The legislative intent of NAGPRA is stated by the statute's title, the "Native American Graves Protection and Repatriation Act".
While this might seem obvious, the title is not legally part of the Act and in this case does not actually, or at least adequately reflect the intent. This statement provides the premise for the false argument in A(2) that repatriation is the intent of NAGPRA when, in fact, the intent is appropriate disposition.
Specifically, the statute mandates:
The disposition of all Native American human remains and cultural items excavated on Federal lands after November 16, 1990,
NAGPRA mandates the disposition or control, of remains excavated or discovered on federal or tribal lands. It was not Congress's intent to force the tribes into deciding upon a disposition, it only provided them with control, and the opportunity to make that decision. However, the relevance of this statement in the context of culturally unidentified human remains is unclear.
The repatriation of culturally affiliated human remains and associated funerary objects in Federal agency and museum collections,
NAGPRA does not mandate repatriation of these items, it "provides the culturally affiliated tribe with the authority to determine the disposition of culturally affiliated human remains and cultural items." To say otherwise insults the decisions of tribes that, for example, have decided on custodial arrangements with museums.
The development of regulations for the disposition of unclaimed remains and objects (under 25 U.S.C. 3002) and culturally unidentified human remains in Federal agency and museum collections (under 25 U.S.C. 3006).
Development of regulations for unclaimed remains and objects is clearly specified. However, development of regulations for the culturally unidentified human remains is nowhere specified in the Act. The relevance of unclaimed remains in this context is unclear.
The legal standing of funerary objects associated with culturally unidentifiable human remains is not addressed by NAGPRA and is beyond the Review Committee's charge.
This is a useful point to make and SAA appreciates the committee's attention to the statute on this point.
While the statute does not always specify disposition, it is implicit that:
We are not sure that the statute ever specifies an explicit disposition; strike "always". Add for clarity after "[the] disposition": "of culturally unidentified and unclaimed human remains and objects."
The process be primarily in the hands of Native people (as the nearest next of kin),
As recognized in A(5) below, the Congress recognized both the legitimate claims of Native people for the remains of their ancestors and the legitimate interests of science and the public in our shared American heritage. Thus, while Native people should have an important voice, it is contrary to Congressional intent to remove the other interested parties from these determinations.
Repatriation is the most reasonable and consistent choice.
Reasonable to whom and consistent with what? This statement insults the decisions of tribes that have chosen other dispositions. If reasonableness is extended, as it should be, to all of the interested parties, which include Native people, the scientific community, and the broader public, then repatriation is not necessarily the most reasonable choice, it is one option to be considered. There is no need to prejudge this; the outcome should be determined by the circumstances.
It isn't clear whether A(4) applies to affiliated or culturally unidentified remains. If (4) refers to culturally affiliated remains then the disposition is entirely in Native hands already and it is up to the affiliated tribe(s) to decide what is reasonable; it isn't the place of the Review Committee to tell them. If (4) refers to culturally unidentified human remains, the subject of these Draft Principles, then the assertions of 4(a) and 4(b) are plainly false. While the Review Committee might recommend these principles, they are most assuredly not "implicit" in the legislation. There is either no implicit meaning or intent because the Congress simply didn't know what to do, or at best, the intent is for balance as implied in point 5 immediately below. To state these principles as implicit in the Act is to disguise the Review Committee's judgement as a restatement of the law. Thus, in 4 replace "it is implicit that" with "the following principle should guide repatriation." However, since we believe that both principles are flawed, A(4) should simply be removed in its entirety, leaving the disposition to be determined by the remainder of the document.
Additionally, a fundamental tension exists within the statute between the legitimate and long denied need to return control over ancestral remains and funerary objects to Native people, and the legitimate public interest in the educational, historical and scientific information conveyed by those remains and objects. (25 U.S.C. 3002 (c); 25 U.S.C. 3005 (b))
Restate this as "The statute attempts to balance a fundamental tension between…"
Culturally Unidentifiable Human Remains.
Federal agencies and museums must make a decision as to whether all Native American human remains are related to lineal descendants, culturally affiliated with a present day Federally recognized Indian tribe, or are culturally unidentifiable. This determination must be made through a good faith evaluation of all relevant, available documentation and consultation with any appropriate Indian tribe.
Change "all" in the first sentence to "each set of." Change "any" to "all" in the last sentence.
A determination that human remains are culturally unidentifiable may change as additional information becomes available.
Human remains can be identified as "culturally unidentifiable" for different reasons. At present, four categories are recognized:
Those which are culturally affiliated, but with a non-Federally recognized Native American group.
This statement is imprecise; by definition you can't have "cultural affiliation" in this circumstance (because you don't have a federally recognized tribe or Native Hawaiian organization). A better statement would be: "Those that would meet the standard of cultural affiliation except that the Indian group does not have standing under the statute." This of course begs the whole question that stalled this in the beginning, how do you define acceptable Indian groups? It is difficult to come up with an abstract set of criteria that will separate groups that would be appropriate parties to make claims from those that would not be appropriate. That was why Congress did not deal with these in the first place.
Those which represent a defined past population, but for which no present day Indian tribe exists.
Those for which some evidence exists, but insufficient for a Federal agency or museum to make a determination of cultural affiliation.
Those for which no information exists.
While a subdivision of these remains is needed, there is a problem, particularly in distinguishing between b and c. Our suggestion is included above.
Guidelines for the disposition of culturally unidentifiable human remains.
Four principles must serve as the foundation for any regulations on the disposition of culturally unidentifiable human remains. They must be:
Respectful. Culturally unidentifiable human remains are no less deserving of respect than those for which culturally affiliation can be established. While the Review Committee is aware that the term "culturally unidentifiable" is inherently offensive to many Native people, it is the term used in the statute.
Equitable. Regulations must be perceived as fair and within the intent of the statute.
"Equitable" needs a reference group to have any meaning. The fairness has to include agencies and institutions, and in any event it needs to be explicit. Perhaps insert after "fair" the phrase "to the interests of Native people, scholars, and other interested parties".
Doable. Regulations must propose a process that is possible for Federal agencies, museums, and claimants and worth the effort to implement.
"Workable" would be better than "Doable".
Enforceable. There is no point in making regulations that can not or will not be enforced.
In all these cases, guidelines, not regulations should be at issue here.
Since human remains may be determined to be culturally unidentifiable for different reasons, there will be more than one appropriate disposition/repatriation solution. Examples:
Human remains that are, technically, culturally unidentifiable because the appropriate claimant is not federally recognized [section B(3)(a.) above], may be repatriated once federal recognition has been granted, or if the claimant works with another culturally affiliated, federally recognized Indian tribe (example— the Titicut site / Mashpee case).
Human remains for which there is little or no information [section B(3)(c. and d.) above] should be speedily repatriated since they have little educational, historical or scientific value.
In these sections, "information" seems to refer only to information relating to cultural affiliation. This specific kind of information needs to be distinguished from a broader sense of information that has educational, historical, or scientific significance. Thus, while the available information for remains in B.3.c. might not lead to a determination of cultural affiliation, some of those remains will have extraordinary scientific value. The disposition of culturally unidentified human remains should depend upon a case-by-case review of the contextual documentation and the potential scientific importance of the remains.
Documentation.
Since documentation is required (25 U.S.C. 3003 (b)(2)), it is appropriate that it be conducted in accordance with defined standards.
Add with "respect to cultural affiliation" after "documentation." That is the sort of documentation dealt with in the part of the statute referenced. While standards may be useful here, because the determination of lack of cultural affiliation is made prior to the application of these draft principles, we are not sure that this is the place for such standards to be articulated.
Documentation should be proportional to the importance of the information conveyed. For example, remains from a defined past population for which no present-day Indian tribe exists [section B(3)(b.) above] are of far greater educational, historical and scientific importance than those for which there is little or no information [section B(3)(c) and (d) above].
In this paragraph documentation seems to refer to recording information for educational, historical, and scientific purposes. It might be better to refer to this as "additional recording" or something different from "documentation".
Appropriate documentation includes non-invasive techniques such as measurement, description and photography.
The nature of appropriate documentation with respect to cultural affiliation and additional recording for the public benefit will depend upon the circumstances and should not be limited.
Invasive testing is not required for statutory documentation. Such testing may be performed if agreed upon by the parties in consultation.
Again, statutory documentation is logically prior to the application of these principles. Invasive testing as a part of documentation with respect to cultural affiliation is not required by statute but may be necessary and appropriate to assist in deciding whether or not human remains are culturally affiliated or must be considered culturally unidentifiable.
Documentation prepared for compliance with the statute is a public record.
In general, documentation with respect to cultural affiliation and recording of additional information of educational, historical, or scientific interest should be part of the public record.
Models for the disposition of culturally unidentifiable human remains.
Joint recommendations by institutions, Federal agencies, or states and appropriate claimants. The Review Committee has recommended the repatriation of culturally unidentifiable human remains in those cases where:
All the relevant parties have agreed in writing,
In order to preserve the balance referred to in A(5) all relevant parties should explicitly include museums and agencies.
Statutory requirements have been met,
The guidelines listed above have been followed.
These cases have included institutions (University of Nebraska, Lincoln), units of the National Park Service (Carlsbad Caverns NP and Guadalupe Mountains NM), and states (Minnesota and Iowa).
These examples encompass enormous varieties of circumstances. Guidelines covering these general situations will require substantial development and cannot reasonably be glossed over in this manner.
Regional consultations
Historical and cultural factors, and therefore issues concerning the definition and disposition of culturally unidentifiable human remains, vary significantly across the United States. For example, issues in the Southeast, where most Indian tribes were forcibly removed during the 19th century, are very different from those in the Southwest where many Indian tribes remain on their ancestral lands. Similarly, issues in the Northeast and California differ significantly from those in the Great Plains. Therefore, it is reasonable to look for regional solutions that best fit regional circumstances.
The Review Committee recommends a process in which the Federal agencies, institutions and Indian tribes within a region consult together and propose the most appropriate disposition solutions for that region.
As with joint recommendations, any proposed regional disposition must meet both statutory requirements and the guidelines listed above.
The Review Committee will need to work out the regional model in more detail. SAA suggests that guidelines for the disposition of culturally affiliated human remains should be developed regionally and there should be regional mechanisms for dispute resolution on a case-by-case basis.
This is site is best viewed with
Internet Explorer version 5.1 and above or
Netscape Navigator version 6 and above.
For all web related problems, please
contact us at
webmaster@saa.org.
