Dear Tribes and friends:
If you are concerned about the fate of NAGPRA and, in particular, “culturally unidentifiable” Native American ancestral remains, you should read Professor Tim White’s comments on the proposed regulations before the National NAGPRA Program. I have attached a file containing those comments. Professor White is perhaps the most influential researcher on human remains in the country, and he has a history of extreme hostility toward NAGPRA. Given his prestige, his opinion will carry much weight when National NAGPRA makes its final decision about the regulations.
If you are alarmed by White’s views, you should certainly make your voice heard by submitting comments to National NAGPRA. REMEMBER, COMMENTS ARE DUE BY JANUARY 14TH! And don’t forget to sign up for the National NAGPRA teleconference scheduled for January 8, at 11 a.m. Pacific Time (2 p.m. Eastern). You need to register for the teleconference BEFORE 2 P.M. PACIFIC TIME TOMORROW, January 4th. You can register and obtain the call-in number by sending an e-mail to http://us.f520.mail.yahoo.com/ym/Compose?Toemail@example.com, with “January 8th teleconference” in the subject line, and your full name and organizational affiliation in the body of the e-mail.
I should also note that the extremity of Professor White’s views is one of the major reasons the Native American NAGPRA Coalition formed to vigorously oppose the reorganization of UC Berkeley’s Phoebe Hearst Museum, which eliminated the autonomous NAGPRA unit. Professor White is the chief osteology curator of the Hearst collection and the chair of UC Berkeley’s repatriation committee, which ultimately makes all of the decisions on tribal NAGPRA claims. Professor White didn’t approve of the NAGPRA unit because it operated autonomously and helped tribes do the research and preparation necessary to make viable claims against the huge quantity of human remains that the Museum, under White’s influence, classified as “culturally unidentifiable.” He essentially engineered the reorganization, and now he will exercise unimpeded control over NAGPRA operations. Since the Hearst holds the second largest collection of this kind in the nation – and the largest covered by NAGPRA – his victory is extremely significant. If it stands, it will set a precedent for Museum NAGPRA programs around the country. The UC Berkeley NAGPRA battle is not just a skirmish in a larger war; it’s Gettysburg. If you would like to reverse the reorganization, call the UC System acting President Rory Hume at 510-987-9020 or email him at Rory.Hume@ucop.edu.
University of California
HUMAN EVOLUTION RESEARCH CENTER MUSEUM OF VERTEBRATE ZOOLOGY
3101 Valley Life Sciences
TW tel. (510) 642-2889 BERKELEY, CA
94720-3160FAX (510) 643-8231
December 3, 2007 Dr. Sherry Hutt
ManagerNational NAGPRA ProgramNational Park Service Docket No. 1024-AC84 1849 C St., NW (2253)Washington, DC 20240 Dear Dr. Hutt:
My name is Tim White. I have been a professor of Anthropology and Integrative Biology atthe University of California, Berkeley, for thirty years. I am a member of the National Academy of Sciences. These are my personal views and they do not necessarily representthe University of California or the Berkeley Campus, who will provide independentresponses to your call for comment. I, and my colleagues in such fields as medicine,physical anthropology, evolutionary biology, forensics and archaeology, rely heavily on theuse of skeletal remains. Indeed, no students in these fields could be properly trained withoutdirect access to relevant physical scientific evidence. I write now to comment on:
43 CFR Part 10; RIN 1024–AD68Native American Graves Protection and Repatriation Act Regulations — Dispositionof Culturally Unidentifiable Human Remains
Published on October 17th, this proposed rule subverts the original intent of Congress andcreates mandates that lack a statutory basis. Furthermore, it imposes impossible financialburdens on museums going beyond those stated, and violates the establishment clause of the
U.S. Constitution. I will abbreviate this letter to simply state that I fully support the Position Statement of theAmerican Association of Physical Anthropologists. Below I consider additional pointscentral to the proposed rule.
The legislative history of NAGPRA is clear. It was never the intent of Congress to emptymuseums of skeletal remains and cultural objects. Had it been, this would have been statedin the House and Senate reports accompanying the legislation, or in the Act itself. Instead,the law carefully defined "cultural affiliation" in order to make certain that a clear
relationship of shared group identity existed between living Native American claimants(lineal descendents and federally recognized tribes) and osteological and funerary objectsfrom the archaeological record that are subject to its provisions. Congress clearly intendedthe process of establishing a relationship of shared group identity to be evidence-based.
The process for establishing cultural affiliation stipulated by Congress has provensuccessful. Congress anticipated that some remains and cultural items would prove to be"culturally unidentifiable" (and created the category). It charged the NAGPRA reviewcommittee with the task of recommending to Congress specific actions regarding the"disposition" of such remains.
The clearly stated statuary request was that a federal committee make recommendations toCongress. That is not the same thing as licensing said committee to implement whateverthose recommendations might be. However, this is precisely what your proposed rule nowattempts to do, effectively making that committee’s recommendations a legal mandate.
In effect, what you are doing via this proposed rule is putting the Secretary of Interior--if hewould be so unwise as to accept the regulations that you and your staff have drafted--intothe position of attempting to circumvent congressional authority. In this way you (and, byimplication, the Secretary of Interior), are usurping the right that Congress has, should it seefit, to take remedial legislative action concerning this important legal matter of considerablenational importance.
Now, 17 years after the passage of NAGPRA, the long-anticipated proposed rule forculturally unidentifiable remains attempts to render evidence-based cultural affiliation amoot point and, in this way, to circumvent congressional intent. The proposed rule does thisvia a two-stage process: first by narrowly defining "disposition," and then by elevating, tothe level of a legal concept, the undefined conjunction of the words "cultural relationship"lifted, out of context, from the statue.
The Proposed Rule adds only one new definition to NAGPRA, defining "disposition" tomean "transfer of control." This narrow definition is crucial to the proposed rule's apparentintent to circumvent the evidence-based concept of cultural affiliation clearly set out instatute by Congress (NAGPRA Act):
“cultural affiliation” means that there is a relationship of shared group identity which canbe reasonably traced historically or prehistorically between a present day Indian tribe orNative Hawaiian organization and an identifiable earlier group."
Nowhere does NAGPRA state that shared group identity can reasonably be traced throughreligious or spiritually-based assertions by either federally recognized or non-federallyrecognized Native American groups.
In the newly proposed rule, "disposition" is formally defined as "transfer of control." This definition was not part of NAGPRA. Its usage in the proposed rule completely undermines
the evidence-based tracing of ancestral-descendant relationships that Congress expected toserve as a basis for all determinations of cultural affiliation involved with repatriation orother dispositions--including those in which the status quo of museums retaining possessionand control of remains is maintained.
"Disposal" (i.e. disposition via "transfer of control" of all remains to Native Americans) wasclearly not the intent of Congress, so the definition chosen by you and the other authors ofthe proposed rule belies an agenda to create a legal mandate that Congress never authorized.Why was this particular definition of "disposition" chosen when other applicable definitionsare available? For example "disposition" has the common meanings of:
"Action to be taken on a records series at a specified time. May entail destruction, usuallyby means such as shredding, recycling, or electronic wiping, or may entail reformatting,transfer, or permanent retention."
"Actions taken regarding data or records after they are no longer required to conductagency business."
Legal definitions of "disposition" normally mean:
"Determination of the final arrangement or settlement of a case following judgment."
Merriam-Webster's Dictionary of Law presents two definitions:dis·po·si·tion Function: noun
1 a: the final determination of a matter (as a case or motion) by a court or quasi-judicial tribunal
2: transfer to the care, possession, or ownership of another
The word disposition can mean different things; the one thing it probably wasn't meant toinclude is repatriation. This is because the statute clearly limits repatriation to culturallyaffiliated remains, and sets up a clear process by which this is to occur. And even if the newly proposed rule is read to include repatriation, it would take legislative, not regulatory,
action to implement such change, simply because such regulations, as written, would becontrary to the statute.
Congress recognized that the great historical and scholarly value of the culturallyunidentifiable remains in question needed to be balanced against the concerns of culturallyaffiliated descendents. Hence, NAGPRA clearly constitutes compromise legislation. The proposed rule deliberately and completely abandons the legislative compromise that lies atthe heart of NAGPRA’s success. It seems clear that the selection of this narrow definition of "disposition" is part of a strategy by your National NAGPRA Program staff who draftedthese proposed regulations to subvert the meaning of cultural affiliation.
Cultural Affiliation versus "Cultural Relationship"
Having created a pathway that insures all remains will be removed from Museums (bydefining "disposition" as anything but their current “disposition,” i.e. in museums), yourproposed rule then plays a legal trick to enable this regulatory maneuver. In order to abandon the evidence-based evaluation required for cultural affiliation, your staff hascreated an undefined category termed "cultural relationship." However defined, this"cultural relationship" is evidently narrower than the relationship that all American citizenshave with the archaeological evidence for the history of the territory currently under thejurisdiction of the United States.
Cultural affiliation stands at the core of NAGPRA. Most cultural affiliations have alreadybeen, by definition, accomplished during the Inventory process stipulated by NAGPRA.Cultural affiliation is explicitly evidence-based. The statute requires museums holding anycollections possibly culturally affiliated with federally recognized tribes to determinecultural affiliation during the inventory process and beyond, on the basis of (NAGPRA Act):
"evidence based upon geographical, kinship, biological, archaeological, anthropological,linguistic, folkloric, oral traditional, historical, or other relevant information or expertopinion."
In NAGPRA statute, the words “cultural” and “relationship” are used once in conjunctionwith each other. This use is in reference to adjudicating competing claims among culturallyaffiliated, federally recognized tribes. Since this conjunction of words is not defined in thestatute, we must assume (based on the context of its use and the plain language legalprinciple) that it refers to a relationship that exists between federally recognized tribes andearlier Native American groups with which those federally recognized tribes have arelationship of shared group identity.
Therefore, in the proposed rule, the statutory meaning of “cultural relationship,” whichconstrains it to the rights of federally recognized tribes, is subverted by extending it tofederally non-recognized tribes. By doing so, it disenfranchises federally recognized tribes.Such a violation of the trust relationship the federal government has with federallyrecognized tribes was clearly never the intent of Congress.
The plain language of NAGPRA makes it clear that the congressional instructions to theNAGPRA review committee concerning possible dispositions of culturally unidentifiablehuman remains were simply instructions to make suggestions about possible dispositions forsuch remains. These should not be construed as instructions to the manager of the NationalNAGPRA Program and her staff to hijack undefined conjunctions of words in the statute foruse in regulations that legislate through administrative fiat.
The First Amendment
However it might ultimately be legally defined, to be meaningful, your novel construction"cultural relationship" will surely represent an expanded (rather than equal or contracted)definition of cultural affiliation. Otherwise it would have no legal significance. The list of evidence specifically mentioned in NAGPRA statute as relevant to establishing culturalaffiliation is comprehensive, only leaving out things that are not normally considered to beevidence-based; spirituality and religious beliefs.
However, a section-by-section analysis of Proposed Rule reveals the nature of additionalbeliefs that your National NAGPRA Program staff propose to take into account as part ofthe process for granting special claim rights on museum collections to both federallyrecognized and non-federally recognized Native American groups:
"customary religious and spiritual beliefs that link the disposition of funerary objects withthe human remains with which they were intentionally placed."
Many Native Americans feel religious kinship and spiritual bonds, often speaking of the"Creator," and holding explicitly creationist views about having been created by a Godequivalent ("Great Spirit). Many believe, all scientific evidence to the contrary, that theirpeople have occupied their aboriginal territories since the "beginning of time." Indeed, inthe Kennewick case, exactly this creationist viewpoint was at the heart of the demands ofthe coalition of Tribes requesting repatriation.
Concern for the potential use of the term “customary religious and spiritual beliefs” tocircumvent the statute’s mandate for evidence-based determinations is not mere speculation.Even before this new rule was proposed, in at least one case (involving the collections of thePhoebe Apperson Hearst Museum at the University of California, Berkeley) the NationalNAGPRA staff adopted repatriation recommendations based largely or completely on thedemonstration of affiliation through prayer.
However heartfelt such spiritual and religious views are, they do not qualify as evidence of arelationship of shared group identity required by NAGPRA. The problems posed bygovernmental promotion of such religious views were clearly appreciated by the membersof Congress who passed NAGPRA, as well as by the framers of the United StatesConstitution. The First Amendment to the Constitution states:
"Congress shall make no law respecting an establishment of religion..."
Belief in something does not make it so. Cultural Affiliation is evidence-based. From their use of the term "cultural relationship" in the proposed rule, it is clear that the NationalNAGPRA staff who wrote it envision “cultural relationship” as a religiously and spirituallybased concept. Nowhere is the relationship that members of the secular world have tomuseum collections even mentioned in the proposed rule as it applies to remains in museumcollections that cannot presently be culturally affiliated in the sense of the law.
The proposed rule therefore favors a specific creationist, religious view of ancestralrelationships, trumping all other secular and religious beliefs. Therefore, it is in violation ofthe separation clause of the First Amendment that prevents our government from aidingreligion in any way.
The undefined category "cultural relationship" was obviously inserted into the proposedregulations in order to make it possible to "dispose" of all Culturally Unidentifiablecollections to both federally recognized and non-federally recognized Native Americanswho believe that they should be repatriated to them. This brings about all of the negativeconsequences so well articulated in the AAPA Statement mentioned above that will ensue, ifthese illegal regulations are promulgated.
At a time when the teaching of intelligent design is constitutionally forbidden, it is odd thatthe federal government is entertaining rules that would require Museums and universities tomake curatorial decisions based on religious and spiritual criteria.
Congress passed NAGPRA in 1990. As part of this legislation, Congress instructed theNAGPRA review committee to consider possible dispositions for culturally unidentifiablecollections of human remains and to make recommendations regarding their disposition toCongress. Instead of complying with these congressional instructions, the NationalNAGPRA Program staff have instead now decided to circumvent congressional intent bydrafting a proposed rule that gives special legal rights to members of non-federallyrecognized American Indian groups based on the assertion of their creationist religiousbeliefs about ancestral relationships. In doing so, they impose enormous compliance costson museums by forcing them to engage in inventory and consultation activities with non-federally recognized, religiously-oriented Native American groups, going far beyond thelegal mandate of NAGPRA.
The proposed rule appears to have been formulated with an agenda in mind different fromthat of Congress when it passed NAGPRA. This agenda is exposed by the way"disposition" is narrowly defined, "cultural affiliation" is abandoned as an operationalconcept, and the common sense meaning of "cultural relationship" in the context of thestatue is subverted.
The agenda appears to be one of opening the way for people with creationist religiousbeliefs—some of whom lack the special trust relationship with the federal government thatbelongs solely federally recognized tribes--to remove from the public and the scientificcommunity crucial information necessary for the understanding of our shared past.
Yours sincerely All Americans have a "cultural relationship" with these culturally unidentifiable collections,and the evidence that they provide concerning the history of humankind. Congressappreciated this when it crafted NAGPRA to strike a balance between the diversity ofworldviews possessed by the citizens of the United States. The Proposed Rule abandonsthis balance, and by doing so, subverts science, the public interest, and the Constitution.
Tim D. White, Ph.D.Professor of Integrative BiologyCurator of Biological AnthropologyDirector, Human Evolution Research CenterThe University of California at BerkeleyBerkeley, CA 94720
cc's: Secretary Dirk KempthorneDepartment of Interior
Director Mary BomarNational Park Service