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Two-word change to NAGPRA pending in Senate
Friday, October 1, 2004

A Senate panel on Wednesday approved a two-word addition to the Native American Graves Protection and Repatriation Act (NAGPRA) designed to make it easier for tribes to reclaim ancient remains.

Sen. Ben Nighthorse Campbell (R-Colorado), chairman of the Senate Indian Affairs Committee, is pushing a technical corrections bill that makes a slight yet rather significant change to the law. The measure inserts the words "or was" to the definition of "Native American" in hopes of ensuring that remains not linked to present-day tribes can still be repatriated.

The addition of the two words was first suggested at a hearing in July as a way to prevent another Kennewick Man debate. Tribal advocates said a federal appeals court wrongly interpreted NAGPRA to apply only to present-day Native American remains.

"They said NAGPRA was entirely irrelevant to what should happen to those remains," Paul Bender, a law professor from Arizona State University, told the committee. "That was a startling holding for somebody like myself who was involved in the framing of NAGPRA ... and I think it would startle every member of the committee that recommended the NAGPRA legislation."

At a committee meeting on Wednesday, a Senate staffer described Campbell's bill as "non-controversial." There was no discussion of the matter, partly because Sen. John McCain (R-Arizona) rushed through the meeting in order to get to the highly-anticipated hearing on two tribal lobbyists.

But the measure, S.2843, is drawing objections from the plaintiffs seeking to study the 9,000-year-old remains of Kennewick Man. Paul Schneider, a lawyer for eight scientists who won the appeals court decision barring repatriation, said the addition of the two words would be disastrous.

"It will allow a tribe to claim remains on its aboriginal lands and rebury those remains even though it was not related to them in any way at all," he said in an interview. "That clearly was not the purpose of NAGPRA."

The scientists are locked in a battle with four Pacific Northwest tribes that claim Kennewick Man as an ancestor. The tribes don't want the Ancient One, who was found on land that used to be part of the Umatilla Reservation in Washington, subjected to more studies.

The federal government originally supported repatriation but changed its mind when the case when to the 9th Circuit Court of Appeals and said the remains were "culturally unidentifiable." In such situations, study is governed by another federal law.

In a story for the Associated Press, Rob Roy Smith, an attorney for the Confederated Colville Tribes of Washington, said the addition of the two words would not alter the Kennewick Man case. That view was shared by another lawyer for the scientists.

"This case has already been decided and there's been a judgment," said Paula Barran in an interview. "Legislation would have to be very particularized in order to affect this decision."

The two words, however, could impact other repatriation disputes. In one case, the Bureau of Land Management is refusing to hand over the remains of a 10,000-year-old man to the Fallon Paiute-Shoshone Tribe of Nevada.

A NAGPRA review committee recommended the remains be reburied but the law doesn't require the BLM to abide by the recommendation. A change in the law itself could force the agency to re-evaluate its position.

Like most technical corrections legislation, S.2843 doesn't mention NAGPRA by name. Section 14 of the bill instead refers to "Section 2(9) of Public Law 101-601."

Section 2(9) of Public Law 101-601 currently reads:

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

The bill states that Section 2(9) of Public Law 101-601 will be amended by inserting the words "or was" after the word "is" in the above definition.

"The words ... 'or was' could be inserted after the words 'that is,' thus making it clear that relationship to a present-day tribe need not be established for indigenous American materials to be 'Native American' for NAGPRA purposes," said Bender at the hearing in July.

S.2843 was approved by a voice vote on Wednesday and has been placed on the Senate calendar for a floor vote. There is no companion legislation in the House.

Relevant Documents:
S.2843 | Public Law 101-601: NAGPRA | Senate Testimony | 2004 NAGPRA Report

Court Decision:
BONNICHSEN v. US (February 4, 2004)

Relevant Links:
Kennewick Man, Department of Interior - http://www.cr.nps.gov/aad/kennewick
Friends of America's Past - http://www.friendsofpast.org
Kennewick Man Virtual Interpretive Center, The Tri-City (Washington) Herald - http://www.kennewick-man.com