Thursday, April 14, 2005

NAGPRA change bill, continued Bones of Contention

If hobbit bones were to turn up on Santa Rosa, however, we might never have a chance to learn about them.

That’s because McCain has proposed adding two words to the Native American Graves Protection and Repatriation Act, a law Congress passed 15 years ago to defend American Indian burial sites and cultural objects from grave robbers and pot hunters. It’s a worthy goal, but tribal activists increasingly have tried to broaden the interpretations of NAGPRA. The bottom line is that they want to make it virtually impossible for scientists to study prehistoric human remains, no matter how ancient or disconnected from actual tribes.

Nothing particularly new here either. However, we followed a link therein to the Friends of the Past web site. One item, however, may cause some concern as to possible avenues of repatriation if the change goes into effect: What is the significance of "Is"? Another attempt to amend NAGPRA by Ryan Seidemann. The relevant text here is:

Despite the creation of a seemingly counterintuitive reality for repatriation claims under this new definition, simply being able to make a claim for repatriation under NAGPRA is not tantamout to actually being allowed to repatriate items. Any such claim would still have to pass muster under the ownership priority provisions of Section 3(a) of NAGPRA. Unfortunately, not all these provisions would remain unaffected by the proposes changes in S.2843. Briefly, Section 3(a) looks to the following groups to determine ownership of Native American cultural items:

(1) lineal descendants of the Native American remains;
(2) in the absence of lineal descendents, the items may be repatriated by:
(a) the group on whose tribal land the items are discovered;
(b) the group with the closest cultural affiliation;
(c) if cultural affiliation cannot be determined, then to the tribe legally recognized as having aboriginally occupied the deferal land where the remains were discovered (or another group by preponderance of evidence);

[Note: this is a transcription, not a cut-and-paste so nothing is sic]

Seidemann notes that (1) and 2(b) probably would not be substantially affected by the new regulation. However, (2a) "could be substantially affected by the proposed change [by allowing] for the repatriation of items regardless of their cultural or genetic affilation, simply by virtue of their location on tribal lands"; and 2(c) "could allow for repatriation claims by nonculturally affilated groups whose Native American ancestors once occupied the same land as those of a pre-Native American group".

Hmmmm. At first glance, we don't know how 2(a) would be different from what it is now, largely due to our ignorance of the way the law now works. We assume that anything found on tribal lands belongs to the tribe in much the same way that whatever is found on private property belongs to the land owner. We could, of course, be mistaken in this.

2(c) we're not sure about. It seems as though Seidemann may be correct in that simply by demonstrating some aboriginal occupation of a piece of land may be enough to lay claim to remains in the absence of any specific cultural or genetic affiliation, simply by virtue of both the modern people and ancient remains both being classed as "Native American". This may bring things back to where they were before the Jelderk decision (that is, NAGPRA comes into effect when anything is found, but still must show some cultural or genetic affiliation), or it may allow for claims based solely upon past land use, with the new definition of "Native American" possibly trumping the necessity of proving cultural/genetic affiliation.

So. . . . . .we're still not sure what to make of it.

Update for Instapundit readers: See more here and here.