Thursday, December 13, 2007

Native American Graves Protection and Repatriation Act to Change

Native Americans, anthropologists, and others have been working for over thirty years in an effort to repatriate skeletons that are lying around in museums all over the country. This process, which finally became law in 1990 (Native American Graves Protection and Repatriation Act [NAGPRA]), has helped to repatriate countless human remains, sacred objects, and other cultural patrimony to Native Americans where cultural affiliation can be shown. Not all cases have been good - the Kennewick Man is perhaps the best known - and museum officials and archaeologists have been working to change how NAGPRA is worded so that they may keep what they view as invaluable scientific artifacts. Well, as a result there are currently two bills being pushed forward in an effort to change NAGPRA. My colleague Darby Stapp has written an excellent piece that to my mind explains much behind these two bills.

Change to Native American Burial Law Coming by Darby Stapp

The Kennewick Man, a.k.a. the Ancient One, lives on. As a result of Magistrate Jelderks’ interpretation of the Native American Graves Protection and Repatriation Act (NAGPRA) in his 2004 Ninth Circuit Kennewick man ruling, politicians are seeking to clear up the confusion by proposing two opposing amendments to the 1990 law.

One proposal was sponsored by Senator John McCain (R-Arizona) and the Senate Indian Affairs Committee. The two-word change it proposes would make it easier for Native Americans to obtain the bones of their ancestors and make it harder for scientists to use those bones for scientific study.

The second proposal is from Congressman Doc Hastings (R-Washington) and opposes the McCain Amendment. The Hastings’ amendment proposes adding words to make scientific studier easier and the return of any human remains more than a few hundred years old more difficult.

As one who has worked with human remains through the pre- and post-NAGPRA years, and who experienced the Kennewick Man ordeal, I offer my opinion.

The McCain amendment would change the definition of “Native American” from a group that “is indigenous to North America” to a group that “is or was indigenous to North America.” With the Committee’s change, the law would recognize that cultures change over time and that direct descendants of an ancient skeleton can look far different from those of their ancestors. For example, although the Cascade peoples of 9300 years ago do not exist as Cascade peoples today, their descendants, the Native Americans who live here today, could be culturally affiliated to the 9300-year-old Kennewick Man.

In general, proponents of returning human remains to Native Americans take a broad interpretation of the law, believing that a present-day Native American group should not have to prove beyond a reasonable doubt that they are “culturally affiliated” to skeletons unearthed in the past, present, or future. The result: more ancestral remains can be returned to tribes and handled in a manner compatible with the group’s beliefs.

This interpretation of NAGPRA is consistent with our anthropological understanding of Mid-Columbia prehistory. It is believed by many Pacific Northwest anthropologists that the Cascade peoples of 9300 years ago are the ancestors of today’s Columbia River tribes. That does not mean that groups did not move in and out of the region over the millennia, or that major changes in economy and social life did not occur. It does mean that there is some connection, and that as a result of that connection, under this interpretation of NAGPRA, today’s Indian people are the ones to determine the disposition of the remains.

The opposing Hastings Amendment states up front that the intent of NAGPRA was to return human remains mainly from the 19th century that were collected by the military. Supporting materials states that the intent of NAGPRA was never to include “ancient” remains. Congressman Hastings and others who support scientific testing of human remains believe that skeletons not directly associated with an existing Native American group should be retained and stored as scientific specimens and made available for current and future scientific testing.

From an anthropological perspective, there is no basis for restricting cultural affiliation to the last few hundred years. The Mid-Columbia tribes have direct ties to people in the region for at least the last 2000 years, probable ties for the last 4000 years, and arguable ties for the last 9500 years. Many dispute that that the intent of Congress was only to repatriate recent remains.

The Hastings Amendment would make it more difficult for Native Americans to obtain the remains for their ancestors, would increase the analytic costs, and would increase the long-term storage costs. The U.S. Government would once again be in the skeleton collection business.

I say this because anytime human remains are discovered, they will need to be subjected to complex analyses by anthropologists to determine first if the remains are Native American, and second if there is cultural affiliation using the high bar of proof.

I don’t know how much the National Park Service paid for it Kennewick Man cultural affiliation studies (, but it was at least several hundred thousand dollars. Despite detailed studies, which took more than a year to complete, the results were inconclusive. Such is the nature of archaeology.

As one who works in a government setting, this is what I fear will happen. Because government budgets are tight, any new remains discovered will be placed in storage until funding is obtained, which can take years, and may never arrive. Because the standards of proof will be high, many of those remains will determined to be non-Native American. Others may be identified as Native American, but not culturally affiliated with any present-day groups. Off to storage they go.

I did not participate in the pre-NAGPRA debates of the 1980s, so I do not know what Congress intended. But I do know that NAGPRA has done a lot of good since its passage in 1990. As I stand here today with the benefit of hindsight and an understanding of how the government works, I have to believe that it is the Indian Affairs Committee Amendment that will move the Country in the right direction. I do not find any anthropological basis for the Hastings Amendment and see it more as a step backward than a step forward.

I agree with my colleague Darby on all of his points. I'd just like to add one further. I also believe this is a step backward for science, for we are losing a voice in our understanding of the world. Science is an epistemology - a method and way of knowing. Any good epistemology should be open to exploring new methods or ways of knowing if it is to remain objective, dynamic, and living. Science claims to be just such an epistemology. However, by excluding indigenous peoples views (in this case Native American's), science is limiting its understanding, objectivity, and empirical grounding. Not the best of methodological approaches if you ask me.

Scientists, Native Americans, and others can all work together. Science can progress, our understanding of the early history of North American can be deepened, and Native Americans and their ancestors can be honored. It is up to the incoming generation to demonstrate how this plurality of views can be accomplished.

Want to hear what the NAGPRA Review Committee decides? Listen in, make a difference!

Teleconference, January 8, 2008

The teleconference will be on Tuesday, January 8, 2008 from 2:00 p.m. until 5:00 p.m. Eastern Standard Time, unless business is finished earlier.

The teleconference provides the Review Committee with an opportunity to comment on the proposed rule regarding the disposition of culturally unidentifiable human remains [43 CFR 10.11]. A copy of the proposed rule is available at:

Members of the public who wish to listen to the teleconference may obtain the call-in number by sending an e-mail to, with “January 8th teleconference” in the subject line, and your full name and organizational affiliation in the body of the e-mail. Registration for the teleconference closes at 5:00 p.m. Eastern Standard Time, Friday, January 4, 2008.

Interested members of the public may submit comments on the proposed rule through January 14, 2008, identified by the number RIN 1024-AD68, by any of the following methods:

-- Federal rulemaking portal: Follow the instructions for submitting comments.

-- Mail to: Dr. Sherry Hutt, Manager, National NAGPRA Program, National Park Service, Docket No. 1024-AC84, 1201 Eye Street, NW (2253), Washington, DC 20005.

-- Hand deliver to: Dr. Sherry Hutt, 1201 Eye Street, NW, 8th floor, Washington, DC.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment -- including your personal identifying information -- may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For updated email information, please contact Lesa Koscielski at

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Anonymous said...

Hello again, Peter. Thanks for yet another very informative and thoughtful post. I think the most important phrase in the above is "work together." Let's face it, anthropologists and native Americans -- and, in fact, all indigenous peoples -- need one another. As you point out, it's not possible to determine whether or not any remains are in fact native American without the expertise of Anthropologists who specialize in this sort of research. This, as I see it, is the bottom line and something that native Americans, no matter how traditional, must recognise.

The expertise of modern, enlightened, open-minded researchers and the recognition, appreciation and preservation of valuable traditions and artefacts go hand in hand. Just as the expertise of indigenous peoples with respect to their own traditions is so basic a resource for Anthropologists. There is no reason, therefore, that the apparent differences between indigenous peoples and the Anthropologists who study their culture and artefacts shouldn't be worked out, no matter how difficult such an arrangement might seem.

Peter N. Jones said...


I couldn't agree with you more. One of the greatest challenges science faces in the 21st century is in the process of opening up its epistemology to allow for a more plural understanding of reality. Anthropologists, by their very training, are key players in this. However, so are all people - we all share responsibility when it comes to making the world a better place for all of humankind.

Thanks for the kind words.



Anonymous said...

dec. 15, 2007
Floyd Red Crow Westerman, an American Indian activist, actor and country/folk singer who appeared in "Dances With Wolves," has died. He was 71.

Westerman died from complications of leukemia Thursday morning at Cedars-Sinai Medical Center in Los Angeles, said his son, Richard Tall Bear Westerman.

The actor-musician appeared in dozens of movies and television shows, including in recurring roles as Uncle Ray Firewalker on "Walker, Texas Ranger" and George Littlefox on "Dharma & Greg."

A respected musician, he worked with Jackson Browne, Willie Nelson, Bonnie Raitt and others.

"He always said he was a musician first and he just acted for the money," his son said Friday.

Westerman continued to act until a few months ago, completing work in September on the forthcoming Kevin Costner film "Swing Vote."

Perhaps his most memorable movie role was in Costner's 1990 western epic, "Dances With Wolves." He played the Sioux leader Ten Bears, who befriends Costner's character.

Westerman also was well-known as an activist for environmental causes and the rights of American Indians and other indigenous people.

His debut album, released in 1970, was titled "Custer Died For Your Sins." Last year, he released "A Tribute to Johnny Cash."

In the 1990s, Westerman toured the world with Sting to raise money to preserve rain forests.

Westerman was born on Aug. 17, 1936, on the Sisseton-Wahpeton Dakota Sioux reservation in South Dakota.

As a youngster, he left the reservation to attend a government boarding school about 80 miles away. In keeping with policies at the time, the school frowned on his native culture.

"They cut his hair and they wouldn't allow him to speak the language," his son said. "He was a survivor of everything that the government has tried to do to Native Americans."

Westerman graduated from a reservation high school, spent two years in the Marines and went on to earn a degree in secondary education from Northern State College in South Dakota.

He made his movie debut in 1989's "Renegades," playing the father of Lou Diamond Phillips' character. He was a shaman in Oliver Stone's 1991 movie "The Doors."

In addition to his son, Westerman is survived by his wife, Rosie; and four daughters, Chante Westerman of Washington state, Chenoa Westerman of South Dakota, Jennifer Westerman of Arizona and Nicky Jackson of Minneapolis.

Peter N. Jones said...


Although this is not specifically on the topic of NAGPRA, I do think the passing of Floyd Red Crow Westerman is of note.

Thanks for sharing, I've also passed this along to some other lists.



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