Ethical Dilemmas Of The NATPRA

The Native American Graves Protection and Repatriation Act (NAGPRA), was established by Congress in 1990 "to protect cemeteries on federal and tribal lands, and to provide a way to return the human skeletal material and associated funerary objects in the nation's scientific and museum collections to culturally affiliated tribes" (Jew 4). The enforcement of this law, however, has been met with several challenges, as a conflict rages between the archeologists who value "these remains and objects as critical to increased historical and scientific understanding" (Cryne 101); and the Native American groups who view "human remains as the remnants of a once-living, once breathing person deserving of respect and a proper burial" (Cryne 100). While
conceived with good intentions, the NAGPRA law “was primarily designed to correct the wrongs of the past and allow for repatriation, not to enable continued study” (Cryne 108); but the dynamic nature of this conflict, and the ambiguous degree of this legislation has left many with question and numerous concerns.
The National Association of Tribal Historic Preservation Officers
(NATHPO) "is a non-profit organization of tribal leaders that implements and monitors federal and tribal preservation laws" (Cryne 104). They conducted a study in 2008 that investigated the merits and application of the NAGPRA law when dealing with "inventory notices, the process of determining cultural affiliation, and surveys returned from federal agencies and tribes about a variety of NAGPRA issues" (Cryne 104). The study revealed several problematic concerns that have left many to question the true intentions and application of the law. One of the major concerns with the NAGPRA law was that the wording included "ambiguous" language that allowed for some agencies to ignore, overlook, and discern cultural affiliations at their own discretion. This practice is especially concerning, as this could
allow for a number of remains and sacred artifacts "to be affiliated with the wrong tribe, misidentified as Native, or misidentified as non-Native" (Cryne 105). The study also found that several agencies tasked with identifying and repatriating remains and sacred artifacts severely lacked training, resources, and were understaffed. This lack of training, resources, and employees led to unqualified individuals being tasked with examining and determining remains and artifacts that "contribute to slow and unorganized inventory work and sloppy research to determine cultural affiliation" (Cryne 105); which is in direct violation of the NAGPRA law. From this discovery, the investigators noted, "Of the agencies replying to the survey, approximately forty percent indicated low resource priority as one of their two greatest negative factors in complying with NAGPRA" (Cryne 106). The NATHPO study also noted that though the NAGPRA has been set in place, few if any law enforcement agencies exist to enforce its policies. The NATHPO investigation acknowledged that the NAGPRA law mandated that "all inventories were to be completed by 1995. The NATHPO survey responses from federal agencies indicated that several of them had not completed the required inventory as of May 2008" (Cryne 107). The lack of enforcement and the ambiguous nature of this law has not one-sided however as "some in the scientific community agree with the concerns raised by the NATHPO Report notably that NAGPRA's statutory language needs to be clarified and that agencies need to make bias-free interpretations" (Cryne 108). These findings reveal the many problematic faces of the NAGPRA law, and are compounded with the fact that few if any judicial courts have addressed this issue. They become especially concerning when dealing with “old” remains of over 1,000 years, and these circumstances most notably came into play in the “single most important case in this field of law, famously known as the Kennewick Man case” (Cryne 112). The accidentally discovery of human remains by two college students along the Columbia River sparked a debate as to the ownership, and just treatment of these remains for scientific discovery or spiritual burial. The ambiguous nature of the NAGPRA law allowed for scientist and the Ninth Circuit Court to pick or "interpreted" which aspects of the law it wanted to follow in order to attain the ownership rights of the between "8340 and 9200 years old" remains for the purpose of research. My response to this saga is one of sadness as I found it quite disturbing how a persons remains could be argued upon and adjudicated on the basis of an extremely ambiguous and poorly written law. To deem a person’s remains non-Native American based on the wording in its present tense, and to conclude that this man could not bear any resemblance to any modern day tribe because it was so “old” seems sloppy at best to me. I believe part of an archeologist’s role in this domain is to establish relationships between our past and identify the commonalities between those of present day. I found it incredibly interesting that “Although there were oral histories presented, the court dismissed these as "just not specific enough or reliable enough or relevant enough" to consider, claiming that the histories often contained "myths" and were "limited by concerns of authenticity, reliability, and accuracy" (Cryne 114). I believe that scientific interest were the ones served in this case. In my opinion the role of an archeologist’s in the case should have been to establish a cultural link based on factual scientific evidence that serve to respect the Kennewick Man’s best interest. Just because all that is left of someone is their bones and ashes does not mean that they cease to be a human. If he was truly non-Native American then fine honor him within the aspects of advancing research, but if he was truly Native America respect the wishes and the practices of the people he was most commonly associated with.
As illustrated in the “Bones of Conation” I do believe we can find a compromise with advancing research, while respecting the wishes and practices of Native American people.
All human beings have rights, and their right to honor and respect their dead should be recognized and valued regardless of personal interest and scientific advances. Watching this documentary and witnessing these human remains on display as a “tourist attraction”, I can only put myself in there shoes and ask myself if I would want my love ones or even myself to be displayed as a tourist attraction for people’s entertainment and profit. Advancing scientific research for the purpose of discovery and understanding is one thing, but to be put on display, especially given the prior treatment of Native Americans throughout history, is another. Part of an archaeologist’s role is to investigate cultures and preserve these relationships and finds throughout time. Archaeologists should strive to work with present day Native American tribes to understand the their culture and practices, while educating them on the value that their assertor’s remains and sacred artifacts hold in advancing understanding and scientific research. Armed with this knowledge, understanding, and appreciation for respect of each other’s interest; I believe Archaeologists can advance their studies while allowing Native Americans their cultural and moral right to honor their
ancestors.