WASHINGTON - The high drama of a tribal decision on Kennewick Man has
eclipsed the irony and surprise of a Senate hearing on Native remains from
the previous week.
The July 20 New York Times reported that Northwest tribes will not appeal a
U.S. 9th Circuit Court of Appeals decision that sends the oldest and most
complete human remains ever found on North American soil to the laboratory
for anthropological analysis. A Colville Tribes attorney told the Times
that an appeal to the Supreme Court risked setting bad precedent for other
tribes that seek repatriation of remains if the high court were to uphold
the 9th Circuit in San Francisco. Accordingly, the 9th Circuit decision
becomes the law of the land for now.
Anthropologists hope to determine, among other things, whether the remains
widely known as Kennewick Man (after a town near the site of his discovery
on the Columbia River) are actually indigenous to the Americas, as Indians
and many others assume. One of the most sensational speculations about the
Kennewick remains (styled "Ancient One" by Northwest tribes) is that the
skull and features, as reconstructed by archaeologists and other
scientists, bear little resemblance to the traits of indigenous American
Indians. This speculation has led to a variety of others, for instance that
Japan's indigenous Ainu are Kennewick Man's ancestral group.
The Times reported that a spearhead found in the 9,200-year-old remains is
of a type known among Native tribes of the time and region, and added that
anthropologists speculate the Americas have been populated and repopulated
several times over by distinct peoples. According to this school of
thought, the immediate pre-Columbian indigenous peoples - Indians - may not
have been the first occupants of the current Americas.
Interestingly, one of the Times sources speculated that the spearhead in
Kennewiok Man may have come from invading tribes we now know as American
Indian - no thought here that those tribes may have been defending their
homelands against an invader. The group of scientists who filed the lawsuit
against Native repatriation of the remains expects Kennewick Man to yield
information that could shed light on the early peopling of the Americas.
Tribal claims to the Kennewick remains have been based on the Native
American Graves Protection and Repatriation Act. NAGPRA requires that
tribes with proven links to particular remains in federal keeping are
entitled by law to repatriation of those remains. At an oversight hearing
on the American Indian Religious Freedom Act of 1978, the Senate Committee
on Indian Affairs heard detailed testimony to the effect that NAGPRA (a
1990 law separate from AIRFA but related to it as "following legislation")
is not working properly, is not being enforced appropriately, and is not
even in place as planned after the court decision concerning Kennewick Man.
A great irony emerged from the hearing: namely that NAGPRA, an expansive
law, has been undone by two pedestrian words in a plodding line of legal
text. According to the testimony of Paul Bender, a law professor at Arizona
State University, those words are "that is" as they occur in NAGPRA's
reference to protected materials as pertaining to a "tribe, people or
culture that is indigenous to the United States." The appellate court
interpreted the present tense to mean that remains, grave goods, funerary
objects and other materials not provably affiliated with a specific
present-day tribe are unprotected, Bender said - Native peoples need not
participate in deciding what becomes of them. He urged the committee to
either strike the words "that is" from the clause in question, or to insert
"or was" after them. Otherwise, he added, the court decision overthrows the
intent of Congress in NAGPRA to mandate Native participation in the
disposition of remains, even unaffiliated remains.
Of course, the core of the law remains - to authorize the mandatory return
of remains in federal custody to tribes that can prove a present-day
affiliation with them. But Walter Echo-Hawk, staff attorney for the Native
American Rights Fund, and Suzan Shown Harjo, president of the Morning Star
Institute in Washington and a columnist for Indian Country Today,
maintained that the National Park Service is not implementing the law. They
also advocated for a "federal cause of action" that would afford Native
religious practitioners equal protection of existing federal laws when
their religious freedoms are threatened.
The lack of a legally enforceable cause of court action in the American
Indian Religious Freedom Act and NAGPRA leaves the Native cultural
patrimony defenseless against developers who willfully overlook remains,
federal agents who make a record of consultation with tribes without
seriously considering their information, scientists who seek to designate
identifiable remains useful to their studies as unidentified, and federal
agencies that don't consult with tribes on NAGPRA implementation. Cause of
court action clauses are the enforcement "teeth" of many laws that must
anticipate legal proceedings, and NAGPRA doesn't have any.
"Ten years after the passage of AIRFA," Harjo said, "the Supreme Court held
that neither the Indian Religious Freedom law nor the First Amendment
protected a Native sacred place in California against a Forest Service
logging road, and invited Congress to enact a protective cause of action.
That was 16 years ago and Congress still has not enacted a cause of action
that allows us to defend our sacred places through legal processes
available to all other people in the United States who want to protect
their places of worship."
Echo-Hawk returned several times to a NAGPRA Review Committee inventory of
"culturally unidentifiable human remains" and the development of a process
and standards for their repatriation.
"After 14 years, the Review Committee and its NPS [National Park Service]
staff have not completed the inventory. Nor has the committee ... made its
recommendations for specific actions for developing a process for
disposition of them. Indeed, without having the inventory available, Indian
tribes and Native Hawaiian groups are unable to enter into informed
consultation with the Review Committee ..."
The Native American Rights Fund serves as counsel to the Working Group for
Return of Culturally Unidentified Remains, a NAGPRA monitor. "The Working
Group is deeply concerned ..." Echo-Hawk said. "In particular, it is
concerned that the Review Committee will attempt to develop its
recommendations or approve proposed NPS regulations governing the
disposition of those dead without first entering into informed consultation
with Indian tribes and Native American groups."
Echo-Hawk implored the Senate Committee to consider moving NAGPRA
implementation to a "neutral" federal agency, preferably within the
executive branch. He provided a June 2004 resolution of the National
Congress of American Indians that states a "growing concern" over a
"conflict of interest" within the NPS, alleging that NAGPRA enforcement
"conflicts with the National Park Service's mandate to promote
archaeological research and stewardship of cultural resources."
Harjo also addressed the issue: "The problem with leaving this matter to
the discretion of federal agencies is that private religious information is
at the mercy of the agency personnel who happen to be involved, and this
shifts over time. When they want to cooperate, they can find all sorts of
policies and authorities for doing so. When they do not want to cooperate,
they can find any number of excuses for that."