Diverse Interests in the Past I:
Indigenous Peoples, Human Burials, and "Affected Parties"
Description: Many different groups are stakeholders
in the past. Some have religious and cultural perspectives that are
often at odds with professional, scientific enterprises like archaeology,
especially when it comes to human burials. We try to sort out the various
interests in heritage, material culture, and bones through a critical
examination of the Kennewick Man saga.
Learning Objectives:
• Analyze the perspectives of Native Americans and other affected peoples toward archaeology and especially human remains.
• Examine current U.S. legislation and policy toward the treatment of human burials and repatriation.
• Appraise the controversy over the contested past through a critical evaluation of the "Kennewick Man" case; choose and defend an outcome that you believe to be in the public interest.
Readings:
VITELLI, chs. 18–20.
J. Watkins, et al., "Responsibilities of Archaeologists to Non-Archaeological Interest Groups," in LYNOTT, 40–44.
Cheek and Keel, "Value Conflicts in Osteo-Archaeology," Ethics and Values, ch. 22.
James Riding In, "Without Ethics and Morality: A Historical Overview of Imperial Archaeology and American Indians," Arizona State Law Journal 24, no. 1 (1992): 11-34.
N. Hammond, "The Good is Oft Interred with the Bones," Wall Street Journal, Op-Ed, 10 December 2000.
"Kennewick Man" case file: www.cr.nps.gov/aad/kennewick.
1. Introduction: Many different people and groups are concerned
with the physical remains of the past. Archaeologists do not have exclusive
control over the past, although they sometimes act like they do; this
is especially true of old-school practitioners. If archaeology is a
public interest, we have an obligation to communicate with the public.
But, as Francis McManamon has written, there are many publics for archaeology.
How do we respond to them all? Which public are we serving? What happens
when the interests of others—religious groups, local communities,
Native Hawaiians, Australian aborigines, and other "affected parties"—conflict
with the interests of archaeologists? Who owns the past? These questions
are nowhere brought into sharper focus than in the ongoing debate about
the treatment of Native American human remains.
We approach this topic through a consideration of recent efforts in the United States to address the question of treatment of Native American burials. Students help set the stage for discussion by presenting oral reports on the Smithsonian Institution's Repatriation Office; a case study of the Larsen Bay repatriation; an overview of the Native American Graves Protection and Repatriation Act (NAGPRA); and a detailed critique of NAGPRA's method of determining cultural affiliation, based on the NAGPRA regulations.
2. Student Report: The Smithsonian's Repatriation Office. The Smithsonian
Institution's Repatriation Office is located in the National Museum
of Natural History in Washington, D.C.
a. National Museum of the American Indian Act (NMAIA) of 1989, as amended.
b. Smithsonian required to inventory and document human remains and related objects in its possession and, if requested, repatriate them to Native American tribes.
c. Amended 1996 to include sacred objects and objects of cultural patrimony; set deadlines for summaries and inventories; two Native American religious leaders added to Repatriation Committee.
d. Process for consultation, requests for repatriation, criteria for repatriation (including cultural affiliation).
e. Legislative model for the later NAGPRA.
3. Student Report: The Larsen Bay Repatriation. (Based on T. L.
Bray and T. W. Killion, eds., Reckoning with the Dead: the Larsen
Bay Repatriation and the Smithsonian Institution [Washington, D.C.:
Smithsonian Institution Press, 1994]).
a. The Smithsonian's Ales Hrdlicka, between 1931–1936, excavated and removed remains of around 1,000 Native American individuals, along with 95 lots of funerary objects, constituting around 5% of the Smithsonian's physical anthropology holdings. His methods were sometimes questionable; among the remains collected were those of a known family that died during a 1918 influenza epidemic.
b. Repatriation Process: Larsen Bay Tribal Council asks for material to be repatriated (1987). Debate over legitimacy of their claim (1987-1989). NMAIA enacted, 1989. Decision to repatriate, return of skeletal materials, reburial in Russian Orthodox ceremony in 1991.
c. Determining cultural affiliation and demonstrating continuity of the community were the most difficult issues. The case highlighted an apparent dichotomy between the values of ethnic/cultural identity and scientific study; also between notions of linear time vs. cyclical time.
4. Student Report: The Native American Graves Protection and Repatriation
Act of 1990 (NAGPRA).
a. Definitions and Coverage: Human remains, associated funerary objects, unassociated funerary objects, sacred objects, objects of cultural patrimony. Applicable to remains and objects of Native Americans and Native Hawaiians (federally recognized tribes and groups).
b. Inventories and Summaries: All federal agencies and museums receiving federal funds must inventory collections of human remains and associated funerary objects within five years. (The Smithsonian is excluded from NAGPRA because it has its own legislation.) Summaries must be made for unassociated funerary objects, sacred objects, and objects of cultural patrimony within three years.
c. Consultation: Identity of owners or culturally affiliated groups must be ascertained if possible, the relevant groups notified, and consultation undertaken.
d. Repatriation: Items must be repatriated to a requesting lineal descendent or culturally affiliated group. Many lines of evidence may be used to determine cultural affiliation, including geographic, kinship, biological, archaeological, linguistic, and anthropological.
e. Intentional Excavation and Inadvertent Discovery: Applicable to federal or tribal lands, this provision establishes process of notification and consultation.
f. Illegal Trafficking of Native American Human Remains or Cultural Items not in compliance with NAGPRA is forbidden.
g. Establishment of Native American Review Committee.
5. Student Report: NAGPRA's Approach to Determining "Cultural Affiliation"
a. NAGPRA Regulations published in Federal Register (vol. 60, no. 232, 62134-62169) on 4 December 1995 by the Department of the Interior.
b. "Cultural affiliation means a relationship of shared group identity that may be reasonably traced historically or prehistorically between a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group."
c. To determine cultural affiliation, all of the following conditions must be met:
• existence of an identifiable present-day Indian tribe or Native Hawaiian organization with standing
• evidence of the existence of an identifiable earlier group
• evidence of the existence of a shared group identity that can be reasonably traced between the present-day Indian tribe or Native Hawaiian organization and the earlier group
d. Findings of cultural affiliation "should be based on an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed."
e. Evidence between claimant and the claimed material "must be established by using the following types of evidence:
• geographical
• kinship
• biological
• archeological
• anthropological
• linguistic
• folklore
• oral tradition
• historical
• other relevant information or expert opinion"f. Standard of proof "must be established by a preponderance of the evidence. Claimants do not have to establish cultural affiliation with scientific certainty."
6. "Kennewick Man": Whose Bones?
Now that the historical, cultural, legal, and social background of the topic has been established, it is time to figure out what to do with "Kennewick Man." Here is a 9,000-year-old individual. Is he Native American? Can he be culturally affiliated with the modern Native American tribes that claim him? Is he so old that no cultural affiliation can possibly be made? Or is he so significant for our understanding of the peopling of the Americas that he must be fully studied and preserved? As the class considers this fascinating case, it is important to encourage the students to go beyond the letter of the law and try to determine what they think is right. Just because NAGPRA is in force in this case (because the skeleton was found on land controlled by a federal agency), the students should not limit themselves to trying to interpret the law (which calls for determination that the remains are those of a Native American and a decision regarding cultural affiliation). They should try to evaluate the issue on moral grounds first and foremost, as a struggle between conflicting world views and ethical systems. Laws, after all, can be changed, and it may be that some will conclude that NAGPRA needs to be amended to exclude exceptionally old remains like Kennewick Man.
Most of this section involves a wide-ranging discussion. Structure is imposed by considering the chronology of events from the discovery of Kennewick Man in 1996, his early treatment by anthropologists and the Army Corps of Engineers, the intervention of Native American tribes (as well as the Asatru Folk Assembly), the legal case that has placed the remains in limbo, and finally, the efforts of the National Park Service to coordinate the study of the remains and see if a determination of cultural affiliation can be made.
a. Chronology of events
b. Study by the National Park Service and finding of Bruce Babbitt, the Secretary of Interior, 21 September 2000. The documents are available online at www.cr.nps.gov/aad/kennewick, and the students are expected to peruse them and read the Secretary's statement carefully.
c. The Secretary's finding of cultural affiliation: "After considering and weighing the totality of the circumstances and evidence, DOI has determined that the evidence of cultural continuity is sufficient to show by a preponderance of the evidence that the Kennewick remains are culturally affiliated with the present-day Indian tribe claimants." How could the Secretary find that Kennewick Man was culturally affiliated to the claimant tribes when not a single of the specialist studies (archaeology, physical anthropology, folklore, linguistics) concluded that there was cultural affiliation? Is it possible to imagine that modern-day groups can have a "relationship of shared group identity" with a 9,000-year-old skeleton? We may agree with the Secretary, or we may find ourselves agreeing with Prof. Norman Hammond, who, in an opinion piece in the Wall Street Journal (10 December 2000), said: "Mr. Babbitt has chosen the irrational certainty of tribal lore over the rational uncertainty of science." One way or the other, compromise appears to be out of the question.