Scientists are considering a lawsuit against a new rule that would help repatriate thousands of Native American remains to tribes across the nation.
The rule, published March 15 and open for comment for 60 days, is a clarification from the Interior Department to the 1990 Native American Graves Protection and Repatriation Act. It states that after appropriate tribal consultation, transfer of culturally unidentifiable remains is to be made to a tribe from whose tribal or aboriginal lands the remains were excavated or removed. Civil penal- ties are proposed for museums and learning institutions that do not follow the law.
The development has been largely celebrated by Native American communities, although tribal advocates say it has shortcomings, like not including sacred culturally unidentifiable funerary objects in its scope. Some tribes are using the open comment period to make that concern known, noting that common law and some state laws require repatriation of such objects.
Some scientists, however, are outraged by the new rule, believing that important human knowledge could be lost if the remains go back to tribes.
“I and many of my colleagues believe the new additions to the law go far beyond the spirit of compromise that defined the original NAGPRA law,” said Fred H. Smith, Anthropology Department chair at Illinois State University.
“The new law allows virtually any group to claim unaffiliated remains with essentially no proof that they are closely related. There are a number of problems with this, but not to be lost among them is that it severely limits scientific research on human remains.”
Dennis O’Rourke, a population geneticist at the University of Utah, has argued that “the loss to science would be greater than ever before, because new techniques allowing the extraction of DNA from increasingly ancient bones has boosted the scientific value of such specimens,” according to a recent report in Nature magazine, titled, “Rule poses threat to museum bones.”
O’Rourke and Smith are leaders with the American Association of physical Anthropologists. Members of that professional organization, along with some from the Society for American Archaeology are the top contenders to wage a legal opposition to Interior’s rule.
John O’Shea, an anthropology professor at the University of Michigan and a museum curator there, believes such litigation would likely be ruled in favor of scientists – and could end up raising questions about the validity of the entire NAGPRA law.
“I think these regulations go far beyond the original intent of the law. I know a lot of people in Indian country are okay with that, but it does raise issues for me as a scientist.”
O’Shea has long been a controversial figure to some Native American advocates who believe he has hurt tribal relations with his university as a result of his positions involving NAGPRA. Once a member of the committee that oversees the law, he has offered past perspectives that some see as anti-tribal.
On top of their arguments regarding loss of scientific knowledge, several scientists believe that a 9th Circuit ruling involving skeletal remains of the so-called Kennewick Man will bolster their legal claims.
Smith is not so sure, saying the case, which was decided in favor of scientific interests in 2004, referred to one specimen under a specific set of circumstances.
“Frankly, I think legislatures and even the courts are likely not to support science,” Smith said. “It isn’t in their political interests, particularly given the anti-science leanings of many (if not most) Americans. I have little hope that the interests of science and knowledge will win out against the emotionalism of the other side. It’s a shame, and no one knows the ramifications of this for the future.”
Many Native Americans take umbrage with the idea that their arguments involving the new rule amount to “emotionalism.”
“We’re looking at a system resulting from colonialism, involving lots of privilege and entitlement,” said James Riding In, an American Indian studies professor at Arizona State University. “The anthropology and other science fields have a long legacy of opposition to Indian human rights.”
Riding In noted that several scientists opposed the original law altogether, so he is not surprised some are willing to fight the new rule in the courts.
“When they look to the courts, you have to realize that they are looking to a tool of colonization, built on Eurocentric attitudes.”
The legal system builds in a lot of shots at appeal that might allow scientists to get the victory they desire, Riding In said, adding, “We always run the risk of what happened with Kennewick Man.”
Veronica Pasfield, a repatriation officer with the Bay Mills Indian Community, said that past actions by scientists show them not to be acting in good faith.
She noted that the NAGPRA program has determined that 80 percent of the human beings archaeologists and museums have declared “unaffiliated” are actually affiliated with tribes.
“The new regs are, in part, a direct consequence of that failure to work in good faith within the spirit – and sometimes letter – of this law.
“I find [the scientists’] outrage to be really ironic. Since 1990, obstructionist curators have stunted important collaborative research that tribes and those who study them could be doing together. They also cast a very colonial light on their discipline and those trying to work within the ethical standards required by their profession.”
In a related development, Sherry Hutt, manager of the national NAGPRA program, said in a recent radio interview that part of the new rule provides a process for those that are truly unidentifiable, and also makes institutions go back to address the law’s 1995 rule to make sure they properly identify remains.
D. Bambi Kraus, president of the National Association of Tribal Historic preservation Officers, noted that institutions were required to consult with tribes by 1995 on the type of remains they held.
That the new rule is being suggested as only beginning some institutions on a path toward rudimentary information sharing is part of the frustration many Natives feel, Kraus said.