Proposed federal regulations covering the disposition of ancient human remains would effectively prevent scientific study, according to Rep. Doc Hastings, R-Wash.
The regulations proposed by the Department of Interior are an "obvious attempt to end-run congressional intent and a federal court ruling in the long-fought Kennewick Man case," he wrote in a letter to Interior Secretary Dirk Kempthorne.
However, Rob Roy Smith, a Seattle attorney who represented the region's tribes in the Kennewick Man litigation, said Hastings' letter overstates the reach of the proposals.
"The unclaimed remains regulations are reasonable and 18 years overdue," Smith said. "They merely create a process for such remains to be returned to tribes. They do not preordain any result as the representative suggests."
The Interior Department is proposing new regulations for applying the Native American Graves Protection and Repatriation Act of 1990, or NAGPRA, which was passed to return the remains of ancestors to tribes and protect tribal graves from looting.
The proposals outline procedures for the disposition of "culturally unidentifiable human remains" held by museums or federal agencies. It's similar to the issue decided for Kennewick Man in the 9th Circuit Court of Appeals in 2004, eight years after the 9,300-year-old remains were found on the banks of the Columbia River.
The court found that NAGPRA applied to remains only if a significant relationship could be shown to present-day tribes and allowed scientists to study Kennewick Man rather than ordering his bones to be turned over to the tribes.
The proposed new rules would allow tribal connections to the area where remains were found to be considered in repatriation decisions if a more direct cultural link cannot be determined.
Tribes would be considered to have a connection to the remains if they had tribal ownership of land where remains were found, had aboriginally occupied the area, had a cultural relationship to the region or, if it is unknown where the remains were found, had a cultural relationship to the region where the bones are being held in a museum or by a federal agency.
The Department of Interior lacks congressional authority to issue the new regulations, Hastings wrote in his letter.
"NAGPRA was written to address the custody of human remains from recent centuries that are related to present-day Indian tribes," Hastings said. "It was not written to address very ancient remains of unknown origins and was never intended to thwart the study of ancient remains."
The decision in the Kennewick Man case also made clear the intent of Congress, he said.
The Society for American Archaeology and the American Association of Physical Anthropologists also are opposing the proposed rules.
"The proposed regulations have the potential for abuse by groups that have very little connection to any sort of legitimate Indian identity," the Society for American Archaeology said in a written statement.
They possibly could be extended to include non-Native American medical specimens or forensic evidence, according to the group.
It also could result in the transfer of human remains to tribes with only a weakly demonstrated relationship to them, it said.
"Unlike cultural affiliation, a cultural relationship could apparently be asserted with respect to human remains with absolutely no demonstrable cultural or biological connection that are thousands of miles and thousands of years removed from a federally recognized tribe," the society said.
Hastings is asking the Department of Interior to reconsider, if not halt, the proposed regulations. At the least it should delay action until it explains their compliance with the decision in the Kennewick Man case, he said.