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Smithsonian Letter to Judge Jelderks

Smithsonian Institution
Washington DC 20560

October 15, 1996

By Facsimilie:

Lester Edelman, Esq.
Chief Counsel
United States Army Corps of Engineers
20 Massachusetts Avenue, N.W.
Washington, D. C. 20314-1000

Subject: Excavation and Repatriation of "Richland Man"

Dear Mr. Edelman:

Please call me immediately to discuss this matter. Pursuant to this letter the Smithsonian Institution notifies the Army Corps of Engineers that the Smithsonian Institution objects to the scheduled repatriation and reburial on October 28, 1996, of the human remains discovered on or about July 1996, in Washington State, on the grounds that such action is premature and inconsistent with the Smithsonian Institution's interest in these remains [Title 20, United States Code, Sections 50 & 59.]

It is the Institution's position that insufficient research has been conducted on the remains, known as "Richland Man", to determine whether or not they are Native American and, if so, whether they are culturally affiliated with a current-day Native American tribe. If the remains are not Native American, as some experts have speculated, there is no authority under the Native American Graves Protection and Repatriation Act ("NAGPRA") to repatriate them. Moreover, even if the remains are determined to be Native American, but there is insufficient evidence of cultural affiliation with the tribe seeking their return, the remains must be considered as "unaffiliated." At present, there are no legal or regulatory guidelines for return of such unaffiliated remains.

The Smithsonian further regards this repatriation as inconsistent with statutory provisions establishing the Institution. Specifically Title 20, United States Code, Section 50, derived from the Act of August 10, 1846, creating the Smithsonian Institution, provides generally that:

"all objects of art and of foreign and curious research, and all objects of natural history, plants, and geological and mineralogical specimens belonging to the United States…in whosoever custody they may be, shall be delivered to such persons as may be authorized by the Board of Regents to receive them, and shall be so arranged and classified in the building erected for the Institution as best to facilitate the examination and study of them;"

This provision ha been used extensively as the basis for federal agencies, such as the Army Corp of Engineers, to deliver to the Smithsonian specimens and objects removed from federal land. It has also been used by the Smithsonian to require that materials recovered from federal lands be turned over to us.

A second provision of the Smithsonian's founding legislation further supports the Institution's position. Section 59 of Title 20 provides that:

"All collections of rocks, minerals, soils, fossils, and objects of natural history, archaeology, and ethnology, made by … or by any other parties for the government of the United States, when no longer needed for investigations in progress shall be deposited in the National Museum" (emphasis added).

For the following reasons, these provisions support the Smithsonian's request that the remains be transferred immediately to the Institution for further study.

First, these provisions are not discretionary; rather they compel certain types of materials to be deposited in the Smithsonian. Second, these provisions have not been superseded by NAGPRA, nor are they inconsistent with NAGPRA. Where human remains have been identified as Native American and where a requesting party has demonstrated cultural affiliation according to the NAGPRA burden of proof, it is appropriate to repatriate the remains. Where, however, as in this case, the evidence of Indian identity and cultural affiliation is inconclusive, repatriation would not be justifiable under NAGPRA. Rather, it would be consistent with the purposes of NAGPRA and the statutory provisions cited above, to transfer custody of the remains to the Smithsonian for further study. Once such study has been conducted, there may be sufficient evidence of identity and cultural affiliation to proceed under NAGPRA. At this time, however, it would be premature to do so.

Therefore, the Smithsonian requests that the repatriation scheduled for October 28, 1996, be postponed pending transfer of the remains to the Smithsonian for further study. In keeping with the spirit of NAGPRA (which does not apply to the Smithsonian), an dour own National Museum of the American Indian Act, which governs the Smithsonian's repatriation activity, the Institution invites the Umatilla Tribe, and any other tribe that has asserted an interest in these remains to participate in the analysis of "Richland Man." The Institution's Department of Anthropology already has made such a proposal to the Umatilla Tribe, but has not yet received a response.

The Smithsonian is not interested in preventing reburial of Native American human remains that are culturally affiliated with a contemporary tribe. To the contrary, the Smithsonian ha been a leader in the repatriation effort, having returned more human remains to Native American people than any other institution around the country. Rather, our interest is in ensuring that materials of extraordinary scientific value are not prematurely or wrongfully reburied due to insufficient information.

Please call me as soon as possible so that we can discuss this. Thank you.

John E. Huerta
General Counsel
Smithsonian Institution
Room SI-302, MRC 012
Washington, D.C. 20560
(202) 357-2583
(202) 357-4310 (FAX)

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