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NAGPRA change up for Senate consideration again
Wednesday, March 9, 2005

A controversial two-word change to the Native American Graves Protection and Repatriation Act (NAGPRA) that would make it easier for tribes to reclaim ancient remains will be considered by a Senate committee today.

On Monday, Sen. John McCain (R-Arizona) resurrected the proposal as part of a larger technical corrections bill. The measure adds 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 change is supported by tribes and their advocates who argue that existing law fails to protect the ancestors of the first Americans. They pointed a federal appeals court decision that barred the federal government from repatriating a 9,000-year-old set of remains known as the Kennewick Man.

"They said NAGPRA was entirely irrelevant to what should happen to those remains," Paul Bender, a law professor from Arizona State University who helped draft the law said at a July hearing on repatriation. "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."

The language surfaced last year in the wake of complaints about the inadequacies of NAGPRA. But it quickly ran into opposition from a group of scientists who won the right, in court, to study Kennewick Man over the objections of four Pacific Northwest tribes who claim him as an ancestor.

Lawyers on both sides of the debate agree that passage of the bill is unlikely to affect the case. The tribes are still seeking a role in any studies carried out on the man they refer to as Techaminsh Oytpamanatityt, or the Ancient One.

But if approved, the bill could affect other repatriation disputes and set a national precedent. Currently, the Interior Department is mulling whether to return the remains of a 10,000-year-old man to the Fallon Paiute-Shoshone Tribe of Nevada. A decision has been delayed for more than three years.

At issue is NAGPRA's requirement that tribes or tribal descendants show a "cultural affiliation" to ancient remains. This can be done using linguistic, historical, anthropological, archaeological and other data.

The task becomes controversial when the remains date back thousands of years. Scientists argue that tribes cannot demonstrate a direct connection to people with whom they may or may not be related.

But tribes say their continuous occupation of ancestral territories proves they have maintained ties. In the case of Kennewick Man, evidence showed that tribes lived in the area of Washington where he was found for at least 10,000 years. The remains were, in fact, discovered on land that used to be part of the Umatilla Reservation until the late 1800s.

There isn't likely to be any debate on the measure, being considered at a business committee meeting this morning. Last September, it was rushed through without discussion by McCain, who was eager to move onto a hearing on the tribal lobbyist scandal.

McCain has since modified the bill to make it more clear that NAGPRA is being modified. The earlier version, sponsored by former Sen. Ben Nighthorse Campbell (R-Colorado), did not mention NAGPRA by name.

McCain also added language that would appear to dispel criticism that tribes would be able to claim everything older than 1492. The measure clarifies that NAGPRA only applies to artifacts and remains of Native Americans that are, or were, indigenous to the United States.

The bill reads as follows:

SEC. 108. DEFINITION OF NATIVE AMERICAN.
Section 2(9) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001(9)) is amended--
(1) by inserting "or was" after "is"; and
(2) by inserting after "indigenous to" the following: "any geographic area that is now located within the boundaries of".

Relevant Documents:
S.536 | 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