TCS Daily

The Politics of Dead 'Native Americans'

By Jackson Kuhl - November 23, 2004 12:00 AM

On September 23, Senator Ben Nighthorse Campbell (R-Colorado), head of the Committee on Indian Affairs, introduced bill S.2843, a laundry list of editorial fixes to various laws affecting Native American tribes around the country. Tacked on at the very end of S.2843, however, is a one-sentence "Amendment of Definition" to the Native American Graves Protection and Repatriation Act NAGPRA), the same law that was the fulcrum in the Kennewick Man case. Campbell's amendment seeks to add the words "or was" to the definition of "Native American" (Section 2(9)) so that it reads:

"'Native American'" means of, or relating to, a tribe, people, or culture that is or was indigenous to the United States."

To recap: in February 2004, the Ninth Circuit Court of Appeals upheld a lower court ruling that since the remains of a man who died 8,340 to 9,200 years ago in Kennewick, Washington, could not be associated with any modern group of Native Americans, NAGPRA did not apply. This meant "Kennewick Man" did not have to be repatriated to the four Native American tribes (Colville, Nez Perce, Umatilla, and Yakama) who claimed the remains. A group of anthropologists seeking to study Kennewick Man sued the Department of the Interior for improperly honoring the tribes' claim, and the whole thing eventually wound up in the Ninth. The sticking point on which the Ninth ruled was whether Kennewick Man is "Native American" as defined under NAGPRA. Because he couldn't be linked to any group that is (present tense) indigenous to the U.S., the answer was no.

"The amendment expands the definition of a Native American to anyone on the continent before 1492," said Cleone Hawkinson, president of Friends of America's Past, a nonprofit begun in 1998 to educate the public and manage contributions for the Kennewick anthropologists' legal expenses. "It disregards known contacts by other people not ancestral to modern tribes," like the Vikings.

Friends of America's Past is opposed to the amendment. Hawkinson said the outcome of the Kennewick case would not have changed had the amendment been in place, except that it would have never would have made it to the courts in the first place. It's science by fiat.

"If the amendment had been in place at the time of discovery," Hawkinson said, "the case would likely not have been brought. The remains would have been automatically Native American and reburied. This amendment effectively changes the starting point for decisions about prehistoric artifacts and human remains by placing everything in the hands of modern tribes, whether or not they have any relationship to them."

"Some of the opposition to it is way overstated," said Keith Kintigh of Campbell's amendment. Kintigh, a professor of anthropology at Arizona State University, is also a member of the Society of American Archaeology's committee on repatriation. "It's been said that if the amendment were in force, Kennewick would have been returned immediately. This is not true."

In his opinion for the Ninth, Judge Ronald M. Gould wrote that NAGPRA makes two inquiries which must be answered before NAGPRA can take effect in a particular case. First, remains must be shown to "have a significant relationship to a presently existing 'tribe, people, or culture.'" Gould stressed that Congress intended the language "that is" in the definition of "Native American" to mean "presently existing," a distinction that the Department of the Interior and the Indian tribes blurred in their argument.

And, in fact, it is exactly that argument Campbell wants to codify into law with his amendment.

Kintigh said NAGPRA's second inquiry regarding which specific modern tribe the remains are most closely related would still have to be satisfied before repatriation. Even if a skeleton is considered Native American, there still must be "cultural affiliation" -- defined in Section 2(2) of NAGPRA as "a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group." In the Kennewick case, the SAA argued that Kennewick Man was indeed Native American but that there was no cultural affiliation -- no shared group identity -- with modern tribes. So Viking remains, for example, would never be declared "Native American" because even though the Norse were in North America prior to 1492, a cultural relationship with modern Indians would be nearly impossible to prove (assuming somebody wanted to do so).

The SAA has issued a statement which has less to do with the merits of the amendment than the way it came about. Kintigh said that the SAA had been "assured personally" that they would be contacted before the bill left committee since they were instrumental in writing NAGPRA. The amendment is just a small part of S.2843 and NAGPRA is never mentioned by name, only by public-law number, so a search for NAGPRA wouldn't find it by those who regularly monitor legislation affecting archaeology -- like the SAA.

Procedural concerns aside, Kintigh said the SAA is not opposed to the amendment because it will correct one hiccup brought about the Kennewick decision: what to do with remains from historic Indian groups that no longer exist and therefore have no descendants with whom affiliation can be proven.

Several tribes in the northeast, for example, were completely wiped out by the diseases unknowingly carried by Puritans and other early European colonists. If such remains were found, everyone would agree they were Native American except the courts. "This language resolves this problem," said Kintigh. The SAA opposes any further tweaking of NAGPRA, particularly any expansion of the definition of "cultural affiliation."

Meanwhile, another group -- the World Archaeological Congress -- issued a statement strongly supporting the amendment but immediately descended into internal quarrels over how that consensus was reached.

The real question is why Sen. Campbell bothered introducing S.2843 at all.

There's no matching bill in the House of Representatives, and with the clock running down in the Congressional year, it's doubtful S.2843 will even come to a vote in the Senate. Campbell is retiring this year, with his seat to be filled by Democrat Ken Salazar. The debate in the archaeological community over amending NAGPRA may be much hullabaloo about nothing.

The author writes frequently about archaeology, travel and politics.


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