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The Kennewick Man Case | News & Comment

What is a Native American?

Alan L. Schneider

One of the issues argued in the Kennewick Man case is the meaning of the term "Native American" as used in NAGRPA. The statute defines it as "of, or relating to, a tribe, people or culture that is indigenous to the United States." 25 U.S.C. §3001(9). Two vastly different interpretations of this definition were offered at the June 2001 hearing and in the parties' prehearing briefs. One interpretation (the scientists') views the statute's definition as having a limited meaning that might not include some human remains or other objects found on federal or tribal land. The other interpretation (the government's) would give the definition a broad meaning that would apply without exception to all pre-Columbian indigenous remains and many nonindigenous remains as well.

The Competing Interpretations

Scientists' Interpretation
The scientists argue that Congress intended NAGPRA to apply to only those remains and objects that are related to existing indigenous peoples (i.e., American Indians, Native Hawaiians or Alaska Natives). They contend that the statute should be interpreted as if it contains the word "now" (i.e., as if it reads "of, or relating to, a tribe, people or culture that is now indigenous to the United States"). Under this interpretation, the existence of a relationship to present-day indigenous peoples is a critical threshold issue. If such a relationship does not exist in a particular situation, NAGPRA is inapplicable and does not control the disposition of the remains or object in question.

The Government's Interpretation
The government argues that the statute does not require a relationship to present-day indigenous peoples. They would interpret its definition of Native American as meaning "human remains and cultural items relating to tribes, peoples, or cultures that resided within the area now encompassed by the United States prior to the historically documented arrival of European explorers, irrespective of whether some or all of these groups were or were not culturally affiliated or biologically related to present-day Indian tribes." McManamon Opinion Letter, December 23, 1997. Under this interpretation, all remains and objects that predate documented European exploration (which defendants equate to Columbus' first voyage) would automatically be classified as Native American and thus would be subject to disposition under NAGPRA.

The Amici's Position
Both the tribal amici (i.e., the Colville, Nez Perce, Umatilla and Yakama) and the National Congress of American Indians endorsed the government's interpretation. The Society for American Archaeology also supported the government's position at least in general, but may disagree with it as to some secondary details. For example, it was not clear from the briefs and oral arguments whether SAA agrees that residence is an appropriate test to use for determining whether something is or is not Native American.

Interpretative Tests

If the court reaches the substantive issues raised by these two competing interpretations (see "Court Options" below), two of the questions it is likely to ask are:

Which interpretation is most consistent with the words of the statute?
When construing the meaning of a statute, courts (and government agencies) are required to give appropriate effect to all of the words used in the provision in question. The dispute here is over the significance of the phrase "that is" in the statutory definition. The scientists argue that the word "is" must be read in the present tense, and that therefore the measuring standard in the definition is present-day indigenous peoples. The government and the amici, on the other hand, argue that "is" can be interpreted as "is or was" since people sometimes use "is" and "was" interchangeably. However, all standard dictionaries define "is" as the present indicative of the verb "to be". There is no evidence that Congress was unaware of, or deliberately chose to ignore, the rules of grammar when it enacted NAGPRA. During the June 2001 hearing, the court commented that it could accept the government's interpretation more easily if the statute had used the word "was".

Which interpretation is most consistent with the purpose of the statute?
The government and the amici assert that NAGPRA was adopted so Native Americans could claim the remains and cultural items of their ancestors. If that is so, the scientists argue, then use of a relationship test is clearly appropriate. Items that are unrelated biologically or culturally to modern indigenous peoples are not ancestral and thus should not be subject to claims under NAGPRA. The government's interpretation of the term Native American, on the other hand, would permit items to be claimed even in the absence of a demonstrated relationship to living Native Americans. Such an expansive interpretation is said to be necessary because it would be difficult or impossible to prove a relationship in many situations. The scientists believe that these asserted problems of proof are exaggerated, and do not justify "repatriating" all remains that happen to predate Columbus. For most historic and recent prehistoric items there is usually ample biological, genetic or artifactual evidence to demonstrate the requisite relationship. Problems of proof would be more pronounced for ancient and other older items, but they represent a small percentage of the situations likely to be encountered. Furthermore, there is no evidence Congress had such older remains and objects in mind when it adopted NAGPRA.

Potential Implications

The outcome of this dispute over interpretation of the statutory definition could have important consequences for how repatriation claims will be decided and for scientific investigation of American prehistory. Some of the potential consequences are:

Nonindigenous Remains
The government has stated that it would apply its interpretation to exclude those pre-Columbian remains that are shown to be European in origin (e.g., Viking remains that might be found in the U.S.). However, no exception would be made for remains from other groups that are not presently indigenous to the U.S. Possible examples of these include Japanese and Chinese explorers, and groups that are now indigenous to Canada, Central America, the Caribbean or Siberia. Under the government's interpretation, their remains would be deemed Native American and could be given to U.S. tribal claimants. Under the scientists' interpretation, on the other hand, there would be no presumption that all prehistoric remains are Native American. The status of each item would be resolved on a case-by-case basis. Remains from groups not indigenous to the United States would be excluded from NAGRPA treatment unless there is evidence to indicate that they are related biologically or culturally related to present-day Native Americans.

Extinct Groups
The government's interpretation would include remains from groups that became extinct prior to 1492 even though these groups have no ascertainable living descendants. The scientists' interpretation would exclude such remains since they are not ancestral to present-day Native Americans.

Relevant Data
Under the government's interpretation, the only data that would be used to determine the status of an item is information relating to its chronological age. The scientists' interpretation would permit the use of all potential lines of evidence (e.g., biological, genetic, archaeological, biochemical) to determine whether the item is, or is not, Native American for NAGPRA purposes.

Repatriation Standards
An item that is classified as Native American can be "repatriated" in some situation without any showing of cultural affiliation. This can occur, for example, if the item is found on land that has been judicially determined to have been aboriginally occupied by the tribe claiming it. Such determinations of aboriginal occupation (which merely require exclusive use of an area for a generation or two) have been made for large portions of the western United States. In addition, future regulations could provide for the disposition of all culturally unidentifiable human remains regardless of their antiquity or scientific importance. The government's interpretation would place no limits on the remains subject to such treatment. The scientists' interpretation would limit repatriations to only those remains that can meet the relationship test.

Prospects for Study
The government has argued in the Kennewick Man case that NAGPRA prohibits all scientific study of new discoveries except those limited studies needed to determine an item's disposition under the statute. The tribal amici have taken an even more extreme position that would bar all studies not approved in advance by tribal claimants. If either of these theories were to prevail, the meaning given to the term Native American will determine whether any room will be allowed for study of new discoveries for general scientific purposes. Under the scientists' interpretation, at least those remains not related to present-day Native Americans would still be available for study since they would not be subject to control under NAGPRA.

Other Issues

One question that has received little attention thus far in the case is the scope of the phrase "relating to" in the statutory definition. What type of connection is necessary to qualify an item as something that "relates to" a present-day indigenous tribe, people or culture? Must the connection be direct and substantial? Or would more remote connections be sufficient? If the court does opt to adopt a relationship test, further hearings could be needed to resolve these (or other related) issues.

Court Options

The options available to the court are not limited to a simple choice between the two interpretations argued by the parties and the amici. The court could decide the case on other grounds without resolving the question of what is meant by the term Native American. For example, it could decide that the government's interpretation is invalid because it was not adopted in the proper manner. Even if the court does reach the substantive merits of this issue, it could choose to craft its own interpretation of the statutory definition. In any event, a final resolution of what is meant by the term Native American could still be several years away. As noted above, further hearings could be held. Moreover, it would be surprising if the court's decision, whatever it might be, is not tested by at least one round of appeals.

Mr. Schneider is an attorney for the plaintiff scientists. If you have comments or questions we'll pass them along to him.

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