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The Earliest Americans | Conferences & Papers

The Future of Public Policy

Alan Schneider, co-counsel for the scientist plaintiffs in the Kennewick Man dispute participated in "The Future of Public Policy: How Do We Go From Here?" The panel included these topics and participants. As we receive the written copies other the other participants' remarks, we will post them.

The Society for American Archeology's Perspective: Keith Kintigh
The Academic Archaeologist's Perspective: Brad Lepper
The Avocational Archaeologist/Collector's Perspective: Jim Wrnica
A Native American's Perspective: Joe Watkins
The Government Policy Maker's Perspective: Lois Schiffer
The Lawyer/Scientists' Perspective: Alan Schneider
The Government Regulatory and Cultural Resource Manager's Perspective: Frank McManamon

Public Policy and Prehistory

Alan L. Schneider

Clovis and Beyond Conference
Santa Fe, New Mexico
October 29, 1999

As the preceding discussants have demonstrated, the announced topic for this morning's panel (i.e., The Future of Public Policy: How do We Go From Here?) can be addressed from many different perspectives. For my part, I would like to present some thoughts from the perspective of an attorney who represents and advises parties impacted by government regulation. Such parties include landowners, Native Americans, research scientists, and collections managers. Hopefully, my observations can add something to the perspectives provided by the other speakers.

But first a word of caution about my role today. Although I will be speaking about the impacts of policy on scientific research, I am not here today as a spokesman for science or any particular group of scientists. My comments today represent merely my own personal views. Whether others agree with those views is for them to say.

There is much that can be said about the current state of public policy as it relates to the study of prehistory. However, time this morning is short. Consequently, I will focus my comments on a few basic issues that I believe need to be addressed in any process of considering future changes to public policy as it relates to prehistory.

Issue: Does current policy need to be changed, and if so why?

In my view, the answer to the first part of this question is clearly "yes". I know of few parties who are satisfied with present policy, or at least with how current policy is being implemented. Even many government archaeologists and land managers complain about the current state of affairs.

The situation is becoming increasingly acute for research scientists. Government restrictions are making it progressively more difficult for researchers to gather new data and to formulate new concepts about American prehistory. Some of the restrictions encountered by scientists include:

Archaeological sites are being placed off-limits to scientific investigation because of objections from groups or individuals who consider such investigations to be offensive. This can occur even though the complaining group or individual is unable to demonstrate any special connection to the site in question.

Scientists are being denied access to prehistoric skeletal remains held in federal and state collections. These include very ancient as well as more recent remains. Kennewick Man is merely one example of this growing trend.

  • Restrictions on the study of skeletal remains include not only so-called "invasive" tests (such as DNA and radiocarbon dating). They are also being extended to skeletal measurements and other noninvasive studies.

  • Researchers are being denied access to utilitarian objects held in federal and state collections. Examples include projectile points and nonburial pottery.

  • Graduate students are being forced to change thesis and dissertation topics (sometimes twice or more) due to lack of access to research materials.

  • Restrictions are being imposed on the dissemination of data about collections and new discoveries, even extending in some cases to basic research reports.

  • Skeletal remains and other items are being given to tribes or coalitions of tribes that have no demonstrated relationship to the materials in question. Prominent examples include: Buhl Woman; Hourglass Cave; Minnesota Woman; Brown's Valley; Sauk Valley.

If present trends continue, the future of research in American prehistory as a viable scientific discipline will be problematic. Almost every significant new discovery of human skeletal remains on federal or state land encounters objections, red tape, delays and restrictions on what can be done (or who can participate). Even discoveries not involving human remains (or occurring on private land) can encounter such obstacles.

Although there are many reasons for this state of affairs, one of the biggest contributing factors is the antiscience attitude of government decision makers. Not all government officials share the views described below, but enough do to put the future of science in doubt.

Failure to Acknowledge Scientific Interests

We have heard much this morning about public policy as a process of "balancing" different values and interests. Government officials also like to talk of "balance" and how they strive for a "middle of the road" approach. These terms sound so reasonable and moderate, one is left to wonder why science is so often the loser in the policy process.

In my opinion, one reason is because many government officials refuse to recognize that scientists have any rights that must be accommodated. As noted above, access to archaeological sites and collections is being routinely closed to researchers even for noninvasive studies. Such action was virtually unheard of 10 or 15 years ago. As long as a scientist had a reasonable research design, agreed to provide the government with a copy of all study results, and did not jeopardize the overall scientific values of the site or collection in question, access would be granted.

To justify their new no-research policy, government decision makers argue that scientists have no legal right to study federal collections or sites on federal land. In their view, access to such collections and sites is only a "privilege" that can be withheld by the government at its absolute discretion. This position appears to reflect a considered decision by government decision makers. It has been articulated by government representatives on a number of occasions - both in court and elsewhere.

The implications of this position for scientists are, I believe, significant. Scientists cannot hope to be treated fairly in the process of policy formulation and application if they are viewed as trespassers at the negotiating table. If scientists have no acknowledged rights to study sites and materials found on public land, their interest can be disregarded or treated as unimportant. Indeed, their existence may not even be acknowledged. For example, more than three years has now passed since the Kennewick Man lawsuit was filed, and yet the government still refuses to declare whether it will even respond to plaintiffs' study request. The most it will say is that it "may consider" plaintiffs' request once the government's administrative process is over.

I personally believe that the government is wrong on this issue. The Supreme Court in a number of cases has held that freedom of speech as protected by the First Amendment is more than just the right to speak. It also includes a right of inquiry (i.e., the right to ask questions and to obtain information). Without access to information, the right to form opinions and to advocate those opinions becomes meaningless. The application of this principle to the study of prehistory is obvious. Scientists cannot formulate and test ideas about prehistory if government can unilaterally shut off access to research sites and materials.

The problems faced by scientists in the current regulatory climate do not end here. In addition to this overt challenge to the role of science, there are other more subtle influences at work. Which brings us to my next point.

Failure to understand the scientific process

Another reason why scientists are so often the losers in the present policy process is because of the failure of some government decision-makers to appreciate the full implications of the scientific method. They view science as a collection of answers to factual questions rather than a process of testing hypotheses against data.

Take, for example, how science has been conducted in the Kennewick Man case. Rather than let the plaintiffs study the skeleton, the government chose to appoint its own study team. This team consisted of five individuals who examined the skeleton in a single 4 1/2 day session at the end of February 1999. According to the government, the purpose of these investigations was "to demonstrate that NAGPRA is flexible enough to allow good science to go forward . . . ." This claim and the government's study protocol demonstrate a profound misunderstanding of the scientific process.

A project or activity is not good science merely because it involves the use of a few scientists. To be good science, a study program must be conducted in accordance with the accepted epistemological and methodological principles of science.

Among other things, these principles require the following:

  1. There must be an attempt to consider and test all competing explanations or hypotheses. In the Kennewick Man case, the government is following a decision-making process that precludes any meaningful consideration of the question of whether the skeleton is, or is not, biologically related to modern Native American populations. Under the government's interpretation of the term Native American, the age of the skeleton is the only relevant factor. Other data, such as biological affinity studies and DNA analyses, are superfluous to the decision-making process.

  2. There must be an effort to get all relevant data. In the Kennewick Man case, the government's study protocol (at least so far) does not include all potential lines of evidence, such as DNA analyses, taphonomic analysis of the skeleton, plant phytolith studies, bone histology, or archaeological investigation of the discovery site.

  3. There must be an opportunity for verification and assessment of data by independent observers. In the Kennewick Man case, the plaintiffs and other scientists have not (and apparently will not) be given an opportunity to verify the data obtained by the government's study team.

  4. There must be an attempt to obtain as many different perspectives as possible. In the Kennewick Man case, two scientists examined and evaluated the skeleton, one scientist studied the projectile point embedded in the skeleton's hip, and two scientists gathered collected and analyzed sediments from the skeleton. These few scientists, no matter how well qualified they might be, cannot be said to be representative of all scientific perspectives.

  5. Data and conclusions must be open to peer review by the general scientific community. In the Kennewick Man case, the government's study team were pledged to secrecy. Their reports were kept confidential for many months, and were only released publicly on the eve of this conference. Such a policy is not consistent with the principle of open, unfettered peer review.

  6. Conclusions must be reached only on the basis of empirical data. In the Kennewick Man case, the recently released Powell and Rose report states:

    ". . .the Kennewick cranium is not morphologically similar to any modern human population." (p. 15)

    ". . .only a regional time series analysis of a sequence of well-dated human remains from east-central Washington spanning the past 9,000 [years] can provide direct evidence of biological continuity between Kennewick and modern American Indian tribes." (p. 23).

Nonetheless, the government's decision on whether this skeleton is (or is not) Native American will depend solely on its age - i.e., does it predate documented European arrival? Such a decision is a political solution not a scientific solution.

These kinds of experiences are not unique to Kennewick Man. They are similar to the path taken for Buhl Woman and to some extent Hourglass Cave. Both of these were studied by only a limited number of researchers, and then buried before the scientific community as a whole could give any input on what they meant. Likewise, Minnesota Woman, Brown's Valley and Sauk Valley were buried without adequate dating.

It is important that we recognize and deal with the methodological flows of the government's version of scientific research. If we do not, much will be lost. Science does not operate by fiat or bureaucratically controlled directives. It is an ongoing process of constant reassessment of accepted interpretations and the creation of new ideas that can come from any source (often from the least expected source). To suggest that a few scientists and government officials should determine what can be learned from important archaeological sites and remains is a disservice to science and all Americans.

Issue: Who should decide public policy?

Another important issue that must be addressed is who should decide what public policy will be as it relates to American prehistory. At present, these decisions are being made largely by government agencies. In my view, this practice is wrong and should not be permitted to continue.

When pressed about the fairness or merits of their decisions, government agencies often reply that they are merely "following the law". In some cases, this is true. In other cases, however, that is not what is really happening. Instead, the officials are actually instituting their own notions of what policy should be. The law merely provides a cover for their decisions.

Let me give a few examples. NAGPRA is silent on the question of study of new discoveries. Government representatives have conceded this point in open court and in testimony before a Congressional Committee. They admit that NAGPRA does not prohibit scientific study of new discoveries, or require tribal approval for such studies. And yet the government invokes NAGPRA as a justification for denying access to even very ancient skeletal remains that cannot be linked to any modern tribe. Although not expressly prohibited by the statute, study of such discoveries by independent scientists is said to be somehow contrary to the purposes of NAGPRA.

Likewise, the government now contends that skeletal remains that predate documented European arrival are automatically Native American for purposes of NAGPRA. By their own admission, this interpretation is said to be a definition "implied" by NAGPRA. I find it disturbing that government officials would go looking for an "implied" definition when NAGPRA already contains an express definition of the term Native American. This definition states: "Native American means of, or relating to, a tribe, people or culture that is indigenous to the United States." The use of the terms "relating to" and "that is indigenous" seem to me to clearly require the need to establish some type of relationship between an item in question and present-day Native American peoples.

My purpose here is not to argue the legal merits of these questions. Their resolution is already subject to court challenge. My point this morning is that government regulators are not merely carrying out policy. Whether they admit it or not, in many cases, they are making choices. They are making policy: they are deciding what should or should not be done.

They should not be conceded this power. The issues involved in who will be allowed to investigate American prehistory, and how and when, are too important and affect too many people to be left to unelected government administrators. Issues of this kind should be decided by Congress and the state legislatures. Only they have the legal and moral mandate to speak for all Americans.

Issue: What about the interests of the public?

We have heard a lot this morning about the interests of the different communities that have a stake in American prehistory: scientists, Native Americans, avocational archaeologists, collectors and government agencies. There is one notable omission in this list: the public.

I submit that the public also has something at stake in the policy process, and that their interests must be accommodated. They too have an interest in the American past. For every person in the communities represented at this conference, there are ten (or a hundred or a thousand) other Americans who are interested in American prehistory. They like to learn about it, to talk about it, to see it, to come as close to it as they can.

We sometimes forget how important the American past is to the United States as a country. We are a country of immigrants. All of us here are immigrants (unless the concept of separate human creations is true). Our only common past is the history and prehistory that occurred here. All Americans have a stake in that past, regardless of whether they (or their ancestors) arrived here 5 years ago, 350 years ago, or 5,000 years ago.

I know that some people today question the objectivity and reliability of the scientific method. In some quarters, science is viewed as merely another means for generating and asserting power. However, the critics of science have yet to propose a viable alternative that is not simply a pretext for fantasy and unverifiable story telling. Until a better system comes along, science is still the best method yet devised for making sense of the past and the world around us.

Access to the past also has important implications for the American concept of an open democratic society. Modern science and western-style democratic institutions are products of the same revolution in intellectual thought. Both are founded on the same principles: that people should be free to learn the truth as best they can, and that all claims of truth (regardless of source) should be subject to open debate and evaluation. Any policy that restricts these principles of free inquiry in one sphere (such as science) has implications for their interpretation and application in the other areas. All Americans have a stake in any debate that calls these principles into question.


I have deep reservations about the current state of public policy on prehistory and how it is being implemented by government agencies. Or at least by these officials who wish to decide for themselves what questions of prehistory can be investigated and who can investigate them. Such an exercise of power is essentially authoritarian. It seeks to tell people what they can know and how they should think. By its nature, it is fundamentally incompatible with science and western democratic traditions.

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