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SPONSOR: |
Tsosie |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Repatriation Act |
SB |
673 |
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ANALYST: |
Weber |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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Significant – See Narrative |
Recurring |
General
Fund |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Attorney
General
Office
of Indian Affairs
Office
of Cultural Affairs
SUMMARY
Synopsis
of Bill
Senate Bill 673 (SB 673) proposes to create a
state Repatriation Act similar to the federal Native American Protection and
Repatriation Act, 25 U.S.C. 3001, PL 101-601(Nov. 16, 1990). The state law would provide for the
disposition and/or repatriation of Indian tribal human remains and funerary
objects for tribes located within and around
Significant
Issues
Each of the three responding agencies offered
extensive and often overlapping analysis of SB 673. The following is principally from the Office
of Indian Affairs response.
The Repatriation Act
states that an agency that has control over human remains, sacred objects,
funerary objects or objects of cultural patrimony will complete an inventory within
six months. The Native American Graves
and Repatriation Act (NAGPRA) was passed in Nov. 1990, and there was provision for grants for museums to
hire staff to assist them in completing draft inventories, and well as the
procedures for inventories and notification to the Tribes. The grant funding ended in 1995. However, all institutions that receive
Federal money had to comply with NAGPRA.
The Museum of Indian Art and Culture completed their draft inventory
which has been sent out and received by the Tribes. To complete an inventory that is correct and
complete, there must be more time allowed and funds must be allocated to hire
additional full time staff specifically for this project. Printing of the inventory will be voluminous
and as written in this legislation, would also be distributed by the New Mexico
Commission on Indian Affairs. Printing
of these inventories will be costly, and funding for printing is not mentioned
in this legislation.
Federal law
supercedes State law, and NAGPRA would supercede the Repatriation Act. NAGPRA is the greatest human rights law ever
written, and gave Tribes control over their ancestral remains, affiliated and
unaffiliated burial objects, sacred objects and objects of cultural patrimony. NAGPRA also recognizes that oral history,
aboriginal lands, folklore, and ceremonies in providing the burden of proof of
cultural affiliation. There is a NAGPRA
Advisory Committee that handles disputes, and as well as NAGPRA provisions for
inventories and reporting. Consultations
with tribes are not mentioned, nor are meetings between tribal entities to
settle a dispute.
The Executive
Director of the Office of Indian Affairs and the State Historic Preservation Officer
are assigned the task of determining the cultural affiliation or direct kinship
relationship with a tribe, or if the case should be taken before the
Repatriation Commission. This task is
very specific in nature and requires incredible expertise. When there is discovery, currently the State
Historic Preservation Division contacts tribes that
may be affiliated or related by direct kinship, and then forwards a letter to
the Office of Indian Affairs. The OIA
then contacts all 22 tribes, forwarding a copy of the letter from HPD which
states the exact location of the site and with specifics. The Tribes then would contact HPD directly if
they wished to make a claim. This way it
is more inclusive and less subjective.
The Hopi and Plains Tribes also may have claims.
The Repatriation Act
also establishes a nine member Repatriation Commission, who would be appointed
by the Governor for two years. There
isn’t an appropriation attached to the legislation to provide for the
Repatriation Commission.
In Section 6, (C) it
states that each language group spoken by the tribes in
Legislation
needs to be drafted that addresses inadvertent discovery on private lands, and
that has “teeth”—strong penalties for those who desecrate graves and sell the
remains and associated and unassociated funerary objects. Private landowners
can receive permits from a city or town, and build without impunity or without
prior archaeological excavation, if a landowner knows how to circumvent the
State. A State Repatriation Law could
offer punitive alternatives.
A State Repatriation
Act could compliment NAGPRA and cover the issues that are not addressed in
NAGPRA. Punitive measures that are
extensive and strict would be a deterrent to grave robbers, pot hunters,
exploitive gallery owners, and private owners who desecrate and exploit burial
sites on their land.
The Repatriation Act
could also provide for a
A very important
point of this legislation is that any human remains or sacred objects that are
in the custody of an institution should be treated with dignity and respect
with allowances for traditional care of the objects (Section 5, #D).
This is a very
important step in creating legislation that deals with the processes of repatriation
and a great attempt to get most of the human remains and associated sacred objects
and objects of cultural patrimony back to their tribes. NAGPRA is the vehicle for this. However, stipulations can be made and
processes directed for advertent/inadvertent discovery on private and State
lands, and longer periods of contact other than the 30 day which is currently
in effect, for tribes to respond to notification from the Historic Preservation
Division and the Office of Indian Affairs.
The Office of
Attorney General offers a concern relating to the section related to the Open
Meetings Act. SB
673 proposes to amend the Open Meetings Act to permit the discussions of the
proposed Repatriation Committee to be closed to the public. Under the enumerated exemptions of the Open
Meetings Act, the discussions of the proposed Repatriation Commission do not
clearly fall within any exemption. It
would be inconsistent with the intent of the Open Meetings Act to permit the
discussions of the Repatriation Commission to be closed. It is unclear whether the decision making
process by the Repatriation Commission is an adjudicatory-type hearing or
general discussion. It does not further
due process and fairness if the deliberations of the Repatriation Commission
are closed when an agency’s legal rights may be at issue, or if an agency
objects to a repatriation request.
FISCAL IMPLICATIONS
Legislative appropriations may have to be made
to fund the additional duties of the Office of Indian Affairs and its executive
director, the State Historic Preservation Officer and the newly formed
Repatriation Commission.
The Office of the Attorney General will also
assume a new client agency in the newly created Repatriation Commission. The annual fiscal implications for the AGO
will be $75,000 salary plus 33% benefits.
TECHNICAL ISSUES
The Office of Cultural Affairs sites a variety
of clarifications.
Generally: definitions of essential terms and concepts
(“reasonably traced,” “strong evidence,” and even “tribe”) are more ambiguous
than in the analogous federal legislation, NAGPRA. These need to be tightened to improve implementation. Care must be taken to distinguish rights and
protections of burials that are not Native American, including other
non-European descendants. Another
potentially difficult technical issue is that the most relevant consultants
(descendants) of individual burials may not be
Specifically:
·
Section
2.B. “cultural
affinity” is defined to include “a link that can be established through common
use of a geographic site.” This
provision is not included in NAGPRA and appears to be so broad as to include
private land.
·
Section
2.D. “funerary
object” is defined to include “interment…identified to be related to specific remains
or a specific site.” This provision is
not included in NAGPRA and appears overly broad; substitution of “and” for “or”
would be less vague.
·
Section
2.H. The definition of “remains” substantially overlaps with the existing
definition of “human burial” found at 18-6-11.2.B(2).
It seems reasonable to cite the existing statutory definition for comparability.
·
Section
2.G. “object of tribal patrimony” is defined to address inalienable property
only. NAGPRA provides for property
legally owned (alienable) by an individual and it appears this provision should
be included in the definition for comparability.
·
Section
2.I. NAGPRA defines “sacred object” as a
“specific ceremonial object” with continuing language. The proposed definition of “object” is vague.
·
Section
2.K “tribe” as
defined excludes tribes in neighboring states that have traditional use areas
as well as a historic presence in
·
Section
3.B(1) – the “
·
Section
3.D. Providing the inventory to “any
person who requests a copy of the inventory” appears inappropriate and
insensitive. In addition, any item
brought to the courts in the future that is not on such a list could be used by
the defense attorney as evidence that the item(s) in question are not cultural
patrimony.
·
Section
7.H(11) will probably require a formal argument to
exempt the meetings of the Repatriation Commission from the Open Meetings Act.
MW/ls