Native American Graves and Repatriation Act – Legislative Issues
Legal work continues on a number of NAGPRA implementation issues in several areas. First, NARF offered testimony in 2004 and 2005 before the Senate Committee on Indian Affairs at an Oversight Hearings regarding NAGPRA issues. NARF supports legislation to amend NAGPRA to correct problems created by the Ninth Circuit decision in the Bonnichsen case, which was introduced in September as S. 2087 and marked-up by the Senate Indian Affairs Committee.
Second, NARF represents the Pawnee Nation in the reburial of about 800 human remains in the State of Nebraska. This reburial entails facilitation of a transfer of private land located within the heart of the Pawnee homeland to the Nation for use as a reburial and cultural site. Meetings were held this Spring concerning these matters. The Nebraska Attorney General issued an opinion in 2006 clarifying that reburials may be done on private land in Nebraska.
In the Spring of 2007, the historic conveyance of 60 acres of land took place with the formal transfer of the deed by landowners Roger and Linda Welsch during a tribal ceremony held in their honor. The reburial on that land is slated for the Fall of 2007.
Third, NARF continues to monitor and participate in litigation affecting the implementation of NAGPRA. In 2005 it filed an amicus brief in the Spirit Cave litigation supporting a tribal repatriation claim against the BLM in Fallon-Piaute Shoshone Indian Tribe v. United States. The district court upheld the Tribe’s contentions and remanded the matter back to BLM. However, BLM appealed the decision to the Ninth Circuit.
Finally, NARF continues to monitor and submit comments on rule-making by the Department of the Interior concerning the implementation of this important statute.
Native American Graves and Repatriation Act – Amendment Process
“The Native American Rights Fund is participating in the amendment process of the Native American Graves and Repatriation Act, which is needed to fix problems in implementing NAGPRA created by Bonnichsen v. United States, 357 F.3rd 962 (9th Cir. 2004). (See page 26 of the 2004 NARF Annual Report).
Background of the Problem
In 1990, NAGPRA was passed to restore indigenous peoples’ human right to protect the graves and remains of their ancestors. In 1996, a lawsuit challenged the coverage of the Act. The case attacked the Corps of Engineers’ decision to repatriate a 9000 year old skeleton to a tribal coalition. Bonnichsen and accompanying controversy created many problems throughout the country in implementing NAGPRA. The case turned on the statute’s definition of “Native American.” The court held that proof of a significant relationship between the remains and an existing tribe is required before NAGPRA applies to the remains. This narrow interpretation of NAGPRA’s coverage (1) is contrary to the intent of Congress which intended the Act to apply to all indigenous remains found in the U.S.; (2) creates a loop-hole allowing museums and agencies to unilaterally, and without consultation, determine remains not to be Native American and therefore avoid the NAGPRA process; and (3) it renders several provisions of the Act, which address remains whose cultural identification cannot be ascertained, a complete nullity. As a result, over 120,000 Native American human remains found in the U.S. may not be covered by NAGPRA. This is all contrary to the interpretation of the Act by the USDOJ in the Bonnichsen case and the DOI in implementing NAGPRA since 1990.
1. Briefing paper: S. 2087 Native American Omnibus Technical Corrections Act of 2007
2. Testimony of Walter R. Echo-Hawk, NARF Staff Attorney
3. Testimony of Keith Kintah, Society for American Archaeology
4. Resolution of the Affiliated Tribes of Northwest Indians from their Ocean Shores, Washington DC Conference
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