NAGPRA is a federal law which requires that any skeleton found on federal land or in a federal museum which is the skeleton of an American Indian, must be returned to that person's tribe, usually for burial or other form of ceremonial destruction. Archaeologists are troubled by some of the extreme implications of this law, which has already cast a dark shadow over attempts to study ancient skeletons, such as Kennewick Man. Now there is a possibility that NAGPRA will get even worse.
In Kennewick Man's case, the tribes could show no connection between the bones and any modern tribe--because the bones were some 10,000 years old. Nevertheless, the tribes claimed (and the federal government backed them up) that simply because the bones pre-dated Columbus, therefore they must be the bones of someone related to a present-day tribe, and that therefore the bones ought to be returned to the tribe and destroyed, rather than studied scientifically. After a lawsuit, the Ninth Circuit Court of Appeals held that this was an unreasonable reading of NAGPRA. (I wrote an amicus brief on behalf of the scientists, for the Pacific Legal Foundation.) As the Court concluded, "no reasonable person could conclude on this record that Kennewick Man is ‘Native American' under NAGPRA." Bonnichsen v. United States, 367 F.3d 864, 880 (9th Cir. 2004). The reason was that
NAGPRA defines human remains as "Native American" if the remains are "of, or relating to, a tribe, people, or culture that is indigenous to the United States." The text of the relevant statutory clause is written in the present tense ("of, or relating to, a tribe, people, or culture that is indigenous"). Thus the statute unambiguously requires that human remains bear some relationship to a presently existing tribe, people, or culture to be considered Native American."
Id. at 875. Kennewick Man was "indigenous," perhaps, but there was no evidence that it was related to any present day tribe, so therefore, it did not qualify as "Native American" under the statute, and its bones did not have to be handed over to any tribe for destruction.
But now Senator Ben Campbell (R-CO) has introduced an amendment to NAGPRA which states in relevant part:
Section 2(9) of Public Law 101-601 (25 U.S.C. 3001(9)) is amended by inserting "or was" after "is."
What that means is that the statute will now define "Native American" as follows:
of, or relating to, a tribe, people, or culture that is or was indigenous to the United States.
This amendment would essentially gut the reasonable limit on NAGPRA found by the Bonnichsen decision, and would require instead that any skeleton found on federally owned land (of which there is quite a lot), which is related to a present-day tribe or is older than Western expansion, would be subject to repatriation and destruction. As the Friends of America's Past puts it,
Expanding NAGPRA in this way imposes a simplistic view of the past: that the only inhabitants of the continent were the ancestors of modern American Indians. Time and time again, scientists have refuted this idea.... With NAGPRA's amended language, the public would be denied access to any information discovered about the earliest people to inhabit the continent. All information about our prehistory would belong exclusively to the tribes.
We at Panda's Thumb oppose using government to promote creationism, whether it be Christian-inspired or creationism of any other sort. Check out the Friends of America's Past website for ways you can help oppose this troublesome special-interest pandering.