Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 7, 1 July 1990 — Progress in repatriation [ARTICLE+ILLUSTRATION]

Progress in repatriation

3Iai Wakinekoim

By Paul Alcxander Washington, D.C. Counsel for OHA

On May 14, in Washington, D.C., the Senate Select Committee on Indian Affairs held a hearing on a new version of the Native American Grave and Protection Act (S. 1980.) It wasoriginally introduced by Senator Daniel K. Inouye (D.-Hawai'i) on November 21, 1989.

The revised S.1980 is a significant effort to resolve the complex differences in approach and philosophv between Native groups and many museums. The new version was proposed by Senator John McCain (R.-Arizona) and incorporates aspects of his bill S.1021, as well as the thrust of the Report of the Nahonal Dialogue on Museum/Native Amenean Relations whieh is known as the Heard Museum Report.

OHA Trustee Clarence Ching and Chair Lydia Namahana Maioho of the Native Hawaiian Historic Preservation Task Foree, testified in support of the legislative effort, as did Trustee Myron Thompson of the Bishop Estate. Elizabeth Tatar, chairman of the Department of Anthropology, appeared on behalf of the Bishop Museum. Althouqh progress has been made in recent years on returning the human remains and associated items of Native people to their heirs or groups of origin, large numbers of ^emain^ and items are still held by public and private museums throughout the United States.

Significant progress was made in the passage into law of the Nahonal Museum of the American Indian Act. (P.L.101 185) whieh provided a meehanism, and standards, for the return of human remains in the possession of the Smithsonian to heirs or native groups of origin. OHA and Malama I Na Kupuna O Hawai'i Nei are named in P.L.101185 as Native Hawaiian organizations for _purposes of repatriation of Native Hawaiian remains.

The Heard Museum Report was an effort by native Americans and the museum community to eome to terms with eaeh other. In effect the effort was a response to the 1989 legislative proposals (S. 1980) by Senators Inouye and McCain. At this point many museums recognize that human remains of Native peoples should be returned. However some museums eonhnue to raise questions concerning access and retention of human remains for scientific research and they question the mechanisms and standards for determining the particular Native group-of-origin. The proposed amendment to S.1980 also covers funerary objects, sacred objects, and items

of native Amenean < ultural patrimony. The definitions of these items and the obligation of the museums to return such items or lose federal hnaneial support, are the focus of mueh of the dispute between some of the museum community. and Native groups.

"Funerary object" is defined as any artifact or object whieh was placed with the deceased Native American as part of the death rites or ceremonies of the culture and is identified as having been removed from a specific burial site. "Sacred Object" is defined as an object (plant, animal. etc.) whieh is devoted to a Native Amenean religious ceremony or employed in the observanee of such religious ceremony. "Cultural Patrimony" is defined as an item having historical, traditional or cultural importanee to a Native American group, owned by the group and not capable of being legally owned by an individual.

Most importantly īn addition to the provisions for return of funerary objects, sacred objects, and items of cultural patrimony, the proposed legislation would make it a federal crime to profit in the trade or transport of any of these items without legal title. OHA supported McCain's proposed amendment, as did virtually all the Native witnesses and the museums that sided with ma)oritv

view in the Heard Museum Report. Some museums continued to question the scope of the definitions and their purported pr6ference to work within a more consentual, less mandated, meehanism for repatriation.

An issue highlighted by OHA s testimony involved the scope of the phrase "federal or tribal land." !n the draft legislation any human remains or funerary objects for whom heirs cannot be determined, and any native American sacred objects or objects of Native Amenean Cultural patrimony that are found on Federal or tribal land are, under a set of factors, considered owned by a particular Native American group. OHA's testimony suggested that the definition be expanded to included all ceded land in Hawai'i. As currently written the definitions would include only homestead lands but not other ceded lands in the coverage of the phrase "tribal land."

OHA also suggested that the committee consider using the newly-authorized Island Burial Councils, provided for in Hawai'i House Bill No. 3296, as a mechanism for Native Hawaiian repatristion. The committee is expected to act on S 1980 this summer and it is probable Congress will pass the version of the bill that the Senate Select committee recommends.