A Delicate Balance: The Society for American Archaeology and the Development of National Repatriation Policy
Paper Presented in the Opening Session, "The Future of Public Policy: How Do We Go from Here" at the Clovis and Beyond Conference, Santa Fe, October 28-30, 1999
Keith W. Kintigh, President
Reading Version - October 28, 1999
I represent the Society for American Archaeology or SAA, the leading professional organization of Americanist archaeologists, whose mission is "to increase understanding and appreciation of humanity's past ... through systematic investigation of the archaeological record."
Rob Bonnichsen has enumerated a number of "communities" interested in First Americans issues: private collectors, avocational archaeologists, professional archaeologists, and Native Americans. Because the hosting of this conference and the participant list have occasioned some concern, allow me to situate SAA.
In the remainder of my presentation, I'll first discuss public policy issues about 10 years ago, the situation today, and then looking toward how we go into the future.
By the mid 1980s, the recognition of archaeological sites as irreplaceable public resources worthy of preservation was well established in federal legislation. However, the public perception of archaeology was tarnished. Demands for repatriation of Native American human remains led to a hostile public climate in which archaeology was equated with grave-robbing. Archaeologists felt embattled. People who had dedicated their careers to understanding Native American heritage found themselves being vilified. Nonetheless, archaeologists did not all form a neat line behind the banner of science. Archaeologists' concern with the preservation of the discipline was mediated by their concern for the beliefs of living American Indians.
In 1986, SAA adopted the policy that has since guided the Society. It views both scientific and traditional interests in the past as legitimate and argues that the appropriate disposition of remains must be decided on a case by case basis, weighing both scientific and traditional values. Scientific value is measured by the potential to yield information and traditional claims are weighed by the closeness of their relationship.
Since 1989, SAA has been the major, and often the only voice representing the scientific community in the national discussion of repatriation policy. The legislation that became NAGPRA-the Native American Graves Protection and Repatriation Act- was debated through most of 1990. SAA worked through many drafts, toward an acceptable compromise. Once achieved, SAA strongly supported the bill.
NAGPRA was explicitly recognized to be a compromise, among Indians, museums, and archaeologists. It established a legal framework for determining the disposition of American Indian human remains and cultural items. By requiring the establishment of "cultural affiliation," the law was intended to provide for tribal disposition of human remains and funerary objects, where there is a reasonably close connection with a modern tribe.
SAA has consistently argued for full compliance with the letter and spirit of the law. Allow me to quote from an article I wrote in the SAA Bulletin immediately after NAGPRA was passed:
... much of [NAGPRA's] impact ... will be determined by the ways in which archaeologists and museums deal with the issues and with affected Native American groups on a local level. In the long run, the interests of archaeology will ... be served ... by understanding, a free exchange of information, and an effort to make the process work as it was intended.
Today, it is my assessment that where there are genuine efforts to reach mutual understanding, NAGPRA is generally working well.
Nonetheless, there remain significant numbers of scientists who still "don't get it." They just don't get the fact that Indians are sincerely concerned about issues surrounding repatriation and must taken quite seriously as interested parties. At the risk of offending my hosts, the program of this conference suggests a lack of appreciation of the importance of Indian voices on the issues under consideration here. 68 individuals had biographical sketches included with the program materials. To my knowledge precisely one is an Indian. While I am confident that Joe Watkins will do fine job; just recognize the impossiblility of his task. The point here is, emphatically, not political correctness; scientists, including the participants in this conference, need to hear and take seriously what Indians have to say. Let me repeat, it is not that Indians need a forum, it is scientists who will benefit from listening to them.
Compared with a decade ago, archaeology's public stock seems to have risen, and Indian stock may have fallen. Press coverage of repatriation has been more even-handed, due in large part to the controversy over Kennewick man. There seems to be a relatively widespread public recognition of the value of scientific study, and belief that the need for repatriation should not extend to relationships as remote as those proposed for First American.
Contrary to what one might guess, the principal problems in the implementation of NAGPRA are not due to conflicts between Indians and archaeologists. They come when agencies or museums do what is politically or bureaucratically expedient, rather than take seriously the requirements of the law. NAGPRA fundamentally depends on the establishment of cultural affiliation. However, this concept is routinely distorted beyond recognition. For example, in ongoing excavations, cultural affiliation is usually assumed to exist for all remains and is assigned to a modern tribe before a shovel ever breaks the ground.
Both bureaucratic arrogance and willful misconduct are involved. With distressing frequency, agency officials operate as if the law says whatever it is that they would like for it to have said. While Indians sometimes take this cavalier approach to "reading" the law, because agency and museum officials have the first shot at making determinations of affiliation, they are considerably more dangerous from the standpoint of those committed to keeping scientific interests in the decision-making mix. Where there is complicity between the agencies or museums and tribes in disregarding the legal requirements, it has proved virtually impossible to get balanced consideration of scientific values, outside of a lawsuit. While lawsuits may work, they are prohibitively expensive and have the side effect of severely polarizing the parties, working against the productive cooperation we hope to achieve.
As we look to the future, the serious implementation problems show no sign of abating. It is absolutely critical that the scientific community work more successfully to maintain the balance that the statute provides.
Without the systematic collection of evidence, we cannot learn scientifically about the past. Nonetheless, basic recording of human remains newly excavated on federal land is not consistently done. Further, the availability of culturally unidentifiable human remains for outside study has not been fully established. Representative Doc Hastings current amendment to NAGPRA, H.R. 2643, would clarify the agency obligation to do basic recording and would establish a right to perform outside study in limited circumstances. It strikes a reasonable balance between the interests of scientists, culturally affiliated tribes, and museums. It attempts to stop agencies from imposing unreasonable restrictions on study while protecting the collections from unwarranted analyses by scientists.
We face a major additional repatriation issue: culturally unidentifiable human remains-remains for which a disposition process is not specified by NAGPRA. Recognize here that many Indian groups are arguing for universal repatriation of these remains. Further, the NAGPRA Review Committee has made their disposition a high priority. SAA has consistently commented on the Review Committee's draft proposals, none of which has adequately addressed scientific concerns. Considerable attention is now focused on this issue; it will not go away. The scientific community is going to have to deal with culturally unidentifiable human remains in the near term, and the outcome is going to be really important.
In this context, it is important to separate the question of whether, under NAGPRA, an individual is "Native American," from the question of cultural affiliation. In contrast to the position taken by Rob Bonnichsen, it is SAA's position that under NAGPRA, First Americans are Native Americans, regardless of how many migrations there were, where they came from, when they came, or whether some groups died out. I think that is what the law says; and I'm certain that is what congress intended.
The disposition of the remains of First Americans will depend not on their classification as Native Americans but on the determination that the remains have, or lack cultural affiliation. Because the earliest Americans will likely fail to meet the legal standard of cultural affiliation, they should be classified as culturally unidentifiable. As such, they are not now subject to repatriation, but under the proposals that have been floated, they would be. Thus, we must focus our public policy attention-and the public's attention-on the disposition of culturally unidentifiable human remains and the potential these remains have to contribute information of enormous importance about the past.
In conclusion, we need to achieve a solution to the major repatriation
issues that is acceptable to tribes, museums, and the scientific
community and is thus stable in the long-term. SAA believes that
NAGPRA, as enacted, provides the framework for much of this solution.
Because implementation frequently strays far from the statutory
language, we should take advantage of every avenue open to us in
striving for a fair balance between the scientific and traditional
interests. SAA will continue to urge its members to live up to their
ethical responsibilities to work closely with tribes and to make
available results of relevant archaeological work. By listening,
talking, and working together, much that is advantageous to both
groups, and to the broader public, can be accomplished.
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