Public Comment to the NAGPRA Review CommitteeNAGPRA Review Committee, Public Comment
Friends of America's Past
Kelseyville, CA May 31, 2001
My name is Cleone Hawkinson. I am the president of Friends of America's Past, a non profit organization that promotes the rights of scientists and the public to learn about America's prehistory. We provide information through public presentations and support educational requests from all levels: K-12, universities, and continuing education programs. Our website attracts visitors from around the world. With my background in physical anthropology, I have been assisting the attorneys for the scientists in the Kennewick Man lawsuit for more than 3.5 years.
I am here today because I am concerned about this committee's role in making recommendations to implement NAGPRA. Your effectiveness, and your credibility with other agencies, depends on how well you carry out your responsibility to provide consistent, balanced, and lawful recommendations on issues brought before you. I urge you to consider the lessons of the Kennewick Man lawsuit. Scientists brought that lawsuit to stop a seriously flawed repatriation process.
Regardless of the outcome, you would be wise to understand the issues raised, because they pertain directly to your work. They will surely surface again in one form or another, and you must be prepared to respond in a legally defensible way.
The first issue is that NAGPRA and the actions of this committee are bound by the US Constitution. As an advisory committee to federal agencies, you must hold the Constitution above all other interests. The First Amendment directs that Congress make no law respecting the establishment of religion. And NAGPRA is no exception.
Native American religions are not entitled to special exemption from constitutional constraints. Those involved with implementing NAGPRA, including this committee, often hear that one cannot separate tribal religion from tribal life. But, this tribal view of life is not unique. People of many faiths - Christian, Jewish, Moslem, Buddhist, and others - incorporate their religious beliefs into all aspects of their daily lives. The Constitution requires committees such as yours to find a way to distinguish religious beliefs and to keep them separate from public policy.
Your obligation is work within the requirements of the Constitution, and to keep in mind that you are a secular advisory committee. You can not give preference to a group's religious beliefs over other views. Nor may you set aside the law in favor of religious beliefs. When a tribe presents sacred evidence to support a claim, but says it must be kept from public scrutiny, your responsibility is clear. Your role is to advise them of the requirements for making a claim. The tribe must decide which is more important to them: religious privacy or establishing a claim in accordance with the law.
This committee must also understand and acknowledge that there are constitutional limits on the use of oral tradition and religious beliefs as evidence in determining cultural affiliation. Specifically, you may not accept evidence that links religious stories with historical events to show that those religious beliefs point to a prehistory that is 'true'. In practical terms, this means that the committee may compare religious beliefs for similarities or differences to find a relationship (or a lack of relationship) for purposes of affiliation. However you may not accept the use of actual religious beliefs as proof of anything. In plain English, if you use religious beliefs to make secular recommendations, the decisions resulting from your recommendations are vulnerable to challenge for violating the First Amendment.
A second issue concerns setting aside Congress's carefully crafted tribal affiliation requirements in favor of coalitions. Congress did not provide for coalition claims in NAGPRA. The statute repeatedly refers to "the requesting tribe" or "a particular Indian tribe." In the early days of NAGPRA, agencies understood this. In fact, in 1992 Dr. Frank McManamon of the National Park Service stated in an article for the Arizona State Law Journal that "groups of Native Americans of diverse backgrounds who voluntarily associate together for some purpose or purposes are not viewed as proper claimants under NAGPRA's provisions." Limited exceptions can be made in specific circumstances to allow for coalition claims. Nevertheless, coalitions have become a convenient catch-all to resolve claims that are not supported by the evidence that NAGPRA clearly requires.
We strongly suggest that you carefully examine any coalition making a claim and the evidence they present. Loosely formed or overly broad coalitions can become the focus of legal action and that could undermine your credibility if you have supported them.
In the Kennewick Man case, the Coalition of five tribes did not exist prior to the lawsuit. These tribes claim their own individual histories and aboriginal lands. In addition, the Coalition includes a band that is not federally recognized. The Court record also shows that three of the five tribes have also filed separate claims each stating a belief that the Kennewick Man is their tribe's ancestor.
When multiple tribes make a competing claim, NAGPRA requires that an agency determine which tribe has the closest relationship for the claim. Unfortunately for the tribes in the Kennewick dispute, former Secretary Babbitt chose to ignore this requirement. He also set aside NAGPRA's explicit requirement that only recognized tribes may make claims. Agencies do not have the discretion to set aside requirements of the statute, nor does this committee. Tribes must meet the requirements of the statute, and you must base your recommendations on the quality of the evidence each tribe presents. Ignoring NAGPRA's statutory requirements invites lawsuits and disappointments.
A third area of concern is how this committee balances conflicting interests. Congress spent considerable effort to balance the interests of tribes, scientists, and museums, while also recognizing that the public has an interest as well. Congress rejected arguments of those Native Americans who claim that they have a 'human right' to control all prehistoric objects and sites they consider to be culturally important. Likewise Congress rejected the claims of scientists and museums who wanted to retain anything they consider to be scientifically important. To ensure this statute would not be misconstrued as authorizing every claim that might be made, Congress adopted language to limit the statute and created this committee to oversee it's implementation. They envisioned a committee that would offer fair and reasoned recommendations to assist agencies in decision making.
Although more than 10 years have passed since NAGPRA was enacted, this committee has developed few objective standards to apply to the various lines of evidence. These standards are needed to reconcile or weigh conflicting evidence. Of particular importance is the need to measure and consistently apply an objective meaning to the phrase 'the preponderance of the evidence.' How does anyone know when the preponderance has been achieved? To be fair to all interests, this committee needs to develop clear standards.
Although the anti-science rhetoric sometimes expressed in these meetings suggests otherwise, scientists have successfully resolved many repatriation questions. A way for this committee to overcome being viewed as a one-interest lobby is to acknowledge the benefits of scientific study and the public's interest in America's prehistory. This committee should actively recommend scientific study in cases of uncertainty, especially those from the ancient past.
Study directly supports this committee's work yielding critically important insights for future repatriation claims. The only hope of creating credible - and legally defensible - links with modern people across great spans of time requires an objective understanding of the complex relationships and events of the past.
A decade ago, Congress gave this committee the responsibility
to ensure cooperation between competing interests. It's time
for this committee to bridge the growing chasm between tribal
views and the scientific and public interests in the past. You
must uphold the Constitution, create meaningful standards, and
apply them fairly using common sense. Your credibility and the
legitimacy of this committee's work are at stake.
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