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Proposed NAGPRA regulations contain solid update

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Seventeen years ago, Congress passed a landmark law requiring federally supported museums to repatriate many American Indian human remains and cultural objects. The energy, dedication, political savvy and legal acumen of Indian activists and organizations combined to secure the enactment of this law, which is best known as NAGPRA, the Native American Graves Protection and Repatriation Act. Now, after nearly two decades, the Secretary of the Interior Department has finally gotten around to circulating proposed regulations directed at one category of items subject to the law, what are called ''culturally unidentifiable human remains.'' The phrase may not sound incendiary, but the proposed regulations have sparked a firestorm of controversy from archaeologists. The sensitivity of the issue is actually one of the reasons it has taken so long for the proposal to emerge. But despite some problems, the proposed regulations are fundamentally sound, and the arguments against them either insulting or misplaced.

The category of ''culturally unidentifiable remains'' only makes sense within the broader context of NAGPRA and its requirements. The key to most repatriation mandates under NAGPRA is that the remains and objects have to be ''culturally affiliated'' with the claiming tribe or Native Hawaiian organization. The burden of establishing cultural affiliation is on the tribe, but a broad array of evidence can be used, including geographic and oral history evidence. Also, any claiming tribe must be federally recognized.

NAGPRA sidestepped the question of what to do with remains and objects that could not be proven to be ''culturally affiliated'' with a federally recognized tribe - that is the ''culturally unidentifiable'' remains. According to NAGPRA, Interior was supposed to issue regulations on that subject, upon recommendation from a review committee consisting of representatives from tribes, museums and academic researchers. But the NAGPRA Review Committee kept getting pushed from opposing directions, and could not agree on a proposal until now.

From the start, vocal archaeologists at universities and elsewhere viewed NAGPRA as an assault on their domain - an attack on knowledge akin to the burning of the ancient library at Alexandria, Egypt. So long as there were no regulations addressing the disposition of culturally unidentifiable remains, these archaeologists could defend their holdings by challenging cultural affiliation on a case-by-case basis. Typically they have argued that the remains are too old to sustain cultural affiliation with a present-day tribe. And for some archaeologists, ''too old'' has meant older than 500 years. Or they have relied on the fact that the bones they have are culturally affiliated, but with non-federally recognized tribes.

The proposed regulations require museums to create notices of inventory that describe the human remains and associated funerary objects that have not been ''culturally affiliated'' with a federally recognized tribe. If any federally recognized tribe or Native Hawaiian organization requests the items, the museum must begin consultation with a whole set of tribes and Native Hawaiian organizations with geographic and cultural connection to the remains.

Under the Interior proposal, federally recognized tribes or Native Hawaiian organizations that can't prove cultural affiliation under NAGPRA can still reclaim the ancestors if the remains were removed from their current or ancestral lands, or lands to which they're culturally related. That will be particularly useful for situations where the remains are very old, the archaeologists resistant, or where there just isn't a lot of information about the bones. But for non-federally recognized tribes, there is no right to notice and consultation regarding culturally unidentifiable remains, let alone a right to repatriation. If no federally recognized tribe wants to receive the remains, then the museum has permission to dispose of them to a non-federally recognized tribe or rebury them according to state or other law. But it can also keep them.

The archaeologists are complaining bitterly about this proposal, arguing that it disturbs a delicate balance of interests already struck in NAGPRA. But that complaint is factually inaccurate as a depiction of NAGPRA. As the legislative history of the law clearly reveals, Congress always viewed the primary purpose of NAGPRA as facilitating the return of human remains and cultural objects to the tribes. While concerns of archaeologists were accommodated to some extent through the requirement of cultural affiliation, that requirement was also crafted to incorporate Native perspectives. Oral history evidence and geography were specifically included as factors to take into account in determining cultural affiliation.

Furthermore, NAGPRA always envisioned that there would be additional requirements for repatriation of culturally unidentifiable remains and associated funerary objects. It is special pleading to suggest that the ''balance of interests'' ought to be viewed as fixed before those requirements are put into place. The fact that this additional set of requirements was left for Interior regulations, rather than incorporated into the text of the law, suggests that Congress was either unprepared or politically gun-shy about addressing the matter. But it is to the credit of the NAGPRA Review Committee, and the Secretary of the Interior, that they have tried to come up with regulations that follow ideas of ownership and priority of claims built into other sections of NAGPRA.

The proposed regulations do have some flaws. For example, if states or other government agencies maintain lists of non-federally recognized tribes, those tribes should be included in the consultation process. There is also some need for a mechanism whereby all tribes that wish to engage in consultation and reburial, but don't have the funds to do so, can apply for federal support. That said, the fundamental approach of the regulations deserves support. Comments can be submitted until Jan. 14 at www.regulations.gov.