June 8, 2005
| The Honorable Senators on the Indian Affairs Committee and Ohio Senators DeWine and Voinovich |
United States Senate
Washington, D.C. 20510
We write to you as the presiding officers and for the Board of Trustees of the Ohio Archaeological Council, representing the interests of professional and amateur archaeologists in Ohio, concerning a bill (its number was unavailable as this was written) that is scheduled for a hearing before the Senate Committee on Indian Affairs in early June. The new bill had its origin as Section 108 of Senate Bill 536, but was subsequently removed from that bill. Section 108 effectively altered the definition of "Native American" so as to violate the spirit of "Native American" as defined by the Native American Graves Protection and Repatriation Act (NAGPRA).
This bill seeks to change the definition of "Native American" from "...of or relating to, a tribe, people, or culture that is indigenous to the United States" to "...of or relating to, a tribe, people, or culture that is or was indigenous to the United States." The importance of the exclusive use of the present tense in the original definition was determinative in the Kennewick Man case. Magistrate Judge Jelderks concluded, based on this definition, that Kennewick Man must have a demonstrable relationship to an existing cultural group in order to be subject to NAGPRA. To suggest that Kennewick Man has no such relationship to any particular existing group is not to claim that he is unrelated to any extant Indian tribes, or that he is not "Native American" in a common, or anthropological sense of that term. But the legal definition of "Native American" for the purposes of NAGPRA was intended by Congress to restrict its application to protecting the human rights of existing Native Americans. The proposed addition of the words "or was" reflects an attempt to expand NAGPRA beyond its human rights objective in a way that will interfere with scientific efforts to learn from ancient human remains that are either unrelated to any living person or group, or are related to all living Native Americans and so should not be subject to potential repatriation to any particular group.
Moreover, the revised definition of "Native American" would encompass any possible pre-1492 Asian, Norse, or Polynesian human remains that might someday be found in the United States as well as (and even more likely to occur) human remains from previous migrations to the Americas that were unsuccessful, and were therefore not ancestral to modern Native Americans. Considering any of these cases as "Native American" for the purposes of NAGPRA would constitute an absurd result and would clearly go beyond Congress's intention to protect the human rights of living Native Americans. Certainly any effort to so drastically alter Congress's original intent in this matter should be undertaken with more deliberation than this proposed legislation is being accorded. The hearings for this proposed legislation have been scheduled with too little notice and with insufficient regard to a full consideration of the views of all interested parties.
If enacted, this alteration, which appears subtle and even benign in nature, will have a dramatic and deleterious effect upon the ability of scientists to conduct scientific studies of ancient human remains. We assert that the current definition of "Native American" contained within the NAGPRA legislation already serves to adequately identify the human and cultural remains of those peoples whom it was designed to protect, those with a demonstrable link to modern descendant groups. We urge that you not support this bill.
Finally, we request that this statement be included in the record of testimony related to this bill and that we be provided with confirmation that it has been so included.
Robert V. Riordan, Ph.D.
President, Ohio Archaeological Council
Professor of Anthropology
Wright State University
Elliot M. Abrams, Ph.D.
President-Elect, Ohio Archaeological Council
Professor of Anthropology