DLN Issues : Burial and Repatriation
 DLN Burial and Repatriation News
On Burial and Repatriation
Burial and Repatriation links; NAGPRA, South Dakota specific, and UNESCO on cultural property
 Links to and summaries of South Dakota state burial laws.
The Law and American Indian Grave Protection, links to NAGPRA; the Roots of NAGPRA; A review of Federal Statutes and Regulations concerning Native American human remains associated funerary objects and ritual objects; a summary of NAGPRA, Legislative History, Federal Statues and Regulations, Oversight Hearings, Guidance from Agencies Administering NAGPRA, Attempted Amendments to NAGPRA, Other Federal Legislation, General Research and Tools; a layman's guide to NAGPRA, the NAGPRA Compliance Project, Executive Order 13007 on Indian Sacred Sites, Indian Tribes and the Section 106 Review Process.
Minutes Native American Graves Protection and Repatriation Review Committe, 22nd Meeting, November 2001, University of Nebraska-Lincoln repatriations. Rosebud Sioux Tribe.
Minutes Native American Graves Protection and Repatriation Review Committe, 20th Meeting, December 1999. Excerpt: The Dakotas Area Office, Great Plains Region, is in the process of
finalizing a NAGPRA action plan with the Oglala, Rosebud, and Lower
Brule Sioux Tribes in conjunction with a revised Programmatic
Agreement for the Mni Wiconi project. Excerpt: Intentional excavations
of 11 individuals and 4 associated funerary objects have occurred on
the Rosebud Reservation in 1996, Fort McDowell Indian Community lands
in 1996, and Tohono OÆodham Nation lands in 1999, and all human
remains and associated funerary objects were returned to the affected
Indian tribes.
. Excerpt: Ms. Pemina Yellow Bird, Three Affiliated Tribes of North Dakota,
explained that she represented the North Dakota Intertribal
Reinterment Committee which represents the Standing Rock Sioux Tribe,
the Turtle Mountain Band of Ojibwa, the Spirit Lake Sioux, and the
Three Affiliated Tribes of North Dakota (Mandan, Hidatsa, and Arikara
Nations). She expressed frustration listening to the Federal agency
reports on compliance status, especially BIAÆs report. In the year
2000, there is no excuse for not knowing which repositories hold
Native American human remains. She requested that copies of the
Federal agency reports given to the review committee be provided to
audience members as public documents. Ms. Yellow Bird expressed
concern over the lack of adequate representation by Native Americans
on the National Park System Advisory Board and subcommittee described
earlier by Mr. Robbins and Mr. McManamon. She stated that any
determinations made about the review process should be open to the
public and reminded the review committee members that NPS is a Federal
agency that has to simultaneously comply with the requirements of
NAGPRA while having to administer NAGPRA creating an inherent conflict
of interest. In response to comments made by the BOR representative
regarding development of an internal policy and guidance for
inadvertent discoveries, Ms. Yellow Bird stated that neither she nor
anyone from the Indian tribes she represents and works with were
consulted in the development of that policy.
Minutes Native American Graves Protection and Repatriation Review Committe, 18th Meeting, November 1999. Excerpt: Mr. Sebastian (Bronco) LeBeau, Cheyenne River Sioux Tribe, explained
that he submitted comments on the draft principles of agreement
regarding culturally unidentifiable human remains, but missed the
deadline due to the NPS delay in distribution. Mr. LeBeau emphasized
that the ancestors held by museums and agencies need to be returned to
the Indian people and explained that the term "culturally
unidentifiable" does not exist for Native Americans. Mr. LeBeau stated
that he has had experience with museums wanting to provide input on the
disposition of Native American human remains, when that should be solely
a tribal decision. The intent of the Act is to rebury Native American
ancestors. He explained that the value in Native American human remains
is in healing, not what can be learned from them. Native Americans
document through oral tradition, not the written word and have a
different definition of kinship. Kinship is a relationship recognized
between Native Americans, even if the law does not recognize it.
Cultural affiliation does not mean biological affiliation and cannot be
determined by physical measurements, skin color, or language. Native
American ancestors need to go home, and the review committee members can
help by making all institutions, Federal agencies and museums fulfill
the requirements of the statute.
Minutes Native American Graves Protection and Repatriation Review Committe, 16th Meeting, December 1998.
Among those in attendance: Mr. Robert Gough, Estate of Crazy Horse, Rosebud Sioux NAGPRA, Rosebud,
South Dakota. Mr. Alvin Slow Bear, Oglala Sioux Tribe, Pine Ridge, South Dakota. Excerpt: A letter was sent to the Review Committee members requesting a
recommendation for repatriation of the culturally unidentifiable human
remains, and a copy of the inventory of those human remains and the
September 1st agreement were included. The group of Indian tribes
making the claim include the Omaha Tribe of Nebraska, Santee Sioux Tribe
of Nebraska, Winnebago Tribe of Nebraska, Ponca Tribe of Nebraska, Ponca
Tribe of Oklahoma, Pawnee Nation of Oklahoma, North Dakota Intertribal
Reinterment Committee for the tribes of North Dakota, including the
Three Affiliated Tribes (Arikara, Mandan and Hidatsa), Standing Rock
Sioux Tribe, Turtle Mountain Band of Ojibwa, Spirit Lake Nation, Iowa
Tribe of Oklahoma, Kickapoo Tribe of Kansas, Yankton Sioux Tribe,
Cheyenne River Sioux Tribe, Oglala Sioux Tribe, and Rosebud Sioux Tribe.
Meetings with representatives from these Indian tribes were held in
Lincoln, Nebraska, where tribal representatives selected Ms. Pemina
Yellow Bird of the Three Affiliated Tribes and the North Dakota
Intertribal Reinterment Committee to chair those meetings and make a
presentation on behalf of this group of Indian tribes to the Review
Committee...
Ms. Pemina Yellow Bird, Three Affiliated Tribes and the North Dakota
Intertribal Reinterment Committee, stated that she was present as chair
of a working group assembled to deal with the issues at the UNL. On
September 1, 1998, the group made a joint intertribal claim to all of
the so-called culturally unidentifiable human remains in the possession
of the UNL. All of the signatory Indian tribes to the claim are
Indigenous nations who have aboriginal homelands within the state of
Nebraska. The group made the claim for these ancestors out of a desire
to show respect and a promise to bring them home. These human remains
were abused, mistreated, disrespected, seriously traumatized, and
harmed. Ms. Yellow Bird stated that the law is very clear; NAGPRA
contains a mechanism that allows for joint intertribal claims made by
Indian tribes that have a shared or collective aboriginal homelands. The
group came before the NAGPRA Review Committee after being threatened
with lawsuits by individuals from the science and museum industries to
stop the repatriation, and to prevent further development of that
situation. She explained that the group has established a shared group
identity and through oral history can show their relatives lived within
what is now known as the state of Nebraska. Excerpt: Mr. Robert Gough & Ms. Amanda Burt: Mr. Gough, attorney for the Rosebud
Sioux Tribe NAGPRA Committee and the Estate of Crazy Horse, explained
that he was before the Review Committee with Ms. Burt in order to
address a matter of great concern with regard to the compliance of
institutions with requirements both in the spirit and the letter of
NAGPRA. The matter involves Washington College of Chestertown, Maryland
and a collection of Indian artifacts held by the college for 65 years,
recently sold at auction at Sotheby's in New York.
Ms. Burt explained that Washington College is a private liberal arts
institution with approximately 1,000 students. She stated that the
college possessed a fairly modest collection of Native American
artifacts, most notably of which included a shirt attributed to Crazy
Horse and a double-train eagle feather bonnet attributed to Chief Red
Cloud. These artifacts were housed in glass trophy cases in the college
library. In 1992, visiting Cheyenne poet Lance Henson discovered the
collection in the library and raised concerns about the proper
disposition of the artifacts. Ms. Burt wrote an article for the student
newspaper at the time and since that point has been working with the
estate of Crazy Horse and the Rosebud Sioux Tribe to obtain further
information in the matter. In 1996 the entire collection, with the
exception of the bonnet, was sold at Sotheby's. The shirt which
appraised for $60,000 to $90,000 was sold at auction for over $200,000.
Mr. Gough detailed communications with the college wherein the college
determined based upon private expert opinion that it did not fall within
the purview of NAGPRA and therefore did not have to file summaries or
inventories. The parties represented by Mr. Gough allege that
Washington College is an institution of higher learning, received
federal funds after November 16, 1990, and have exerted control over the
Albee collection, which may contain unassociated funerary objects,
sacred objects, and objects of cultural patrimony. Washington College
has failed to comply with the timely filing of either a summary or
inventory as required under NAGPRA. The parties further allege that the
college's failure to comply with NAGPRA has resulted in the sale of the
collection without proper notice to the Indian tribes or the estate and
that said sale materially damaged the Indian tribes and the estate
through the loss of any opportunity for tribal examination,
investigation, research, or potential repatriation. He stated that a
matter of particular concern is the critical need for action by the NPS
in enforcing the provisions of NAGPRA, particularly the civil provisions
in this case. The parties are demanding that the Secretary of the NPS
make a determination of noncompliance and assess appropriate civil
penalties pursuant to 45 CFR section 10.12 against Washington College
for its failure to complete the required summary and inventory.
Over the past 60 years Washington College has had these items in its
possession including the scalp shirt which it publicly declared it
believed to have been owned and worn by Crazy Horse and the feather
bonnet purported to have belonged to Chief Red Cloud, along with
numerous other items donated by the Albee estate. Mr. Gough informed
the Chairman of the College Legal Affairs Committee that he represented
the estate and the Indian tribe and was seeking information regarding
the shirt. He advised the Chairman that the items may be subject to
NAGPRA and provided him with a copy of NAGPRA with the appropriate
sections highlighted. A request to view the shirt and materials at that
time was denied on the grounds that materials were being appraised and
undergoing conservation activities. Mr. Gough was not informed of plans
to sell the collection until after the sale had taken place. The
parties are seeking the Review Committee's assistance in ensuring action
by the NPS, enforcing the provisions of NAGPRA and for a determination
with regard to the noncompliance of Washington College, including an
assessment of the appropriate civil penalties against Washington College
for its failure to complete summary and/or inventories as required and
for its sale of the collection shortly thereafter.
Review Committee members expressed concern about the situation and asked
the NPS to respond. Mr. McManamon explained that the NPS has initiated
an investigation. He agreed that the information provided by Mr. Gough
warranted an investigation into the matter. As per procedure, the first
action of the NPS was to write to the college, present them with the
information, and ask the college to evaluate the information and provide
a written response. He stated the college has responded to the
allegations, but the NPS needs to evaluate that response, which
basically states that the college does not think the law applies in this
particular case. The NPS has been attempting to get information about
the criminal investigation that was undertaken and that has been
mentioned in some of the correspondence.
Minutes Native American Graves Protection and Repatriation Review Committe, 14th Meeting, January 1998. Excerpt:
Currently, the Bureau
of Reclamation‘s Native American Affairs Office is developing
consultation protocol for tribal consultation. Mr. Zontek added that
some regional offices are working on developing comprehensive
agreements with tribes such as the Oglala Sioux. Excerpt: Mr. Joe Williams, Upper Sioux Tribe, stated that he has been involved
in repatriation issues for a number of years, and repatriation used to
be a simple process. Oral history describes Native ancestors and
their past. Traditions changed among the Native Americans who
traveled across the country depending on their circumstances, and
those changes have to be considered. Initially, Dakota people were
happy when NAGPRA passed because they believed they could repatriate
their ancestors‘ remains, but eight years later they are still unable
to repatriate these human remains. NAGPRA is too complex for people
to understand.
.
Minutes Native American Graves Protection and Repatriation Review Committe, 11th Meeting, June 1996. Among those in attendance: Ms. Donna Garnette, Oglala Sioux Tribe, Kyle, South Dakota. Mr. Terry Gray, Assistant NAGPRA Coordinator, Rosebud Sioux Tribe,
Rosebud, South Dakota. Mr. Ruben McCloskey, United Sioux Tribes, Pierre, South Dakota. Mr. Alvin Slow Bear, Oglala Sioux Tribe Rural Water Supply System,
Pine Ridge, South Dakota. Mr. Philip Under Baggage, Oglala Sioux Tribe, Kyle, South Dakota. Excerpt: Mr. LeBeau expressed a concern that the Cheyenne River Sioux Tribe had
not received an inventory from the North Dakota BLM. Mr. Lebeau
further stated that the Wyoming BLM informed him that most of their
collections were housed in various museums; therefore, he was
concerned about who has legal "title" and which entity tribes should
submit repatriation requests to. Mr. LeBeau asked if Mr. McKeown
could supply specific information on which statutes, other than
NAGPRA, could force Federal agencies to comply with NAGPRA. It was
the Committee's opinion that in most instances the Federal agencies
retain responsibility for these collections. Excerpt: Mr. Gray, Rosebud Sioux Tribe, wanted to add that the Indian tribes
should be the ones to determine what objects are associated with
burials.. Excerpt: Mr. McCloskey, Rosebud Sioux Tribe, read a prepared testimony for the
Committee emphasizing the importance of repatriating remains and
funerary objects and asking for assistance from the Park Service with
early notification of meetings and workshops. Mr. McCloskey also
asked for information regarding the number of Native Americans working
for Park Service system. He supported the idea of a clearinghouse,
consisting of the BIA, Park Service and representatives from each
tribe.
.
Minutes Native American Graves Protection and Repatriation Review Committe, 8th Meeting, November 1994. Excerpt: Mr. Sebastian "Bronco" LeBeau, NAGPRA Coordinator for the Cheyenne River
Sioux Tribe, supported including the challenges faced by Indian tribes
and museums in the 1993-94 Report to Congress. Everyone has to talk
about the problems we are having with it. His community has been having
problems in consultation with institutions who have already decided what
in the collections the tribe may conduct consultation on. Mr. LeBeau
asked the committee to speak it's true feelings in the Report to
Congress. "Give Congress a complete a picture of what people are doing."
He recommended that the report be as long as needed to present the
current situation...Mr. Sebastian LeBeau, Cheyenne River Sioux NAGPRA representative,
responded that while Mr. Owsley and his profession stress scientific
values, Indian people value the spiritual relationship presented by
human remains. Mr. LeBeau disagreed with Mr. Owsley's statements that he
respects Indian human remains, and pointed out in the National Museum of
Natural History's labs, he had seen "people visiting over them, people
talking over them, people laughing over them. You don't do that with
people. That's what our ancestors are to us: people. I didn't see
respect." Mr. LeBeau reiterated that the ancient human remains in
institutions are the relatives of Indian people, who will settle issues
of cultural determinations. Mr. Dennis Funmaker stated the proposed
justifications for maintaining collections were unbelievable, and
supported Mr. LeBeau's remarks...Mr. LeBeau asked that more consideration be given to tribes when funding
grants. Mr. LeBeau said the tribes do not understand why large
institutions with budget of over $10 million per year needed more money
to complete inventories. He offered his tribe's assistance to museums
for completing their inventories. He also announced that the seven
Western Lakota nations, the Oglala Sioux Tribe, the Cheyenne River Sioux
Tribe, the Standing Rock Sioux Tribe, the Rosebud Sioux Tribe, the Crow
Creek Sioux Tribe, the Lower Brule Sioux Tribe, and the Devil's Lake
Sioux Tribe are signing a cooperative agreement to work as one entity.
He suggested museums also form cooperative agreements to advance the
inventory work. Mr. LeBeau emphasized museums and institutions must
complete their inventories in consultation with culturally affiliated
Indian tribes. He requested museum and institutional representatives
get in contact with tribal NAGPRA representatives. Mr. LeBeau requested
allowances be made for tribal communities which never sought federal
recognition, for treaty groups, and for terminated tribes. Mr. LeBeau
asked the final versions of the regulations be distributed before being
published, and said he was concerned "that you as a committee would
approve of regulations you haven't read." Mr. LeBeau read a statement
from the Rosebud Sioux Tribe expressing grave concern on the current
language of the final regulations, and called for the regulations to be
published as proposed once more for another comment period. Mr. LeBeau
thanked the committee for their work.
Minutes Native American Graves Protection and Repatriation Review Committe, 7th Meeting, May 1994. Among those in attendance from Rosebud: Ms. Geraldine Arcoren, Rosebud Sioux Tribe, SD; Mr. Victor Douville, Rosebud Sioux Tribe, SD; Mr. Fremont Falli, Rosebud Sioux Tribe, SD; Mr. Robert Gough, Public Defender, Rosebud Sioux Tribe, SD; Mr. Terry Gray, Rosebud Sioux Tribe, SD; Mr. William Kindle, Chairperson, Rosebud Sioux Tribe, SD; Mr. Carl McKenzie, Rosebud Sioux Tribe, Rapid City, SD. Excerpt: Mr. Robert Gough, attorney for the Rosebud Sioux Tribe, recommended
that, in order to fulfil the United State's trust responsibility to
Indian tribes, the regulations on the disposition of culturally
unidentifiable human remains must "comply with the language of the
remedial statute to be liberally construed to suppress (or remedy) the
evil and advance provisions liberally construed in favor of Indians and
interpreted to the benefit of the Indians. Courts have recognized a
quasi-property right vested in the nearest relatives of the deceased
rising out of the duty to bury the dead. It's the right that every
mainstream American takes for granted. For Native American people, to
assure that their dead remained buried requires a Federal statute."
Following this principle of construction, Mr. Gough continued, "the
closest decendents of even culturally unidentified remains are the
present-day tribes who therefore have a responsibility to rebury these
human remains." He stated this responsibility has always been reserved
to the tribes, that "no treaty grants or surrenders to the United States
the graves, the human remains, or grave goods of ancestors." Mr. Gough
supported the inclusion of geographic association with aboriginal lands
as a primary consideration for tribal notification and in making
determinations of disposition for culturally unidentified human remains.
Mr. Gough was concerned that focussing on establishing associations and
cultural affiliations with present day tribes as a prerequisite for
repatriation would ignore the spirit, intent, and equities of the law,
and result in far fewer remains and objects being repatriated. Mr. Gough
spoke in favor of consultations as part of the decision to repatriate
culturally unidentified human remains. Mr. Gough said that numerous
Indian tribes have gone on the record as accepting trust
responsibilities for all culturally unidentified human remains, and that
"while the degree of relationship of these tribes to the disinterred or
unburied human remains may vary, they are of prior and superior right to
that of Federal agencies, museum, or other institutions which presently
holds these remains."
Excerpt: Mr. Terry Gray, NAGPRA representative of the Rosebud Sioux, pointed out
that the 1992 amendments to the National Historic Preservation Act
recognizes tribal values and authorizes tribes and Alaskan Native groups
"to assume all or any part of functions of the State historic
preservation officer with respect to tribal lands." He asked the
committee to take into consideration the cultural resource management
duties tribal governments are now assuming, and allow unidentified and
unaffiliated human remains to be repatriated under cultural resource
managerment responsibilities. Mr. Gray suggested that the committee
include official presentations from tribal elders on the agenda to help
understand the tribal views and better bridge the gap between the non-
Indian and Indian point of view. Excerpt: Mr. Victor Douville, member of the Rosebud Sicangu Consultation
committee, addressed the committee concerning the lack of direct input
from the Rosebud Sioux Tribe in the passage of NAGPRA. He said that
rumors going around say that what has already been drafted will become
law, and that "the Secretary [of the Interior] will begin to assert his
paternalism." Mr. Douville said that during the Review committee
meeting, he has seen this is not the case, and agrees with the direction
the committee is taking. He supported having the tribes be the ultimate
authority in decisions about repatriation, rather than having the tribes
be dictated to by Federal agencies and museums. Mr. Douville requested
that more funds be made available to assist tribes for NAGPRA
activities. Mr. Douville invited the committee to have a presentation
made by his department to develop a better understanding of his people.
He thanked the committee for the opportunity to speak.
Excerpt: Mr. Carl McKenzie, Rosebud Sioux Tribe, asked the committee to consider
closer consultation with the tribes and allowing them to translate the
regulations into their own language before sending the regulations out
as final.
Minutes Native American Graves Protection and Repatriation Review Committe, 6th Meeting, January 1994. Mr. Terry Gray, Rosebud Sioux Tribe, SD in attendance.
UNESCO’s legal
protection page on cultural heritage.
Charter of Courmayeur (1992)
International
Workshop on the Protection of Artistic and Cultural Patrimony
Charter on Cultural Tourism
Convention on the means of
prohibiting and preventing the illicit import, export and transfer of ownership
of cultural property
Convention of San Salvador on the
Protection of the Archeological, Historical, and Artistic Heritage of the
American Nations
Recommendation on International Principles
Applicable to Archaeological Excavations (UNESCO 1956)
Recommendation on the Means of Prohibiting and
Preventing the Illicit Export, Import and Transfer of Ownership of Cultural
Property (UNESCO
1964)
Recommendation concerning the Preservation of
Cultural Property Endangered by Public or Private Works (UNESCO 1968)
Recommendation concerning the Protection, at
National Level, of the Cultural and Natural heritage (UNESCO 1972)
Recommendation concerning the International
Exchange of Cultural Property (UNESCO 1976)
Recommendation for the Protection of Movable
Cultural Property
(UNESCO 1978)
Resolution on the Return or Restitution
of Cultural Property to the Countries of Origin (United Nations 1993)
Unidroit Convention on Stolen or Illegally
Exported Cultural Objects (UNESCO 1995)
World Heritage Convention (Convention for the
Protection of the World Cultural and Natural Heritage) (UNESCO 1972)
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