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Originally published Friday, June 24, 2005 at 12:00 AM

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Guest columnist

How a simple "or was" injects religion into science

Americans are acutely sensitive to issues that touch upon our First Amendment right to be free of government establishment of religion. To many, it is unthinkable...

Special to The Times

Americans are acutely sensitive to issues that touch upon our First Amendment right to be free of government establishment of religion.

To many, it is unthinkable for Congress to pass a law restricting or prohibiting scientific research because it might prove contradictory to biblical creationists' cherished beliefs about how the world was made and the human species came into existence. Surely, no legislation should demand emptying our museums of all evidence of early peoples' lives because some citizens find offensive research that might contradict their worldview.

But that is exactly the purpose of Senate Bill 536, Section 108, the subject of Indian Affairs Committee hearings scheduled for sometime in late July. This amendment redefines the meaning of Native American in the Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990.

Two words — "or was" — expand the definition to say "... of or relating to, a tribe, people, or culture that is or was indigenous to ... the United States."

Adding "or was" places the material remains of the prehistory of all the unknown peoples of the American past under the exclusive domain of Indian tribes based simply on the geographic location of their present-day lands. Public policy would automatically give tribes the authority to control all evidence that may contradict their particular religious beliefs and give tribes complete veto power over scientific research on those remains.

The North American and South American continents were once empty of people. Contrary to Indian religious beliefs that they have been here since the beginning of time, it is a fact that all humans, including the ancestors to modern Indians, came here from Eurasia.

Rare evidence, such as the Kennewick Man, give scientists and the public glimpses of the variety of people who were here prior to modern Indians. How, or whether, these early people were related to modern Indians is not known and can only be learned by scientific study of their remains.

In the Kennewick Man lawsuit concerning a 9,300-year-old skeleton, Justice Department attorneys argued unsuccessfully that NAGPRA's definition of Native American implied "or was." During oral arguments before the 9th Circuit Court of Appeals, a U.S. attorney stated that remains as old as 100,000 or 150,000 years — extending even to a "mythical first man and woman" — would be considered Native American under NAGPRA if found on U.S. soil.

The court reminded the government, the defendant in this case, that Congress shall make no law yielding an absurd result.

In its 2004 opinion, the 9th Circuit concluded that "or was" would render the "of or relating to" clause meaningless, since groups that were indigenous could relate to remains found outside the United States — an absurd result because Congress cannot dictate the disposition of remains found in other countries.

And if SB 536, a technical corrections bill that includes the "or was" language, becomes law, Congress could give modern Indian tribes control over remains of groups unrelated to them, or groups that left no descendents.

From 1996 to 2004, federal agencies spent millions of dollars to unsuccessfully defend this position in the Kennewick Man litigation. More than the Kennewick Man skeleton is at stake. All those here before European contact in 1492 would fall under the domain of modern American Indians. If NAGPRA is amended, public policy would sanction only a religious view and explanation of the continent's prehistory. Scientific access to and factual understanding of prehistory will be denied on tribes' religious grounds.

Senators who support the amendment claim that NAGPRA's cultural-affiliation requirement protects remains and artifacts that have no cultural affiliation with claiming tribes. But this protection has little meaning. As of 2002, there were 21 instances where the National Park Service facilitated turnover of remains to federally unrecognized tribes, coalitions of tribes, or tribes without documented cultural affiliation.

All such claims are excluded by the plain language of NAGPRA. However, the secretary of the interior has the discretion to set aside NAGPRA's requirements. There is no reason to believe that the government will suddenly begin enforcing the cultural-affiliation requirement of NAGPRA.

Section 108 must be deleted from SB 536. The First Amendment clearly directs that no religion may dictate public policy.

Richard L. Jantz is a professor of anthropology at the University of Tennessee, Knoxville. He is one of the plaintiffs in the Kennewick Man lawsuit, which seeks scientific access to the 9,300-year-old remains.

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