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from the trenches
Whose Bones? Volume 61 Number 2, March/April 2008
by Andrew Slayman

Scientists' ability to study ancient remains such as Kennewick Man, the 8,400-year-old skeleton found in Washington state in 1996, could be jeopardized by proposed changes to both the wording of the Native American Graves Protection and Repatriation Act (NAGPRA) and its implementation.

The 1990 law mandates that Native American remains and artifacts discovered on federal land be returned to tribes that can show an affiliation to them. A bill in the Senate would change the definition of the term Native American in NAGPRA from "of, or relating to, a tribe, people, or culture that is indigenous" to "of, or relating to, a tribe, people, or culture that is or was [emphasis added] indigenous" to the United States.

This proposed change appears to be a response to a 2004 court ruling that Kennewick Man was not Native American under NAGPRA because no genetic or cultural relationship had been shown to a modern tribe. If passed, some scientists say, the change could subject any future finds like Kennewick Man to repatriation and prevent their study.

The National Park Service has also published proposed regulations for the repatriation of culturally unidentifiable human remains covered by NAGPRA. Under the proposed rule, remains that can not be linked to a specific group, presumably including finds such as Kennewick Man, would be given to the Native American group known to have occupied the land on which they were found.

The Society for American Archaeology (SAA), which supports the Senate bill, opposes the Park Service regulations, which would impact remains at more than 600 institutions nationwide. "The way the regulations are written," says SAA president Dean Snow of Pennsylvania State University, "'culturally unidentifiable' remains include non-Native American remains [such as] human remains in evidence lockers at the FBI and state and local law-enforcement agencies." Snow warns that the difficulty of complying with the new rules might lead some institutions just to "ignore them," which, he says, would be devastating to the "record of really successful interaction with Native American groups" since NAGPRA was passed. Native Americans support the new regulations. An editorial in Indian Country Today called the new rules "fundamentally sound, and the arguments against them either insulting or misplaced."

Don't expect the dispute to be resolved any time soon. The bill has not yet been scheduled for a vote in the Senate. And the new National Park Service regulations won't be made final for at least a year.

© 2008 by the Archaeological Institute of America