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NAGPRA, Indian Burials, and the Unquiet Grave

November 22, 2014 in Economics

By Walter Olson

Walter Olson

Does Congress really mean for the laws it passes to achieve the opposite of their stated intent, or does it just seem that way sometimes? Consider the Native American Graves Protection and Repatriation Act, or NAGPRA, signed into law by President George H.W. Bush in 1990 following a relatively uncontroversial passage through Congress. On its face, NAGPRA is meant to prevent the untimely disturbance of human remains and ensure respect for their final resting place as directed by their survivors. Twenty-five years later the law has come to the point of threatening to order that otherwise undisturbed graves from long ago be dug up. For the moment the US Court of Appeals for the Third Circuit has drawn the line and said no, turning down a suit under the law seeking to order a Pennsylvania town to yield up the remains of Native American sports great Jim Thorpe for reburial under tribal auspices in Oklahoma.

Jim Thorpe was one of America’s greatest athletes, some would say the very greatest. After his death in 1953, following the wishes of his widow, his remains were laid to rest in the newly renamed town of Jim Thorpe (formerly Mauch Chunk and East Mauch Chunk). More than a half century later, and twenty years after NAGPRA’s passage, two of his sons from an earlier marriage filed suit demanding that Thorpe be reburied in Oklahoma on ancestral lands of his Sac and Fox tribe. Other Thorpe relatives, meanwhile, disagreed and wanted him left in the town where he had been laid to rest in accord with Patsy Thorpe’s arrangements.

Few if any lawmakers had foreseen such a fact pattern in the original debate over NAGPRA, which built on outrage at the desecration of Indian burial sites by looters and sensation-seekers. Along with providing for review of federally funded disturbance of burial grounds, the law aimed at requiring cultural institutions that receive federal funds to return holdings of human remains and related objects to persons who can show they are descendants of the deceased.

Almost from the moment the law was enacted, it began to see tactical use as a way for opponents to block land development. In a recent piece in the New York Times, George Johnson cited ways in which the law has frustrated legitimate scientific endeavor, including the emplacement of astronomical observatories on reputedly sacred mountains.

Does Congress …read more

Source: OP-EDS

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