Scientists Ponder Legal Challenges to the New NAGPRA Provision

Posted on April 14, 2010


I’ve reported on the new provision of NAGPRA, currently in the comment phase, here, here, and here.  A new article in Indian Country states that scientists are pondering filing  “a lawsuit against a new [NAGPRA] rule”.  That’s kind of like me sitting around pondering the nature of electron tunneling (which I do).

In this long article (Scientists Ponder NAGPRA Lawsuit), there is not one cognizable legal basis on which the scientists could challenge the new NAGPRA provision via a lawsuit. It’s all policy, and disagreement, but the Department of Interior simply does not appear to be overstepping its bounds by refining the NAGPRA law to include provision for disposition of unidentifiable human remains.

The closest thing to a legal argument cited by scientists in the article is that the new NAGPRA provision is outside of the legislative intent of the drafters. But the intent of the 14th amendment wasn’t to end racial discrimination in restaurants, and yet that’s how it’s evolved. The commerce clause wasn’t intended to give the federal government jurisdiction to prosecute crimes with incidental impacts on interstate commerce and yet, voila, here we are. Laws evolve through interpretation to mirror changing ideologies of society, although there is admittedly a lag time in that process. Legislative intent alone does not necessarily limit use of and amendment to laws, NAGPRA included. That’s assuming the legislative intent could be shown to have intentionally omitted unidentifiable remains, and I’ve seen no such indication as of yet.

I’m not saying there is no valid legal basis upon which to challenge the new NAGPRA provision, just that I haven’t thought of it, and neither have the scientists quoted in this article. They disagree with the policy behind the provision, sure, but that’s not enough to get a law overturned via a lawsuit. They’ll have to come up with some constitutional argument, and good luck with that under these circumstances.

Hat tip to LCCHP.