[Pages S8157-S8159]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

By Mr. McCAIN (for himself, Mr. Inouye, Mr. Thomas, and Mr.
Campbell):
S. 1970. A bill to amend the National Museum of the American Indian
Act to make improvements in the Act, and for other purposes; to the
Committee on Indian Affairs.

The National Museum of the American Indian Act Amendments of 1996

<bullet> Mr. McCAIN. Mr. President, I introduce legislation to amend
the National Museum of the American Indian Act of 1989. I am very
pleased to be joined by Senators Inouye, Thomas and Campbell as
original cosponsors of this legislation. I am particularly pleased to
be joined by my good friend from Hawaii, Senator Inouye, the Vice-
Chairman of the Committee on Indian Affairs, who, with his tireless
dedication, has championed this particular issue for many years. This
legislation is intended to amend the National Museum of the American
Indian Act to ensure that the requirements for the inventory,
identification and repatriation of Native American human remains,
associated and unassociated funerary objects, sacred objects, and
objects of cultural patrimony in the possession of the Smithsonian
Institution are being carried out in a manner consistent with the
Native American Graves Protection and Repatriation Act (25 U.S.C.
3001), so that these culturally important items can be returned to
their rightful keepers and protectors, the Indian tribes.
The possession of Native American human remains, funerary objects,
sacred objects, and objects of cultural patrimony by various Federal
agencies, museums, and private collectors has been a very contentious
issue for Indian tribes, tribal organizations, and Native Hawaiian
Organizations for many years. Native Americans, not unlike other
Americans, feel that the bones of their ancestors and the objects
buried with them are sacred and rightfully belong under the protection
and control of their descendants. Similarly, Native Americans feel
strongly that sacred objects and objects of cultural patrimony, which
have been wrongfully acquired, should be returned to the appropriate
Indian tribe or Native Hawaiian organization. On the other side of the
debate are archeologists, anthropologists, and others from the
scientific community who feel that there is an overriding principle of
scientific inquiry to unearth and study the remains of the Indians of
the past in order to understand past cultures and their histories. Over
the years, this debate has ranged from scholarly discussion to
impassioned arguments and finally to emotional demands by Indian people
for understanding and respect for their right to have these culturally
and spiritually important items to be properly returned.
It is important to note that the Smithsonian Institution was the
first museum to take the lead in establishing a process for the
repatriation of Native American human remains and funerary objects.
Under the National Museum of the American Indian Act (20 U.S.C. 80q, et
seq.), Congress established a process for the inventory,
identification, and repatriation of Native American human remains and
associated funerary objects. This ground breaking legislation was a
critical first step in facilitating thoughtful dialogue between Indian
tribes and museums regarding the proper treatment of Native American
human remains, funerary objects, sacred objects and objects of cultural
patrimony. These discussions resulted in the passage of the Native
American Graves Protection and Repatriation Act. Since the passage of
the Act, the Smithsonian Institution has continued to work diligently
to fulfill the mandates of the National Museum of the American Indian
Act regarding the repatriation of Native American human remains and
funerary objects. In fact, in certain areas the administrative policies
of the National Museum of the American Indian and the National Museum
of Natural History exceed the requirements of the National Museum of
the American Indian. Since 1991 the Museum of Natural History has
adopted the categories and repatriation provisions described in Native
American Graves Protection and Repatriation Act as museum policy. Under
that policy, the museum has inventoried a substantial part of its
collection of Native American human remains and returned hundreds of
human remains to Native American communities. The National Museum of
the American Indian has developed a substantive repatriation policy
that goes well beyond the requirements of the Native American Graves
Protection and Repatriation Act in order to facilitate the
identification and repatriation of any Native American human remains
and objects in its collections. Under its 1991 repatriation policy, the
National Museum of the American Indian has prepared and distributed
both the summary of ethnographic materials and the inventory of human
remains and funerary objects within its entire collection to all of the
557 federally recognized Indian tribes. The Museum's summary goes
beyond the requirements of Native American Graves Protection and
Repatriation Act by not only including sacred objects and objects of
cultural patrimony but also includes religious and ceremonial objects,
and objects that are owned in common.

Under the repatriation provisions of the National Museum of the
American Indian Act, the Smithsonian Institution is required only to
inventory and repatriate Native American human remains and associated
funerary objects. Although the Native American Graves Protection and
Repatriation Act does not cover the Smithsonian Institution, the
Smithsonian has endeavored to meet or exceed each of the requirements
of the Act. Despite the absence of a statutory obligation to identify
and repatriate Native American unassociated funerary objects, sacred
objects, and objects of cultural patrimony, the Smithsonian Institution
has committed to complete its identification and summary of Native
American unassociated funerary objects, sacred objects, and objects of
cultural patrimony by December 31, 1996. Similarly, the Smithsonian has
committed to completing its inventory of Native American human remains
and associated funerary objects before June 1, 1998.
Mr. President, the bill I am introducing today would provide the
statutory authority to the Smithsonian Institution to complete its
inventory, identification, and repatriation process for the respectful
return of the tribal ancestors and items of cultural importance to
Native Americans. This legislation is consistent with the
administrative policies of the Smithsonian as it relates to
repatriation and it is consistent with the requirements of the Native
American Graves Protection and Repatriation Act. I would like to
commend the tremendous progress made by the Smithsonian Institution in
implementing a policy that respects Indian tribes and their deeply-held
beliefs by providing for the return of the remains of their ancestors
and relatives and the culturally significant objects in its possession.
I would like to add that representatives of the Smithsonian have worked
closely with the Committee in the preparation of this legislation and
have continued to demonstrate their serious commitment to returning
these sacred remains and objects to their rightful owners, the Indian
tribes.
Mr. President, I ask unanimous consent that the full text of the bill
and the accompanying section by section analysis appear in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

S. 1970

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES.

(a) Short Title.--This Act may be cited as the ``National
Museum of the American Indian Act Amendments of 1996''.
(b) References.--Whenever in this Act an amendment or
repeal is expressed in terms of an amendment to or repeal of
a section or other provision, the reference shall be
considered to be made to a section or other provision of the
National Museum of the American Indian Act (20 U.S.C. 80q et
seq.).

SEC. 2. BOARD OF TRUSTEES.

Section 5(f)(1)(B) (20 U.S.C. 80q-3(f)(1)(B)) is amended by
striking ``an Assistant Secretary'' and inserting ``a senior
official''.

[[Page S8158]]

SEC. 3. INVENTORY.

Section 11(a) (20 U.S.C. 80q-9) is amended--
(1) by striking ``(1)'' and inserting ``(A)'';
(2) by striking ``(2)'' and inserting ``(B)'';
(3) by inserting ``(1)'' before ``The Secretary''; and
(4) by adding at the end the following new paragraphs:
``(2) The inventory made by the Secretary of the
Smithsonian Institution under paragraph (1) shall be
completed not later than June 1, 1998.
``(3) For purposes of this subsection, the term `inventory'
means a simple, itemized list that, to the extent
practicable, identifies, based upon available information
held by the Smithsonian Institution, the geographic and
cultural affiliation of the remains and objects referred to
in paragraph (1).''.

SEC. 4. SUMMARY AND REPATRIATION OF UNASSOCIATED FUNERARY
OBJECTS, SACRED OBJECTS, AND CULTURAL
PATRIMONY.

The National Museum of the American Indian Act is amended
by inserting after section 11 the following new section:

``SEC. 11A. SUMMARY AND REPATRIATION OF UNASSOCIATED FUNERARY
OBJECTS, SACRED OBJECTS, AND CULTURAL
PATRIMONY.

``(a) Summary.--Not later than December 31, 1996, the
Secretary of the Smithsonian Institution shall provide a
written summary that contains a summary of unassociated
funerary objects, sacred objects, and objects of cultural
patrimony (as those terms are defined in subparagraphs (B),
(C), and (D), respectively, of section 2(3) of the Native
American Graves Protection and Repatriation Act (25 U.S.C.
3001(3)), based upon available information held by the
Smithsonian Institution. The summary required under this
section shall include, at a minimum, the information required
under section 6 of the Native American Graves Protection and
Repatriation Act (25 U.S.C. 3004).
``(b) Repatriation.--Where cultural affiliation of Native
American unassociated funerary objects, sacred objects, and
objects of cultural patrimony has been established in the
summary prepared pursuant to subsection (a), or where a
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,
then the Smithsonian Institution shall expeditiously return
such unassociated funerary object, sacred object, or object
of cultural patrimony where--
``(1) the requesting party is the direct lineal descendant
of an individual who owned the unassociated funerary object
or sacred object;
``(2) the requesting Indian tribe or Native Hawaiian
organization can show that the object was owned or controlled
by the Indian tribe or Native Hawaiian organization; or
``(3) the requesting Indian tribe or Native Hawaiian
organization can show that the unassociated funerary object
or sacred object was owned or controlled by a member thereof,
provided that in the case where an unassociated funerary
object or 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.
``(c) Standard of Repatriation.--If 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 Smithsonian Institution did
not have the right of possession, then the Smithsonian
Institution shall return such objects unless it can overcome
such inference and prove that it has a right of possession to
the objects.
``(d) Museum Obligation.--Any museum of the Smithsonian
Institution 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 fiduciary duty, public trust, or
violations of applicable law that are inconsistent with the
provisions of this Act.
``(e) Statutory Construction.--Nothing in this section may
be construed to prevent the Secretary of the Smithsonian
Institution, with respect to any museum of the Smithsonian
Institution, from making an inventory or preparing a written
summary or carrying out the repatriation of Native American
human remains, associated and unassociated funerary objects,
sacred objects, or objects of cultural patrimony in a manner
that exceeds the requirements of this section.
``(f) Native Hawaiian Organization Defined.--For purposes
of this section, the term `Native Hawaiian organization' has
the meaning provided that term in section 2(11) of the Native
American Graves Protection and Repatriation Act (25 U.S.C.
3001(11)).''.

SEC. 5. SPECIAL COMMITTEE.

Section 12 (20 U.S.C. 80q-10) is amended--
(1) in the first sentence of subsection (a), by inserting
``and unassociated funerary objects, sacred objects, and
objects of cultural patrimony under section 11A'' before the
period; and
(2) in subsection (b)--
(A) in the matter preceding paragraph (1), by striking
``five'' and inserting ``7'';
(B) in paragraph (1)--
(i) by striking ``three'' and inserting ``4''; and
(ii) by striking ``and'' at the end;
(C) by redesignating paragraph (2) as paragraph (3); and
(D) by inserting after paragraph (1) the following:
``(2) at least 2 members shall be traditional Indian
religious leaders; and''.
____

Section-by-Section Analysis of the National Museum of the American
Indian Act Amendments of 1996

SECTION ONE. SHORT TITLE

This section cites the short title of the Act as ``the
National Museum of the American Indian Act Amendments of
1996''. It also provides that any reference to amendment or
repeal in this Act shall be considered to be references to
the provisions of the National Museum of the American Indian
Act. (20 U.S.C. 80q et seq.)

SECTION TWO. BOARD OF TRUSTEES

This section amends section 5 of the National Museum of the
American Indian Act by changing the reference to ``an
Assistant Secretary'' of the Smithsonian Institution to ``a
senior official'' of the Smithsonian.

SECTION THREE. INVENTORY

This section amends section 11 of the National Museum of
the American Indian Act to require the inventory to be
conducted by the Secretary of the Smithsonian be completed
not later than June 1, 1998. It also defines the term
``inventory'' as it is used in the Act.

SECTION FOUR. SUMMARY AND REPATRIATION OF UNASSOCIATED FUNERARY
OBJECTS, SACRED OBJECTS, AND CULTURAL PATRIMONY

This section amends the National Museum of the American
Indian Act by establishing a new section 11a. Section 11a
requires the Secretary of the Smithsonian to develop a
written summary of unassociated funerary objects, sacred
objects, and objects of cultural patrimony held by the
Smithsonian, based upon available information and consistent
with the requirements of the Native American Graves
Protection and Repatriation Act (25 U.S.C. 3004). The summary
must be completed by December 31, 1996.
Subsection (b) requires the Smithsonian to expeditiously
return any Native American unassociated funerary object,
sacred object, or object of cultural patrimony where the
cultural affiliation has been established in the summary
prepared by the Smithsonian, or where a requesting Indian
tribe or Native Hawaiian Organization can show its cultural
affiliation with the items by a preponderance of the
evidence, and the requesting Indian tribe or Native Hawaiian
Organization can establish that the object was owned or
controlled by the Indian tribe or Native Hawaiian
Organization, or by a member of the tribe or organization.
The Smithsonian shall expeditiously return any object to any
direct lineal descendent of the owner of the object.
Subsection (c) sets out the standard of repatriation under
the Act. It provides that if 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 and can make
a prima facie showing that the Smithsonian Institution did
not have the right of possession of such object, then the
Smithsonian must return such object unless it can prove that
it has the right of possession of such objects.
Subsection (d) provides that any museum of the Smithsonian
Institution, which repatriates an item in good faith shall
not be liable for any claims of fiduciary duty, public trust,
or violations of State law that are inconsistent with the
provisions of this Act.
Subsection (e) provides that nothing in this Act shall be
construed to prevent the Secretary of the Smithsonian from
making an inventory or preparing a written summary or
carrying out the repatriation of objects under this Act in a
manner that exceeds the requirements of this section.
Subsection (f) defines the term ``Native Hawaiian
Organization'' as the term is used in this Act.

SECTION FIVE. SPECIAL COMMITTEE

This section amends section 12 of the National Museum of
the American Indian Act by increasing the membership of the
Special Committee to seven and it shall include two members
who are traditional Indian religious leaders.
<bullet> Mr. INOUYE. Mr. President, I am pleased to join my Chairman,
Senator John McCain, in the introduction of a bill to amend the
National Museum of the American Indian Act.
The amendments that this bill proposes would fulfill a commitment I
made to other museums and scientific institutions at the time the
Congress was considering the Native American Graves Protection and
Repatriation Act.
At that time, Mr. President, the National Museum of the American
Indian was newly authorized and was engaged in establishing the
necessary administrative structures and policies that would define its
character as an institution.
Amongst the issues to be addressed by the new museum was the
development of a repatriation policy, and the

[[Page S8159]]

need to reconcile that policy with the policies of other museums in the
Smithsonian Institution.
Accordingly, while a general framework addressing repatriation was
included in the National Museum of the American Indian Act that we
adopted in 1989, the opportunity for the Smithsonian Institution to
develop an institution-wide repatriation policy and the processes
associated with the implementation of such a policy was requested, and
we provided the time necessary to enable the development of that
comprehensive policy.
The other museums and scientific institutions that were to be covered
under the Native American Graves Protection and Repatriation Act
objected in the strongest possible terms to the exclusion of the
Smithsonian Institution from the act, but ultimately agreed not to
oppose passage of the act based in part upon my personal commitment
that the Congress would subsequently enact legislation to assure that
the Smithsonian Institution would be subject to Federal repatriation
law.
The bill we introduce today is designed, as I have indicated, to
fulfill that commitment and to assure that the policy objectives of the
Native American Graves Protection and Repatriation Act are extended to
the Smithsonian Institution.
As I complete my service as a member of the Board of Trustees of the
National Museum of the American Indian this year, I am pleased that my
Chairman has seized the initiative to act upon the discussions in which
we have been engaged with the Smithsonian Institution and thereby given
his support for carrying out my promise.
I am hopeful that our colleagues in the Senate and the House will
agree to act upon this legislation before the end of the 104th session
of the Congress, and I thank my Chairman for his leadership.<bullet>
______