By Anne C. Mulkern
The Denver Post
September 02, 2003
WASHINGTON — National parks and federal agencies hold the remains of more than 2,000 native people, often stolen from graves during a century of tomb raiding. Those bones and other sacred relics are required by law to be returned to Native American tribes, but many federal agencies are ignoring the mandate.
Thirteen years after passage of controversial and sweeping legislation designed to help atone for abuses against Native American culture, government agencies largely are shirking the law’s requirements, says a committee appointed to oversee the return of Indian artifacts and belongings. And Congress is failing to force federal agencies to obey, despite multiple warnings about noncompliance.
“The failure by some federal agencies to meet the standard for compliance … is inexcusable,” the congressionally appointed review committee said in a recent report to Congress. “This issue was highlighted in the Review Committee’s 1998 report to the Congress and has been discussed at every meeting since.”
The Native American Graves Protection and Repatriation Act, passed in 1990, requires federal agencies and museums that receive federal funding to inventory certain Native American belongings in their possession, then publish their findings. Museums had to meet strict deadlines for completing the inventories, under the threat of losing federal funding. But the law doesn’t hold government agencies to the same standard, and does not even track how well federal agencies are complying.
“It’s a huge problem,” said Rebecca Tsosiecq, an Arizona State University law professor who studied federal agency compliance with the law. “You find so much resistance from the federal people. They just weren’t committed to the same goal (as the tribes), so the passage of time works in their favor, and nothing happens.”
Federal agencies such as the Bureau of Land Management and the Forest Service hold skeletons and sacred tribal items that were found or intentionally dug up in national parks and on other federal lands.
Park Service units so far have counted 3,606 human remains and 77,648 items from burial sites. They’ve published notices stating that 60 percent of the human remains and 94 percent of the funeral items are ready to be returned to tribes but does not track how many are actually sent back.
The other 40 percent of the remains — of about 2,000 people — have not been readied for return.
A lack of required record-keeping is part of the problem, Tsosie said. “When you try to get a specific document, the document doesn’t exist,” Tsosie said. “I found compliance reports are extremely hard to get.”
The review committee bases its assertion about noncompliance on information obtained at numerous committee meetings. During those meetings, representatives from federal agencies asked to bring information about compliance often didn’t show up or said they either didn’t have or didn’t know the information.
When representatives of the group have shown up, “the review committee is told that compliance is still years out,” said John O’Shea, an anthropologist with the University of MichigaN who sits on the panel.
Sen. Ben Nighthorse Campbell, R-Colo., a member of the Northern Cheyenne tribe who helped pass the original law, said there aren’t too many feasible options for Congress to force government agencies to comply.
“You can pass all the laws in the world, but we’re not the enforcement agency, the (Bush) administration is,” Campbell said. He said many people in the federal agencies “simply aren’t interested in making it happen.”
The review committee suggested tying the funding of federal agencies to compliance with the law, but Campbell said that is impractical and could lead to national parks being closed.
When asked if he had considered any other solutions, Campbell said he hadn’t but that “we have to just keep the pressure on them and keep trying to encourage them to process them faster.” He then said that perhaps the law needs to be revised and tightened.
Tribal representatives say that’s not good enough.
“We’re looking at it taking about 200 years to repatriate all the human remains,” said Alan Downer, director of the Navajo Nation Historic Preservation Department in Arizona. “The pace of repatriation is glacial.”
The Park Service said it is complying with the law as quickly as it can. There is not enough funding or manpower to comply faster, officials said.
“Clearly, two people can look at the same numbers and have different perceptions of what those numbers mean,” said Paula Molloy, spokeswoman for the National Park Service. “If there’s a misperception, part of this may be due to how we report to the committee.”
In some cases, human bones are considered “culturally unidentifiable,” meaning they cannot be tied to one particular tribe. Tsosie studied that issue, and in June 2002 presented a report with recommendations. Little has been done in the interim, she said.
The seven-member review committee created by Congress to oversee the law is composed of university professors and tribal members. The committee said in its May report that federal agencies are not complying because: it is not a priority; policy directives from national headquarters are disregarded or reinterpreted at the regional level; there is a false perception that consultation with tribes is not required for compliance; and there are no civil penalties for noncompliance by federal agencies, unlike those that can be assessed against museums.
“This makes the academics on the committee angry, since their institutions are being held to a standard that is different and higher than the feds are applying to themselves, while the native members of the committee are angry since it’s the feds that have the special ‘government-to-government’ relationship with the tribes and so ought to be the first to be in compliance, not the last,” review committee member O’Shea said.
The Review Committee cannot require federal agencies to act faster, nor does it have the authority to force museums to turn over items. Molloy, spokeswoman for the National Park Service, said it was the intent of Congress that the group be only an advisory panel.