The  Smithsonian points to the definition of inventory added by the 1996  amendments in support of its interpretation, noting that one could easily  construe the consultation requirement to apply with greater force to the  requirement to use the best available scientific and historical  documentation to identify the origins of the human remains and objects  rather than to the development of the inventories. The committee report, however, also notes that one  intent of the amendments was to ensure that the requirements for the  inventory, identification, and repatriation of human remains and funerary  objects in the possession of the Smithsonian was being carried out in a  manner consistent with NAGPRA, which suggests that the Smithsonian  should have included geographic and cultural affiliations in its inventory  to the extent practicable based on information held by the Smithsonian. However, more than  21 years later, these efforts are still under way. Smithsonian’s Progress in Offering Human Remains and Objects for Repatriation Has Been Slow

From the passage of the NMAI Act in 1989 through December 2010, the  Smithsonian estimates that it has offered to repatriate the Indian human  remains in approximately one-third (about 5,280) of the estimated  19,780 catalog numbers identified as possibly including Indian human  remains since the act was passed. The Smithsonian generally makes repatriation decisions based on the case  reports prepared by case officers at each museum. At the pace the  Smithsonian has been going, it could take decades more to prepare case  reports for the remaining human remains and funerary objects in its  collections. In addition, although the Review Committee has heard  few disputes, no independent appeals process exists to challenge the  Smithsonian’s cultural affiliation and repatriation decisions. The American Indian Museum did not exist at the time of enactment:  Since the American Indian Museum did not exist at the time of the act’s  enactment in 1989, the Smithsonian’s legal view is that it did not have any  collections that could be subject to the act’s repatriation provisions. The Review Committee Monitors the Natural History Museum but Does Not Report to Congress

To fulfill its responsibility under the NMAI Act to monitor and review the  inventory, identification, and return of Indian human remains and objects,  the Review Committee has performed a number of activities to oversee the  Natural History Museum’s repatriation process including the following:    Assessing the Natural History Museum’s progress in implementing the  act: The committee generally meets twice annually with Repatriation  Office staff and sometimes with other museum staff, including  management, to discuss the status of ongoing claims and other  repatriation activities. Reviewing museum case reports: The committee’s reviews of the  Repatriation Office’s repatriation case reports are intended to offer an  “independent appraisal of whether the case reports provide a fair and  objective consideration and assessment of all relevant information,”  according to the Review Committee annual report. Most Human Remains and Many Objects Offered for Repatriation Have Been Repatriated, but the Smithsonian Has No Policy on Culturally Unidentifiable Items

The Smithsonian estimates that, of the items offered for repatriation, it has  repatriated about three-quarters of the Indian human remains, about half  of the funerary objects, and almost all the sacred objects and objects of  cultural patrimony. Some items have not been repatriated for a variety of  reasons, including tribes’ lack of resources, cultural beliefs, and tribal  government issues. In addition, the Smithsonian has not repatriated some  human remains and funerary objects that it has determined to be culturally  unidentifiable, and it does not have a policy on how it will undertake the  ultimate disposition of these items. The Smithsonian’s Repatriation Policies Do Not Discuss How to Handle Culturally Unidentifiable Items

The NMAI Act requires the Smithsonian, upon request, to repatriate  culturally affiliated Indian and Native Hawaiian human remains and  funerary objects. In the absence of a Smithsonian policy  for these human remains and objects, the Smithsonian’s actions in  handling culturally unidentifiable items lack transparency for both tribes  and policymakers. This process is lengthy in  part because the Smithsonian believes it must base every cultural  affiliation decision on the best available scientific and historical  documentation because of its legal and fiduciary duties. Matter for Congressional Consideration

Congress may wish to consider ways to expedite the Smithsonian’s  repatriation process including, but not limited to, directing the  Smithsonian to make cultural affiliation determinations as efficiently and  effectively as possible. Direct the Secretary of the Smithsonian to expand the Review Committee’s  jurisdiction to include the American Indian Museum, as required by the  NMAI Act, to improve oversight of Smithsonian repatriation activities. We were asked  to determine  1.  the extent to which the Smithsonian has fulfilled its repatriation  requirements and what challenges it faces, if any, in fulfilling its  requirements; 2.  how the special review committee provisions in the NMAI Act have  been implemented and the challenges the committee faces, if any, in  fulfilling its requirements; and 3.  the number of human remains and objects that have been repatriated  and the reasons for those that have not.
Why GAO Did This Study

The National Museum of the American Indian Act of 1989 (NMAI Act), as amended in 1996, generally requires the Smithsonian Institution to inventory and identify the origins of its Indian human remains and objects placed with them (funerary objects) and repatriate them to culturally affiliated Indian tribes upon request. It also creates a special committee to oversee this process. According to the Smithsonian, two of its museums--the American Indian and the Natural History Museums-- have items that are subject to the act. GAO was asked to determine (1) the extent to which the Smithsonian has fulfilled its repatriation requirements, (2) how the special committee provisions have been implemented, and (3) the number of human remains and objects that have been repatriated and reasons for any that have not. GAO reviewed museum records, including 171 repatriation case reports, and interviewed Smithsonian, Repatriation Review Committee, and tribal officials.

What GAO Found

Since the NMAI Act was enacted, in 1989, more than 21 years ago, the Smithsonian has offered to repatriate over 5,000 human remains, which account for approximately one-third of the total estimated human remains in its collections. The Smithsonian has also offered to repatriate over 212,000 funerary objects, but the extent of progress is unknown because the Smithsonian has no reliable estimate of the total number of such objects in its collections. The Smithsonian generally makes repatriation decisions based on detailed case reports, and had completed 171 case reports as of December 31, 2010. Developing these case reports is a lengthy and resource-intensive process, in part because the NMAI Act generally requires the Smithsonian to use the best available scientific and historical documentation to identify the origins of its Indian human remains and funerary objects. The Smithsonian originally estimated that the repatriation process would take about 5 years; however, at the pace that it is progressing, GAO believes it could take several more decades to complete this process. In response to the special committee requirements of the NMAI Act, the Smithsonian established a Repatriation Review Committee to monitor and review the Natural History Museum's repatriation activities. Although the Smithsonian believes Congress intended to limit the committee's jurisdiction to the Natural History Museum, the statutory language and its legislative history do not support that view. Since it was established, the committee has provided no oversight over the repatriation activities of the American Indian Museum. In addition, GAO found that neither the Smithsonian nor the committee has provided regular information to Congress on the repatriation progress at the Smithsonian. Although this reporting is not required by the act, given the length of time this process has taken and is expected to take in the future, policymakers do not have information that would keep them apprised of the Smithsonian's repatriation efforts. The committee also hears disputes concerning decisions over the return of human remains and objects, but it does not make binding decisions. Moreover, the Smithsonian has no independent administrative appeals process by which tribes who would like to challenge a repatriation decision can seek recourse, and judicial review of the Smithsonian's repatriation decisions may not be practical. Through December 31, 2010, the Smithsonian estimates that, of the items it has offered for repatriation, about three-quarters of the Indian human remains (4,330 out of 5,980) and about half of the funerary objects (99,550 out of 212,220) have been repatriated. The remaining items have not been repatriated for various reasons, including tribes' lack of resources and cultural beliefs. Resources needed include staff to work on repatriations and appropriate locations to rebury or house the items. In addition, the Smithsonian has not repatriated approximately 340 human remains and 310 funerary objects because it has determined that they cannot be culturally affiliated with a tribe, and it does not have a policy on the disposition of these items. The lack of such a policy limits the transparency of the Smithsonian's actions in handling culturally unidentifiable items for both tribes and policymakers. GAO suggests that Congress may wish to consider ways to expedite the Smithsonian's repatriation process, and recommends that the Smithsonian take actions to expand the oversight and reporting role of the special committee, establish an administrative appeals process, and develop a policy for the disposition of culturally unidentifiable items. The Smithsonian agreed with GAO's findings and recommendations.