| 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.
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