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NAGPRA | News and Comment

Quietly expanding NAGPRA's intent is "non-controversial"?

Without mentioning NAGPRA by name, Colorado Senator Campbell introduced an amendment that significantly changes the intent and scope of NAGPRA. By referring to Public Law 101-601 rather than calling attention to the more familiar NAGPRA, the clear intent was to slip this amendment by unnoticed. No time was allowed for discussion of this amendment. Although the original framers of NAGPRA recognized that the scientific community and the general public have a significant interest in understanding our nation's factual prehistory, these interests have been quietly set aside with two words: 'or was'. A press report ( 10/1/04) quoted a Senate staffer who said the amendment was "non-controversial".

The statute's definition of Native American was a central issue in the Kennewick Man case. In fact, the government argued before the Ninth Circuit Court of Appeals that if the bones of "Adam and Eve" were found within our borders, they would be considered Native American under NAGPRA. As a result they would have been given to claiming tribes, reburied, and the public would have no legal right to object. This new amendment effectively allows any federally recognized tribes to claim any and all ancient remains even though they can produce, as the Ninth Circuit Court stated, "no cognizable link" to the remains. This new definition puts all all ancient remains such as Spirit Cave, Wizards Beach, Gordon Creek, Horn Shelter, and Arlington Springs under NAGPRA.

If this new wording had been part of NAGPRA in 1996 when the Kennewick remains were discovered, the skeleton would have been deemed Native American, given to the claiming tribe (Umatilla), and reburied without study. Although NAGPRA requires that a tribe produce evidence of a relationship to an identifiable prior group, the Secretary of the Interior has the authority to set aside this requirement. Former Secretary Babbitt did so at least twenty times, allowing repatriation to claiming tribes without requiring any evidence beyond their beliefs. The government and tribes have argued that under NAGPRA, Native American remains cannot be studied for research purposes. NAGPRA does include such a statement.

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. Two words 'or was' denies factual understanding of the complexities that surely existed in the peopling of the Americas by giving American Indians exclusive control over our nation's prehistory. In the Kennewick Man case, the government and tribes argued unsuccessfully all the information obtained during government studies is proprietary to the tribes should not be accessible to the public. 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.

Contact your Senators and Representatives in Washington DC and voice your concern that this reportedly 'non-consequential' amendment to S.2843 has passed committee review without the benefit of public review or any consideration of the far-reaching consequences.

Senate Bill 2843 "Native American Technical Corrections Act of 2004"

Amendment Section 14: Amendment of Definition

Section 2(9) of Public Law 101-601 (25 U.S.C. 3001(9)) is amended by inserting 'or was' after 'is'.

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