NAGPRA | News & Comment

More Notes from the Back Seat

In another note, I tried to make a point that doing the right thing is often a lot more difficult than it ought to be, and sometimes impossible. Murphy’s Law prevails in the Congress just as reliably as it does everywhere else. Now I am not an attorney, but it seems to me that enough unintended consequences have dribbled out of an undiapered NAGPRA that even a Government lawyer might blush.

On every hand, we hear much discussion about separation of Church and State. “Separation” isn’t exactly what the Bill of Rights says, but it’s the essential idea behind what it does say. How curious it seems, then, that NAGPRA, for particular purposes, and in a particular way has beyond question decided which religion shall be the beneficiary of this law, and has specified that practitioners of this religion shall have pivotal influence in decision making with regard to the provisions of the law. NAGPRA has effectively dictated that Traditional Native Religion(s) shall be ESTABLISHED for purposes of this law. I don’t have any particular complaint about this, except the Constitution says the Congress can’t DO that!

The leadoff condition of the First Amendment to the Constitution of the United States is as follows:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;....”

It is OK to note that the commandment is directed to the Congress, and that the little in-between word there is NO, meaning none, nada, nyet, nein, etc. The wording is a little awkward to modern eyes and the term “establishment of religion” is unfamiliar to most of us. Were it not for the First Amendment we would likely be very familiar with it. Several nations of the world still maintain very close formal and legal ties between one religion and the performance of the national government.

In Colonial America, the terms “a religious establishment”, “an established religion”, or “an establishment of religion” interchangeably meant a particular faith which would be designated by the (colonial) government (presumably as an obligation of a responsible and caring government) as most representative of its people and thus authorized to receive support through taxation. For whatever reason, the idea was unpopular enough to make the top of the list in the Bill of Rights, which simply forbade the Congress to fiddle with the concept, one way or the other.

When laws are made concerning the disposition and treatment of human remains, religious perceptions are usually involved. The emphasis and priorities of public regulation, however, concern public health and order. Legal designation of specific religious involvement just does not happen, but it happened in NAGPRA.

The Religious Establishment designated by NAGPRA is wonderfully generalized in character and its depth of history is more likely to be alleged than documentable. In general terms, Traditional Native American Religion is whatever the representative living generations of practitioners say it is. In many cases, bodies of current religious thought have been reconstituted from fragments of folklore, ethnographic documents and assistance from related tribes. In cases like the Lakota, traditional tracings to actual aboriginal roots may be quite reliable but the character of the religion (spirituality) is very individualistic, depending heavily on a persons’s own perceptions and experiences with the non-material world. These concepts need no validation from the Congress. Neither, in my estimation, do they warrant the quitclaim deed in NAGPRA to jurisdiction over the entire genetic and cultural prehistory of the United States.

The terms “quitclaim” and “jurisdiction” may be slight overstatements of the precise terms of the Act. They do not exaggerate the real effect of what NAGPRA has wrought. The specific requirements for “consultation” with tribes, proof of consultation and determination of ownership or right to control human remains, etc. , at all stages of excavation, discovery or inventory, and the prescribed conditions of such consultation, amount to de facto relinquishment of control in favor of tribes. This abdication opens the door wide. Demands by tribal representatives as conditions of completing the required consultation can be, and sometimes are, personal and arbitrary. Such conditions can include: authoritative presence of a tribal representative when remains are handled, specific limitations on conditions and methods of handling, recording and analysis, prohibition of publication of photographs or other data, making remains available to religious practitioners for blessing, etc., and demands for immediate posession in absence of specific and detailed rationale for not relinquishing.

Some or all of such demands could be met, depending on an agency’s relative urgency to show compliance. Section 3009(1)(B) of the Act authorizes any federal agency to make any agreement {whatsoever} with a “culturally affriliated tribe or organization as to the disposition of, or control over, items covered by this chapter.” In other words, a Federal agency and a native organization can make any deal they want to and the rest of NAGPRA will not apply

Consultation requirements regarding unassociated funerary objects, sacred objects, and objects of cultural patrimony can be similarly complicated. The matters of “sacredness” and “right of alienation” are subject to shades of gray and modern opinion may or may not always be appropriate to the actual cultural values and conditions of “alienation.”

While NAGPRA is shot-though with primary intent to protect the interests of genuine relatives and tribal affiliates, Congress gave away the farm by providing authoritative custody based on implication or geographical criteria alone. There is no exemption from final relinquishment to Native American/Hawaiian custody and “disposition.” This has resulted in delivery of remains and objects to probable enemy tribes and to claimants having far more distant relationship to the deceased than I have to Roman soldiers or Celtic and Saxon warriors.

Arguments in opposition may lean on discussion of “Treaty Nations.” “Tribal Sovereignty,” and “Special Relationships Between Governments.” The fact is, and the record will show, that native claims to human remains and associated material beyond ten generations or so, and provable tribal affiliation, are made on purely religious grounds. They have the right to make such claims and to petition the government to recognize them. My skepticism lies in the government’s participation in and subsidizing the interests of a religious claim in disregard of the rest of the nation and its future generations. I have already expressed personal discontent with preventing a dead man from speaking all he can, which is what “reburial” amounts to.

The authors of NAGPRA sometimes revealed a sense of being on “iffy” legal ground. Using an imaginary story, let us suppose that a white scout for the Army was visiting a Crow Indian village more or less on business, and some Lakota warriors attacked the Crows while he was there. The scout was active in the fray and took some battle trophies “by right of conquest, ” a concept enthusiastically endorsed by many American Indians up until around 1880. In addition to the pistol and bow and quiver taken by the scout, one of the Crows later gave him a couple of souvenir scalps and a knife from the fight. All of these things passed down to the scout’s descendants along with a written account of the affair until , oh, 1970, when the scout’s great-grandson decided that as a matter of civic responsibility he should assure preservation by donating to the local county museum. The county, of course received Federal funds for one thing or another, thus the museum was eligible for raiding through NAGPRA, even though the museum had contracted in the accession to “preserve in perpetuity for purposes of exhibit and public education.”

Do you suppose for a moment that scalps could escape an insistent definition of “human remains?” And the other things? With my own ears I have heard NAGPRA enthusiasts vigorously insist that anything a dead man had when he died was “sacred,” and such an argument could go far in pursuading a “voluntary” relinquishment. The point of this paragraph is that NAGPRA authors were well aware that their confiscation law would result in many such instances,and that legal waves at local level would result in legal waves at the Federal level. So on the 6th Day, they penned Sec. 3005 (f):

“Any museum which repatriates any item in good faith pursuant to this chapter shall not be liable for claims by an aggrieved party or for claims of breach of fiduciary duty, public trust, or violations of state law that are inconsistent with the provisions of this chapter.”

Thus, Federal confiscation of private property placed in public trust as a condition of donation is OK. Should we believe that NAGPRA constitutes “due process” in such cases?

One of the unintended effects of NAGPRA has been to treat the varied Native American Religious organizations and belief systems as a Religious Establishment. Albeit such treatment is mandated by the Act in a limited way, for limited purposes, the First Amendment does not provide for exceptions or partial exceptions. Fulfillment of the Act’s provisions nearly all apply to a specified Native American Traditional religious intent, and serve no other public purpose.

There is no doubt that NAGPRA was crafted with chivalrous and charitable intent. There is no doubt that NAGPRA has set aright many grievous and painful wrongs. There is no doubt that NAGPRA needs a serious overhaul.

The concerns of Native Americans, Native Hawaiians and everybody else for respectful disposition of historical members of family and community will be heard. At some point, these concerns can obviously turn into unrealistic hyperbole and even demagoguery.

If one person lived for 500 years, how many generations of descendants would he truly have an interest in bouncing on his knee? Sociologically, a generalized interest in one’s tribe or nation of origin is likely to last longer than interest in specific lines of descent. The exception is geneological, and geneology also reaches a point of abstraction after the first handful of generations. Whether time is reckoned as a linear phenomenon , as Europeans view it, or circular/cyclical as Native American traditionalists may choose, there is still a measure to the misty outskirts of antiquity. That measure is a count of generations.

If a review and revision of NAGPRA is undertaken, as I believe is inevitable, new directions will have to be determined by reasonable agreement between reasonable people. One of these will concern identification of that “misty outskirt” where we can begin to consign human remains to the ages, and to future new knowledge about them.

Comments from Gene Galloway, Council Bluffs, IA

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