Update for NAGPRA proposed regulation regarding cu

[blackcrowheart]

Hello everyone,

A teleconference was held today by NAGPRA and the NAGPRA Review Committee, in regards to the proposed regulation RIN 1024-AD68, which affects the disposition of Native American culturally unidentifiable human remains held by museums and other institutions.

If you were unable to participate in today's teleconference, the NAGPRA Review Committee proposed the following four actions in regards to the proposed regulation:

a.. Extension of the current comment period of January 14th, 2008, until after the next Review Committee meeting to be held on May 15th & 16th in Wisconsin.
b.. Reconsider and adopt the 2000 Review Committee recommendations in it's proposed rule.
c.. Accept comments until the January 14th deadline, then re-formulate, re-draft and re-submit the proposed rule based upon all comments received, in addition to adopting the proposed actions from the NAGPRA Review Committee.
d.. Adopt a special congressional appropriation to help implement the process of disposition to assist the Tribes.

Please keep in mind, that these are only proposed actions by the NAGPRA Review Committee and have not been approved by NAGPRA at this time. These proposed actions will be reviewed by NAGPRA and a decision will be made by them, after the comment period January 14th. I will be in touch with Sherry Hutt at NAGPRA after the deadline period, and will forward any updates and new info at that time.

There were over 200 participants listening in on this meeting today.

If you have not submitted your comments to the proposed rule, please do so by the January 14th deadline. There is no guarantee that the extension will be granted!

Please see the email below for the links, details and a excellent example letter from NA NAGPRA Coalition in Berkeley.

In peace & solidarity,
Tamra Brennan
Founder/Director
Protect Sacred Sites Indigenous People, One Nation
www.protectsacredsites.org

"Our sacred lands are all that remain keeping us connected to our place on Mother Earth, to our spirituality, our heritage and our lands; what's left of them. If they take it all away, what will remain except a vague memory of a past so forgotten?"

----- Original Message -----
From: Native Am NAGPRA
To: Adarsh Kulshrestha ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail] ; [e-mail]
Sent: Sunday, December 23, 2007 5:53 PM
Subject: FW: Coalition's Comments on Proposed NAGPRA Regs

FYI

Subject: Coalition's Comments on Proposed NAGPRA Regs

PLEASE FORWARD TO TRIBAL CHAIR, THPO OFFICER AND NAPGRA OFFICER

Dear Tribes:

As you know, the National NAGPRA Program is about to make a crucial decision about proposed regulations affecting the disposition of Native American culturally unidentifiable human remains held by museums and other institutions. The Native American NAGPRA Coalition has asked two of our scholars to draft comments representing the position of our Coalition. Dr. Amy Lonetree is a Professor of American Studies at the University of California, Santa Cruz, and Dr. Jon Daehnke is a Post-Doctoral Fellow at Stanford University. Although we intend to send a hardcopy of these comments to National NAGPRA with the signatures of every Coalition member, we also wanted to share our views with you. Since National NAGPRA has been flooded with letters from scientists hostile to NAGPRA and completely opposed to the regulations, we are hoping that tribes will make their voices heard. We are not asking you to adopt our views, just to consider them and then formulate your own position. You can read the proposed regulations at www.nps.gov/history/nagpra/. You can submit comments on the new regulations, identified by the number RIN 1024-AD68, by the following methods:

-- Federal rulemaking portal: www.regulations.gov Follow the
instructions for submitting comments.
-- Mail to: Dr. Sherry Hutt, Manager, National NAGPRA Program, National
Park Service, Docket No. 1024-AC84, 1201 Eye Street, NW (2253),
Washington, DC 20005.
-- Hand deliver to: Dr. Sherry Hutt, 1201 Eye Street, NW, 8th floor,
Washington, DC.

Remember, COMMENTS MUST BE SUBMITTED BY JANUARY 14TH

We also urge you to PARTICIPATE IN A TELECONFERENCE that will be will be on Tuesday, January 8, 2008 from 2:00 p.m. until 5:00 p.m. Eastern Standard Time, unless business is finished earlier. If you wish to take part, you can obtain the call-in number by sending an e-mail to [e-mail], with "January 8th teleconference" in the subject line, and your full name and organizational affiliation in the body of the e-mail. Registration for the teleconference closes at 5:00 p.m. Eastern Standard Time, Friday, January 4, 2008.

We have attached a document containing our Coalition's comments and also pasted them below. In addition, we have pasted in a press release from the World Archaeological Congress just to let you know that not all scientists oppose the regulations.

Best regards,

The Native American NAGPRA Coalition

December 12, 2007

Dr. Sherry Hutt

National NAGPRA Program

National Park Service, Docket 1024-AC84

1849 C Street, NW, (2253)

Washington, DC 20240

Dear Dr. Hutt:

On behalf of the Native American NAGPRA Coalition (NANC), we are writing to submit the following comments on the proposed rule for the disposition of Culturally Unidentifiable Human Remains (RIN 1024-AD68). The Native American NAGPRA Coalition is an alliance of tribal organizations, Native American individuals, and concerned non-natives who formed in response to issues surrounding the treatment of Native American remains housed at the Phoebe Hearst Museum of Anthropology at the University of California, Berkeley. NANC asserts that the Phoebe Hearst Museum has been negligent in its implementation of NAGPRA and has failed to appropriately consult with Native Americans in determining the disposition of these Native American remains. The Coalition has the support of over 65 tribal nations, as well as the National Congress of American Indians (NCAI). The Hearst Museum holds the single largest collection of ancestral remains subject to NAGPRA (only the Smithsonian Institution has a larger collection) with as many as 18,000 individuals in the collection. Given the large number of ancestral human remains in their collection, and the fact that the Phoebe Hearst Museum has determined an excessively large number of these remains as "culturally unidentifiable", we are greatly concerned with the promulgation of these proposed rules and their ultimate implementation.

First, we are pleased that the National NAGPRA Review Committee has fulfilled its obligation under Section 8(c)(5) of the Act to recommend specific actions for developing a process for disposition of culturally unidentifiable human remains. Furthermore, we are encouraged that the Department is moving forward with the promulgation of the rules and recognize its authority to do so under Section 13 of the Act [25 USC 3011] . Nonetheless, we do have concerns about the proposed rules and their implementation, and what follows are our comments on the rules organized around seven key themes.

Collaboration and the Primacy of Native American Voice

In its recommendations on the disposition of culturally unidentifiable human remains, the NAGPRA Review Committee determined that the process must be done within a spirit of collaboration with all appropriate Indian tribes as mandated in 43 CFR 10.9(b). This consultation must incorporate evaluation of all lines of evidence, including tribal knowledge and oral histories. Our fear, however, is that too many museums have designated human remains as "culturally unidentifiable" with little or no consultation with tribal entities. Furthermore, when completing their inventories they failed to consider all of the available lines of evidence. We are also concerned that when consultation does happen, the Native perspective is treated as just one of many to consider, and does not have the primacy it deserves. We ask, therefore, for language in the proposed regulations that emphasizes not just the necessity of full collaboration, but also the primacy of tribes in determining whether or not human remains are culturally identifiable. Furthermore, if human remains are deemed "culturally unidentifiable" under the terms of NAGPRA, the tribes retain the primary role in determining the appropriate disposition of these remains.

Priority Ownership Categories

The proposed rules suggest using the priority ownership categories as established in Section 3(a) of the Act as the basis for establishing disposition of culturally unidentifiable human remains. We have no major concerns with the use of these categories. The drafters of the proposed regulations have requested comments on the meaning of the term "cultural relationship" as utilized in the 3rd priority ownership category. We recommend that the meaning of this term be determined by the specific tribal entities that are appropriate on a case-by-case basis. Furthermore, tribal understandings of the definition of "cultural relationship" should be considered primary over those definitions expressed by museums, federal agencies and other interested non-native entities.

Non-Federally Recognized Groups

Section 10.11(c)(3)(i) of the proposed regulations state that museums and federal agencies may repatriate culturally unidentifiable human remains to federally unrecognized groups. While we applaud the fact that the proposed regulations make it clear that culturally unidentifiable human remains can be repatriated to non-recognized tribal organizations, we are very concerned that this repatriation is voluntary and lies with the discretion of the federal agency or museum. This has been a highly contentious issue for our coalition, as it especially relates to the human remains currently held at the Phoebe Hearst Museum. While the Hearst Museum contains human remains from across North America, a large number of remains come from the San Francisco Bay area and are directly connected with Ohlone peoples. These groups - who due to the vagaries of history and the manifestations of colonialism inherent in the recognition process - are currently not federally recognized. The current regulations do nothing to force the Phoebe Hearst to repatriate these remains, which are clearly culturally connected to an identifiable Native American group, but are only considered "unidentifiable human remains" due to recognition issues.

We recognize that some (i.e. the Society for American Archaeology) may protest repatriation to unrecognized tribes based on a fear that these groups may not be legitimate tribal entities. Our recommendation, however, is that any concerns about repatriation to non-recognized tribes should be 1) addressed at a regional level based on tribal consultation, and 2) brought before the National NAGPRA Review Committee if necessary. We suggest that the proposed rules include language to this effect.

Models for Disposition of Culturally Unidentifiable Human Remains

In its recommendations the NAGPRA Review Committee proposed two models for the disposition of culturally unidentifiable human remains: joint recommendations of tribal claimants and museums, and joint recommendations of regional consortia. We applaud any recommendations that allow for flexibility in the disposition of culturally unidentifiable human remains, and we especially stress those recommendations that provide for regional solutions for disposition and repatriation. We wish to make it clear, however, that tribal entities should be the appropriate organizations to determine the make-up of these regional consortia, and that it is not up to the museum or federal agency to determine the legitimacy of these groups. Federal agencies and museums can be treated as consulting parties on these decisions, but should not have final or even equal say on this. The regional tribes are the appropriate authorities, and it is up to them to make decisions on disposition. Additionally, we are concerned that the legitimacy of regional consortia is not addressed specifically and prominently in the language of the proposed regulations itself. We recommend that the regulations directly state the authority of these regional tribal consortia.

Funerary Objects Associated with Culturally Unidentifiable Human Remains

As written, the proposed rules do not mandate the disposition of funerary objects associated with culturally unidentifiable human remains. Section 10.11(c)(4) states that a museum or federal agency may transfer associated funerary objects to tribal entities, and in fact this transfer is recommended by the Secretary. However, we urge you to make this disposition mandatory rather than voluntary, if the disposition is desired by the respective tribal entities. As our experiences with the Phoebe Hearst Museum have taught us, the language of "voluntary action" on the part of museums is meaningless in practice. Simply put, at places like the Phoebe Hearst, disposition of associated funerary objects will never happen unless it is required by law.

Right of Possession

We applaud that Section 10.11(c) notes that museums or federal agencies that are unable to prove right of possession of culturally unidentifiable human remains must offer to transfer control of these remains to Indian tribes. Our assessment is that museums in a significant number of cases cannot prove right of possession to the human remains in their collections. The designation of these remains as "culturally unidentifiable" should not negate the fact that museums have no right to hold these ancestors in the first place. We also support Section 10.12(b)(1)(ix) that allows for the assessment of civil penalties against museums that fail to offer to transfer control of culturally unidentifiable human remains for which they cannot prove right of possession. While we appreciate these efforts, we request that the language in the regulations be very clear that the burden of proof for right of possession is on museums and federal agencies.

Treatment of Culturally Unidentifiable Human Remains in the Interim

The law notes that "culturally unidentifiable" is not a fixed category and can change as a result of the introduction of new information or the change in recognized status of a tribal organization. Until the time of disposition and/or repatriation these ancestral remains should be treated with the utmost respect. Therefore, these "culturally unidentifiable" ancestral remains should not be used for the purposes of scientific research and/or as teaching collections. We recommend that language to this effect be explicitly stated in the regulations and feel that Section 10.9(e)(5)(ii)(A&B) is not sufficient to ensure appropriate respect.

Conclusion

While we do have concerns with aspects of the proposed rules, we are encouraged that these rules stress that the intent of the Act is repatriation, as is stated in its name. Furthermore, these proposed rules make it clear that the goal of the legislation is the appropriate disposition of all Native American remains, including those designated as "culturally unidentifiable". This is extremely relevant, as a number of research organizations (i.e. the Society for American Archaeology and the American Association of Physical Anthropologists) have erroneously operated under the assumption/hope that the designation of remains as "culturally unidentifiable" would preclude their repatriation. We strongly urge the Department to continue to stress that the appropriate disposition of culturally unidentifiable human remains must occur within the framework of consultation and collaboration. Furthermore, within this framework of collaboration, Native Americans must not be viewed as simply one voice among many, but as the primary voice. Finally, we wish to stress that these ancestral remains are connected to modern tribal populations and that their appropriate treatment should be determined by those populations. The status of these ancestral remains as "culturally unidentifiable" is due primarily to poor record-keeping, attempts by museums to keep these remains from being repatriated, and the historical ambiguities of federal recognition and non-recognition. To Native Americans these remains are not "unidentifiable" but rather are identified as ancestors to whom they owe the responsibility of proper and respectful care.

Thank you for your consideration of our comments and concerns and for your efforts to fulfill the obligations of this important section of NAGPRA. If you have any questions please do not hesitate to contact us at either [e-mail] or [e-mail].

Sincerely,

Amy Lonetree (Ho-Chunk), Ph.D. Jon Daehnke, Ph.D.

Assistant Professor Post-Doctoral Fellow in the Humanities

University of California, Santa Cruz Stanford University

**********************

For Immediate Release

Proposed US Federal Rule Reaffirms the Importance of NAGPRA
Department of Interior Proposal will clarify language that has caused confusion, anger and mistrust

Adelaide, South Australia, December 16, 2007

The World Archaeological Congress (WAC) supports a proposed rule by the U.S. Department of Interior that will help to clarify terms defined when the Native American Graves Protection and Repatriation Act (NAGPRA) was passed in 1990.

NAGPRA now requires federally-recognized tribes to demonstrate cultural affiliation in order for federal agencies and federally-funded museums and universities to transfer control of human remains, sacred or funerary objects, and other culturally important artifacts.

Although NAGPRA has worked reasonably well and is supported by many tribes, archaeologists, and museums, "cultural affiliation" has forced a definition onto Native American people that comes mostly from anthropologists and archaeologists. Affiliation in the sense of being linked by genetic or archaeological evidence often is difficult to prove with non-scientific evidence such as oral traditions used more commonly by Indigenous peoples.

The draft regulations, published by the Department of the Interior on October 16, 2007, make some changes in the law. Instead of affiliation, "cultural relationship" will become a key principle for decisions about returning culturally sensitive items. This simple change allows greater flexibility in decision-making and removes what many Native Americans have seen as a word with strictly scientific meaning that often stands in the way of repatriation.


"Some archaeologists seem to think that the proposed regulations would undercut NAGPRA and do great harm to the archaeological record of the United States," said Claire Smith, WAC President, "but that is the same thing many archaeologists used to say about NAGPRA. It was hardly the end of the line for archaeology or museums. In many cases where American Indian people, archaeologists, and museums built good working relationships, access to archaeological information actually improved! To say that the proposed regulations would harm archaeology or NAGPRA is just plain misguided."

"There is a lot of fear that museums or archaeologists would somehow have to say who is or isn't Indian or how close the relationship is," said Larry Zimmerman, WAC Vice President and early advocate for the return of remains, "but that's clearly incorrect. What it will do is allow for more remains that are now called culturally unidentified to be returned to descendents and treated with respect instead of being on some laboratory shelf."


Background: The World Archaeological Congress (WAC) is a non-governmental, not-for-profit organization and is the only elected international body of practicing archaeologists. WAC promotes interest in the past in all countries, to recognize the historical and social role and political context of archaeology, and endeavours to make archaeological studies relevant to the wider community. WAC acknowledges and recognizes Indigenous methodologies for interpreting, curating, managing and protecting Indigenous cultural heritage.

Media contacts:

Claire Smith,
President, World Archaeological Congress (WAC)
Department of Archaeology, Flinders University, Adelaide, South Australia
PO Box 2100, Adelaide. SA 5001. Australia
Telephone: [phone]
[e-mail]

Larry Zimmerman,
Vice-President, World Archaeological Congress (WAC)
Department of Anthropology and Museum Studies, IUPUI,
433 Cavanaugh Hall, Indianapolis IN 46228.
Telephone: [phone]
[e-mail]

-- Claire Smith, Department of Archaeology, Flinders University, GPO Box 2100, Adelaide. SA 5001. Australia

President, World Archaeological Congress

worldarchaeologicalcongress.org/site/join.php

Women for Wik - Monitoring the Federal Action in the Northern Territory

www.womenforwik.org

Sixth WAC Congress, WAC-6, University College Dublin, Ireland, 29th June-4 July 2008