The provisions pertaining to human remains have also blocked scientific advance. The most notable example is the Kennewick Man episode, recounted recently in a riveting article by Douglas Preston in Smithsonian. There, aggressive interpretation of the law by the federal government closed down an important archaeological dig even though the prehistoric remains that had been discovered had no evident link to any current tribe.
To return to the Thorpe suit, perhaps the most curious hurdle it faced was showing that the borough of Jim Thorpe counts as a “museum” subject to the law. If that sounds wacky, blame Congress, because it is a completely straightforward reading of the statute. Drafters in their wisdom chose to define a “museum” for NAGPRA purposes as “any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items.” Since the town is a government agency and does receive federal funds, it would seem to count as a museum under the law. At least so the US District Court for the Middle District of Pennsylvania found [PDF].
The US Court of Appeals for the Third Circuit, however, reversed [PDF]. While agreeing that this was the law’s literal reading, it took issue with the “clearly absurd result” of letting the law provide “a sword to settle familial disputes within Native American families.” There is already talk of a possible appeal, which—like the pending King v. Burwell challenge to ObamaCare—may turn on how readily courts can lay aside plain statutory language as “absurd” as opposed to merely unwelcome to some litigants. And the fact is that to some on the plaintiffs’ side, there is nothing unwelcome, let alone absurd, about the prospective outcome. The case has become a cause célèbre in Indian Country, where it has been described as the first of more actions to come intended to “repatriate” persons of Indian blood who died in modern times.
Even should the tribal advocates prevail on the museum definition question, they will still need to overcome another NAGPRA provision that provide immunity to institutions acquiring Indian remains with “full knowledge and consent of the next of kin.” Presumably that will require challenging whether Patsy Thorpe—who, as supporters of the lawsuit point out with some frequency, was of non‐Indian descent—had appropriate legal authority to make decisions at the time.
In a nation where people regularly fall in love across ethnic lines, laws that assign rights differentially to some members of families based on descent or tribal affiliation are especially hard to justify under US Constitution’s Equal Protection Clause. We have already seen how by entitling tribes to a role in family law proceedings, the Indian Child Welfare Act of 1978 undermines the rights of non‐Indians, such as the birth mother in last year’s Baby Veronica case. Say what you will about the Third Circuit’s reasoning, it at least postpones the day when tribal enmities extend into our very cemeteries, and even the dead cannot escape counting based on race.