[104 STAT. 3048 PUBLIC LAW 101-601--NOV. 16, 1990]
Public Law 101-601
101st Congress
An Act Nov.16,1990 To provide for the protection of Native American graves, [H.R. 5237] and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
For purposes of this Act, the term -
(1) "burial site" means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which as a part of the death rite or ceremony of a culture, individual human preservation. remains are deposited.
(2) "cultural affiliation" means that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native organization and an identifiable earlier group.
(3) "cultural items" means human remains and -
(4)"Federal agency" means any department, agency, or instrumentality of the United States. Such term does not include the Smithsonian Institution.
(5) "Federal lands" means any land other than tribal lands which are controlled or owned by the United States, including lands selected by but not yet conveyed to Alaska Native Corporations and groups organized pursuant to the Alaska Native Claims Settlement Act of 1971.
(6) "Hui Malama I Na Kupuna O Hawai'i Nei" means the nonprofit, Native Hawaiian organization incorporated under the laws of the State of Hawaii by that name on April 17, 1989, for the purpose of providing guidance and expertise in decisions dealing with Native Hawaiian cultural issues, particularly burial issues.
(7) "Indian tribe" means any tribe, band, nation, or
other organized group or community of Indians, including
any Alaska Native village (as defined in, or established
pursuant to, the Alaska Native Claims Settlement Act),
which is recognized as eligible for the special programs
and services provided by the United States to Indians
because of their status as Indians.
(8) "museum" means any institution or State or local
government agency (including any institution of higher
learning) that receives Federal funds and has possession
of, or control over, Native American cultural items. Such
term does not include the Smithsonian Institution or any
other Federal agency.
(9) "Native American" means of, or relating to, a tribe,
people, or culture that is indigenous to the United
States.
(10) "Native Hawaiian" means any individual who is a
descendant of the aboriginal people who, prior to 1778,
occupied and exercised sovereignty in the area that now
constitutes the State of Hawaii.
(11) "Native Hawaiian organization" means any
organization which--
(A) serves and represents the interests of Native
Hawaiians,
(B) has as a primary and stated purpose the provision
of services to Native Hawaiians, and
(C) has expertise in Native Hawaiian Affairs, and
shall include the Office of Hawaiian Affairs and Hui
Malama I Na Kupuna O Hawai'i Nei.
(12) "Office of Hawaiian Affairs" means the Office of
Hawaiian Affairs established by the constitution of the
State of Hawaii.
(13) "right of possession" means possession obtained
with the voluntary consent of an individual or group that
had authority of alienation. The original acquisition of a
Native American unassociated funerary object, sacred
object or object of cultural patrimony from an Indian
tribe or Native Hawaiian organization with the voluntary
consent of an individual or group with authority to
alienate such object is deemed to give right of possession
of that object, unless the phrase so defined would, as
applied in section 7(c), result in a Fifth
Amendment taking by the United States as determined by the
United States Claims Court pursuant to 28 U.S.C. 1491
in which event the "right of possession" shall be as
provided under otherwise applicable property law. The
original acquisition of Native American human remains and
associated funerary objects which were excavated,
exhumed, or otherwise obtained with full
knowledge and
consent of the next of kin or the official
governing
body of the appropriate culturally affiliated
Indian
tribe or Native Hawaiian organization is deemed
to give
right of possession to those remains.
(14) "Secretary" means the Secretary of the
Interior.
(15) "tribal land" means-
(a) NATIVE AMERICAN HUMAN REMAINS AND
OBJECTS.--The ownership or control of Native American cultural
items which are excavated or discovered on Federal or
tribal lands after the date of enactment of this Act shall
be (with priority given in the order listed)--
(a) ILLEGAL TRAFFICKING.--Chapter 53 of title 18,
United States Code, is amended by adding at the end
thereof the following new section:
" 1170. Illegal Trafficking in Native
American Human 1170. Illegal Trafficking in
Native American Human
Remains and Cultural Items
"
(b) TABLE OF CONTENTS.--The table of contents for
chapter
53 of title 18, United States Code, is amended by
adding
at the end thereof the following new item:
"1170. Illegal Trafficking in Native
American Human
Remains and Cultural Items.".
Museums.
(a) IN GENERAL.--Each Federal agency and each
museum
which has possession or control over
holdings or
collections of Native American human
remains and
associated funerary objects shall compile an
inventory of
such items and, to the extent possible
based on
information possessed by such museum or Federal
agency,
identify the geographical and cultural affiliation
of such
item.
(b) REQUIREMENTS.
(2) Upon request by an Indian tribe or Native
Hawaiian
organization which receives or should have
received
notice, a museum or Federal agency shall supply
additional
available documentation to supplement the
information
required by subsection (a) of this section.
The term
"documentation" means a summary of existing
museum or
Federal agency records, including
inventories or
catalogues, relevant studies, or other pertinent
data for
the limited purpose of determining the
geographical
origin, cultural affiliation, and basic facts
surrounding
acquisition and accession of Native American human
remains
and associated funerary objects subject to this
section.
Such term does not mean, and this Act shall not be
construed to be an authorization for, the initiation of
new scientific studies of such remains and associated
funerary objects or other means of acquiring or preserving
additional scientific information from such remains and
objects.
(c) EXTENSION OF TIME FOR INVENTORY.--Any museum which
has made a good faith effort to carry out an inventory and
identification under this section, but which has been
unable to complete the process, may appeal to the
Secretary for an extension of the time requirements set
forth in subsection (b)(1)(B). The Secretary may extend
such time requirements for any such museum upon a finding
of good faith effort. An indication of good faith shall
include the development of a plan to carry out the
inventory and identification process.
(d) NOTIFICATION
(e) INVENTORY.--For the purposes of this section, the
term "inventory" means a simple itemized list that
summarizes the information called for by this section.
SEC. 6. SUMMARY FOR UNASSOCIATED FUNERARY OBJECTS, 25
USC 3004.
SACRED OBJECTS, AND CULTURAL PATRIMONY.
(a) IN GENERAL.--Each Federal agency or museum which has
Museums.
possession or control over holdings or collections of
Native American unassociated funerary objects, sacred
objects, or objects of cultural patrimony shall provide a
written summary of such objects based upon available
information held by such agency or museum. The summary
shall describe the scope of the collection, kinds of
objects included, reference to geographical location,
means and period of acquisition and cultural affiliation,
where readily ascertainable.
(b) REQUIREMENTS.
25 USC 3005. SEC. 7. REPATRIATION.
(a) REPATRIATION OF NATIVE AMERICAN HUMAN
REMAINS AND
OBJECTS POSSESSED OR CONTROLLED BY FEDERAL
AGENCIES AND
MUSEUMS.--
(a) ESTABLISHMENT.--Within 120 days after the date of
enactment of this Act, the Secretary shall establish a
committee to monitor and review the implementation of the
inventory and identification process and repatriation
activities required under sections 5, 6 and 7.
(b) MEMBERSHIP--(1) The Committee established under
subsection (a) shall be composed of 7 members,
(3) In the event vacancies shall occur, such
vacancies
shall be filled by the Secretary in the same manner
as the
original appointment within 90 days of the
occurrence of
such vacancy.
(4) Members of the committee established under
subsection
(a) shall serve without pay, but shall be
reimbursed at a
rate equal to the daily rate for GS-18 of the
General
Schedule for each day (including travel time)
for which
the member is actually engaged in committee
business. Each
member shall receive travel expenses, including
per diem
in lieu of subsistence, in accordance with
sections 5702
and 5703 of title 5, United States Code.
(c) RESPONSIBILITIES.--The committee
established under
subsection a) shall be responsible for-
(e) RECOMMENDATIONS AND REPORT.--The committee
shall make
the recommendations under paragraph (c)(5) in
consultation
with Indian tribes and Native Hawaiian
organizations and
appropriate scientific and museum groups.
(f) ACCESS.--The Secretary shall ensure
that the
committee established under subsection (a) and the
members
of the committee have reasonable access to Native
American
cultural items under review and to associated
scientific
and historical documents.
(g) DUTIES OF SECRETARY.--The Secretary shall--
(i) TERMINATION.--The committee established under
subsection (a) shall terminate at the end of the 120-day
period beginning on the day the Secretary certifies, in a
report submitted to Congress, that the work of the
committee has been completed.
(a) PENALTY.--Any museum that fails to comply with the 25
USC 3007.
requirements of this Act may be assessed a civil penalty
by the Secretary of the Interior pursuant to procedures
established by the Secretary through regulation. A penalty
assessed under this subsection shall be determined on the
record after opportunity for an agency hearing. Each
violation under this subsection shall be a separate
offense.
(b) AMOUNT OF PENALTY.--The amount of a penalty assessed
under subsection (a) shall be determined under regulations
promulgated pursuant to this Act, taking into account, in
addition to other factors--
(d) SUBPOENAS.--In hearings held pursuant to subsection
(a), subpoenas may be issued for the attendance and
testimony of witnesses and the production of relevant
papers, books, and documents. Witnesses so summoned shall
be paid the same fees and mileage that are paid to
witnesses in the courts of the United States.
SEC. 10. GRANTS. 25
USC
(a) INDIAN TRIBES AND NATIVE HAWAIIAN
3008.
ORGANIZATIONS.--The Secretary is authorized to make grants
to Indian tribes and Native Hawaiian organizations for the
purpose of assisting such tribes and organizations in the
repatriation of Native American cultural items.
(b) MUSEUMS.--The Secretary is authorized to make grants
to museums for the purpose of assisting the museums in
conducting the inventories and identification required
under sections 5 and 6.
Nothing in this Act shall be construed to--
(3) deny or otherwise affect access to any
court;
(4) limit any procedural or substantive right
which may
otherwise be secured to individuals or Indian
tribes or
Native Hawaiian organizations; or
(5) limit the application of any State or
Federal law
pertaining to theft or stolen property.
25 USC 3010. SEC. 12. SPECIAL RELATIONSHIP BETWEEN FEDERAL
GOVERNMENT AND INDIAN
TRIBES.
25 USC 3011. SEC. 13. REGULATIONS.
25 USC 3012. SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
25 USC 3013. SEC. 15. ENFORCEMENT.
LEGISLATIVE HISTORY--H.R. 5237:
CONGRESSIONAL RECORD, Vol. 136 (1990):
Did you get this one?
(7) "Indian tribe" means any tribe, band, nation, or
other organized group or community of Indians, including
any Alaska Native village (as defined in, or established
pursuant to, the Alaska Native Claims Settlement Act),
which is recognized as eligible for the special programs
and services provided by the United States to Indians
because of their status as Indians.
Saving the worse for the last:
To address these in the order of appearance:
(b) UNCLAIMED NATIVE AMERICAN HUMAN REMAINS AND
OBJECTS.--Native American cultural items not
claimed under
subsection
(C) INTENTIONAL EXCAVATION AND REMOVAL OF NATIVE
AMERICAN HUMAN REMAINS AND OBJECTS.--The intentional
removal from or excavation of Native American cultural
items from Federal or tribal lands for purposes of
discovery, study, or removal of such items is permitted
only if--
(d) INADVERTENT DISCOVERY OF NATIVE AMERICAN REMAINS AND
OBJECTS.--
(1) Any person who knows, or has reason to know,
that such person has discovered Native American cultural
items on Federal or tribal lands - after the date of
enactment of this Act shall notify, in writing, the
Secretary of the Department, or head of any other agency
or instrumentality of the United States, having primary
management authority with respect to Federal lands and the
appropriate Indian tribe or Native Hawaiian organization
with respect to tribal lands, if known or readily
ascertainable, and, in the case of lands that have been
selected by an Alaska Native Corporation or group
organized pursuant to the Alaska Native Claims Settlement
Act of 1971, the appropriate corporation or group. If the
discovery occurred in connection with an activity,
including (but not limited to) construction, mining,
logging, and agriculture, the person shall cease the
activity in the area of the discovery, make a reasonable
effort to protect the items discovered before resuming
such activity, and provide notice under this subsection.
Following the notification under this subsection, and upon
certification by the Secretary of the department or the
head of any agency or instrumentality of the United States
or the appropriate Indian tribe or Native Hawaiian
organization that notification has been received, the
activity may resume after 30 days of such certification.
(2) The disposition of and control over any cultural
items excavated or removed under this subsection shall be
determined as provided for in this section.
(3) If the Secretary of the Interior consents, the
responsibilities (in whole or in part) under paragraphs
(1) and (2) of the Secretary of any department (other than
the Department of the Interior) or the head of any other
agency or instrumentality may be delegated to the
Secretary with respect to any land managed by such other
Secretary or agency head.
(e) RELINQUISHMENT.--Nothing in this section shall
prevent the governing body of an Indian tribe or Native
Hawaiian organization from expressly relinquishing control
over any Native American human remains, or title to or
control over any funerary object, or sacred object.
(1) The
inventories and
identifications required under subsection (a) shall
be--
(1) If the cultural affiliation of any
particular Native American human remains or associated
funerary objects is determined pursuant to this section,
the Federal agency or museum concerned shall, not later
than 6 months after the completion of the inventory,
notify the affected Indian tribes or Native Hawaiian
organizations.
(2) The notice required by paragraph (1) shall include
information--
(3) A copy of each notice provided under paragraph (1)
Federal
shall be sent to the Secretary who shall publish each
Register,
notice in the Federal Register.
publication.
(1) The summary required under
subsection (a) shall be--
SEC. 8. REVIEW COMMITTEE. 25
USC 3006.
(2) The Secretary may not appoint Federal officers
or
employees to the committee.
(d) Any records and findings made by the review
committee
pursuant to this Act relating to the identity or
cultural
affiliation of any cultural items and the return
of such
items may be admissible in any action
brought under
section 15 of this Act.
(h) ANNUAL REPORT.--The committee established under
subsection (a) shall submit an annual report to the
Congress on the progress made, and any barriers
encountered, in implementing this section during the
previous year.
(c) ACTIONS TO RECOVER PENALTIES.--If any museum fails
to pay courts. an assessment of a civil penalty pursuant
Courts.
to a final order of the Secretary that has been issued
under subsection (a) and not appealed or after a final
judgment has been rendered on appeal of such order, the
Attorney General may institute a civil action in an
appropriate district court of the United States to collect
the penalty. In such action, the validity and amount of
such penalty shall not be subject to review.
(1) limit the authority of any Federal agency or museum
to--
(2) delay actions on repatriation requests
that are
pending on the date of enactment of this Act;
This Act reflects the unique relationship between
the
Federal Government and Indian tribes and Native
Hawaiian
organizations and should not be construed to
establish a
precedent with respect to any other individual,
organization or foreign government.
The Secretary shall promulgate regulations to
carry out
this Act within 12 months of enactment.
There is authorized to be appropriated such sums
as may
be
necessary to carry out this Act.
The United States district courts shall have
jurisdiction
over any action brought by any person alleging a
violation
Courts. of this Act and shall have the authority to issue
such
orders as may be necessary to enforce the
provisions of
this Act.
Approved November 16,1990.
HOUSE REPORTS: No. 101-877
(Comm. on Interior and
Insular Affairs).
Editor's Note: I have read this and I understand this.
There are some subtleties that, though they seem solid,
have a built-in gate that you can drive a truck through.
4)"Federal agency" means any department, agency, or
instrumentality of the United States. Such term does not
include the Smithsonian Institution.
(9) "Native American" means of, or relating to, a tribe,
people, or culture that is indigenous to the United
States.
The Smithsonian seems to fall through the cracks, exempted as a
museum and a Federal institution.
Tribes must be recognized by the same folks the tribes
would be contesting.
The indigenous peoples say that they have always been here.
The "experts" say that this
continent was populated by migration across Berengia.
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