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Proposed NAGPRA Regulations Regarding Unclaimed Cultural Items

by Ed Hagen last modified May 27, 2009 06:28 PM

AAPA Position Statement on the

Proposed NAGPRA Regulations Regarding Unclaimed Cultural Items




The American Association of Physical Anthropologists (AAPA) participated in the development of the Native American Graves Protection Act (NAGPRA) and was part of the coalition of Native American and scientific groups that worked for its passage. We continue to support NAGPRA's key goal of ensuring that culturally affiliated, federally recognized Native American groups are allowed to make decisions regarding the disposition of their ancestral remains.

NAGPRA has been a success because of the careful way it was crafted to balance the disparate interests many different groups of Americans have in archaeological remains. NAGPRA=s specific instructions regarding the composition of the Review Committee, which mandate representation by members of the Native American, scientific, and museum communities, make this goal of balancing diverse interests clear. The key to the compromise that allowed so many different groups to support NAGPRA's passage resides in the concept of “cultural affiliation.” NAGPRA provides culturally affiliated tribes with the right to reclaim the remains of their ancestors where lineal descent or a relationship of shared group identity can be clearly established based on the preponderance of a broad range of different types of evidence provided by members of both the Native American and scientific communities. However, when a reasonably close relationship between human remains and a modern federally recognized tribe cannot be established, NAGPRA permits human remains to be retained for scientific study. In this way, NAGPRA balances the undisputed right close relatives have to decide the disposition of ancestral remains against the rich array of historical insights that can be derived through scientific study for all Americans.

We would like to point out that NAGPRA does not mandate the repatriation of ancestral remains to culturally affiliated groups, nor does it call for the universal reburial of human remains and cultural objects that fall within its purview. Instead, NAGPRA provides federally recognized tribes and Native Hawaiian groups with the authority to reclaim culturally affiliated remains (or human remains otherwise affiliated according to NAGPRA Sec. 3.a.A-C.) if they wish to do so.

As we can see based on nearly fifteen years of experience with the implementation of the statute, many Native American groups have not availed themselves of the right NAGPRA grants them to claim culturally affiliated ancestral remains. The reasons for the decision not to claim these ancestral remains are undoubtedly complex. However, it is reasonable to assume that this position reflects a well considered decision on the part of the Native American group with whom the remains are affiliated. Under such circumstances, it seems reasonable to respect the desires of culturally affiliated groups and continue to maintain these unclaimed, but culturally affiliated collections in repositories that meet federal standards. This will make them available as sources of information about our country’s Native American heritage for future generations of Americans. It will also ensure that these remains will be available for repatriation should a federally recognized, culturally affiliated Indian tribe or Native Hawaiian organization wish to pursue a claim at some future date.

We would like to emphasize that such a decision regarding the disposition of remains and cultural objects represents a legitimate outcome of NAGPRA-directed consultations with culturally affiliated Native American groups. NAGPRA does not mandate, or even permit, attempts to subject unclaimed remains to a new process of cultural affiliation for the purpose of identifying a “next best” group willing to make such a claim. This was never the intent of NAGPRA and belies its emphasis on lineal descent and “closest cultural affiliation.”

Deciding the disposition of culturally unidentifiable remains presents a very different situation. By definition, culturally unidentifiable human remains are those of people who cannot be shown to be culturally affiliated with any modern tribe. In other words, the people they represent lack a relationship of shared group identity with any modern tribe. From an ethical perspective, the recognition of the presence or absence of a relationship of shared group identity is central to the principle of compromise that is at the heart of NAGPRA. The absence of cultural affiliation means that the value these remains have as sources of information about our collective human past is likely to outweigh the interests any specific group of modern people have in those remains. Culturally unidentifiable remains have enormous scientific value because the information they yield has broad implications for basic and applied research in the social and natural sciences, medicine, and forensic work. Among other things, scientific studies of such remains have served to educate the larger American population about Native American biocultural history, and bring about a changing awareness and heightened appreciation of lifeways such as hunting and gathering that have often been undervalued by lay people and scholars alike. Scientific research enlightens, and enlightenment can and does lead to empowerment.

An important concern raised by the proposed regulations concerns the question of who owns unclaimed human remains. We are aware that some people at National NAGPRA have argued that it is impossible for the federal government to own the unclaimed remains whose disposition is being determined by these regulations. We point out that this view is inconsistent with the Archaeological Resources Protection Act of 1979, which lists “graves, human skeletal remains” under the definition of “archaeological resources” (470bb.1) and stipulates that “the archaeological resources which are excavated or removed from public lands will remain the property of the United States…” (470cc.b.3).

The remains that are at issue in the current consultation include several categories of unclaimed remains discovered on Federal or tribal lands after November 16, 1990. First, there are remains that can be affiliated with a lineal descendant, material that is culturally affiliated with a federally recognized tribe, and material that was found on tribal lands or the within territory determined by the United States Court of Claims as the aboriginal land of a federally recognized tribe. For the reasons discussed above, in the event that culturally affiliated remains of this kind are found, it would seem reasonable for regulations governing their disposition to allow for their continued curation and scientific analysis until such a time as a formal claim is stated. This would be consistent with federal laws governing archaeological resources such as the Antiquities Act of 1906 and ARPA. Exceptions to this practice might include two categories of human remains identified above: those for which a lineal descendent has been identified (Sec. 3.a.1) and those discovered on land owned/controlled by a federally recognized Indian tribe or Native Hawaiian organization (Sec. 3.a.2.A). As a determination of “ownership” requires no claim in such cases, disposition of any such “unclaimed” would necessarily involve consultation. 

A second class of remains whose disposition will be mandated by the regulations under consideration are remains discovered on Federal lands after November 16, 1990 that are not from tribal lands or Claims Court "Aboriginal Lands" and are also not culturally affiliated with any federally recognized tribe. The Kennewick remains would fall under this category, if the 9th Circuit Court had not ruled that they are not Native American and thus not covered by the statute. NAGPRA directs that Native American remains from federal lands that have not been, or cannot be, claimed by federally recognized Indian tribes and Native Hawaiian organizations because they are culturally unidentifiable be disposed of in accordance with the regulations we are being consulted about. The AAPA strongly believes that such remains should be retained under federal control in repositories that meet federal standards, and made available for scientific study in much the same way that other archaeological resources found on federal lands are. Again, the importance of preserving them for future generations is underscored by a variety of federal statues that mandate the preservation of our nation’s archaeological heritage and by NSF funding that has served to facilitate proper storage, maintenance and study of these remains.

A second issue you asked us comment on in this consultation  is “How long may a cultural item removed from Federal land after November 16, 1990 remain in Federal agency possession before it is considered unclaimed?” The AAPA understands that the sensitivity of issues surrounding making claims for such material might prevent some Native American groups from making an immediate claim. On the other hand, if a culturally affiliated group does not choose to exercise its repatriation rights under NAGPRA, important research on the history of the ancient Native American population of the United States should be permitted. Although, from a legal perspective, a cultural item is considered unclaimed as soon as the culturally affiliated group is given the opportunity to claim it, a 3-5 year period after formal notification would seem to be a reasonable amount of time to wait before a cultural item is considered unclaimed for administrative purposes.

In response to the question: “What are the appropriate dispositions for unclaimed cultural items?”, it is our position based on reasons given above that the appropriate disposition of such remains is curation at a museum/repository to allow future scientific research concerning the history of our country's Native American population.

Regarding the question: “How should the regulations deal with the management, preservation, and use of unclaimed cultural items?”, we can all agree that human remains should be treated in a respectful way. The primary purpose of keeping human remains in museums is to make them available for scientific studies that will enhance our understanding of the history of our country and its people. Such remains should therefore be made available for a variety of studies, including so-called destructive analysis, in which the benefits of the information that will be gained are carefully balanced against the costs of the research in terms of its effects on the physical integrity of the remains.

Thank you for considering our views on these important issues.

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