Proposed federal rule threatens 2 decades of established law

Submitted by coldrum on Sunday, 30 December 2007 Page Views: 841

The Society for American Archaeology (SAA) has condemned a proposed rule by the U.S. Department of Interior that would put in jeopardy the highly productive compromise that was reached when the Native American Graves Protection and Repatriation Act (NAGPRA) was passed in 1990.

On October 16, 2007, the Department of the Interior published draft regulations that would destroy the use of cultural affiliation as the principle for repatriation decisions, which is at the core of NAGPRA and supported by seventeen years of hard work and effort by tribes, archaeologists, and museum personnel, and replace it with an undefined notion of "cultural relationship."

“The Department’s proposed regulations have no basis in law or science and reflect an attempt to impermissibly legislate in a manner not prescribed by Congress. The adoption of the regulations as they stand would force the NAGPRA process back to square one,” said Dean Snow, president of SAA. “This ill-advised rule would irreparably diminish the archaeological record of the entire U.S. “The damage to some of our most cherished institutions and the cost to science and the public is incalculable.”

The Department’s proposed rules alter the 1990 compromise between archeologists, museums, scientists, federal agencies and representatives of federally-recognized Native American tribes that resulted in passage of NAGPRA.

“The act represents a careful balance of multiple perspectives regarding human remains and objects,” said Snow. “Over the last 17 years, tribes, museums, and federal agencies have developed relationships of trust and mutual understanding of the law. The proposed rule effectively dismisses those hard-earned accomplishments.”

NAGPRA requires federally-funded institutions to transfer control of human remains, sacred or funerary objects, and other culturally important artifacts to federally-recognized Native American tribes that demonstrate cultural affiliation.

NAGPRA represents a carefully-crafted compromise that has served to repatriate, protect, and preserve human remains for almost two decades, and forms a basis by which all entities involved in American archaeology abide. Since NAGPRA was passed in 1990, thousands of human remains have already been repatriated to culturally affiliated tribes and more are in the process of repatriation.

The Department of Interior’s proposed rule extends to the disposition of human remains that are culturally unidentified. Snow pointed out that the proposed rules would put museums in the uncomfortable and inappropriate position of determining “Indianness” of claimants who are not federally-recognized and of weighing competing claims among federally-related, non-federally related, and non-Native American claimants.

The Department’s proposed rule would apply to most of the nation’s museums, universities, federal agencies, and could extend to medical specimens or forensic evidence collections whether they have Native American human remains or not.

For more, see Eureka Alert.

Separate article stemming from the same federal rule:

Scientists hoping to study the ancient skeleton known as Kennewick Man are protesting efforts on two fronts that they say could block them from examining one of the oldest and most complete set of bones ever found in North America.

For a third time in four years, the scientists are opposing a bill in the U.S. Senate that would allow federally recognized American Indian tribes to claim ancient remains even if they cannot prove a link to a current tribe.

They also are contesting draft regulations issued by the Bush administration on the disposal of culturally unaffiliated remains. Both measures could end up with the same result, scientists say: preventing an improved understanding of North American history and the role of the continent's first inhabitants.

If adopted, the proposed changes could "result in a world heritage disaster of unprecedented proportions" and "rob our descendants of the unique insights concerning the shared heritage of all people that physical anthropological studies of culturally unidentifiable human remains can provide," the American Association of Physical Anthropologists said in a statement.
Supporters of the legislation call such worries overblown. They say the changes are intended to clarify the Native American Graves Protection and Repatriation Act to ensure that federally recognized tribes can safeguard the graves of their ancestors.

Neither the Senate bill nor the draft regulations would affect the 9,300-year-old bones known as Kennewick Man, they said.

A spokesman for Democratic Sen. Byron Dorgan, chairman of the Senate Indian Affairs Committee, said the Senate bill would clarify what process should be followed for future discoveries of ancient remains.

"The court ruling said it's not clear" what should happen, "so Congress wants to clarify what its intent was, and its intent is that tribes that believe they have a connection (to ancient remains) either through descent or cultural affiliation, have an opportunity to make that case," said Barry Piatt, a Dorgan spokesman.

The Bush administration opposes the Senate bill, which mirrors legislation proposed in 2004 and 2005. In testimony before the Indian Affairs Committee in 2005, Paul Hoffman, a deputy assistant secretary of the Interior, called the proposed change too broad and said it would loosen the Indian graves law to include remains that might not be connected to a tribe.

Hoffman said the grave protection act "should protect the sensibilities of currently existing tribes, cultures, and people while balancing the need to learn about past cultures and customs." In cases where remains are not significantly related to an existing tribe, people or culture, they should be available for appropriate scientific analysis, he said.

But scientists said the Sept. 27 committee vote, coupled with the Oct. 16 publication of draft rules on disposition of culturally unidentifiable remains, shows there is a deliberate effort quietly to change the grave protection law. The Senate bill was approved without a public hearing two days after it was formally proposed.

The draft regulations and the Senate bill assume that any remains found belong to federally recognized tribes, said Cleone Hawkinson, a founding member of the Portland, Ore.-based Friends of America's Past. That includes remains from small bands of people who died out and left no descendants, and remains of indigenous ancestors to modern-day Latinos, including those who died just a few hundred years ago.

"By changing the definition to include everything found as Native American, (the grave protection act) automatically applies to everything, before any scientific study. Then tribes can decide if they want to allow study," Hawkinson said.

Hutt disputed that, saying the proposed regulations were not related to the Senate bill and in any case would not affect Kennewick Man. The regulations have been under development since 2001, Hutt said, calling any relationship between the draft rules and the Senate bill coincidental.

For more, seeThis link.

Note: Articles on new US interpretation of existing federal law and proposed changes to law - Devil in the Details.

Contributor Bio for coldrum: Based in Milkyway, contributing since 2002. Favourite site: Avebury.

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