Native Americans and CRM
(two-week module)
Description: Challenge and controversy in Native American archaeology; federally recognized and non-recognized tribes; tribal historic preservation programs; NAGPRA and the treatment of Native American human remains.
Learning Objectives:
• Examine current U.S. legislation and policy towards Native Americans and their cultural sites.
• Assess the treatment of human burials and repatriation through analysis of the Native American Graves Protection
and Repatriation Act and its regulations.
• Debate the "Kennewick Man" case; argue and defend your position in a public forum.
Readings:
Text of Native American Graves Protection and Repatriation Act of 1990.
David Hurst Thomas, Kennewick Man, Archaeology, and the Battle for Native American Identity, chaps. 1–17.
J. Watkins, "Responsibilities of archaeologists to non-archaeological interest groups," in M. J. Lynott and A. Wylie, eds., Ethics in American Archaeology. 2nd revised edition. Washington, D.C.: Society for American Archaeology (2000), 40-44.
Alan S. Downer, "Archaeologists-Native American Relations," in N. Swidler, et al., Native Americans and Archaeologists: Stepping Stones to Common Ground (Walnut Creek, CA: Altamira), 23-34.
Begay, Richard M., "The Role of Archaeology on Indian Lands: The Navajo Nation," in N. Swidler, et al., Native Americans and Archaeologists: Stepping Stones to Common Ground (Walnut Creek, CA: Altamira), 161-166.
Rebecca Tsosie, "Indigenous Rights and Archaeology," in N. Swidler, et al., Native Americans and Archaeologists: Stepping Stones to Common Ground (Walnut Creek, CA: Altamira), 64-76.
I. The Status of Native Americans in the United States
A. Federally Recognized Tribes: Most federal preservation laws, including ARPA and NAGPRA, define "Indian Tribe" as federally recognized tribal entities, or "any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village. . . which is recognized as eligible for the special programs and services by the United States to Indians because of their status as Indians" [25 U.S.C. 3001(7)]. There are currently 562 federally recognized Indian tribes in the 48 states and Alaska. (For a complete listing, see Federal Register vol. 67, no. 134, Fri. July 12, 2002). The Bureau of Indian Affairs manages relations with these tribes on 55.7 million acres of land held in trust for Native Americans by the United States. The federal government must treat Indian tribes through a government-to-government relationship.
B. Other Tribal Groups: Currently there are about 245 federally non-recognized tribes; many of these are recognized by individual states. Most of the non-recognized tribes are petitioning the federal government for recognition.
II. CRM and Native Americans in the Law
A. Special Treatment: Owing to the priority of their occupation of American lands and to the history of treatment by non-Indians, Native American sites and cultural remains receive special and distinct consideration in several federal preservation laws and regulations. The most important of these are described below. In addition, other federal laws dealing with Native American concerns are relevant to the issue of cultural resource management, including the American Indian Religious Freedom Act of 1978 (42 U.S.C. 1996) and the National Museum of the American Indian Act of 1989 (20 U.S.C. 80q [1994]).
Another group, Native Hawaiians, also receive special treatment in the federal preservation system. They are treated like Indian tribes under the National Historic Preservation Act and the Native American Graves Protection and Repatriation Act.
B. National Historic Preservation Act: Indian tribes and Native Hawaiian groups must be consulted by agencies and be given an opportunity to participate in the Section 106 process. Federally non-recognized tribes do not receive the same treatment. Under NHPA (since the 1992 amendments), federal tribes may establish Tribal Historic Preservation Offices (THPOs) to manage preservation issues on their reservations. THPOs may include all the functions assumed by SHPOs in the states and under the NHPA they are treated in the same way as SHPOs.
Many tribes now have active cultural resource management programs. These have goals and methods that often conflict with non tribal approaches to cultural resource management. Archaeologists working for tribal programs may find it difficult to adapt to tribal priorities that challenge their own sense of archaeologically appropriate behavior.
C. Archaeological Resources Protection Act: Under ARPA, anyone seeking a permit for excavation or removal of archaeological resources on Indian lands must receive the consent of the Indian or Indian tribe owning or having jurisdiction over the lands involved. Even if permits are issued for investigations on public, non-Indian lands, if any harm may result to Indian tribal religious or cultural sites, the federal land manager must consult with the Indian tribe. Federal land managers must also seek to identify and consult with all Indian tribes having aboriginal and historic ties to subject lands in an effort to identify sites of religious or cultural importance.
III. Treatment of Native American Remains
A. Traditionally archaeologists excavated Native American burials, human remains, and related artifacts as a strictly scientific enterprise with little or no regard for the feelings of Native American communities. Human remains were "data" to be excavated, analyzed, and exhibited. In recent decades, however, such one-sided treatment has led to controversy, bitterness, and finally legal action to recognize the interests of Native Americans, Native Hawaiians, and other "affected parties." The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is the most important piece of legislation and has revolutionized the treatment of Native American cultural sites in the United States. But it was not the first federal law to deal with this important issue.
B. The Smithsonian's Repatriation Office: The Smithsonian Institution is a unit of the National Museum of National History in Washington, D.C. In 1989, Congress passed the National Museum of the American Indian Act (NMAIA) (20 U.S.C. 80q [1994]. Under this law, the Smithsonian was required to inventory and document human remains and related objects in its possession and, if requested, to repatriate them to Native American tribes. NMAIA was amended 1996 to include sacred objects and objects of cultural patrimony; it also set deadlines for summaries and inventories; and added two Native American religious leaders to Repatriation Committee. The law established a process for consultation, requests for repatriation, and criteria for repatriation (including cultural affiliation). In addition to regulating the vast holdings of Native American human remains in the Smithsonian, NMAIA became the legislative model for the later NAGPRA.
C. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA):
1) Background: Concerns over the historical and continuing treatment of Native American burial sites and human remains, especially the presence of thousands of skeletal remains in museums and repositories throughout the country, led to legislative efforts beginning in 1989. NAGPRA resulted from bills introduced by Senators McCain and Inouye in 1989. Implementing regulations were not finalized until 1995.
2) 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).
3) Inventories: all federal agencies and museums receiving federal funds must inventory collections of human remains and associated funerary objects within 5 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 3 years.
4) Consultation: Identity of owners or culturally affiliated groups must be ascertained if possible; the relevant groups notified and consultation undertaken.
5) 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.
6) Intentional excavation and inadvertent discovery: applicable to federal or tribal lands, this provision establishes process of notification and consultation.
7) Illegal Trafficking of Native American human remains or cultural items not in compliance with NAGPRA is forbidden.
8) Establishment of Native American Review Committee.
D. NAGPRA's approach to determining "cultural affiliation."
1) NAGPRA Regulations published in Federal Register (vol. 60, no. 232, 62134-62169) on 4 December 1995 by the Department of the Interior.
2) "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."
3) In order to determine cultural affiliation, all of the following conditions must be met: a) existence of an identifiable present-day Indian tribe or native Hawaiian organization with standing; b) evidence of the existence of an identifiable earlier group; and c) 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.
4) Finding 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."
5) 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, and other relevant information or expert opinion"
6) Standard of proof: "must be established by a preponderance of the evidence. Claimants do not have to establish cultural affiliation with scientific certainty."
E. Class Visit to an Institution involved in NAGPRA Compliance: If feasible, schedule a field trip to a local museum or other institution that has been active in NAGPRA-related work (inventorying collections, consulting with Indian tribes and Native Hawaiian groups, repatriating human and cultural remains). One of my classes visited the Peabody Museum of Archaeology and Ethnology at Harvard University with Dr. Rubie Watson, the museum's director. The Peabody holds the largest collection of human remains under the NAGPRA mandate, an estimated 11,600 human remains from 46 states. Thousands of inventories of collections have been completed and hundreds of consultations with Native American tribal groups have been arranged to establish cultural affiliation. After hearing introductory comments from Dr. Watson and her staff, the students toured the laboratory and curation facilities where NAGPRA inventories were being performed. One of the most interesting points to come out of the visit was to learn what a dramatic effect the NAGPRA mandate was having on museums like the Peabody. NAGPRA is essentially an unfunded mandate—i.e., it requires substantial work on the part of museums but offers no funding. For many museums, funding NAGPRA work required allocation of a huge amount of resources that might have gone elsewhere (including other programs, exhibitions, and even physical plant maintenance).
IV. The "Kennewick Man" Controversy: Discussion and Debate
Few recent cases epitomize the controversy and debate over the treatment of Native American remains than the "Kennewick Man" controversy. "Kennewick Man" is a 9,000-year-old individual found by chance in Washington state. 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? In order to involve the students in a wide-ranging discussion of issues, I recommend using one of two approaches.
A. Class Discussion: Students should familiarize themselves with the essential facts of the case, including the basic chronology of events, including 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 intervention by anthropologists, the effort of the National Park Service to coordinate the study of the remains and see if a determination of cultural affiliation can be made, and the most recent disposition of the case by the court. Many of the essential documents may be found at www.cr.nps.gov/aad/kennewick Assuming that all the students are in control of the basic facts of the case, the instructor should guide the discussion in such a way the students 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.
One of the most interesting ways to stimulate discussion is to evaluate the Interior 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 one 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?
Suggested Oral Reports/Class Papers1. "Bottom line" question for students to consider: How do we resolve a case where there are fundamental disagreements that affect our core values as archaeologists (or Native Americans)?
2. If the class is small enough, try running a formal debate on the question of "What should we do with 'Kennewick Man'"? Divide the students into two groups—one representing the Umatilla Indian tribes and the other representing the anthropologists and osteologists. (If you want to be mischievous, add another group to represent the Asatru Folk Assembly!). Establish formal rules and time limits on presentations, rebuttals, and counter-rebuttals. As in the class discussion described above, the students must master the fundamentals of the case in advance. This will require several weeks of preparation. Team members of each group would research and prepare some aspects of the case for presentation in the debate. For example, the anthropologist/osteologist team might have someone who could summarize the specialist studies on archaeology and linguistics; another student might cover folklore and kinship studies. Note that it is not important for students to be assigned to one team or the other based on their predisposed views; it might be even more effective, for example, to assign a student sympathetic to the Native American perspective and assign her or him to the anthropologist group (and vice versa). One of the benefits of doing a debate is to encourage students to really absorb, appreciate, and, owing to the competitive atmosphere, "buy into" the argument.