CULTURAL RESOURCE PROTECTION STRATEGIES:
Morisset, Schlosser, Jozwiak & McGaw
ROB ROY SMITH
received his B.A. from the College of the Holy Cross (1997) and his J.D. cum laude from the Northwestern School
of Law of
TABLE OF CONTENTS
ago, on July 28, 1996, two young men watching hydroplane races stumbled
across an amazing discovery along the banks of the Columbia River near
Kennewick, Washington. In this shallow
water area known as
The discovery of these ancient human remains, known as the “Kennewick Man” (or “Ancient One” to the four federally recognized tribes involved in Bonnichsen), immediately touched off a firestorm of controversy, pitting the professional interests of academics and scientists against the spiritual beliefs of Indian tribes who claim these remains as their ancestor. After contentious courtroom battles for almost a decade, the plaintiff academics and scientists now stand poised to begin their long‑awaited invasive and potentially destructive studies of these remains based on a recent decision of a three‑judge panel of the Ninth Circuit Court of Appeals.
The tribes have
sought rehearing en banc of this decision. Until the full court decides whether to
rehear the case, the ultimate disposition of the remains will remain in
limbo. A number of questions will also
remain unanswered. What rights do tribes
have to decide what happens to their ancestors?
What will become of the Native American Graves Protection and
Repatriation Act (“NAGPRA”), 25 U.S.C. § 3001 et seq., passed in
1990 to expressly protect remains such as these and facilitate their return to
tribal homes? And, what will happen to
the remains? In this awesome battle involving
religious freedom, property rights, and the populating of the
This presentation paper briefly addresses the salient facts and procedural history of the Bonnichsen litigation to create a framework of understanding and context in which to place the Ninth Circuit’s recent decision, issued February 4, 2004, potentially clearing the way for the study of these “Native American” remains. This paper focuses on the panel decision discussing the various errors of the court and the dramatic impact the decision may have on the future of repatriations across the country. Finally, this paper concludes with a discussion of options available to remedy the panel’s decision and looks generally at other means to protect ancient Indian remains and cultural items in the absence of NAGPRA’s protections.
culminated a long effort by Congress to protect the interests of indigenous
people in burials made before European‑style cemeteries were established
in this country. See
The study of
Native American human remains stretches back centuries. In the late 1700s,
significant attempt to protect archaeological sites, including Native American
burial grounds, was the Antiquities Act of 1906. 16 U.S.C. §§ 431‑433. However, the Act deplorably defined Indian
remains as “archaeological resources” and converted these dead persons into federal
property to be held in museums.
legislative step was taken in 1989, one year prior to the passage of NAGPRA,
when Congress enacted the National Museum of the American Indian Act, 20 U.S.C.
§ 80q et seq. The Act established the
Senate voted on the bill that was to become NAGPRA in 1990,
In sum, NAGPRA
was passed as human rights legislation to comprehensively regulate “Native
American” human remains in possession of federal agencies as well as museums
and institutions of higher learning, both public and private that receive
federal funds, and the regulation of remains discovered on federal or Indian
lands after November 16, 1990.
One day after
the remains were discovered, on
of artifacts at the site continued through September. On
This action was originally filed by the plaintiff academics in 1996 seeking a temporary restraining order against the United States Army Corps of Engineers to prevent repatriation of the remains to the tribes and to demand a detailed scientific study of the remains. Rather than litigate, the Corps agreed to work with plaintiffs and provide them with sufficient notice of any final agency decision to seek relief from the Oregon District Court.
the Corps moved to dismiss the lawsuit on two separate occasions. First, the Corps moved to dismiss the action
for failure to exhaust administrative remedies and to state a claim. This motion was granted in part, dismissing
the plaintiffs’ civil rights claims, but denied in part, finding that the
plaintiffs’ claims were legally sufficient and ripe for adjudication. Bonnichsen v.
the need for expert agency review of the affiliation evidence, the Corps
officially transferred the task of determining the final disposition of the
remains to DOI.
Upon review of
the 22,000 page administrative record and after oral argument, at which the
claimant tribes participated as amicus curiae, the district court ruled for the
plaintiffs and vacated the decision awarding the remains to the claimant
tribes, enjoined the transfer of the remains to the claimant tribes, and rather
than remanding to the agency, required that plaintiffs be allowed to study the
remains upon the submission of a study plan.
The tribes were
granted intervention for purposes of appeal on
The tribes’ Petition for Rehearing was grounded on the belief that this case of first impression presents national questions of exceptional importance concerning the balance that Congress struck between the spiritual beliefs of Indian tribes and the limits of academic exploitation of the dead. The tribes specifically challenged four aspects of the panel’s decision in their rehearing petition.
To be considered “Native American” for purposes of NAGPRA, the panel held that human remains must:
share special and significant genetic or cultural features with presently existing indigenous tribes, peoples or cultures.
Slip Op. at 1608. This holding is at odds with the plain language of NAGPRA. Congress defined “Native American” as:
of, or relating to, a tribe, people, or culture that is
indigenous to the
25 U.S.C. § 3001(9). Thus, the first question the tribes presented for the full court to consider was whether Congress intended to limit the scope of “Native American” to remains that have a “significant genetic” relationship with “presently existing” tribes.
NAGPRA requires two distinct inquires: (1) determining the statute’s applicability (i.e., whether remains are “Native American”) and (2) determining the disposition of the “Native American” remains (i.e., whether there is “cultural affiliation”). Remains must be both “Native American” and culturally affiliated for ownership to transfer to a tribal clamant.
trigger the statute, the land management agency or museum must determine
whether remains are “Native American.”
Congress defined “Native American” as “of, or relating to, a tribe,
people, or culture that is indigenous to the
contrast to the panel’s reformulated definition, Congress’ definition of
“Native American” does not reference “special or significant genetic or
cultural features,” a “presently existing” tribe, nor require any demonstrated
relationship. However, these terms and
concepts are part of the statutory definition of “cultural affiliation.”
“Native American” definition also dramatically shrinks the set of “cultural
items” available for repatriation under NAGPRA and creates a circular vortex of
reasoning from which there is no escape.
Remains are now not “Native American” unless potentially destructive
studies go forward to prove they are genetically and culturally related to
presently existing tribes. Slip Op.
at 1608. However, agencies and
museums dealing with remains cannot comply with Congress’ intent to consider
the concerns of Indian tribes in conducting these studies unless NAGPRA
applies. See S.
In other words,
tribes must now consent to studies to prove remains are “Native American” in
order to trigger the statute to have the right to stop the studies.
The panel held that “cultural affiliation” requires a “more specific finding that remains are most closely affiliated to specific lineal descendants or to a specific Indian tribe.” Slip Op. at 1599 (emphasis added). This is not the “ownership” standard under section 3002. Not only is it unclear what a “more specific finding” might be, the panel has written out three provisions of section 3002.
Section 3002(a) returns remains to (1) “lineal descendants” or (2) when “lineal descendants cannot be ascertained,” to the (A) tribe on whose land the remains were discovered, (B) the tribe with the “closest cultural affiliation,” or (C) if cultural affiliation “cannot reasonably be ascertained,” to the tribe (1) “recognized as aboriginally occupying the area” or (2) the tribe with the “strongest demonstrated relationship” with the remains as shown by a “preponderance of the evidence.” 25 U.S.C. § 3002(a)(1)‑(2)(C)(2). The panel’s arbitrary limitation to “lineal descendants” or “a specific Indian tribe” eviscerates sections 3002(a)(2)(B) (“closest cultural affiliation”), 3002(a)(C)(1) (“aboriginal lands”), and 3002(a)(C)(2) (“strongest demonstrated relationship”). Compare id. § 3002(a) with Slip Op. at 1599.
The panel’s definition of “Native American” also renders NAGPRA’s provisions regarding unclaimed remains (25 U.S.C. § 3002(b)) and culturally unidentifiable remains (25 U.S.C. § 3006(c)(5)) meaningless. Section 3002(b) provides that “Native American cultural items not claimed under [section 3002(a)] shall be disposed of in accordance with regulations.” This provision applies when remains are “Native American,” but are not claimed because “cultural affiliation” cannot be determined. The panel’s definition of “Native American” renders this provision unnecessary because, to be “Native American,” remains must share “special and significant genetic or cultural features with presently existing indigenous tribes.” Slip Op. at 1608. Thus, there can be no “unclaimed” remains because a relationship with a claimant must exist just to trigger the statute.
Section 3006(c)(5) directs the compilation of “an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum and recommending specific actions for developing a process for disposition of such remains.” The panel’s definition of “Native American” forecloses this inventory because, if a museum cannot find a “genetic or cultural” relationship, the remains would not be “Native American” in the first place, and thus, cannot be “culturally unidentifiable.” The panel’s decision erroneously discards 413 inventories of “culturally unidentifiable” remains that have been logged from 329 museums and 84 federal agencies since 1990. National NAGPRA FY03 Annual Report (“Annual Report”) at 2, available at http://www.cr.nps.gov/nagpra/DOCUMENTS/NNReport0310.pdf.
The panel held:
Congress’s use of the present tense [in the “Native
American” definition] is significant . . . . We conclude that Congress was referring to presently existing Indian tribes when it
referred to a ‘tribe, people or culture that
is indigenous to the
Slip Op. at 1596‑97 (emphasis in original). The panel’s construction turns NAGPRA on its head, dramatically foreclosing the statute’s applicability to older remains.
“Native American” is a term of art with a meaning distinct from the way the term is used in common parlance. There is no evidence that Congress confused the statutory term “Native American” with an American Indian. Yet, the panel’s reading presumes that Congress was simply being politically correct and defines “Native American” with reference to “Indian tribes.” See Slip Op. at 1584 n.3, 1596‑7. The panel’s reasoning elevates the term “is” to talismanic proportions, while ignoring other parts of the statute that refute its reading.
American” is uniquely and broadly defined.
For instance, Congress defined “Native American” using the phrase
“tribe, people or culture,” instead of the more limiting term “Indian tribe,”
denoting a modern political entity. 25 .S.C.
§ 3001(9). Congress separately
defined “Indian tribe” and did not use the term within the definition of
“Native American,” indicating that the two terms are mutually exclusive.
Congress defined “sacred objects” to require a “present day” relationship, but
omitted a similar requirement from the definition of “Native American.”
Congress’ intent that the statute apply broadly is also evident from the legislation that pre‑dated NAGPRA. Congress rejected restrictive definitions of “Native American” that had been contained in four previous bills that would have narrowly defined “Native American” as including only “American Indians . . . Native Alaskans, Native Hawaiians . . . and the descendants of such individuals.” The definition Congress ultimately adopted is more expansive, eliminating the term “Indian” as a modifier of “tribe” and eliminating a familial relationship to a present day political entity. 25 U.S.C. § 3001(9). The panel erroneously put back in the statute words Congress deliberated left out.
The panel erred by solely focusing on the term “is” in the abstract, rather that seeking the meaning of the entire phrase “tribe, people, or culture that is indigenous.” Slip Op. at 1595‑96.
“a political, ethnic, or ancestral division of ancient states and
cultures.” American Heritage Dictionary
at 1909 (3d ed. 1992).
“People” means “a body of persons living in the same country.”
The panel starkly departed from NAGPRA’s purposes when it found that NAGPRA does not apply to “bones of such great antiquity,” thereby creating a loophole for museums and federal agencies to avoid complying with NAGPRA. Slip Op. at 1598 n.17. The language of the statute, its legislative history, and its references to the Archaeological Resources Protection Act of 1979, 16 U.S.C. § 470cc (“ARPA”), all of which the panel ignored, indicate NAGPRA applies to ancient remains.
“human remains” within the category of “cultural items.” 25 U.S.C. § 3001(3) (“‘cultural
items’ means human remains and—”).
“Cultural items” include, inter alia, “cultural patrimony,”
defined as “an object having ongoing historical, traditional, or cultural
importance central to the Native American group or culture itself.”
interpretation is buttressed by the language of ARPA, which NAGPRA cites for
the authority to issue a permit “for excavation of Native American cultural
NAGPRA’s legislative history confirms that Congress sought to include ancient remains. Discussing “cultural affiliation,” Congress stated “[w]here human remains . . . are concerned . . . it may be extremely difficult . . . for claimants to trace an item from modern Indian tribes to prehistoric remains without some reasonable gaps in the historic or prehistoric record.” Congress rejected “scientific certainty” and anticipated that “prehistoric remains” would be within NAGPRA’s reach.
erred by divorcing NAGPRA’s plain words from the context in which Congress
intended them to function. The panel
should have concluded that the Kennewick remains are “Native American” because
“the term ‘human remains’ was intended to mean ancient human remains
with some sort of cultural or archaeological interest.” Kickapoo Traditional
Tribe v. Chacon, 46
NAGPRA’s criminal provision provides: “Whoever knowingly sells, purchases, uses of profit, or transports for sale or profit any Native American cultural items obtained in violation of [NAGPRA] shall be fined . . . imprisoned not more than for one year, or both . . . .” 18 U.S.C. § 1170(b) (emphasis added). This provision is described as the “teeth” of Congress’ “statutory mission” to provide “[r]espect for Native human rights.” United States v. Corrow, 119 F.3d 796, 800 (10th Cir. 1997); United States v. Tidwell, 191 F.3d 976, 980 (9th Cir. 1999) (adopting the reasoning of Corrow).
The panel’s “Native American” definition renders the criminal provision of NAGPRA unenforceable and unconstitutionally vague. A court must strike down any statute that fails to “sufficiently define the offense so that ordinary people can understand the prohibited conduct.” Tidwell, 191 F.3d at 979 (internal citation omitted) (holding “cultural patrimony” not unconstitutionally vague). An ordinary person cannot know whether a cultural item “shares special and significant genetic or cultural features with presently existing indigenous tribes, people, or cultures.” Slip Op. at 1608. A “pot hunter” would have known whether a cultural item predated European conquest however. Thus, the panel’s “Native American” definition makes this provision unconstitutionally vague. The panel has also made it virtually impossible to prove the requisite mens rea in a NAGPRA prosecution.
The panel has created different standards governing NAGPRA’s applicability in this circuit from the rest of the Nation, thereby obstructing the repatriation of “Native American cultural items,” and causing rampant uncertainty as to the statute’s application.
uniformity is of paramount importance for NAGPRA’s repatriation program. NAGPRA applies to cultural items found on
federal and tribal lands, and to all federal agencies and museums receiving
federal funds, except the Smithsonian, within the
The future of these and other repatriations have been cast into doubt by the panel’s sweeping and disruptive opinion narrowing the statute’s applicability.
While the tribes wait to see if a majority of the Ninth Circuit’s active judges will vote in favor of rehearing and, ultimately, reverse the district court’s and the panel’s erroneous decisions, the rest of Indian Country must look beyond Bonnichsen to seek other means of resurrecting NAGPRA and protecting ancient remains. Current statutes addressing ancient remains (ARPA) and the rights of tribes to have access to sacred sites (American Indian Religious Freedom Act of 1978 (“AIRFA”), 42 U.S.C. § 1996), are inadequate to protect ancient Native American remains. Thus, tribes are left with three options for remains found on federal or tribal lands: the judiciary, the executive branch, and Congress.
One option is
to create a split in the circuits over the application of NAGPRA to enable
possible U.S. Supreme Court review. A
number of tribes in
Seeking rule changes is another, and potentially more viable, option. Certainly, if the panel’s decision remains in place, Interior will have to revisit its definition of “Native American,” as well as its treatment of NAGPRA’s “cultural affiliation” analysis. It will be incumbent on tribes to actively participate in the rulemaking process. While the agency’s definition of “Native American” will likely be narrowed from the current “pre‑European” temporal threshold, tribes must not relent from their position against using invasive studies to answer the “Native American” question. It may also be possible to amend other portions of the implementing regulations, including, seeking clarification of when the “preponderance of the evidence” standard applies.
tribes can turn to Congress. Previously,
two pro‑science amendments (introduced in response to the Bonnichsen litigation)
that would have specifically provided for private scientific study of remains
in government custody, failed. See, e.g.,
Testimony of Rep. Doc Hastings, H.R. 2893 (June 19, 1998), available at 1998 WL 307156 (F.D.C.H.). Potentially,
tribes may be able to seek a legislative fix to Bonnichsen. However, such a fix is not likely this
election year. Moreover, changes in the
make‑up of Congress could affect the ability of tribes to pass a pro‑tribal
During the congressional hearings in advance of NAGPRA’s passage, a tribal faithkeeper poignantly remarked:
We have been disposed of our land rights, we have been forcibly removed from our homeland, we have been slaughtered in our beds. We have been stripped of our languages and cultures. We have had our children taken away from us and made strangers to us. And still today, the very bones of our ancestors are kept from us, many locked away in simple green cardboard containers stacked one upon the other.
This case is
about tribal sovereignty. It is not
about preventing scientific study, because significant scientific study has
already occurred. This case is about who
gets to decide and who has the right to decide whether the study of ancient
native remains takes place‑‑private academics and scientists, the
The panel’s definition varies throughout the Opinion, none of which comports
with Congress’ definition in NAGPRA.
Other formulations include:
(1) “some relationship to a presently
existing tribe, people, or culture;” Slip Op. at 1596, 1597 (emphasis
in original); (2) “a significant relationship to a presently existing tribe, people, or culture;” id. at 1600 (emphasis in original); (3) “special and
significant genetic or cultural relationship to some presently existing
indigenous tribe, people, or culture;” id.
at 1603; and (4) seeking “cultural continuity between Kennewick Man
and modern Indians.”
 In another perversion of Congress’ terminology, the panel defined “presently existing” as extant since 1789, when the United States Constitution was signed. Slip Op. at 1602. Under the panel’s definition, no remains older than 215 years could be “Native American” under NAGPRA. This restricted reading is irreconcilable with Congress’ intent that NAGPRA apply to “prehistoric” remains.
The panel misunderstood that NAGPRA does not transfer title to “Native
American” remains that are not “culturally affiliated” with present day
tribes. Slip Op. at 1598,
1604 n.21. The panel was concerned
that remains of a tribe “that had ceased to exist thousands of years before the
remains were found” could be “Native American.”
Interior chose a temporal and spatial test (pre‑European and found in an
area now part of the
 The lip service the panel paid to NAGPRA’s two inquiries fails to rectify its error. The panel attempted to distinguish between a “general finding [of a] significant relationship to a presently existing ‘tribe’” for “Native American” and a “more specific finding that remains are most closely affiliated to specific lineal descendants or to a specific Indian tribe” for “cultural affiliation.” Slip Op. at 1599 (emphasis added). Neither “relationship” test is found in the words of the statute. 25 U.S.C. §§ 3001(2), (9); 3002(a).
The panel committed two fundamental errors concerning the 22,000 page
record. First, the panel misused
evidence in the record. Section IV
of the panel’s decision purports to “address the Secretary’s determination that
the Kennewick Man’s remains are Native American, as defined by NAGPRA.” Slip Op. at 1603. However, the panel never considered the
Secretary’s evidence that the remains are “Native American.” See
id. at 1590. Instead, the panel solely reviewed the
Secretary’s oral traditional evidence of “cultural affiliation.”