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Renee Kosslak

Excerpted from: Renee Kosslak, The Native American Graves Protection And Repatriation Act: The Death Knell For Scientific Study? , 24 American Indian Law Review 129-151, 129-133, 151 (2000)

On November 23, 1990, President George Bush signed into law the Native American Graves Protection and Repatriation Act (NAGPRA). This legislation is the result of decades of effort by American Indians to protect the burial sites of their ancestors against grave desecration and to recover the remains of ancestors and sacred cultural objects in the possession or under the control of federal agencies and museums.

The enactment of NAGPRA is historically significant because it represents a fundamental change in social attitudes toward Native people by museum curators, the scientific community, and Congress. NAGPRA's enactment followed more than a century of mistreatment of native peoples' ancestral dead by non- native people. In enacting NAGPRA, Congress attempted to "strike a balance between the interest in scientific examination of skeletal remains and the recognition that Native Americans, like people from every culture around the world, have a religious and spiritual reverence for the remains of their ancestors." The recent discovery of a nine-thousand-year-old human skeleton on the Columbia River, the Kennewick Man, indicates just how difficult it will be to strike a balance among the diametrically opposed interests of American Indians, on the one hand, and museums, scientists, and the public on the other, who believe that analysis of the past provides a key to the future.

The Kennewick Man has fueled a heated controversy between scientists and American Indians. Scientists who study American prehistory view the discovery of the Kennewick Man as an event of great historical and anthropological significance, and believe that much can be learned from a  detailed study of his remains. Plans to study the Kennewick Man by archaeologists, however, were blocked by the Umatilla Indians who formally claimed the Kennewick Man's remains under NAGPRA. The Army Corps of Engineers (Corps) granted the Umatillas' request. The Umatillas announced they were going to rebury the remains of Kennewick Man in a secret place, where they would never again be available for study. The Umatillas released a written statement in response to the public outcry over the reburial plans:

Our elders have taught us that once a body goes in the ground, it is meant to stay there until the end of time.... We do not believe that our people migrated here from another continent, as the scientists do.... Some scientists say that if this individual is not studied further, we, as Indians, will be destroying evidence of our history. We already know our history. It is passed on to us through our elders and through our religious practices.

The Kennewick Man is now at the center of a legal controversy, the resolution of which will determine the course of American archaeology.

The legal controversy over the remains of the Kennewick Man exposes a fundamental weakness in NAGPRA regarding the disposition of ancient human remains where the ancestral link with present-day American Indians may be questionable. NAGPRA provides little guidance for ascertaining which American Indian tribe, if any, should have control or ownership over culturally unidentified remains. Many American Indians believe that the tribe claiming the remains should have the right to prohibit or to allow research according to their customs. However, the language of the Act and the legislative history surrounding it suggest that the intent was not to ban scientific research, but to achieve the following objectives:

(1) to repatriate American Indian remains and cultural items that were stored in museum and agency warehouses, or were on display as exhibits;

(2) to prohibit, with limited exceptions, the intentional excavation of American Indian graves and * cultural items; and

(3) to suppress illegal trafficking in American Indian remains and artifacts.

 Yet, many feel that, as a result of NAGPRA, less will be learned about prehistoric peoples in the years to come.

This comment suggests that it should be possible both to respect the views of American Indians and to further science and public education by allowing the study of culturally unidentified remains, should a link to present-day peoples or nations need to be established. In instances where "ancient remains" are inadvertently discovered on federal lands, a committee should be appointed to determine the needs and the scope of any proposed scientific research and when repatriation and/or reburial should occur. In cases where conflicting views prevent agreement, a balancing test that weighs the scientific merit of the proposed research with American Indian concerns should be applied by the courts.

This comment discusses how the ambiguity of the language in NAGPRA presented the court in Bonnichsen v. United States with the difficult task of interpreting congressional intent and balancing the competing interests of archaeologists and American Indians. Part II provides the backdrop for the controversy, by describing how American Indian remains, funerary objects, sacred objects, and objects of cultural patrimony ended up in non-native hands. This section also describes the largely unsuccessful pre-NAGPRA demands for the repatriation of American Indian property by American  Indians. Part III examines the scope of NAGPRA and asks if repatriation is an effective tool for returning stolen cultural items and human remains to American Indians. In Part IV, alternative views on the origin of humans in North America are examined. The section ends by evaluating whether NAGPRA is flexible enough to incorporate these different views. Part V concludes by finding that a minimally intrusive scientific study should be allowed, if required, to establish a cultural or biological link with present-day American Indian tribes, and suggests that NAGPRA represents a first step toward resolving these differing points of view.

. . .

NAGPRA is a unique statute because it considers, for the first time in federal legislation, the Native American perspective on the proper treatment of their ancestors. While this is an important first step, future amendments will be necessary to resolve unanswered questions. Specifically, in resolving the question of how to treat "culturally unidentifiable ancient remains" found on federal lands, it will be necessary to allow some scientific study to: (1) establish a biological link to present-day peoples; and (2) satisfy society's desire for knowledge about the past. By encouraging discussion between Native peoples and scientists, it should be possible to allow limited study which can be completed in a discrete time frame and in a culturally sensitive manner.