Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 1, 1 January 1991 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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

lmpact of laws on religious and cultural rights

Legislative activity concerning Native Amenean religiousand cultural rights was a major focus of the Congressional effort that ended in October. A unique and major accomplishment of that Congress, is the

Native American Graves Protection & Repatriation Act, whieh was signed by President Bush on Nov. 16, 1990 as Public Law 101-640. Congressman Udall, the chairman of the House lnterior & Insular Affairs Committee, and Sen. Inouye, chairman of the Senate Select Committee on Indian Affairs, were the chief sponsors of the legislation. Before passage, the statute was the subject of muhiple hearings, many draft variations, and extensive lobbying by Native groups, museums, and commercial dealers/collectors of Native Ameriean items. The final version reflects the many eompromises that are usually necessary to pass eontroversial legislation; it provides standards for determining who has the right to possess Native American skeletal remains and cultural. items, rules for excavations on federal and Native lands, inventory requirements for museums, and a mechanism for the return of skeletal remains and cultural items to heirs or culturaliy affiliated tribes or Native organizations. There are several provisions that have signifieanee for Native Hawaiian rights. In expressing the underlying rationale of the Iegislation, the bill specifically acknowledges the special relationship of the United States to Native Hawaiians (organizations). Native Hawaiians are implicitly included in the statutory definition of the Native Americans, and for the first time in any federal statute, the definition of "tribal lands" (often a key concept determining federal/native jurisdiction) specifically includes Native Hawaiian (Hawaiian

Homes Commission) lands. As noted above, the Act covers skeletal remains and cultural items. Cultural items are divided into four categories, and statutory treatment varies somewhat depending on the category: (1) Associated funerary objects are objects that are part of a death rite or ceremony and are placed with the remains, and are presently in the possession of a federal agency or museum; (2) Unassociated funerary objects are similar to (1) but not in the possession of a federal agency or museum; (2) sacred items are specific ceremonial objects needed by traditional Native American religious leaders for the practice of their religion; and (3) cultural patrimony are objects that have ongoing historical, cultural, or traditional importance central to the Native American group, such that the objects could not be legitimately sold or given away. New excavation on federal or Native (tribal) lands will have to follow statutory procedures. Where the excavation is intentional, permits under the Archaeological Resources Act of 1979 are required, as is consultation with affected Native American groups. It will be necessary to demonstrate proof that permits were obtained and native groups consulted. Where excavation is inadvertent or accidental, the excavation is to cease, notice is to be provided to the appropriate federal agency and Native Ameriean organization, and the uncovered "discovered" items are to be protected. Excavation may proceed after 30 days using permitting and eonsultation procedures. It is a crime for anyone to knowingly sell, purchase, use for profit or transport for sale or profit, Native American human remains and/ or cultural items without having the "right of possession." The "right of possession" is defined as possession with voluntary consent of the individual or group who had the authority to sell or give the item. The first offense is a misdemeanor punishable by a fine and/or not more than a year imprisonment. Subsequent offenses are felonies punishable by a fine

and/or not more than five years imprisonment. The statute also provides an extensive system for the inventory and return of human remains and cultural items. Federal agencies and museums receiving federal funding are covered by the inventory and return provisions of the statute. Museums are broadly defined to include any state agency that has control over Native Ameriean cultural items (includes many colleges and universities). Failure to abide by the statute will subject museums to a system of fines that will take into account the cultural and eeonomie value of items, as well as the pattern and practices of the museums; enforcement is in federal court. Because similar inventory and return requirements were placed on the Smithsonian Institution in the Museum of the American Indian Act (P.L. 101185) passed earlier this Congress, the Smithsonian is not included in this statute. When cultural affiliation is established with respect to human remains or cultural items, the items are to be returned to heirs, tribes, or Native American organizations, as appropriate. An exception is provided where the item is demonstrated to be "indispensable for scientific study" whieh is of "major benefit to the United States"; in that event the item is to be returned within 90 days after such study is completed. In order to assist in the inventory repatriation process, grants are authorized for Native Hawaiian organizations, tribes, and museums. Also, a review committee is to be established by the Secretary of the Interior consisting of three members nominated by Native Americans, three members nominated by museums, and one mutually agreed-to member. The review committee will be responsible for monitoring the inventory and repatriation process; making findings of fact, upon request, relating the cultural affiliation of items, or the return of items; facilitating dispute resolutions; and compiling an inventory of "unidentified" human remains and recommending appropriate dispositions of such remains.