and, upon request of the tribe, the ancestral description seems benign and generally positive, remains and funerary objects must be returned a more sinister aspect clouds that appellation for for reburial or other disposition by the tribe. Indianpeople. Recently, Indians learned that the Second, the legislation makes clear that Indian national attic holds the single largest collection tribes own or control human remains and cul­ of Native American human remains in the tural items which are excavated or discovered on United States. tribal land or federal land (where certain criteria This fact was first brought to light in the sum­ are met) and that they alone have the right to mer of 1986, when a number of Northern determine disposition of Indian human remains Cheyenne chiefs visited Washington D.C. and cultural items discovered in these areas. During the course of their visit they arranged to Third, the legislation prohibits the trafficking of tour the Smithsonian Institution's Cheyenne col­ lection at the National Museum of Natural His­ tory. "As we were walking out," a Northern Cheyenne woman who worked on Capitol Hill later recalled, 'we saw [the] huge ceilings in the room, with row upon row of drawers. Someone Contents: Vol. 16, No.1 remarked that there must be a lot ofIndian stuff Winter "'/~ttl in those drawers. Quite casually, a curator with us said, "Oh, this is where we keep the skeletal remains," and he told us how many -- 18,500. Repatriation Act 1 Everyone was shocked." 1 This discovery by a small group of visiting Case Updates 5 Northern Cheyenne chiefs helped generate a na­ tional Indian movement that eventually resulted New Board Members 5 in the enactment of Public Law 101-601, the liN ative American Graves Protection and Repatriation Act (NAGPRA)." This law con­ tains several significant provisions. First, it re­ quires that federal agencies and private museums which receive federal funding must inventory

NARF Legal Review 1 Winter 1990

~'"~"'- ".. . ,,,._,=-.,~ ._~n· . , r;Native American human remains and (prospec­ across the country. These remains are, with the tive) cultural items where the items are obtained exception of the skulls of 16 Blackfeet and two i in violation ofthe Act. Fourth and last, the legis­ Modoc people, still stored in the Smithsonian's lation requires that federal agencies and private NaturalHistory Museum.2 NARF currently rep­ museums which receive federal funds must cre­ resents the Pawnee Tribe to recover crania of ate a summary of unassociated funerary objects, slain warriors that were taken under that order. sacred objects, orobjects ofcultural patrimonyin More recently, in the 1930's, a Smithsonian their possession. Upon request of the tribe, an anthropologist travelled to Kodiak Island, Alas­ itemmustbereturnedifa tribe canprove cultural ka and, over the objections of the Native resi­ affiliation or prove prior ownership or control dents, removed more than three hundred human and also provide some evidence that the museum remains from a burial site located next to the did not acquire the item with the consent of the village. NARF currently represents the Larsen legal owner. The NAGPRA represents a major Bay Tribal Council in its efforts to secure these federal shift away from viewing Native American remams. human remains as "archeological resources" or NARF had also received documented com­ "federal property" alone. Instead, the govern­ plaints that Indian human remains were being mentis slowly beginning to view these r~mains as sold at flea markets throughout the South; that Native Americans do -- as our ancestors. As the Indian burial grounds were being sold to pot following section indicates, this change is long hunters for the artifacts that they contained and overdue. that items such as peace medals and other cul­ tural items, which NARFbelieves could not have The Pre-NAGPRA Federal Policy: legally entered the market, were being sold to Your Grandparents Are Our Property private collectors and museums. In addition to this commercial exploitation, It may be hard to imagine that our govern­ NARF knew that federal agencies, particularly ment has had a firm policy which encouraged the the Smithsonian Institution, were refusing to acquisition and retention of Native American cooperate with requests, based solely upon human remains--but that is the case. Prior to the humanitarian grounds, from tribes who had passage of NAGPRA, Native American dead demanded the return of the remains of their which were discovered on federal lands became ancestors for reburial. the "property" ofthe United States. [(Antiquities In supporting the early repatriation effort, Act of1906, 16 USC 432)] Under the Antiquities NARF ran headlong into academic and museum Act, untold thousands of Native remains dis­ interests who believed that Indian human covered during constI1lc!ion of federal projects remains were not entitled to the same respect or during scientifke-xQ~vationswere turned over accorded non-Indian remains, but instead ex­ by law to state and federal museums. While some isted primarily for the advancement of science. might dismiss these as isolated instances which Although NARF had no accurate count of the were regrettable but necessary, other acquisi­ total number of Indian human remains held by tions ofNative American ancestral remains were federal agencies, we were sure that they num­ the direct result of an even more nefarious bered inthe hundreds ofthousands. NARF knew federal policy. that the Smithsonian had alone approximately In 1868, for example, the Surgeon General of 18,500 Indian human remains and that several the United States ordered army personnel to other agencies had remains as well? procure as many Indian crania as possible for the Over the years, NARF and many individual Army Medical Museum. Under that order, the tribes have been working to change laws at the heads ofmore than4000 Indians were takenfrom state level regarding the protection of Indian battlefields, prisoner camps and hospitals, and burial sites. All too often, however, the from fresh Indian graves or burial scaffolds academic and private collectors have been suc-

NARF Legal Review 2 Winter 1990 cessful in defeating or watering down of these repatriation ~s~e but due~o OPPOSiti::·:~e~:l state legislative solutions. Also, passage of state had notmovedveryfar. NARF's first real opp~:~ f statutes affording differing degrees ofprotection tunityto advance the repatriation cause occurred led to inconsistent standards and confusion. when Senator Inouye introduced a bill which Clearly, a federal solution was called for. created a National Museum of the American Indian. This museum, which will occupy the last The Struggle to Enact NAGPRA available building site on the Mall in Washington, D.C., was intended to house the Many years of legislative effort and several Heye collection now located in New York City. earlierunsuccessfulbills preceded the passage of Due to financial constraints, New York was un­ NAGPRA last fall. able to adequatelyhouse this collection. After an In 1986, Senator John Melcher (D. Mont.) extended and somewhat acrimonious conflict be­ introduced S. 2952, which would have provided a tween the State of New York and the Smith­ forum for dispute resolution between tribes and sonian; it was finally agreed that the bulk of the museums. Unlike NAGPRA, it did not require Heye collectionwould go to the new museum on museums to repatriate human remains. Never­ the Mall. theless, NARF supported the legislation as a The museum bill had broad bipartisan sup­ good first step in the process offull repatriation. port and swift passage was assured. Indian The Melcher bill, despite its modest scope, repatriation supporters saw this as a prime op­ was strongly opposed by museum interests and portunity to secure passage of the repatriation was ultimately unsuccessful due to this opposi­ requirements of the Udall bill -- at least with tion. Indian interests generally applauded the regard to the major collection of Indian remains goals ofthe legislationbutfelt that the legislation held by the Smithsonian. After prolonged did not go far enough. The Melcher bill did, negotiations between Smithsonian repre­ however, heighten Indian awareness that sentatives, NCAl and NARF an historic agree­ ancestors' remains were taken and kept from ment was reached: the Smithsonian agreed to them. It served to galvanize Indian efforts to inclusion of a repatriation section within the secure better legislation in the future. legislation creating the National Museum of the NARF formed a Native American coalition American Indian. with the National Congress ofAmerican Indians Although the Indian museum legislation was (NCAl) and the Association onAmericanIndian a major victory for the repatriation effort, given Affairs, along with numerous tribal leaders. the Smithsonian's massive collection of Indian During the next four years, the Native American remains, the bill applied only to the Smithsonian, coalitionworked hard to build congressional and and it did not address return of cultural items. public support for the repatriation effort. NARF The Native American coalition continued itsef­ worked closely with a museum panel to recom­ forts and worked hard in support of other legis­ mend a legislative approach to Congress which lationsponsoredby Senators Inouye and McCain would address the concerns voiced by the com­ and Congressman Udall, among others, which peting interest groups. required all federal agencies and private This panel met several times during 1989. Its museums which received federal funds to final report was issued in February of 1990. In repatriate human remains. The bill also added a general, it favored the Indian repatriation effort repatriation requirement for cultural items and stated that the human rights principle should which had beenillegally takenfrom Indian tribes. govern the resolution ofthe issue, although some In this effort, the Native American coalition members of the museum community disas­ was strongly opposed by the Antique Tribal Art sociated themselves from the recommendations. Dealers Association, an organization composed Congressman Udail had introduced legisla­ largely of non-Indian art dealers. James Reed, tion in the lOOth Congress which addressed the the president of this organization, stated that "If

NARF Legal Review 3 Winter 1990 the museums have no legitimate right to these their own culture and customs that must be ac­ pieces, then the next assumption might be that corded the respect that they deserve. private persons have even less right.,,4 Perhaps In the months to come, Indian tribes and their more to the point, the antique dealers expressed legal counsel should carefully study the concern that the bill would require a greater provisions of the new law in order to learn the showing ofownership than the old laws, which in important new rights and opportunities it estab­ tum might have hampered their ability to sell lishes for Native people. (Article written by items to museums and private collectors. In ad­ Henry Sockbeson, NARF staff attorney in dition, museum pieces helped establish market Washington, D.C.) Those wishing to obtain prices for items sold privately. Clearly, the bill copies of the NAGPRA should write to: House threatened the unrestricted style ofbusiness that Document Room, House Annex #2, 2nd and D. had enabled art dealers to command premium Street S. W:, Room B-18, Washington, D.C. 20515 prices for Indian artifacts. Other major opponents to the repatriation 10uated by Douglas J. Preston, who gives an account of effort were the museum and the archeological the Northern Cheyenne Chiefs visit to Washington in communities. Theirconcernswere not monetari­ "Skeletons in our Museums' Closets," Harper's, Feb. 1989, ly motivated, but rather centered on protection at 68. of their existing collections of cultural items. To 4raken from notes dated January 18,1890 at Ft. Randall, their credit, the museum community did not fun­ DakotaTerritoryand August 24, 1870 at Post Hospital Fort damentally disagree with the notion of repatria­ Sumner. tion of Native American human remains, but 3we established that the TVA and the National Park they were concerned about the efforts to repos­ Service had 13,500 remains. The Defense Department sess cultural itemswhich they felt had beenlegal­ reported that the Air Force had over 140 remains and the ly obtainedbutwhich might nothave an adequate Navy had 85 remains. The Fish and Wildlife Service had paper chain of title. The archeological com­ 637 Indian human remains. munity was concerned that collections with great 4 Ouoted in Landers, "Who Owns the Past?" Congressional scientific value might be lost to public study Ouarterly's Editorial Research Reports, Jan, 1991, at 36. forever. Despite major misgivings on both sides, the In Memorium members of the Native American coalition and the museum and archeology interests were able George Kalama, former NARF board vice­ to overcome their differences and support pas­ chairman and member, was killed in a fishing sage of NAGPRA accident on December 20, 1990. George, a member of the Nisqually Tribe of Conclusion WesternWahington, served on the NARF Board of Directors for six years providing excellent The Native American Graves Protection and leadership and advice. He was also a former Repatriation Act revolutionized federal policy tribal chairman and a fisherman. concerning Native American human remains. George will be remembered for his advocacy For the first time, Congress has accepted the role in promoting Indian veterans rights. One of principle that Indian people are entitled to the George's biggest achievements was his work in return of their ancestors' remains and of the the development of a special program to treat items buried with them. Finally, Congress has American Indian veterans suffering from Post mandated that cultural objects stolen from tribes Traumatic Stress Disorder. He and other Indian must be returnedwhen asked for, and has recog­ veterans worked closely with health providers to nized that Indian people are not simply the ob­ design a culturally appropriate treatment ap­ jects of anthropological study, but a people with proach for veterans.

NARF Legal Review 4 Winter 1990 Case Updates

Village ofNoatakv. HotTman NARFattorneyLareAschenbrennerargued the Alaska case, Village ofNoatakv. Hoffman, before the U.S. Supreme Court on February19,1991. The issues in the case are: 1) whether Alaska Villages arerecognized as Indian tribes; 2) whether the Eleventh Amendmentbars suit against states byIndiantribes for past damages; and 3) whether the Village ofNoatak's claim for damages presents a federal question. An earlierdecision by the 9th Circuit Court ofAppeals held that Alaska Native Villages are recognized as tribes by the United States and that Indian tribes can bring suits against states in federal court for past damages notwithstanding the Eleventh Amendment. NARF represents the Village of Noatak in the case.

Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe ofOklahoma The U.S. Supreme Court ruled February26, 1991, in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe ofOklahoma, that even if a State that has not asserted jurisdictionoverIndianlandsunderPublic Law 280, it may tax sales ofcigarettes by Indian tribes to non-tribal members, but may not tax such sales to members.

The Court also held: 1) that Indian tribes generally are immune from suit unless Congress provides otherwise; and 2) that land held in trust for Indian tribes, even ifit is not formally designated as an Indian reservation, is subject to the normal doctrines and rules offederal Indian law such as tribal sovereignty and sovereign immunity. NARF filed an amicus curiae (a friend of the court) brief in the U.S. Supreme Court on behalf of several tribes and Indian organizations.

United States v. Oregon In United States v. Oregon, the United States sued the State of Oregon in federal district court alleging that the State lacks jurisdictionunder the federal McCarran Amendment to quantify federal reserved water rights in the Klamath Basin in southern Oregon including those that the federal government holds for the Klamath Tribe. The Klamath Tribe, represented by NARF, intervened in the lawsuit as a plaintiff to join the federal govern­ ment against the state and raise arguments of its own to protect its treaty rights. Oral argument was held February 19, 1991, in Portland, Oregon.

Mustang Fuel Corp. v. Cheyenne-Arapaho Tax Commission In January, 1991, the Cheyenne-Arapaho District Courtruled that the Cheyenne-Arapaho Tribes ofOklahoma, represented by NARF, may tax oil and gas production on lands held in trust by the federal government for members of the Tribes. The oil companies have appealed to the tribal Supreme Court.

NARF Legal Review 5 Winter 1990 NARF RESOURCES AND PUBLICATIONS

THE NATIONAL INDIAN LAW LIBRARY Bibliography on Indian Economic Development

The National Indian Law Library (NILL) has Designed to provide aid on the development of developed a rich and unique collection of legal essential legal tools for the protection and materials relating to Federal Indian law and the regulation of commercial activities on Indian Native American. Since its founding in 1972, reservations. This bibliography provides a listing NILL continues to meet the needs of NARF ofarticles, books, memoranda, tribal codes, and attorneys and other practitioners of Indian law. other materials on Indian economic develop­ The NILL collection consists of standard law ment. 2nd edition (60 pgs. Price: $30). (NILLNo. library materials, such as law review materials, 005166) court opinions, and legal treatises, that are avail­ able in well-stocked law libraries. The unique­ ness and irreplaceable core of the NILL Indian Claims Commission Decisions collection is comprised of trial holdings and ap­ pellate materials of important cases relating to This 47-volume set reports all of the Indian the development ofIndian law. Those materials Claims Commission decisions. An index through in thepublic domain, thatis non-copyrighted, are volume 38 is also available. The index contains available from NILL on a per-page-cost plus subject, tribal and docket number listing. (47 postage. Through NILL's dissemination ofinfor­ volumes. Price $1,175). (Index priced separately mation to its patrons, NARF continues to meet at $25). (Available from the National Indian Law its commitment to the development of Indian Library). law. Prices subject to change AVAILABLE FROM NILL INDIAN RIGHTS MANUAL The NILL Catalogue A Manual for Protecting Indian Natural One ofNILL's major contributions to the field of Resources. Designed for lawyers who represent Indian law is the creation ofthe National Indian Indian tribes or tribal members in natural Law LibraryCatalogue: AnIndex to Indian Legal resource protection matters, the focus of this Materials and Resources. The NILLCatalog lists manual is on the protection offish, game, water, all of NILL's holdings and includes a subject timber, minerals, grazing lands, and archaeologi­ index, an author-title table, a plaintiff-defendant cal and religious sites. Part I discusses the ap­ table and a numerical listing. This reference tool plication of federal and common law to protect is probably the best current reference tool in this Indian natural resources. Part II consists ofprac­ subject area. It is supplemented periodically and tice pointers: questions to ask when analyzing is designed for those who want to know what is resource protection issues; strategy considera­ available in any particular area of Indian law. tions; and the effective use of law advocates in (1,000 + pgs. Price: $75) (1985 Supplement $10; resource protection. (151 pgs. Price $25). 1989 Supplement $30). AManual on Tribal Regulatory Systems. Focus­ ing on the unique problems faced by Indian tribes in designing civil regulatory ordinances

NARF Legal Review 6 Winter 1990 NARF RESOURCES AND PUBLICATIONS

comport with federal and triballawt this manual 1986 Update to Federal Indian Education Law provides an introduction to the law of civil Manual ($30) Price for manual and update regulation and a checklist of general considera­ ($45). tions in developing and implementing tribal regulatory schemes. It highlights those lawst A Manual On the Indian Child Welfare Act and legal principles, and unsettled issues which LawAffecting IndianJuveniles. This fifth Indian should be considered by tribes and their attor­ Law Support Center Manual is now available. neys in developing civil ordinances, irrespective This manual focuses on a section-by-section of the particular subject matter to be regulated. legal analysis oftheAct, its applicabilityt policiest (110 pgs. Price $25). findingst interpretations, and definitions. With additional sections on post-trial matters and the A Self Help Manual for Indian Economic legislative historyt this manual comprises the Development. This manual is designed to help most comprehensive examination of the Indian Indian tribes and organizations on approaches to Child Welfare Act to date. (373 pgs. Price $35). economic development which can ensure par­ ticipation, control, ownershipt and benefits to Indians. Emphasizing the difference between PUBLICATIONS tribal economic development and private busi­ ANNUAL REPORT. This is NARFs major report on its ness development, this manual discusses the task programs and activities. The Annual Report is distributed

of developing reservation economies from the tofoundationst major contributors, certain federal andstate Indian perspective. It focuses on some of the agencies, tribal clients, Native American organizations, and major issues that need to be resolved ineconomic to others upon request. development and identifies options available to THE NARF LEGAL REVIEW is published by the Native tribes. The manual begins with a general American Rights Fund. Third class postage paid at economic development perspective for Indian Boulder, Colorado. Susan Arkeketa, Editor. There is no reservations: how to identify opportunitiest and charge for subscriptions. how to organize the internal tribal structure to Tax Status. The Native American Rights Fund is a non­ best plan and pursue economic development of profit, charitable organization incorporated in 1971 under the reservation. Other chapters deal with more the laws ofthe District ofColumbia. NARFis exempt from specific issues that relate to the development of federal income tax under the provisions of Section 501 (c) businesses undertaken by tribal governmentt (3) of the Internal Revenue Code, and contributions to tribal members, and by these groups with out­ NARF are tax deductible. The Internal Revenue Service has ruledthat NARFis not a "private foundation" as defined siders. (Approx. 300 pgs. Price $35). in Section 509(a) ofthe Internal Revenue Code.

Handbook of Federal Indian Education Laws. Main Office: Native American Rights Fund, 1506 Broad­ This handbook discusses provisions of major way, Boulder, Colorado 80302 (303-447-8760). federal Indian education programs in terms of D.C. Office: Native American Rights Fund, 1712 N Street, the legislative historyt historic problems in im­ N.W., Washington,D.C. 20036 (202-785-4166). plementation, and current issues in this radically changing field. (130 pgs. Price $20). Alaska Office: Native American Rights Fund, 310 K Street, Suite 708, Anchorage, Alaska 99501 (907-276-0680).

NARF Legal Review 7 Winter 1990 Native American Rights Fund

The Native American Rights Fund is a nonprofit or­ ganization specializing in the protection of Indian rights. The priorities of NARF are (1) the preservation of tribal existence; (2) the protection oftribal natw'al resources; (3) the promotion of human rights; (4) the accountability of governments to Native Americans; and (5) the development ofIndian law. Our work on behalf of thousands of America's Indians throughout the country is supported in large part by your generous contributions. Yow' participation makes a big difference in our ability to continue to meet ever-increasing needs of impoverished Indian tribes, groups and in­ dividuals. The support needed to sustain our nationwide program requires your continued assistance. Requests for legal assistance, contributions, or other inquiries regarding NARFs services may be addressed to NARFs main office: l506 Broadway, Boulder, Colorado 80302. Telephone (303) 447-8760. BOARD OF DIRECTORS Richard (Skip) Hayward, Chalrman. Mashantucket Pequot Anthony L. Strong, Vlce-chalr••.•...... ••••.••••• TllngU-Klukwan Lionel Bordeaux ••••••••.....•••...•..••.••.••••• Rosebud Sioux Rick HIll ••••••...•••••....•.••...... •••••••....•..Onelda John R. Lewis. •••••••••••••••••••••••••••••••••••• Mohave/Plma Mahealanl Kamauu ••.••.••••.....•••••••••••.• Native HawaIIan Willie Kasayulle. ••••••.••.••.•••...... •••••••••••....•• Yuplk Wilma Mankiller. •••••••••••.••••••.•.••••.•..•.. •• •• Cherokee Twlla Martln-Kekahbah. •••••...••••••Turtle Mountain Chippewa Calvin Peters. ••••••••.•••••••.•....•••..•••.•••• Squaxln Island Evelyn Stevenson. ••••..•••• •• .••• •• • ••••••.•..•Sallsh-Kootenal Eddie Tullis.••••••.•••••.•..•••....••••.•.Poarch Band orCreeks Western History Collections Verna WllUamson..••••••••.••••...... ••.••••••••• Isleta Pueblo Executive Director: John E. Echohawk (Pawnee) University ofOklahoma Library Deputy Director: Ethel Abelta (Laguna Pueblo)

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