Comments Sought on New Proposed Rule for NAGPRA

Seventeen years after the enactment of the Native American Graves Protection and Repatriation Act (NAGPRA), the Office of the Secretary of the Interior is "soliciting comments from museums, Native American tribes and the public on a proposed rule regarding culturally unidentifiable human remains in the possession or control of museums and federal agencies." [source]

Initially, NAGPRA did not address culturally unidentifiable human remains, largely because of the question of how to determine which tribe is the appropriate group to act as the recipients of the repatriation?

Possibly the most notorious dispute surrounding unidentifiable human remains was that of Kennewick Man, the prehistoric skeletal remains discovered accidentally on the bank of the Columbia River near Kennewick, WA in 1996. Five distinct tribes (Nez Perce, Umatilla, Yakama, Colville and Wanapum) on both sides of the river all laid claim to Kennewick man as one of their ancestors, and requested his repatriation under NAGPRA. Scientists meanwhile rejected the claims, stating that the age of the remains made it impossible to attribute them to any of the tribes. In 2004, the United States Court of Appeals for the Ninth Circuit ruled in favor of the scientists arguments, noting that a cultural link could not be established between the tribes and the skeleton.

As things stand now, Kennewick Man belongs to the US Army Corps of Engineers, but resides at the Burke Museum at the University of Washington. Would the passage of the new proposed rule change that? Would the Umatilla be able to once again state a claim on Kennewick Man and try to bring him home for burial? Would the other initial tribes who also laid claim to the remains dispute a Umatilla claim and try for repatriation themselves? Would this new rule be a further step towards righting the injustices of the past, or just reopen a can of worms and promote fighting between tribes?

Only time will tell, but what I appreciate about the new proposed rule (link is a pdf) is that it stresses consultation, cooperation and collaboration. The NAGPRA Review Committee, the ultimate arbiters in all things NAGPRA, after years of discussions and recommendations has proposed three guidelines for the disposition of culturall unidentifiable human remains: 1. Respect 2. Recognition that there may be more than one appropriate disposition solution 3. Seeking recommendations from the Review Committee.

In terms of how to proceed with the disposition of culturally unidentifiable human remains, the Review Committee proposed two models: the first requiring joint recommendations by both the tribes and the museums and the second involving the joint recommendations of regional consortia, to be established by Native American tribes and Native Hawaiian organizations, thus hopefully alleviating questions of attribution within a region, or at least establishing a method for addressing such questions.

Honestly, I'm not sure how all of this will work out and it isn't yet set in stone: comments may be submitted through January 14, 2008. But I think that it is a step in the right direction towards more fully implementing the spirit of the law as opposed to just the letter of the law. It still won't answer all questions, however. Many museums hold human remains that long ago lost all of their provenance and provenience, including such basic information as the state or even country of origin. Many of those same museums also lack the funding necessary to perform the scientific testing that would be required to try to piece together the lost information. What's more, such testing may be seen as disrespectful and so undesirable. Like I said, the proposed rule won't answer all of the issues surrounding the disposition of culturally unidentifiable human remains under NAGPRA, but I'm not sure that any rule could.