| Jeffrey H. Schwartz's
letter to the NAGPRA Review Committee
4 August 1999 The NAGPRA Review Committee Dear Colleagues: The June 23rd Federal Register notice-"Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Remains"-solicits comment. This draft not only pushes NAGPRA legislation beyond congressional intent, it is also at times inconsistent with statute. I comment following the outline of the draft: A. Intent of NAGPRA. 4b. "Repatriation is the most reasonable and consistent choice." How can this follow when the statute defines the category "culturally unidentifiable"? There is nothing in the statute that suggests outright or implicitly that repatriation is the most reasonable and consistent choice for culturally unidentifiable remains. If this was the initial intent, would not the law say so? In addition, affiliated groups can choose non-repatriation for remains. A. Intent of NAGPRA. 5. Statement that there is a tension within the statute between "need" and "interest" is interpretive. There was always tension, and the statute proposes how to deal with it legally. B. Culturally Unidentifiable Human Remains. 3a. "Those which are culturally affiliated, but with a non-Federally recognized Native American group." NAGPRA does not define this category. Accordingly, non-Federally recognized groups have no standing. But the draft, nonetheless, would require that these groups Furthermore be researched. B3b. "Those which represent a defined past population..." This goes beyond the intent for present-day groups to claim their ancestral tribal remains by allowing such remains to be of any "defined past population." B3c. "Those for which some evidence exists, but insufficient for a Federal agency or museum to make a determination of cultural affiliation" and B3d. "Those for which no information exists." This makes no sense. If there are any remains, they constitute evidence in and of themselves as well as in the form of evidence at different levels of study that can be retrieved from them. Furthermore, even if the remains cannot be put into a cultural context, they represent invaluable educational and research resources, for all U. S. citizens. C. Guidelines for the disposition of culturally unidentifiable human remains. 2a. Example. The draft contravenes the statute by making it possible for any group to claim any remains. C2b. Example. "Human remains for which there is little or no information should be speedily repatriated since they have little educational, historical, or scientific value." First, not all remains will be Native American. Second, and to reiterate, the lack of cultural affiliation does not equate with lacking educational, scientific, or even historical value. Third, if there is no evidence of affiliation, who could claim the remains for repatriation? C3. Documentation. The statute is already clear on procedures for the inventory and disposition of contextually identifiable remains. "Importance" is not defined because it is a relative term. D. Models for the disposition of
culturally unidentifiable remains. 2. Since NAGPRA oversees the disposition of culturally unaffiliated remains, it would seem inappropriate for whatever uniformity currently exists to be eroded by foisting this responsibility onto a vague process of regional differences and preferences. Thank you providing an opportunity to reflect on your draft. It is obvious that this is a product of much thought, time, effort, and awareness of a plethora of perspectives. Sincerely, Jeffrey H. Schwartz Professor, Up ~ Draft Agreement ~ Petition for Extension ~ Home |
