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NASA, the Navajo Nation and human remains on the moon: Challenges with the private sector in space

NASA has launched its mission to place the first-ever commercially built lander on the moon.

It should have been a landmark moment, a coming out party for everyone involved: for NASA’s Commercial Lunar Payload Services (CLPS) program; for the first launch of United Launch Alliance’s 200-foot Vulcan rocket, with its engines made by Jeff Bezos' Blue Origin; for Astrobotic's Peregrine rover; and for what, if successful, would be the first American craft to make a soft landing on the moon since the Apollo program.

But long before the mission ran into post-launch difficulties, protests by the Navajo Nation and others over a secondary cargo of cremated remains had taken some of the shine off of the moment.

Promises and partnerships

Who’s right, who’s wrong and who’s to blame? In the new space age of public-private partnerships, the moral and practical calculus needed to answer that question might as well be rocket science.

“At least if they consulted with us and made this decision, [they] could say, ‘You know what, we consulted with you, and we decided to not take your advice, and we moved forward,'” said Navajo Nation President Buu Nygren. “But in this case, there was no consultation, so.”

When Nygren objected to the cargo — which also contains the DNA of humans (some still living) and the ashes of a service dog — he referred back to an earlier incident involving Flagstaff planetary scientist Gene Shoemaker.

In a rapidly conceived and executed memorial, one ounce of Shoemaker’s ashes were included aboard the 1998 Lunar Prospector mission, which eventually executed a planned crash near the moon’s south pole.

For now, Shoemaker ashes are the only human remains on the Earth’s largest natural satellite. The new mission, if it delivers its memorial cargo to the lunar surface, will change that.

Nygren said NASA promised former President Albert Hale the agency would consult with the Navajo Nation in the future.

“That’s why it was really easy for me as president to make that position because I said, ‘You know what, if NASA promised us to consult us back then, they should consult us,’” he said.

The agency did not responds to KJZZ’s request for comment.

Contractors and clients

The moon is sacred to many, and Navajo culture includes specific prohibitions regarding death and human remains, including not discussing death, avoiding burial sites and not handling materials belonging to a deceased person.

But cultural values may not tip the scales much when weighed against the stakes businesses, nations and states hold in the quickly evolving space marketplace.

NASA is leveraging that burgeoning sector through its $2.6 billion CLPS program, which pays American companies to handle payloads, operations, launches and landings.

“If there are American companies providing a delivery service to the moon, the cost of buying a service is much less than NASA owning the end-to-end mission,” said CLPS program manager Chris Culbert of Johnson Space Center.

But savvy launch companies sell every cubic inch of their precious cargo space to everyone from businesses to scientists to students.

In this case, those secondary clients included space memorial companies Celestis and Elysium. The companies offer packages for taking a symbolic portion of human remains into space. The Peregrine mission is their chance to make good on packages they’ve sold that promise lunar deposits.

For engineering and safety reasons, NASA is looped into discussions about cargo, but Culbert says that’s where their feedback ends.

“They don't have to clear those payloads with us,” he said. “These are truly commercial missions; it's up to them to sell what they can sell.”

In other words, it’s not NASA’s place, as a mere customer, to make the call.

Joel Kearns, deputy associate administrator for exploration in NASA's Science Mission Directorate, says they take cultural concerns “very seriously,” but echoed Culbert’s assertion.

“Those communities may not understand that these missions are commercial, and they're not U.S. government missions,” he said.

Rights and responsibilities

Yet many in the space community scoff at the notion that the U.S. government, which licenses and bears final legal responsibility for all American space flights, has no role to play here.

“I think space might be one of the only areas where all activities are called ‘national activities’ — doesn’t matter who does them,” said Timiebi Aganaba, founder of Arizona State University’s Space Governance Lab.

So, which agency does the monitoring? Congress is even now debating the National Space Council’s proposed regulatory framework for new private sector space activities, which splits oversight between the Departments of Commerce and Transportation.

“People are still not decided on, like, who should authorize,” said Aganaba.” And so that's why they can say they're not doing anything legally wrong.”

But with the U.S. leading global efforts to return humans to the moon under the Artemis program and its Artemis Accords — America’s updated take on the Outer Space Treaty of 1967 — it’s clear NASA holds plenty of sway.

And the Biden administration has prioritized consultation with tribal governments, as demonstrated by Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the 2021 Presidential Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships, and a NASA virtual forum and listening session held on Jan. 11, 2023, comprising 48 tribal leaders and 19 Indigenous nations.

“President Biden has been very big and instrumental on protecting sacred sites,” said Nygren.

The meeting informed a draft NASA plan for tribal consultation and coordination that’s still in its comment period.

Ability and authority

But here’s where the Space Treaty’s essential toothlessness becomes clear: Article IX says state parties to the treaty who think they might cause harm — or might be harmed — shall “consult” before proceeding.

“The only thing that there is, is to have this consultation,” said Aganaba. “And that's exactly what the Navajo have said: ‘We want you to consult with us.’”

The Navajo Nation likely lacks legal standing to request consultation under the treaty, except through the U.S. government.

Either way, comments under space law pack even less legal force than debate at a neighborhood zoning meeting.

“Space law says, ‘If you're going to be harmed, consult;' it doesn't say that there has to be a finding,” said Aganaba. “Because if you just consult and then the U.S. says, ‘Oh, we don't care,’ they can still do it, because the obligation is the consultation, not the result.”

That fact, combined with NASA’s rhetorical handwashing over a flight that is, after all, part of the Artemis program, feeds fears that it’s “open season” in space.

In a LinkedIn forum discussing the recent events, space entrepreneur Dan Hawk of the Wisconsin Oneida Reservation summarized his take as follows: “If you can contract it, it can fly Artemis.”

True or not, space may soon enter a wildcatting period in which private sector enterprise outpaces regulation and policy.

“The U.S. is in a tricky situation, because they're trying to grow and promote an industry while also making sure that they're in line with their international obligations” said Aganaba. “And right now, the international obligations are very murky.”

With all of space to play for, and receiving only shaky support from Congress and the public, it’s not in NASA’s interest to cut itself out of any deals that help secure its place in a rapidly accelerating sector the agency itself helped to launch.

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Nicholas Gerbis was a senior field correspondent for KJZZ from 2016 to 2024.