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How many dead Indians will satisfy feds and scientists?

The Senate Committee on Indian Affairs is fighting an uphill battle to
defend its 1990 national repatriation law and to clean up the mess created
by activist judges who overrode congressional intent in 2004 and wrote
their own law.

The committee is attempting to fix the problem by making a small change to
the Native American Graves Protection and Repatriation Act's definition of
"Native American."

First proposed in the committee's public hearing on July 14, 2004, the
amendment would add "or was" to the definition, so the term "Native
American" would mean of, or relating to, a tribe, people, or culture that
is or was indigenous to any geographic area that is now located within U.S.

Federal and federally funded scientists have held up the amendment for over
a year.

These are the same scientists, including plaintiffs in the "Kennewick Man"
case, who fought to keep repatriation agreements from being enacted and
have been trying to dismantle them since NAGPRA was signed into law.

Their present goal is to play for time to get Interior Department
regulations that would extend the Kennewick decision beyond the Ancient
One, who was the only person at issue in the litigation, and would lock up
hundreds of thousands of Native human remains indefinitely for unspecified

The problem arose when judges in the "Kennewick Man" case simply declared
that the Ancient One could not be buried by his cultural descendants
because he was not a "Native American" under NAGPRA. By declaring that he
did not meet the NAGPRA definition, the judges were able to sidestep the
very law that Congress wrote to protect the Native dead, known and unknown,
and their relatives.

Their decision meant that federal and federally funded scientists could
drill more holes in the Ancient One, but this is an elaborate charade in
the name of scientific discovery about who populated this hemisphere when.

In fact, the tests were concluded many years ago, demonstrating that the
Ancient One is related to Native people here and is not from France or
other foreign places, as the scientists have suggested to judges,
bureaucrats, congressional staffers and reporters.

Interior is bowing to the "Kennewick" decision as the law of the land, even
though none of the other judicial circuits have misread repatriation law in
the same way. This paves the way for regulations that the scientists want
to protect their "studies" on the myriad dead Indians they view as their

The Indian committee held another oversight hearing July 28. Interior
opposed the amendment because it "would broaden the scope of what remains
would be covered under NAGPRA from the Court's decision ... that the
remains must have a significant relationship to a presently existing tribe,
people, or culture in order to be considered 'Native American.'"

Interior's views on this important Native American human rights law were
presented by a deputy assistant secretary for fish, wildlife and parks,
Paul Hoffman, who testified:

"We believe that NAGPRA should protect the sensibilities of currently
existing tribes, cultures, and people while balancing the need to learn
about past cultures and customs. In the situation where remains are not
significantly related to any existing tribe, people, or culture they should
be available for appropriate scientific analysis. The proposed legislation
would shift away from this balance."

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The balance to which the Interior official referred was a balance struck by
Congress in developing public policy on this issue.

Congress considered the human, civil and religious rights of Native
Americans, living and dead, and the scurrilous ways most of them in the
name of science, art and "civilization" - that hundreds of thousands of
Native people and property ended up in public institutions and collections,
and the nightmares modern Native people encounter when interacting with
those entities.

Congress also considered the interests of museums, scientists, researchers,
art marketers and traffickers in human remains in using dead Native people
and living sacred and cultural items for their "studies," displays and

The repatriation laws were the result of Native American negotiations with
various entities and congressional considerations of the views. Congress
struck a balance in the public interest.

Now, a tiny, elite and exclusive group wants to own and control greater and
greater numbers of dead Indians and does not mind overturning and
discarding public policy, American Indian rights and federal laws in order
to get their way.

Organizations representing scientists who were part of the agreements
reached and balances struck in NAGPRA presented careful testimony for the
July 28 hearing about supporting the amendment, but opposing the process
and wanting more time. One, representing the physical scientists who
opposed any recognition of Native American human rights in NAGPRA, bluntly
stated that Congress should not act until Interior has published its

A statement supporting the amendment was offered for the hearing record by
Armand Minthorn, who is a relative of the Ancient One, chair of the
cultural resources committee and a trustee of the Confederated Tribes of
the Umatilla Indian Reservation in Oregon.

Minthorn testified that the Umatilla Tribes support the amendment "so that
all tribal ancestors are protected under the law, not merely those
determined by agencies, museums and scientists to be related to existing
tribes." He stated that they lost their nine-year "painful battle to return
these ancestral remains to the ground" on a "technicality [which] creates a
loop-hole that eclipses the law and must be corrected."

Minthorn also decried Interior's decision to pay "Kennewick" case
attorneys' fees out of NAGPRA grant monies: "Adding final insult to injury,
to take the money away from tribes and museums who implement NAGPRA to pay
the attorneys fees to those who sought to and succeeded in eviscerating the
law is beyond the pale. Tribes and museums need those grants to pursue
repatriations of ancestors long-denied their rightful home in the earth."

The positions of Interior and the scientists in this matter are reminiscent
of the days when the United States would make treaties, then break their
promises because they wanted even more land.

Interior once cleared Indian title and territory for westward expansion.
Today, as public and private developers want more Indian lands for gold
mines, oil pumps, border fences and shopping malls, Interior is in the
business of clearing Indian claims to burial grounds by declaring that the
people buried there are not Native Americans.

No amount of bodies or acres will satisfy the feds or scientists who are
opposing the NAGPRA recalibration.

It is time for Congress to stop this sacrilege and indecency, and to let
Native people rest in peace.

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.