In the Smaller Scope of Conscience

The Struggle for National Repatriation Legislation, 1986–1990
C. Timothy McKeown


On November 28, 1989, President George H.W. Bush signed into law the National Museum of the American Indian Act (NMAI Act) which included provisions requiring the repatriation of human remains and funerary objects in the possession or control of the Smithsonian Institution. Almost a year later, on November 16, 1990, Bush also approved the Native American Graves Protection and Repatriation Act (NAGPRA). These two statutes together established a national framework for achieving three related goals. The first is the repatriation of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony, collectively defined as cultural items, in the possession or control of all Federal agencies and institutions receiving Federal funds. The second goal is the disposition of cultural items excavated or removed from Federal or tribal lands. The third goal is the prohibition of commerce in certain Native American cultural items.

The Federal repatriation mandate embodied by the NMAI Act and NAGPRA did not spring forth fully formed from the Senate or House of Representatives. Between 1986 and 1990, members of 99th, 100th, and 101st Congresses considered 16 different numbered bills including repatriation provisions, some with several versions. Each bill reflected the unique experiences of its sponsor and his staff, as well as a progressive refinement over time of the system of definitions and processes that would be applied to repatriation. Each bill also reflected the evolving confrontations, negotiations, and, eventually, agreements between the various constituency groups involved intimately in crafting the legislation. The story of that struggle is the subject of this book.

So why is such a legislative history important? "The less people know about how sausages and law are made," says the old adage, "the better they sleep." Sausage-making involves the selection of ingredients, including various cuts of meat, spices, and seasoning; grinding the ingredients coarsely, then again to the desired consistency; and finally stuffing the ingredients into uniform casings. Law-making involves identification of an end to be attained, mischief to be remedied, or purpose to be accomplished by a Congressional sponsor; refining the relevant terms and processes through a series of drafts, statements, and hearings; markup by the sponsoring committee and issuance of a committee report; passage by the House and Senate; signing as a Public Law by the President; and finally, addition of the law to the corpus of the United States Code. The old adage implies that some aspects of both sausage-making and law-making, if generally known, might result in anxiety, stress, or even depression, the common psychological causes of insomnia. What is not said is that while ignoring the culinary genesis of your meal may provide for restful nights, ignoring legislative history is done at one's peril. Sausages are generally forgotten soon after they are eaten. Statutes, on the other hand, remain guideposts for years, decades, and in cases like the U.S. Constitution, centuries. The specific combination of statutory text, reports, drafts, statements, and hearings leading to their enactment provide each new generation with the references needed to apply a law to new situations. My professional interest in the topic of legislative history began in late 1991 when I was hired by the National Park Service as team leader for national implementation of NAGPRA. One of my primary duties was to draft implementing regulations, including the main body of regulations promulgated in 1995 at 43 CFR § 10, and various reserved sections of that part published in 1997, 2003, 2007, and 2010. Over this nearly two decade period, I immersed myself in the text of the NAGPRA statute and those documents readily available to and relied upon by the legislators in passing the bill to understand the meaning of specific words, phrases, or provisions.

The standard work on the history of the NAGPRA legislation was done by Jack F. Trope from the Association of American Indian Affairs and Walter R. Echo-Hawk from the Native American Rights Fund shortly after the bill was enacted. The authors were intimately involved in negotiating NAGPRA's final language, as they had been with the language of the NMAI Act the year before. However, their 42 page article covers the series of bills and actions that ultimately led to passage of the NMAI Act and NAGPRA in just four pages, the rest of the article being devoted to background information and a review of NAGPRA's provisions. There is no similar article on the genesis of the repatriation provisions of the NMAI Act.

This book has a broader focus. Early on my tenure with the National Park Service I realized that the two statutes were inextricably linked, with many provisions in NAGPRA marking the logical evolution of procedures set forth initially in the NMAI Act. The history of the two statutes needed to be told together. A "legislative history" typically starts with the enacted statute and uses a relatively narrow range of specific congressional documentation to understand the legislative intent of each provision. Chapters one through seven flip this around, starting instead at the beginning of the legislative process to explore the issues in need of legislative remedy; chronicling the actions of lobbying groups; documenting the introduced bills, Congressional hearings, and reports over several Congresses; and ending with the enacted statutes. This "history of the legislation" also relies on a wider range of sources, beyond just the bills themselves and related committee and hearing reports prepared prior to passage, to include hand written meeting notes, emails, faxes, post-enactment recollections, even post-it notes, basically any and all relevant information, to better understand the varied and conflicting intents of Congressional members and staff, executive branch officials, and Native American, museum, and archeological lobbyists involved in this legislative process. Chapter eight, on the other hand, assumes a more traditional approach to legislative history, applying rules of statutory construction to clarify the congressional intent regarding specific provisions of the two enacted statutes and how they have been applied, and on occasion misapplied, in various judicial opinions and executive actions.

The research underlying this book was conducted over two decades and involved many institutions and individuals. The focus is on the evolution of legislative text over time, so much of the primary documentation was derived from libraries and archives, including the Billie Jane Baguley Library and Archives of the Heard Museum, Phoenix, Arizona; Seeley G. Mudd Manuscript Library, Princeton University, Princeton, New Jersey; National Anthropological Archives, National Museum of Natural History, Suitland, Maryland; Smithsonian Institution Archives, Washington, DC; Main Library Special Collections, University of Arizona, Tucson, Arizona; George Bush Presidential Library and Museum, College Station, Texas; Center for Legislative Archives, National Archives, Washington, DC; and Special Access and FOIA Staff, National Archives, College Park, Maryland.

But the documents only tell so much of the story. I was also interested in documenting the unwritten context of the various bills were developed. Applying my training as a linguistic anthropologist, I conducted recorded interviews with a number of the principal congressional staffers involved in the development of the NMAI Act and NAGPRA, utilizing an interviewing approach that emphasizes the identification of semantic categories, relationships, and cases to document the insider's perspective on the legislative process.

Copyright © 2012. The Arizona Board of Regents.

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