| HERE IS TIM WHITE'S LETTER.
Tim has requested that we " Please feel free to use any/all of it as you wish. Please
also feel free to circulate it among colleagues." Alternatively, you can direct
them to http://www.BioAnth.org/NAGPRA/ July 12, 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. Unfortunately, the draft proposes to extend NAGPRA legislation well beyond congressional intent. It contains wording that is inconsistent with statute. My comments follow the order of the draft principles: A. Intent of NAGPRA. 4b. "Repatriation is the most reasonable and consistent choice." The very fact that the statute defines the category "culturally unidentifiable" is inconsistent with such an interpretation. Nothing in the statute says or implies that repatriation is the most reasonable and consistent choice for culturally unidentifiable remains. If the law's framers had intended repatriation as the most reasonable and consistent choice for such remains, the law would so indicate. Even for remains that are culturally affiliated, the affiliated party can choose non-repatriation. A. Intent of NAGPRA. 5. Statement that there is a tension within the statute between "need" and "interest" is interpretive. Statute did not intend tension; tension existed prior to statute, and the statute is clear on how tension is to be legally resolved. B. Culturally Unidentifiable Human Remains. 3a. "Those which are culturally affiliated, but with a non-Federally recognized Native American group." No such category is defined by NAGPRA. Statute is specific that non-Federally recognized groups do not have standing. Furthermore, such language would require reporting agencies to specifically research and document the culture history of groups without NAGPRA standing. This is beyond legislative intent. B3b. "Those which represent a defined past population..." This wording is vague. The law states "shared group identity" with an "identifiable earlier group." It did not create a category "defined past population." This was for good reason. A "population" can be defined in many ways (biologically, geographically, culturally). Congressional intent was to allow modern tribes to claim their ancestral tribal remains, not to claim remains from 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." The first clause is unnecessary because the very presence of remains constitutes, by itself, "some evidence." See next. B3d. "Those for which no information exists." There is no such thing. The very presence of remains constitutes evidence. For example, virtually all such remains, even those without provenience, would have DNA. This IS "information" and "evidence" (and more than "some"). If intent is to create a category such as 'no geographic provenience information available,' then it should be so stated. Furthermore, remains for which there is no contextual information do, in fact, have tremendous educational value. These are the remains most often used in college and graduate education in human osteology, training future experts, including Native Americans, in this field. C. Guidelines for the disposition of culturally unidentifiable human remains. 2a. Example. If congressional intent were to make it possible for Federally recognized tribes to claim culturally unidentifiable human remains on behalf of unrecognized tribes or others, the statute would have so stated. The way that the draft is written would make it possible for any federally-recognized tribe to work with any claimant. This is not the intent of the statute. 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." Three problems arise here. First is the unwritten but faulty assumption that all remains will be Native American. Second, see the comments above (B3d) regarding information and evidence content of remains. The statement that there could be "little educational, historical or scientific value" is again based on the false assumption that, just because there may be no specific provenience information, there can be no value to society or science. Furthermore, without sufficient evidence, TO WHOM should such remains be repatriated? The statute clearly states that repatriation can only take place when cultural affiliation has been demonstrated. Cultural affiliation requires demonstration of shared group identity with a federally recognized tribe. C3. Documentation. NAGPRA legislation is about relationships of shared group identity. Statute is silent on perceived "importance" of skeletal remains. Human remains are important to different groups of people for different reasons. Statute is clear on the disposition of culturally affiliated remains. The law and regulations clearly spell out the nature of documentation required for inventories. This section represents an unnecessary addition to regulations because the statute permits all of the documentation-related activities outlined here. D. Models for the disposition of culturally unidentifiable remains. 1. This section is also unnecessary and legally misleading. It is obvious that disposition of remains can be agreed upon by two parties in writing. However, institutions repatriating to parties without NAGPRA standing give up legal protection. It is inappropriate, irresponsible, and legally indefensible for the Committee or DCA to propose such a model without statutory amendment. Moreover, the "relevant parties" clause is vague. Who, exactly, are the relevant parties? What if one relevant party does not agree with scientific tests required for establishing cultural affiliation? 2. Statute clearly states that disposition of culturally unaffiliated remains is the responsibility of the NAGPRA Committee: "The Committee established under subsection (a) shall be responsible for...recommending specific actions for developing a process for disposition of such [culturally unidentifiable] remains." The current recommendation of "a process" of regional consultation to propose "the most appropriate disposition solutions for that region" is an evasion of responsibility. Thank you for providing me the opportunity to comment on the draft. Yours is a difficult and important task, and your efforts at following the NAGPRA law and including all viewpoints are greatly appreciated. Sincerely, Tim D. White Professor Curator of Biological Anthropology, P.A. Hearst Museum of Anthropology Up ~ Draft Agreement ~ Petition for Extension ~ Home |
