The Bush administration came under fire at a Senate hearing on Thursday for opposing legislation that would clear up an ongoing controversy in repatriation law.
Paul Hoffman, an Interior Department official, announced for the first time that the administration agrees with an appeals court decision in the Kennewick Man case. In February 2004, the 9th Circuit
allowed scientific study of the 9,300-year-old remains, holding that they are not "Native American."
Tribes and their advocates have criticized the ruling, saying it limits the ability to repatriate artifacts and human remains. In response, Sen. John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee, introduced a bill to modify the definition of "Native American" to cover Kennewick Man cases that might arise in the future.
The measure has the support of tribes, Sen. Byron Dorgan (D-North Dakota), the committee's vice chairman, and Sen. Daniel Inouye (D-Hawaii). But Hoffman said adding the words "or was" to the definition of "Native American" will allow tribes to reclaim remains and artifacts to which they are not entitled.
"We believe that the 9th Circuit Court of Appeals correctly interpreted the law and the intent of Congress, which was to give American Indians control over remains of their genetic
and cultural forbearers, not over the remains of people bearing no special and significant genetic
or cultural relationship to some presently existing indigenous tribe, people, or culture," Hoffman testified.
Paul Bender, a law professor at Arizona State University who worked on the Native American Graves Repatriation and Protection Act said he had "no idea" why the administration would oppose the pending bill. He said the court's decision needs to be addressed by Congress because it locks tribes out of the repatriation process.
"Under the 9th Circuit, decision there would be no consultation," he testified.
Walter Echo-Hawk, an attorney with the Native American Rights Fund, called the administration's announcement a "sad retreat from its earlier position" that Kennewick Man and other remains like him are Native American regardless of age. He said the Department of Justice had "strongly supported" the view embraced by the bill in the court battle.
"When it comes to a human rights matter, we lose credibility when the administration says one thing to one branch of the government and then the opposite to another branch," he told the committee.
Paula Barran, an attorney from Oregon who argued the Kennewick Man case on behalf of scientists, criticized the bill. She said it denies the public the right to learn more about the identify of some of the first Americans, whom she claimed are not related to present-day Native Americans.
"They weren't American Indians as we know those people today," she said. "They're different. Kennewick Man is different. This man walked our county and he wasn't an American Indian as we know it today."
Kennewick Man more closely resembles Polynesian people and the ancestors of the Ainu, the indigenous people of Japan, Barran added. She called the proposed amendment a "sweeping
change" in repatriation law.
Keith W. Kintigh of the Society for American Archaeology disagreed with that interpretation. He supported the amendment, saying the change in definition will have no effect on remains that can conclusively be linked to present-day Native Americans or on remains classified as "culturally unidentifiable." The handling of these types of remains are the subject of regulations that are still being drafted.
Van Horn Diamond, a Native Hawaiian who has worked on repatriation issues in Hawaii, also backed the bill. "No scientific curiosity should have singular license to indigenous remains and artifacts," he testified. "Not all knowledge resides in Western" modes of thought, he said.
Echo-Hawk noted that the 9th Circuit ruling creates disparate systems for Native Americans and Native Hawaiians. Remains and artifacts found in Hawaii that predate the arrival of Europeans are presumed to be Native Hawaiian. Yet remains and artifacts found in the United States that predate 1492 are not treated the same, Echo-Hawk said.
At the onset of the hearing, McCain apologized for failing to hold a hearing on the amendment before the bill passed the committee. "I agree with these critics and stand corrected for not doing
this earlier," he said. The language is contained in an "omnibus" that describes the change as technical in nature.
Dorgan, who is working with the Standing Rock Sioux Tribe to repatriate an ancestor who died while visiting Washington, D.C., in the 1860s, said the issue continues to be an emotional one.
"There were times in this country when Indian bodies were collected on the battle field and sent back to Washington for study and then end up as a set of bones somewhere in a basement,"
he said at the conclusion of the hearing. "That's a pretty shameful thing to have had that happened."
Dorgan also raised questions about the use of NAGPRA program funds to pay for the Kennewick Man case. According to Hoffman, the Interior Department paid $680,000 to Barran and her litigation team with an additional $1.8 million owed to the scientist plaintiffs.
NAGPRA Amendment Bill:S.536:
Technical Corrections Act
(February 4, 2004)
Kennewick Man, Department of Interior - http://www.cr.nps.gov/aad/kennewick
Friends of America's Past - http://www.friendsofpast.org
Kennewick Man Virtual Interpretive Center, The Tri-City (Washington) Herald