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6. A Defining Moment
- University of Arizona Press
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113 chapter six A Defining Moment On July 10, 1990, Representative Morris Udall (see figure 6.1) introduced a new bill as a compromise among the various bills already under consideration by the House.1 The first section of H.R. 5237 provided the short title for the new bill—the Native American Graves Protection and Repatriation Act2 —testament to the close connection between Udall’s bill and the draft revision of S. 1980 of the same name being circulated by Senator John McCain.3 Udall’s new bill applied to all federal agencies, defined to include any department, agency, or instrumentality of the United States (including the Smithsonian Institution),4 as well as to all museums, defined to include any person, state, or local government agency (including any institution of higher education) that receives federal funds and has possession of or control over Native American human remains, funerary objects, sacred objects, or objects of inalienable communal property.5 Congress clearly has the authority to require the disposition of property belonging to federal agencies,6 and it also has broad authority to place conditions on the receipt of federal funds as long as such conditions are not used to induce an otherwise unconstitutional result.7 H.R. 5237 identified four categories of protected items, including Native American human remains, funerary objects, sacred objects, and objects of inalienable communal property. The new bill changed the way the term “Native American” was used, from a noun meaning any individual who is either a member of an Indian tribe or a Native Hawaiian or Alaska Native, which was used in earlier bills,8 to an adjective meaning of 114 • In the Smaller Scope of Conscience or relating to a tribe, people, or culture that is indigenous to the United States.9 Human remains were not defined. Udall introduced a new, simpler definition of funerary object, meaning an object that, as part of a death rite or ceremony of a culture, was intentionally placed with individual human remains, either at the time of burial or later.10 The definition of sacred object was also simplified to include any item whose primary purpose when possessed by Native Americans was devoted to a traditional Native American religious ceremony or ritual and which may have a religious significance or function in the continued observance or renewal of such ceremony or ritual.11 “Inalienable communal property” was defined as an item having historical, traditional, or cultural importance central to the Native American group or culture itself, which is associated with such group or culture, rather than property owned by an individual Native American, and which therefore could not be alienated, appropriated, or conveyed by any individual Native American regardless Figure 6.1 Representative Morris K. Udall (D-AZ), chairman of the Interior and Insular Affairs Committee, in his office, March 15, 1985. MS 325, Box 738, Folder 1, Udall Papers; Courtesy of University of Arizona Libraries, Special Collections. [13.58.82.79] Project MUSE (2024-04-17 09:58 GMT) A Defining Moment • 115 of whether the individual is a member of the Indian tribe or Native Hawaiian organization.12 The new bill authorized claims by lineal descendants, Indian tribes, and Native Hawaiian organizations. “Lineal descendant”—which replaced the term “heirs” used in McCain’s version of S. 1980—was not defined in Udall’s bill. “Indian tribes” were defined by explicit reference to the meaning given the term in Section 4 of the Indian Self-Determination and Education Assistance Act.13 “Native Hawaiian organization” meant any organization that serves and represents the interests of Native Hawaiians, has as a primary purpose the provision of services to Native Hawaiians, and has expertise in Native Hawaiian affairs. The Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai’i Nei were explicitly identified as Native Hawaiian organizations.14 As with McCain’s version of S. 1980, Udall’s bill used the term “Native American group” to identify both Indian tribes and Native Hawaiian organizations.15 Section 3—titled “ownership” as in McCain’s version of S. 1980—outlined provisions for determining the ownership or right of control of any human remains, funerary objects, sacred objects, or objects of inalienable communal property found on federal or tribal land after the date of enactment . Federal land was defined to include any land, other than tribal lands, that were controlled or owned by the United States.16 Udall’s definition of “tribal lands” refined that introduced by McCain in his...