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What is a Native American?
Alan L. Schneider
One of the issues argued in the Kennewick Man case is the
meaning of the term "Native American" as used in NAGRPA.
The statute defines it as "of, or relating to, a tribe,
people or culture that is indigenous to the United States."
25 U.S.C. §3001(9). Two vastly different interpretations
of this definition were offered at the June 2001 hearing and
in the parties' prehearing briefs. One interpretation (the scientists')
views the statute's definition as having a limited meaning that
might not include some human remains or other objects found on
federal or tribal land. The other interpretation (the government's)
would give the definition a broad meaning that would apply without
exception to all pre-Columbian indigenous remains and many nonindigenous
remains as well.
The Competing Interpretations
Scientists' Interpretation
The scientists argue that Congress intended NAGPRA to apply to
only those remains and objects that are related to existing indigenous
peoples (i.e., American Indians, Native Hawaiians or Alaska Natives).
They contend that the statute should be interpreted as if it
contains the word "now" (i.e., as if it reads "of,
or relating to, a tribe, people or culture that is now indigenous
to the United States"). Under this interpretation, the
existence of a relationship to present-day indigenous peoples
is a critical threshold issue. If such a relationship does not
exist in a particular situation, NAGPRA is inapplicable and does
not control the disposition of the remains or object in question.
The Government's Interpretation
The government argues that the statute does not require a relationship
to present-day indigenous peoples. They would interpret its
definition of Native American as meaning "human remains
and cultural items relating to tribes, peoples, or cultures that
resided within the area now encompassed by the United States
prior to the historically documented arrival of European explorers,
irrespective of whether some or all of these groups were or were
not culturally affiliated or biologically related to present-day
Indian tribes." McManamon Opinion Letter, December 23,
1997. Under this interpretation, all remains and objects that
predate documented European exploration (which defendants equate
to Columbus' first voyage) would automatically be classified
as Native American and thus would be subject to disposition under
NAGPRA.
The Amici's Position
Both the tribal amici (i.e., the Colville, Nez Perce, Umatilla
and Yakama) and the National Congress of American Indians endorsed
the government's interpretation. The Society for American Archaeology
also supported the government's position at least in general,
but may disagree with it as to some secondary details. For example,
it was not clear from the briefs and oral arguments whether SAA
agrees that residence is an appropriate test to use for determining
whether something is or is not Native American.
Interpretative Tests
If the court reaches the substantive issues raised by these
two competing interpretations (see "Court Options"
below), two of the questions it is likely to ask are:
Which interpretation is most consistent with the words
of the statute?
When construing the meaning of a statute, courts (and government
agencies) are required to give appropriate effect to all of the
words used in the provision in question. The dispute here is
over the significance of the phrase "that is" in the
statutory definition. The scientists argue that the word "is"
must be read in the present tense, and that therefore the measuring
standard in the definition is present-day indigenous peoples.
The government and the amici, on the other hand, argue that
"is" can be interpreted as "is or was" since
people sometimes use "is" and "was" interchangeably.
However, all standard dictionaries define "is" as
the present indicative of the verb "to be". There
is no evidence that Congress was unaware of, or deliberately
chose to ignore, the rules of grammar when it enacted NAGPRA.
During the June 2001 hearing, the court commented that it could
accept the government's interpretation more easily if the statute
had used the word "was".
Which interpretation is most consistent with the purpose
of the statute?
The government and the amici assert that NAGPRA was adopted so
Native Americans could claim the remains and cultural items of
their ancestors. If that is so, the scientists argue, then use
of a relationship test is clearly appropriate. Items that are
unrelated biologically or culturally to modern indigenous peoples
are not ancestral and thus should not be subject to claims under
NAGPRA. The government's interpretation of the term Native American,
on the other hand, would permit items to be claimed even in the
absence of a demonstrated relationship to living Native Americans.
Such an expansive interpretation is said to be necessary because
it would be difficult or impossible to prove a relationship in
many situations. The scientists believe that these asserted
problems of proof are exaggerated, and do not justify "repatriating"
all remains that happen to predate Columbus. For most historic
and recent prehistoric items there is usually ample biological,
genetic or artifactual evidence to demonstrate the requisite
relationship. Problems of proof would be more pronounced for
ancient and other older items, but they represent a small percentage
of the situations likely to be encountered. Furthermore, there
is no evidence Congress had such older remains and objects in
mind when it adopted NAGPRA.
Potential Implications
The outcome of this dispute over interpretation of the statutory
definition could have important consequences for how repatriation
claims will be decided and for scientific investigation of American
prehistory. Some of the potential consequences are:
Nonindigenous Remains
The government has stated that it would apply its interpretation
to exclude those pre-Columbian remains that are shown to be European
in origin (e.g., Viking remains that might be found in the U.S.).
However, no exception would be made for remains from other groups
that are not presently indigenous to the U.S. Possible examples
of these include Japanese and Chinese explorers, and groups that
are now indigenous to Canada, Central America, the Caribbean
or Siberia. Under the government's interpretation, their remains
would be deemed Native American and could be given to U.S. tribal
claimants. Under the scientists' interpretation, on the other
hand, there would be no presumption that all prehistoric remains
are Native American. The status of each item would be resolved
on a case-by-case basis. Remains from groups not indigenous
to the United States would be excluded from NAGRPA treatment
unless there is evidence to indicate that they are related biologically
or culturally related to present-day Native Americans.
Extinct Groups
The government's interpretation would include remains from groups
that became extinct prior to 1492 even though these groups have
no ascertainable living descendants. The scientists' interpretation
would exclude such remains since they are not ancestral to present-day
Native Americans.
Relevant Data
Under the government's interpretation, the only data that would
be used to determine the status of an item is information relating
to its chronological age. The scientists' interpretation would
permit the use of all potential lines of evidence (e.g., biological,
genetic, archaeological, biochemical) to determine whether the
item is, or is not, Native American for NAGPRA purposes.
Repatriation Standards
An item that is classified as Native American can be "repatriated"
in some situation without any showing of cultural affiliation.
This can occur, for example, if the item is found on land that
has been judicially determined to have been aboriginally occupied
by the tribe claiming it. Such determinations of aboriginal
occupation (which merely require exclusive use of an area for
a generation or two) have been made for large portions of the
western United States. In addition, future regulations could
provide for the disposition of all culturally unidentifiable
human remains regardless of their antiquity or scientific importance.
The government's interpretation would place no limits on the
remains subject to such treatment. The scientists' interpretation
would limit repatriations to only those remains that can meet
the relationship test.
Prospects for Study
The government has argued in the Kennewick Man case that NAGPRA
prohibits all scientific study of new discoveries except those
limited studies needed to determine an item's disposition under
the statute. The tribal amici have taken an even more extreme
position that would bar all studies not approved in advance by
tribal claimants. If either of these theories were to prevail,
the meaning given to the term Native American will determine
whether any room will be allowed for study of new discoveries
for general scientific purposes. Under the scientists' interpretation,
at least those remains not related to present-day Native Americans
would still be available for study since they would not be subject
to control under NAGPRA.
Other Issues
One question that has received little attention thus far in
the case is the scope of the phrase "relating to" in
the statutory definition. What type of connection is necessary
to qualify an item as something that "relates to" a
present-day indigenous tribe, people or culture? Must the connection
be direct and substantial? Or would more remote connections
be sufficient? If the court does opt to adopt a relationship
test, further hearings could be needed to resolve these (or other
related) issues.
Court Options
The options available to the court are not limited to a simple
choice between the two interpretations argued by the parties
and the amici. The court could decide the case on other grounds
without resolving the question of what is meant by the term Native
American. For example, it could decide that the government's
interpretation is invalid because it was not adopted in the proper
manner. Even if the court does reach the substantive merits
of this issue, it could choose to craft its own interpretation
of the statutory definition. In any event, a final resolution
of what is meant by the term Native American could still be several
years away. As noted above, further hearings could be held.
Moreover, it would be surprising if the court's decision, whatever
it might be, is not tested by at least one round of appeals.
Mr. Schneider is an attorney for the plaintiff scientists.
If you have comments
or questions we'll pass them along to him.
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