In the Smaller Scope of Conscience: The Struggle for National Repatriation Legislation, 1986–1990

3. The Political Dynamics of Public Awareness

42 chapter three The Political Dynamics of Public Awareness Senators Melcher’s and Inouye’s efforts during the 100th Congress had focused on the repatriation of collections of Native American human remains and other objects excavated long ago and then gathered in museum collections. It was only a matter of time before Congress began to address ongoing excavations of Native American human remains and funerary objects as well. Anticipating this prospect, the Advisory Council on Historic Preservation (ACHP) began to develop a policy for the treatment of human remains and grave goods that might be recovered during excavations on federal lands or federal “undertakings,” meaning projects, activities, or programs either funded by or under the jurisdiction of a federal agency. Tom King, director of the ACHP’s Office of Cultural Resource Preservation , circulated a draft policy statement as early as 1985.1 At issue was a common interpretation of the Archaeological Resources Protection Act (ARPA), enacted in 1979, which defined “archaeological resource” as the material remains of past human life or activities that are of archaeological interest and at least 100 years of age, and explicitly included graves and human skeletal remains.2 ARPA also authorized the secretary of the Interior to promulgate regulations regarding the ultimate disposition of archaeological resources,3 but these were not included in the regulations published in 1984.4 Some federal officials were interpreting the lack of regulations to mean that they were forbidden from allowing reburial of Native American human remains recovered from federal lands. The ACHP’s final policy statement, adopted at a September 27, 1988, meeting in Gallup, New Mexico, made it clear that it did not believe Congress had The Political Dynamics of Public Awareness • 43 intended the ARPA to prohibit federal land managers from reburying human remains and grave goods where reburial was otherwise appropriate. The ACHP directed its staff to prepare a draft amendment to ARPA giving federal land managers the clear flexibility to allow reburial to occur. A draft amendment was completed on October 5, 1988, revising section 4(b) of ARPA to explicitly allow human remains and other contents of graves to be reburied or transferred to Indian tribes or other groups for reburial .5 The draft was distributed for comment to preservation officers of every federal agency and every state and to members of Congress.6 The Fowler Bill One of the recipients of the ACHP draft was Senator Wyche Fowler from Georgia. Fowler had previously served five terms in the House before being elected to the Senate in 1986. Fowler’s staff was working on a comprehensive bill to establish a National Preservation Agency, consolidating the ACHP with the National Register Programs from the National Park Service and the Cultural Properties Advisory Committee from the U.S. Information Agency. On October 18, 1988, Fowler introduced S. 2912, the Comprehensive Preservation Act.7 In Fowler’s bill, one of the National Preservation Agency’s responsibilities would be to develop a comprehensive policy on the reburial of human remains and grave-associated artifacts recovered on federal or tribal lands.8 Fowler considered federal reburial policy a contentious question that raised difficult ethical, religious, scientific, and legal issues between and among Native Americans, the scientific community, and the government. Title IX of S. 2912 was intended to address the problem by reconciling the competing claims.9 Unlike earlier bills, S. 2912 included a definition of human remains that included any human body or part thereof, whether in skeletal, fossil, unmummified, or other form.10 Development of the reburial policy was to be guided by four principles. First, human remains and grave-associated artifacts not in danger of destruction should not be exhumed for research or training purposes. Second, human remains and grave-associated artifacts that did have to be exhumed could be subjected to nondestructive analysis before being reinterred according to state or local law or the wishes of the biological, cultural, or tribal groups associated with the deceased. Third, human remains and grave-associated artifacts with a demonstrated extreme significance in current or likely research could be subjected to destructive analysis and should not be reinterred 44 • In the Smaller Scope of Conscience until their research significance was exhausted. Last, human remains and grave-associated artifacts with a demonstrated cultural or religious significance of such magnitude that their analysis would impede the free exercise of religion by their biological or cultural descendants would be reinterred...