New legislation to restore repatriation law to its original intent has broad support in Indian country and should be supported by all fair-minded people. It has drawn hysterical reactions and misrepresentations in the mainstream press from those who never wanted repatriation law in the first place.
The legislation proposes to add 13 words to the definition of ''Native American'' in the Native American Graves Protection and Repatriation Act of 1990. The definition now reads: '''Native American' means of, or relating to, a tribe, people, or culture that is indigenous to the United States.''
Under the new legislation, the definition, with the clarifying words in italic, would read: '''Native American' means of, or relating to, a tribe, people, or culture that is or was indigenous to any geographic area that is now located within the boundaries of the United States.''
This definition is contained in S. 2087, The Native American Omnibus Technical Corrections Act of 2007, which was introduced Sept. 25 by Sen. Byron L. Dorgan, D-N.D., and Sen. John McCain, R-Ariz. Dorgan is chairman of the Senate Committee on Indian Affairs. McCain is a member of the committee and its former chairman.
The committee favorably reported S. 2087 for Senate floor action Sept. 27. The legislation has been championed by the other past chairmen of the committee, former Sen. Ben Nighthorse Campbell, R-Colo., and Sen. Daniel K. Inouye, D-Hawaii. They, together with McCain, were primary sponsors of NAGPRA.
The reason the new legislation is necessary is because of a misreading of the NAGPRA definition by judges in the case of the Ancient One (aka, ''Kennewick Man''). In their zeal to allow federal and federally funded scientists to continue to slice and dice the 9,000 remains, the judges said that when Congress used the word ''is'' in the 1990 definition, it meant to include only those human remains that post-dated the establishment of the United States. Because the Ancient One pre-dated the United States, they said NAGPRA did not apply.
At the time of negotiation and congressional consideration of NAGPRA, no scientific organization, no federal agency, no Native American, no museum and no one on Capitol Hill was confused by the definition of ''Native American.'' Everyone understood that NAGPRA applied to human remains and sacred objects pre-dating the United States.
In their 2004 petition for rehearing, the Colville Tribes, Nez Perce Tribe, Umatilla Tribes and Yakama Nation pointed out that the 9th Circuit Court of Appeals' definition is at odds with a natural reading of ''Native American.'' ''Statutory language must be read in context [since] a phrase gathers meaning from the words around it.'' Using common dictionary definitions of the words surrounding ''is,'' the tribal petitioners argued that the court ''erred by solely focusing on the term 'is' in the abstract, rather that seeking the meaning of the entire phrase 'tribe, people, or culture that is indigenous.'''
The petitioners instructed that Congress had rejected more limiting definitions: ''Congress' intent that the statute apply broadly is also evident from the legislation that pre-dated NAGPRA. Congress rejected restrictive definitions ... in four previous bills that would have narrowly defined 'Native American' as including only 'American Indians ... Native Alaskans, Native Hawaiians ... and the descendants of such individuals.' The definition Congress ultimately adopted is more expansive, eliminating the term 'Indian' as a modifier of 'tribe' and eliminating a familial relationship to a present day political entity.''
The petitioners said that the court ''ignored the maxim that where the final version of a statute deletes language contained in an earlier draft, it is presumed that the earlier draft was inconsistent with Congress' ultimate intentions, and erroneously put back in the statute words Congress deliberated left out.''
The court was unmoved. By redefining the NAGPRA definition, the court was able to hold that NAGPRA did not apply to the Ancient One at all. Instead, the court ruled that the Archaeological Resources Protection Act did apply and gave the human remains to scientists to study. Ironically, NAGPRA was enacted in order to recognize Native American human rights and to get away from ARPA, under which Native people are federal archaeological resources and property and not human beings.
The court ruling created a legal fiction that perpetuated a deception that studies had not already been conducted on the Ancient One. Kennewick scientists actually are advancing a white supremacist theory. In obscure pseudo-scientific legalese, they whisper to reporters and others that they are on a mission to find out if Kennewick Man is a white man and to prove that Europeans were here before Native peoples. They leave out the part that they studied the Ancient One before going to court and already concluded that he was Native and not European.
Under the loophole the 9th Circuit created, foot-draggers can try to silence Native Americans again and to study remains or cultural objects in order to find out if they are Native American in order to find out if NAGPRA obtains in order to ask Native Americans if studies should be conducted.
Kennewick scientists say that no studies would be conducted if it were up to Native Americans. This is a lie and they know it's a lie. They know better than anyone how many past and ongoing studies have the approval of and/or participation by Native peoples. They also say that this amendment would overturn the Kennewick decision, which it would not and they know it would not. Their big lie is that the NAGPRA amendment would give Kennewick Man back to the Indians.
The 54 tribal governments of the Affiliated Tribes of Northwest Indians met Sept. 20 and called for the ''introduction and swift passage'' of the 13-word amendment, saying that it ''would address the problems created by judicial interpretation of NAGPRA in one circuit and would restore to NAGPRA the congressional intent behind the legislation, the understandings of Native Americans in agreeing to the legislation, and the spirit of the law.'' The National Congress of American Indians also endorses the NAGPRA amendment.
NAGPRA recognized Native Americans' human rights, civil rights, religious rights, family rights and scientific rights. It recognized the rights of living peoples to examine their past under terms consistent with their customs and traditions. This amendment would restore Native peoples' voices in these matters. It's time for Congress to put NAGPRA back together again.
Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.