Troublesome NAGPRA amendment

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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.

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Colorado Republican Sen. Ben Nighthorse Campbell is attempting to insert broadening language into the Native American Graves Protection and Repatriation Act "so that any ancient skeleton can be claimed by modern American Indian tribes even though they ... Read More

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Timothy Sandefur wrote:

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.

According to the statistics you provided from the GAO, the total land area of the States is 2.27 billion acres of which 1.64 billion acres is not federal land and .63 billion acres is under federal control. This roughs out to 72% of all the land in the United States not being under federal control and 27% being under federal control. It would seem to me that there should be enough specimens collected from non-federal lands to satisfy the needs of the scientific community. Or is it just that you want *all* the specimens? Don’t you think the Indians have a right to at least *some* of these remains?

A right to them? On what grounds? I don’t see why any group of people has the right to the possession of something that did not belong to them in the first place, that they did not buy, and, in the case of ancient human remains, that are only tenuously connected to them genetically. So no, I don’t think that tribes have a right to any ancient skeletons such as Kennewick Man.

Now, that’s separate from the question of whether the government may give such skeletons to the tribes. Certainly the government has the authority to do so under the Constitution, which gives the federal government power “to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” Since it has the authority to give away resources found on land that belongs to it, and since it does not violate anyone’s rights for it to do so, the federal government has the legitimate authority to give away these skeletons.

That settled, the next question is whether it is good policy for the government to do so. I think that in cases where the skeletons are clearly related to the tribes, such as the skeletons taken from Indian graveyards in the nineteenth century, that it is good policy. The more recent the skeleton, the stronger the argument, in my view, and I see little reason to object on scientific grounds to the disposal of such recent skeletons.

But with regard to Kennewick Man, or other 10,000 year old skeletons, which are related distantly, if at all, to present day tribes, the policy argument seems much weaker to me. I think the harm it does to the scientific pursuit is far greater than the degree of rapprochement with historically persecuted groups that is attained by handing over such remains for destruction. Simply put, there must come a time when a skeleton ceases being a relative, and becomes instead an object of scientific research; and that time must be more recent than the end of the last ice age. It would be utterly unreasonable for a modern Italian man to forbid research into the life of Julius Caesar on the grounds that doing so violated his family’s privacy rights. Well, Kennewick Man is five times the age of Caesar. It is unreasonable for the tribes to assert that it is a member of their family. So no, the tribes certainly have no right to these bones, nor do I think it is a good idea to give these bones to the tribes.

What cases like this make clear, is that “the government” is far from monolithic, and the disposition of fossils and skeletal remains like Kennewick Man are in fact determined by the orientation of whoever just happens to be in a position in government to do something irreversible. I read (does anyone have a good source?) that the courts expressly forbid the Corps of Engineers from altering the site (a river bank) where Kennewick Man was found, and that the Corps simply ignored this injunction and spent several million dollars dumping 500 million pounds of cover over the site, thus rendering any further arechaeological activities useless. A subsequent Congressional investigation into this episode was unable to identify any “responsible” individual in the military. Translation: the House committee chairman with jurisdiction didn’t want any bad PR.

The tribal leader was on 60 minutes, and he expressed complete bafflement as to why anyone would wish to violate tribal custom. After all, tribal custom is *right*. Who wishes to be wrong?

I think Charlie has made an inadvertent point. When decisions like this arise, someone (usually a committee chairman) must decide what decision is most likely to get himself re-elected. Scientific concerns are insignificant next to human interest. So we have about a 75% probability of being permitted to study important finds of this type. Everything considered, that’s not too bad; it could be worse.

Timothy Sandefeur wrote:

A right to them? On what grounds? I don’t see why any group of people has the right to the possession of something that did not belong to them in the first place, that they did not buy, and, in the case of ancient human remains, that are only tenuously connected to them genetically. So no, I don’t think that tribes have a right to any ancient skeletons such as Kennewick Man.

Kennewick Man is a special case, and must be treated as such. The Indian tribes do not have the legal right to the remains, but they certainly have the right to ask for them. And the federal government has the right to give them if they decide it’s in the public interest. What some people may not know, is that Kennewick Man has been extensively studied by a team of prominent scientists from around the world, who have done radiocarbon dating, DNA testing and extensive physical examinations of the remains. At some point, perhaps that point has already been reached, its value to science will have been realized. The issue no longer involves the “needs of science” it now revolves around possession of the remains: will they be buried again or destroyed by the Indian tribes, or will they be put on display in someone’s museum for their PR value.

I think the harm it does to the scientific pursuit is far greater than the degree of rapprochement with historically persecuted groups that is attained by handing over such remains for destruction.

The scientific needs have been met, the remains have been extensively studied and the reports have been written. There no longer is such a need. It seems to me that in light of the genocidal proclivities that our government has displayed towards indigenous peoples in the past, the very least we can do is honor their tribal customs as a show of good faith, despite the tenuous nature of their claim. The loss to science, as far as I can see, is negligible.

So we have about a 75% probability of being permitted to study important finds of this type. Everything considered, that’s not too bad; it could be worse.

I think it IS worse than that, by a great deal. Private land tends to be much more developed than that which is federally-owned. There’s little value in theoretically being able to excavate a certain plot of land if there’s already a K-Mart or someone’s house on top–even if they let you dig, artifacts and remains are likely to have been damaged or destroyed already.

Most comparatively unspoiled areas are on federal, state, or reservation land. State governments tend to be friendly to tribal interests (thanks largely to gambling profits), and obviously there’s not going to be much excavation of human remains on reservation land. If federally-owned areas also go off-limits, very few promising sites will be left.

Charlie:

I think I agree with you, but I’m not sure. Let’s grant that after some amount of examination, we have extracted as much as we can reasonably hope to (pending of course the development of new techniques or new theories which suggest tests we didn’t perform (but could have), because we didn’t think to do so). Let’s agree that after most specimens have been retired to museums, it’s very rare that they are recalled for further examination.

But this sidesteps the question of whether the site where the specimen was found should be destroyed for the foreseeable future, deliberately pre-empting any further investigation of any kind. Are you recommending that this practice also be followed? I don’t think that anyone is recommending the institutionalization of ordinary grave-robbing. You seem to be seeking a compromise satisfactory to both the interests of science and tribal custom. I don’t dispute that such a compromise is possible, but certainly it hasn’t yet been articulated. What do you recommend?

Anton Mates:

I strongly disagree. Do you have any idea how much of that 75% of privately owned land is developed to the point where archaeology is effectively useless? It’s quite tiny. Of course, this is not to say that some of the specific (generally suburban) locations might otherwise have been archaeological goldmines, but suburban development is not targeted to such locations; the economic motivations are entirely different.

Most comparitively unspoiled lands are located in large rural landholdings, “developed” into farmland or ranches, or undeveloped for reasons of unacceptable gradients. Now, I agree that for purpose of field trips, public lands are a lot more accessible than private lands, because landowners don’t wish any of their property confiscated for ANY purposes, including scientific. But inaccessible isn’t the same thing as spoiled.

Flint wrote:

What do you recommend?

Read “Bury My Heart at Wounded Knee” and “The Trail of Tears” and I think you’ll understand what I recommend.

Dead indigenous peoples do not belong in museums. They should be returned to the earth.

Maybe we should dig up Darwin’s bones and put them on display in a glass case in Times Square.

Flint is right that the government is not a monolithic enterprise, and that this makes it especially hard to trace down responsible individuals. As to the incident with the Army Corps of Engineers dumping rock on the burial site, the Army Corps of Engineers did dump 100 tons of rock on the discovery site, to make it impossible to locate any other bones or artifacts. The trial court found that “the ‘White House’ ordered Lt. Colonel Donald Curtis, Jr., Corps District Engineer, to proceed” with this operation, and noted that

Although Defendants argued that the numerous references in the record to White House involvement concerned only a low-level visiting scientist monitoring the Kennewick controversy for his own curiosity, it is difficult to believe that an Army Colonel would follow orders from a low-level visiting scientist on an issue of this magnitude.

Bonnichsen v. United States, 217 F.Supp.2d 1116, 1125, 1125 n. 19 (D. Or. 2002). I’ve not heard anything to suggest that a Congressional committee was involved, although of course that is possible.

Charlie Wagner writes that “ The Indian tribes do not have the legal right to the remains, but they certainly have the right to ask for them. And the federal government has the right to give them if they decide it’s in the public interest.” Certainly, and I have the right to ask Charlize Theron to go on a date with me, but that doesn’t mean that I or the tribes have the right to the things we want. I’ve agreed that the federal government may choose to give these things to the tribes, but that I think the arguments for doing so are unconvincing. For example, Mr. Wagner writes that “Dead indigenous peoples do not belong in museums. They should be returned to the earth. Maybe we should dig up Darwin’s bones and put them on display in a glass case in Times Square.”

But why should “dead indigenous peoples” be returned to the earth? Mr. Wagner’s reference to Darwin suggests that his reason is: because it is as humiliating to American Indians to have ancient skeletons researched as it would be for Charles Darwin’s bones to be on public display. There are two problems with this argument, however. First, the skeletons we are discussing are Vastly older than Charles Darwin. Darwin died in 1882, 122 years ago. Kennewick Man died somewhere around 7,000 B.C., approximately 9,000 years ago. The period of time between Darwin’s death and today is about a hundredth of the amount of time that has passed since Kennewick Man died. As I said earlier, it would be unreasonable for Julius Caesar’s descendants to object to the research of Caesar on the grounds that it is humiliating, yet Caesar lived only 2,000 years ago, not 10,000 years ago. The humiliation argument diminishes greatly with time, unless we are going to shut down the entire archeological enterprise. And Kennewick Man is too old to be regarded as anything other than an object of research.

Secondly, such humiliation is, I think, highly exaggerated, and I suspect principally for political reasons. Although Charles Darwin’s body is not on public display, the bodies of many people from his era are. The Lincoln Shrine in Redlands, California has one of Abraham Lincoln’s hairs on display. The Henry Ford Museum in Dearborn, Michigan has the chair Lincoln was shot in—including bloodstains. The body of Jeremy Bentham (except for his head) is stuffed and on display at a university in England. Now, of course people’s reactions to these things will differ depending on culture, background, religion, history, and so forth. My point is not that it is never humiliating for bodies to be put on display—I would probably be upset if a family member were put on display. But it is not invariably wrong to do so, even in the short span of a century. And, again, even if it is wrong, that wrongness tapers away greatly over time, and dissipates entirely by 10,000 years.

Finally, I think we should be very skeptical of the idea that because we have exhausted our scientific research needs with a specimen, that it may be safely disposed of. Research techniques and technology change a great deal over time, and disposing of a specimen too early could be regretted later. Museum curators are packrats for a reason—because you never know when specimens might come in handy.

Anyway, again, I am not saying that “repatriation” is always wrong. I think that with regard to skeletons of recent age, there might be reasonable arguments in favor of it, as a magnanimous act intended to redress historical wrongs. I’m doubtful, because I doubt that the utility of such redress outweighs the (literally immeasurable) scientific costs, and because I am skeptical of the argument that it is humiliating to study human remains. But even assuming repatriation is appropriate in some cases, it is not appropriate with regard to ancient skeletons like Kennewick Man.

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Charlie:

I find your response frustratingly unresponsive:

Read “Bury My Heart at Wounded Knee” and “The Trail of Tears” and I think you’ll understand what I recommend. Dead indigenous peoples do not belong in museums. They should be returned to the earth.

Arrgh! Kennewisk Man was NOT a member of the current Yakima tribe, or any plausible ancestor. Even so, I asked whether promising locations (without any rational relationship to any current tribes) should be destroyed on principle. You don’t seem to address this question. So I’ll ask again: Should these sites be destroyed to avoid offending the sensibilities of unrelated peoples? Are you saying they should? Make yourself clear.

Maybe we should dig up Darwin’s bones and put them on display in a glass case in Times Square.

Do you think Darwin would object? I wouldn’t, and I doubt Darwin would either. I have willed my body to the local medical school as a cadaver, in the hopes of training better physicians. Whatever about me may be “sacred”, it’s certainly not my physical remains. Anyway, as I wrote (and you ignored), we’re not talking about graverobbing here.

Timothy Sandefur:

The most spectacular example of what you’re talking about, I think, is Lenin. Perhaps second place belongs to all of the various artifacts and confections represented as having some relation to the body of Christ.

I was willing to concede to Charlie that items once sent to museums are rarely recalled for re-examination in light of new techniques or theories. You seem more partial to the possibility than the actual practice. But sometimes, compromise is required, and in a compromise everyone gains a little by losing a little.

Flint wrote:

Should these sites be destroyed to avoid offending the sensibilities of unrelated peoples? Are you saying they should? Make yourself clear.

Every case is different. I don’t think there should be a “one size fits all” solution. Each case must be decided on it’s merits, weighing the seriousness and depth of the objection with the possible benefit to science. I also think that it’s possible to reach compromises in which the needs of science are considered as well as the sensibilities of the participants. In the case of Kenniwick man, I think that the needs of science having been met, this artifact should be returned to the native people to do with as they choose.

Flint wrote:

Do you think Darwin would object? I wouldn’t, and I doubt Darwin would either. I have willed my body to the local medical school as a cadaver, in the hopes of training better physicians. Whatever about me may be “sacred”, it’s certainly not my physical remains. Anyway, as I wrote (and you ignored), we’re not talking about graverobbing here.

No, we’re talking about human feelings. If your relatives objected to you donating your body to science, do you not think their feelings should be considered? This world is about the living, not the dead, and the effects of our actions on the living should be taken into careful consideration.

Charlie,

This individual died 9000 years ago, and the attempts to repatriate the remains to an Indian tribe which most certainly did not even exist at that time is nothing more than politics. Indian groups in the Americas have defined themselves as the first peoples, and finding a skeleton that doesn’t fit within the long-standing migration theories which lent themselves so easily to this socio-political view is a major blow.

The fact remains that migration into the Americas was far more complex than the old theories indicated, and that it wasn’t just Mongoloid Siberians who found their way through the ice free co-oridor. This may be an uncomfortable realization for some, but this looks to be nothing more than an effort to cover up an area of scientific exploration.

If someone dug up a 9000 year old skeleton in one of my places of ancestry (say, western Germany), I can’t imagine giving a damn about it. It happens all the time elsewhere. Certainly some mummies pulled out of the ground in Egypt must be related to existing persons in the country, and those remains are of substantially less antiquity.

The cost to our understanding of the major prehistoric migrations of H. sapiens out of Africa and right up to the present time are huge if the US government denies researchers such finds and essentially vandalizes sites. The real crime here is that politically-motivated groups who know darn well that they’re just pulling the emotional side of this issue out of thin air are going to destroy their own history, and that of the entire human species, in this pathetic attempt to hide the truth.

Flint says “sometimes, compromise is required, and in a compromise everyone gains a little by losing a little.” Oh, how I wish that were true. Then there would be no need to enforce just compensation for takings!

With regard to human feelings, certainly they must be taken into account, even when they are irrational; many a war has begun out of irrational matters of feelings. But their irrationality must also be taken into account, and the feelings at least in this case are irrational. Mr. Wagner goes on to say,

If your relatives objected to you donating your body to science, do you not think their feelings should be considered?

The answer to that is certainly not! Flint owns himself, and has the right to dispose of himself as he chooses. He does not belong to his family. See U.S. Const. Amend. XIII. He owes no duty to take the mere feelings of his family into consideration* with regard to the disposal of his property, including his physical remains.

Now, in the case of an American Indian skeleton, we don’t know what he would have wished to happen to his body; we may make assumptions, based on stereotypes of Indian spiritual beliefs, but we cannot know for sure. In cases when we cannot know for sure the desires of the decedent, the common law has adopted various fall-back probate rules. Those rules are based on the notion of disposing of a decedent’s property in the way that he most likely would have wished–and that conjecture is based, at least in part, on the culture of the legislature that adopts those probate rules. This is why I don’t rule out per se the legitimacy of “repatriation.” But in probate, as well as in archaeology, the legitimacy of any claim diminishes over time.

For ancient artifacts found on land, the common law adopted several kinds of rules. For example, for gold or silver, or other money finds, the rules of treasure trove were devised. In England, treasure trove belonged to the king. In American common law, it generally belongs to the finder, even in cases where the finder is trespassing! See Leanna Izuel, Property Owners’ Constructive Possession of Treasure Trove: Rethinking The Finders Keepers Rule, 38 UCLA L. Rev. 1659, 1662 (1991). Then there’s the rules of escheat, for unclaimed property–the property eventually becomes the property of the state. There are rules for lost property (which are different than rules for “mislaid” property).

In all of these cases, the law adopts what Mr. Wagner says: that “[t]his world is about the living, not the dead, and the effects of our actions on the living should be taken into careful consideration.” In the absence of knowledge about the desires of the true owner, the property must be disposed of in a way that (1) respects fairness to the discoverer, creator, or whoever has expended effort in acquisition, and (2) maximizes social utility. Destroying a priceless archaeological artifact accomplishes neither of these policies, except insofar as pleasing a modern Indian tribe might increase social utility. As I’ve said, I think the possible benefit as far as that is concerned is miniscule in the Kennewick Man case. But even if it is great, that utility must be balanced against the social cost of destroying scientific artifacts. Now, Flint says that it is unlikely that more research can be done on many of these artifiacts. We would need to hear what Robson Bonnichsen, Douglas Owsley, and the other scientists have to say on this to know for sure–but, again, the possibility of new research techniques and technologies that we don’t know about, make the costs very hard to measure even to them. (One might note that, taking a case to the Ninth Circuit Court of Appeals is not a cheap or easy undertaking, and that it is unlikely that the scientists would have pursued the case this long if they did not think it worth their while.)

*-Obviously he owes a duty to them and to all mankind not to use his property in any way that violates their rights, but, again, no family member has a right to the body of another family member simply on the basis of “spiritual heritage.”

Well said, Mr. Clausen.

As students, physical anthropologists can only learn to recognize the range of human variation by studing (and restudying) skeletal collections. The physical (aka forensic) anthropologists who performed the valiant job of identifying the remains from the Twin Towers and Pentagon after 911 could do so only because of extensive training with museum collections. These collections do not sit unused. They are revisited repeatedly for a variety of research and training needs. The precious and rare human remains from 9000-13,000 years ago are glimpses of the past and of interest to scientists in the US, but also South America, Europe, and the Pacific Rim.

If the bones had been destroyed because they were “no longer useful” to Science (whatever that means) than the Piltdown Man hoax might never have been decisively debunked when the better dating methods came along.

What some people may not know, is that Kennewick Man has been extensively studied by a team of prominent scientists from around the world, who have done radiocarbon dating, DNA testing and extensive physical examinations of the remains.

Up until now, the only studies of Kennewick Man have been preliminary gross examination of the bones, simple roentgenological exams, and radiocarbon dating. So far as I’m aware, no study of the bones has been done since their placement in the Burke Museum for the duration of the court cases.

What some people may not know, is that Kennewick Man has been extensively studied by a team of prominent scientists from around the world, who have done radiocarbon dating, DNA testing and extensive physical examinations of the remains.

Up until now, the only studies of Kennewick Man have been preliminary gross examination of the bones, simple roentgenological exams, and radiocarbon dating. So far as I’m aware, no study of the bones has been done since their placement in the Burke Museum for the duration of the court cases.

Sean Foley wrote:

Up until now, the only studies of Kennewick Man have been preliminary gross examination of the bones, simple roentgenological exams, and radiocarbon dating. So far as I’m aware, no study of the bones has been done since their placement in the Burke Museum for the duration of the court cases.

http://www.cr.nps.gov/aad/kennewick/#non-destr

Charlie do you 1) Honestly believe that tribes of today can claim ownership of remains from 9,000+ years ago? Wait let me rephrase that…I could claim ownership of those remains.…

1) Do you believe that present day people have legitimate claims to remains 9,000+ years old to stop research from being done?

2) Do you believe that science has stopped and there will be no other tests that could be performed on these bones in the future that would result in either better or even new data being found?

I’d have to say if we found 300 year old remains then the present day people should have some say over the matter but think about it this way. Do you know where your great great grandparents are burried? Do you think you’ll be informed if their remains are shifted, removed or desposed of? For the large majority of us the answer would be no.

While I don’t like blanket rules I think we can produce cut of dates for said laws for simplicity sake. That date is far from 9,000 years too.

Honestly Charlie if you are complaining about these remains, in my opinion you are complaining for the sake of complaining.

I was wrong about the extent of testing conducted on the remains. However, all of the tests performed outlined in the NPS website were performed to determine the applicability of NAGPRA to the remains and all of that testing was carried out after the court order remanding the remains to the Burke Museum as a neutral repository. Outside of the initial examination and dating, no research has been conducted on the remains that wasn’t under the aegis of the DOI in order to establish whether or not NAGPRA covers this situation. That’s pretty far from “extensive study.”

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This page contains a single entry by Timothy Sandefur published on October 4, 2004 3:37 PM.

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