Mr. Anti-Special Interests Special Amendment. UPDATE FOR 7 JUNE: Looks like something - hmmm, possibly public attention? - has caused the 14 June hearing date to be cancelled and (probably?) rescheduled. This is good news; it gives the amendment's opposition time to organize and get to Washington. But I'll still be pestering everyone to keep pushing until the new hearing date. Thanks to everyone who took the time to phone, fax, or email.

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Note: Here's some more info and background on the McCain amendment hearing (see two previous posts). I'll be adding more info as I get it and expanding background if I can.

He's Mr. Anti-Special Interests, so I'm sure McCain's proposed amendment to NAGPRA couldn't be motivated by the concerns of any special interests. The list comprising those invited to testify at the hearing scheduled for 14 June does not, however, indicate any great concern with expanding perspective beyond an echo chamber. Of six invitees, two names have not yet been made public pending acceptances, but the four remaining slots are filled by proponents of the amendment. All are on record as supporting an interpretion of NAGPRA that would produce the "odd or absurd results" rejected by Judge Jelderks in Bonnichsen et al. vs. United States (the Kennewick Man case). Their preferred, highly idiosyncratic definition of "Native American" having been rejected by the courts, they now support amending NAGPRA such that the law is required to return "absurd results".

Some brief background on the named invitees:

The representative of the Department of Interior is as yet unnamed. Interior under Secretary Babbitt during the Clinton administration ruled in favor of the tribal claimants in the Kennewick Man case, rejecting morphological anomalies, and the implausibility of static populations and discernable descent over hundreds of generations, in favor of evidence for continuity such as: "[t]he oral tradition evidence reveals that the claimant Indian tribes possess similar traditional histories that relate to the Columbia Plateau's past landscape. The oral tradition evidence also lacks any reference to a migration of people into or out of the Columbia Plateau." (I don't think the list of possible representatives for Interior at this hearing includes anyone not enthusiastically in favor of the amendment. I will provide more background as more information becomes available.)

Walter Echohawk is an attorney with the Native American Rights Fund (NARF) who has disputed court rulings in the Kennewick Man case and argued that the Kennewick litigation demonstrates that "NAGPRA itself is under attack by the scientific community...". He expressly advocates changing NAGPRA to alter the results of cases such as Kennewick - that is, changing NAGPRA in precisely the same way that other advocates of this change insist will not have the slightest bearing on cases such as Kennewick:

But Bender and Walter Echohawk, a Native American Rights Fund (NARF) attorney, said Congress can correct the problem [the "wrong" decision in Bonnichsen] with a simple change in the law to ensure that the goals of NAGPRA are met. The changes were suggested at a Senate Indian Affairs Committee hearing on July 14.

"The court seized on two words, 'that is' in the definition of Native American, and rewrote the entire statute," Echohawk told the committee, adding that the court cited "no legislative history" to aid its interpretation.

One may ask what "legislative" history supports the "or was" interpretation, as one may ask exactly how the precedent in any way limits legitimate claims protected by NAGPRA.

The Bender mentioned above is Paul Bender, one of the original drafters of NAGPRA. He is a law professor at Arizona State University, who has previously testified in Congress in support of the "or was" addition to NAGPRA, against the Ninth Circuit's decision in Bonnichsen. Bender argues that NAGPRA was intended to give Native American groups control over even unaffiliated remains by the spurious but not uncommonly employed method of imputing a certain mystic aura to the word "indigenous". The simple trivial fact that Kennewick Man was "indigenous", "not a tourist or explorer from a far-off place", is interpreted to mean that he bears some undefined but sacrosanct and not to be questioned relation to any other human groups who happened to wander into, wander around, and settle in North America, over thousands and thousands of years, at any time prior to 1492.

Why this highly arbitrary, not to say nonsensical, connection should be accepted is never satisfactorily explained, though, predictably, the abuses and violations of rights that had led to NAGPRA being enacted in the first place are adduced and then confused with the quite distinct cases exampled by Bonnichsen. NAGPRA, as was intended, addresses and provides for the redress of these historical wrongs, but by what reasons it should be expanded to cover remains to which Native American groups have no more reasonable claim than any other interested citizen is never made explicit. This is the fundamental point in this controversy, and one that proponents of tribal claims in the Kennewick case, and McCain's amendment, consistently obfuscate and refuse to address. This amendment unconstitutionally privileges some groups' preferred, religious views about the unknown ancient North American past.

The same view is espoused by another invitee, Keith Kintigh, a professor of anthropology at Arizona State University. (Let's see, where else have I been hearing about this Arizona place? Ah yes - bill sponsored by Arizona senator supported by testimony by two professors from an Arizona university....sounds like we're working on balanced input here...) Professor Kintigh is representing the Society for American Archaeology. While the SAA supported Jelderks's decision in favor of the scientists in the Kennewick Man case, noting the necessity of giving due weight to science and evidence, and strongly ciriticized the actions of Interior in its decision to repatriate the skeleton, it rejected the logic by which Jelderks had arrived at his decision. That is, they clove to the "or was" interpretation, arguing that the courts should have accepted that Kennewick Man was "Native American" and thus subject to NAGPRA. I have not been able to puzzle out how one can reconcile these two positions. If one respects NAGPRA and the rights of Native Americans to control what is legitimately theirs, on what grounds could one rule that the tribes had no legal claim, if not Jelderks's?

Regarding McCain's amendment, the SAA, while deploring procedural irregularities, is fully on board with its substance:

SAA is not opposed to the substance of this proposed amendment, which affirms the Society's position that the definition of "Native American" was intended to include tribes, peoples, and cultures that were once indigenous to the United States as well as those presently recognized as indigenous.[...]

Kintigh evinces the same contradiction in his own statements, earnestly asserting the importance of "adequately address[ing] scientific concerns" and the need for "focus[sing] our public policy attention - and the public's attention - on the disposition of culturally unidentifiable human remains and the potential these remains have to contribute information of enormous importance about the past". These quotes from the linked 1999 address are preceded by this curious statement (curious, that is, in light of the present proposed legislation):

The disposition of the remains of First Americans [i.e., Paleoamericans] will depend not on their classification as Native Americans but on the determination that the remains have, or lack cultural affiliation. Because the earliest Americans will likely fail to meet the legal standard of cultural affiliation, they should be classified as culturally unidentifiable. As such, they are not now subject to repatriation, but under the proposals that have been floated, they would be.

And what are those floated proposals?

We face a major additional repatriation issue: culturally unidentifiable human remains-remains for which a disposition process is not specified by NAGPRA. Recognize here that many Indian groups are arguing for universal repatriation of these remains. Further, the NAGPRA Review Committee has made their disposition a high priority. SAA has consistently commented on the Review Committee's draft proposals, none of which has adequately addressed scientific concerns. Considerable attention is now focused on this issue; it will not go away. The scientific community is going to have to deal with culturally unidentifiable human remains in the near term, and the outcome is going to be really important.

There is a great deal of brow-furrowing going on in these statements radiating Grave Concern about the lack of adequate attention to scientific concerns. And yet, read carefully, they do not reveal any identifiable position on the repatriation of unaffiliated remains. As of 1999 Kintigh recognizes that certain proposals would change the rules of affiliation prescribed by NAGPRA, and that NAGPRA as it stands does not allow "universal repatriation", yet he does not come out yea or nay for these vaguely referenced "proposals". But whatever they are, the outcome of the debate to which they are addressed - the disposition of unaffiliated remains - is going to be Really Important.

Fast forward to 2005, and Kintigh is now sure that Proposals That Are Floated, affecting what can or cannot be repatriated under NAGPRA, are not really Really Important: “This won’t disastrously affect research”. That's a comfort.

The current official SAA position is, however, consistent with his 1999 views that "under NAGPRA, First Americans are Native Americans, regardless of how many migrations there were, where they came from, when they came, or whether some groups died out. I think that is what the law says; and I'm certain that is what congress intended."

Senators McCain, Cantwell, and Smith pooh-pooh concerns about negative effects on science, but never explain just what function that "or was" is supposed to serve, and never explain just why its absence is damaging to Native American interests. Or why the Kennewick ruling is damaging to Indian interests, but "or was" will have no effect on cases like Kennewick Man.

Puzzling, no?

Last year the 9th U.S. Circuit Court of Appeals ruled that no direct link exists between the tribes and the skeleton.

Scientists say McCain's bill, with a two-word change, could nullify that ruling.

The change would add the words "or was" to a definition. It would then say that in the context of ancient remains, the term "Native American" refers to a member of a tribe or culture that is or was indigenous to the United States.

The Senate Indian Affairs Committee approved the bill on a voice vote last month. Rob Roy Smith, an attorney for the Confederated Tribes of the Colville Indian Reservation in Washington state, and other supporters say the bill would apply to future archaeological finds, and would strengthen the case of tribes across the country that want to claim and bury ancient remains.

But Andrea Jones, a spokeswoman for McCain, said attorneys have told the committee the bill would not apply to Kennewick Man, because the 9th Circuit has already made a decision.

Spokesmen for Sens. Gordon Smith, R-Ore., and Maria Cantwell, D-Wash., also say the bill does not apply to Kennewick Man.

Angela Becker-Dippmann, a spokeswoman for Cantwell, said that even if the bill is signed into law, tribes "will still have to prove a cultural connection" to an archaeological find before being allowed to claim them.

But as I have noted before, NAGPRA already "does not apply to Kennewick Man", and NAGPRA already requires that claimants "prove a cultural affiliation". So, once again, exactly what is this amendment supposed to accomplish? We've yet to get any straight answers. Not from the congressional sponsors, anyway. To their credit, at least some of the invitees are refreshingly straightforward on what they think the purpose of the amendment is.

I highly recommend dialing 202-224-2251 (the Senate Indian Affairs Committee) and requesting a clarification.

(Related links here.)

Posted by Moira Breen at 06 June 2005 12:18 PM