Senate Changes Native American Graves Protection and Repatriaion Act Language

The Senate Indian Affairs Committee approved a bill last Thursday to amend the Native American Graves Protection and Repatriation Act. S.2078. The Native American Omnibus Technical Corrections Act, changes the definition of “Native American” under NAGPRA. It allows the repatriation of ancestors and artifacts that aren’t linked to present-day tribes. The amendment is a response to a 9th Circuit Court of Appeals decision in the Kennewick Man case. The court said the 9,200-year-old man, who was found on a former reservation, is not Native American because he cannot be linked to a present-day tribe.

As I argued extensively in Respect for the Ancestors, just now the language of NAGPRA is catching up with the evidence. Here is the actual change in the text:

SECTION 1. SHORT TITLE.

This Act may be cited as the `Native American Omnibus Technical Corrections Act of 2007'.

SEC. 2. 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'.

Now with this language, contemporary Native Americans have the legal weight that they were lacking to claim their ancestors. Prior to this, if there was no lineal proof in the form of some "scientifically" valid evidence, the language of the law argued that the skeletons were not Native American. This is no longer the case, so Kennewick Man, Buhl Woman, Spirit Cave Mummy, and the like must now be considered ancestors of today's Native American peoples.

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The United States and Native Americans: Past Policies and the UN Declaration

In the previous two posts I discussed the general thrust of the United Nations Declaration on the Rights of Indigenous Peoples. Although hailed as a major win for indigenous peoples, three of the biggest players in the United Nations failed to sign the Declaration and thus are not bound by their articles: Canada, Australia, and the United States. There are many reasons for this, some of which I outlined here. In this post, I'm concerned with outlining the articles of the Declaration that the U.S. historically did not follow by any means, but now attempts to follow in principle.

Article 7
2): Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 8
1) Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
2) States shall provide effective mechanisms for prevention of, and redress for: a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; d) Any form of forced assimilation or integration; e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 10
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 12
2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 13
1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

Article 14
1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.
2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination.
3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.

Article 15
1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.
2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

Article 18
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 20
1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.
2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 29
1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.
2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 33
1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they
live.
2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38
States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

As can be seen, these read like a list of assimilation and acculturation techniques that the U.S. has tried over the course of the last 400 years. In fact, the U.S. tried - and continues to try - every single one of these techniques when dealing with Native Americans. Sad really, when you think about it. One of the most powerful, technologically advanced, and financially rich countries in the history of the world and all the politicians can come up with in working with indigenous peoples of this land are these techniques? Not very creative thinking I would argue. The beauty, however, is that because Native Americans were smarter to a large part then the imperial colonists, they survived and defeated every one of these techniques. Now, it is up to us to help other indigenous peoples around the world learn how they can mitigate their own imperial colonists - history provides the answers thanks in large part to Native Americans and their strong will.

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