In the Smaller Scope of Conscience: The Struggle for National Repatriation Legislation, 1986–1990

5. Two Practices, No Policy

79 chapter five Two Practices, No Policy On November 21, 1989, seven days before President George H. W. Bush signed the National Museum of the American Indian (NMAI) Act into law, Senator Daniel Inouye offered another repatriation bill. In introducing S. 1980, Inouye began by lauding the Smithsonian Institution for taking a courageous step when it agreed to return remains and artifacts in its collection that belong to Native Americans. “Ideally,” he continued, “it should be incumbent on the museum community itself, including anthropologists , archaeologists, and museum professionals to set ethical standards that respect the rights of other human beings and groups of people. In practice, however, not all institutions and individuals who engage in the excavation, collection, or trade of Native American artifacts respect the rights of Native Americans.”1 With the situation regarding human remains and associated funerary objects in the Smithsonian collections resolved , at least for the time being, Inouye joined Representative Morris Udall and Senator John McCain in efforts to expand repatriation requirements to the rest of the nation’s museums. Inouye’s S. 1980 Portions of S. 1980 were quite similar to Udall’s and McCain’s earlier efforts . In particular, the new bill required all federal agencies and other institutions that received federal funds to inventory all Native American human remains, funerary objects, and sacred objects in their collections.2 80 • In the Smaller Scope of Conscience Inouye’s bill differed from the earlier efforts by extending the definition of “museum,” and thus the related inventory requirement, to persons receiving federal funds.3 The new bill would have required the inventories to be more comprehensive as well, including Native American group or cultural patrimony along with human remains, funerary objects, and sacred objects. “Cultural patrimony” was defined as items having historical, traditional , or cultural importance to the Native American group or culture itself, rather than property owned by any individual, which therefore could not be legally alienated, appropriated, or conveyed by any individual.4 Federal agencies and museums were required to initiate an inventory process for such items in consultation and cooperation with traditional Indian and Native Hawaiian religious leaders and tribal government officials.5 Identification of human remains and other objects was to be based on the best available scientific and historical documentation, the same standard included in the NMAI Act. By June 30, 1992 (three months after the inventories were to be completed), federal agencies and museums were required to notify Indian tribes and Native Hawaiian organizations of all human remains, funerary objects, sacred objects, or items of cultural patrimony established by a preponderance of the evidence as originating with that group.6 The repatriation standards in Inouye’s bill applied differently to federal agencies and museums. Federal agencies were required to expeditiously return human remains and any associated funerary objects to the descendants , culturally affiliated Indian tribe, or appropriate Native Hawaiian organization.7 Federal agencies were also required to expeditiously return funerary objects, sacred objects, and cultural patrimony associated with a specific burial site to the culturally affiliated Indian tribe, or funerary objects removed from a specific Native Hawaiian burial site to the appropriate Native Hawaiian organization.8 In contrast to the clear directive provided for federal agencies, the standard for repatriation to be used by museums involved a process for weighing the museum’s legal title against the interests of Native American individuals, Indian tribes, and Native Hawaiian organizations. On receipt of a claim, the initial burden of proof fell on the museum with possession or control of the items to prove that it had legal title.9 If the museum could not satisfy this requirement, the burden of proof shifted to the claimant to show that the human remains were of an ancestor or were culturally affiliated with the Indian tribe or Native Hawaiian organization, or that the funerary objects, sacred objects, or cultural patrimony were once owned or possessed by the Indian tribe or Native Hawaiian organization.10 Museums were required to expeditiously re- Two Practices, No Policy • 81 turn human remains or objects if they could not prove legal title and the claimant satisfied its burden of proof.11 Some in the museum community argued that these burden of proof requirements reversed the normal property law standard in which the burden always rested with the claimant. However, placing the burden of proof on the museum was consistent with a 150-year-old federal statute that...