Part 2 of a review of "Complex legal legacies: the native American graves protection and repatriation act, scientific study, and Kennewick Man.(Native American Grave Protection and Repatriation Act)." Susan B. Bruning. American Antiquity 71.3 (July 2006): p501(21).
Part 1 here.
What came as surprise to me when reading this second half of the paper was that NAGPRA does, in fact, allow for the scientific study of even affiliated remains under certain conditions. If the remains can be shown to be
"indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States," then repatriation is not required until completion of the study (NAGPRA, Section 7[b]). Section 7 study can proceed, with or without the consent of the culturally affiliated claimant, if the remains are of sufficient scientific importance. The claimant does, however, have an ultimate right of repatriation once the study is complete. (p.515)
And unaffiliated remains?
When Newly Discovered Remains are found to be culturally unidentifiable, NAGPRA's current language does not restrict, in terms of scope or time frame, the study of those remains. ARPA's standards would presumably apply, unless and until new legal requirements for handling culturally unidentifiable remains are adopted under NAGPRA, as discussed above.
This is contained in Section 7 (discussed starting on p. 515). The key, of course, is that there has to be a specific purpose to the study and it must have a definite end point when the study will be complete, at which time repatriation can occur. Thus, had Kennewick Man been found to be subject to NAGPRA, study could have proceeded until an affiliated party could be established.
Interestingly, much discussion takes place around what constitutes an institution's "holdings" and that NAGPRA was initially developed in order to deal with holdings and collections contained within Federal or Federally funded institutions. This issue comes to the fore when newly discovered remains are discovered, and Bruning argues that the statute may include remains, such as Kennewick, that are being curated by an institution while decisions are being made about the final disposition of the remains. The Interior Department argued that newly discovered remains do not apply since they do not constitute "holdings", but Bruning argues (as did, apparently, the Kennewick circuit court) that the term "holdings" was specifically included in the wording for just such a circumstance. That would have had the effect of removing from Section 7's domain all newly discovered remains:
Section 7 provides the structure within which all potential claimants may assert claims to take control over the disposition of items and by which the disposition process should be completed once those items are in the possession or control of an agency or institution. By excluding from Section 7's coverage all Newly Discovered Remains, the Interior Department has interpreted the statute in ways that unnecessarily exclude future discoveries from key processes established in NAGPRA for documenting, repatriating, and otherwise resolving the disposition of those items while ensuring that discoveries of major scientific importance will be available for study. (p.516)
What did the Interior Dept. intend by doing so? IMO, to be able to do what it wishes with newly discovered remains without interference from outside parties.
In sum, NAGPRA allows scientific study of remains:
-- (1) when Newly Discovered Remains are removed from federal land pursuant to an ARPA permit and tribal consultation, at least until an entitled claimant is identified and intervenes;
-- (2) when Newly Discovered Remains are removed from tribal land pursuant to an ARPA permit, subject to consent of the tribal landowner; and
-- (3) prior to the repatriation of any culturally affiliated Institutionally Held Remains that "are indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States" (Section 7[b])
Obviously, the contentious issue is in the establishing of cultural affiliation. No one wants someone's grandmother sitting in a museum, but to stretch the point and attempt to equivocate any pre-Columbian remains as a grandparent seems at odds with both common sense and NAGPRA itself. NAGPRA may have to be modified somewhat to, as Bruning notes "to clarify or modify the statute or its regulations, to more accurately interpret or implement those provisions, or to bring public expectations into better alignment with the law." The court rulings seem to have gone a long way towards clarifying how certain language ought to be interpreted, and people on all sides are now having to work out how they will respond in future cases.