Becoming American Or Becoming Indian? NAGPRA,Kennewick and Cultural Afﬁliation

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Journal of Social Archaeology ARTICLE

Becoming American or becoming Indian? NAGPRA,Kennewick and cultural afﬁliation

JOE WATKINS Department of Anthropology,University of New Mexico,Albuquerque,USA

ABSTRACT Magistrate John Jelderks’ opinion in August 2002, that Kennewick Man is not Native American under the Native American Graves Protection and Repatriation Act (NAGPRA), will likely have far- reaching impacts on the relationship between American Indians and American archaeologists. More than a legal decision, the opinion also points to the inadequacies of NAGPRA. The following article looks at some of the political implications of the judge’s decision and the most recent crack in the fragile peace between archaeologists and North America’s indigenous people and discusses some of the short- comings and ambiguities of NAGPRA.

KEYWORDS indigenous people ● Kennewick Man ● NAGPRA ● Native Americans and archaeologists ● Paleoindians

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■ INTRODUCTION

On 30 August 2002, Magistrate John Jelderks of the US District Court for the District of Oregon issued an opinion and order in the case of Bonnich- sen et al. v. United States of America, that proclaimed Kennewick Man was not a Native American under the Native American Graves Protection and Repatriation Act (NAGPRA). This decision, while legally restricted to the speciﬁc District Court within which Washington state is situated, is likely to have far-reaching political impacts not only on the conduct of archaeology in the American Northwest, but also for Paleoindian studies in North America more generally. Even the term ‘Paleoindian’, a term of long- standing use for the early cultures within the ‘New World’, has recently gained a political edge. Owsley and Jantz prefer to substitute the term ‘Paleoamerican’ for Paleoindian, since, as they note,

when comparing early skulls [in the New World] with available modern populations, we note that most of them fall far outside the normal range of recent population variation. More speciﬁcally, they especially fall outside the range of American Indian populations and are so different that it may be more correct to refer to them as Paleoamerican rather than Paleoindian as many do. (Owsley and Jantz, 2001: 566–7, emphasis added)

The change in terminology may have no impact on the study of early populations in North and South America, but the change certainly carries with it political implications since, by replacing ‘Indian’ with ‘American’, it illustrates the political aspects of naming. Thomas (2000: 4) writes about the impact of naming geographic features as part of the ‘discovery’ and conquest of the Western Hemisphere:

The names established an agenda under which the rest of the encounter would be played out. After discovering a patch of ‘unclaimed’ land, the conqueror would wade ashore and plant his royal banner. He proclaimed that these newly discovered lands were now his patron’s domain and laid claim to the new-found riches, the natural resources and the things living and inanimate – all of which was simply wilderness before being ‘discovered’ and deﬁned by Europeans. . . . The power to name reﬂected an underlying power to control the land, its indigenous people and its history.

If the naming of geographic features carries with it such power, imagine the power of being able to name the culture that used that geography. A brief re-examination of the relationships between archaeologists and American Indians will provide a ‘skeleton’ upon which to hang the current conﬂict. Numerous authors have examined these relationships in more detail (Bettinger, 1991; Lurie, 1988; McGuire, 1992; Meltzer, 1983; Trigger, 1980, 1986, 1989; Watkins, 2000), but it is necessary for non-American archaeologists to have an understanding of the history of those relationships. 039850 (to/d) 8/1/04 8:39 am Page 62

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■ ‘THE ONLY GOOD INDIAN . . .’

A number of anthropologists have traced the history of anthropology and its relationships with American Indians and many have indicated (if not demonstrated) that American colonialist attitudes have had a tremendous amount of influence not only on the manner in which the government has treated American Indians but also the way that anthropologists have studied and portrayed them. Trigger (1980) notes that the ‘problems social scientists choose to research and (hopefully less often) the conclusions that they reach are influenced in various ways . . . (among them) . . . the attitudes and opinions that are prevalent in the societies in which they live’ (Trigger, 1980: 662). He also argues that, during the first half of America’s existence (1770s–1870s), American Indians were held to be inferior to civilized men in order to rationalize the seizure of Indian lands; and that, eventually, racial myths grew to supplant any other myths about the Indians as a justification for waging war on the Indians and violating their treaty rights. An example of the scientific treatment of American Indian development revolved around what Willey and Sabloff (1993: 22) call the ‘Moundbuilder controversy’. The ‘Moundbuilders’ were believed to have been a non- Indian race, perhaps related to the prehistoric Mexicans, Danes, or even Hindus, who had withdrawn from eastern North America or had been exterminated by the ‘newly-arrived’ Indians. Most writers of the period felt that the Indians of North America were not capable of such feats of engi- neering required to construct the mounds in eastern North America and that, therefore, there obviously must have been a race of non-Indians who had constructed the enormous mounds. But the controversy has been seen to be more than merely a scholarly debate. Some scholars argue that the extermination of American Indians by westward moving settlements of the USA was somehow made morally easier by the apparent primitiveness of the natives and the controversy may have served the political administrations well as a justification for extermi- nating the Indian groups, which had destroyed North America’s only ‘civilized’ culture (Trigger, 1980: 665). Bettinger (1991: 32–3) agrees, stating ‘[m]uch simplified, Indians were savages . . . Americans were civilized . . . The philosophy of social evolutionary progress assured Americans it was their manifest destiny to civilize the New World, to replace savagery with civilization’. McGuire argues that the Moundbuilder myth also worked to remove the Indian’s ancestors from the history of the USA: ‘By routing the red savages, the new, civilized, White American race inherited the mantle, the heritage, of the old civilization . . .’ (McGuire, 1992: 820) Kuznar offers a different perspective on the controversy, arguing that archaeologists went out on a limb and helped American Indians by proving scientifically that they were more accomplished than many had perceived 039850 (to/d) 8/1/04 8:39 am Page 63

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them to be during a time when Americans were ‘carrying on genocidal wars against Native Americans and when the stereotype of the savage, intractable, almost subhuman Indian was decidedly useful to many’ (Kuznar, 1997: 83). However, Meltzer (1983) argues that the archaeologists who finally finished off the Moundbuilder controversy were not necessarily pro-Indian, but perhaps more pro-scientific, emphasizing scientific views rather than cataclysmic theories that postulated any intrusive or extinct races. Regardless of the reason, by the time archaeologists finally proved the mounds were products of the ancestors of the Indians, the Indians mostly had been dispossessed of their land. The demolition of the lost Moundbuilder race hypothesis in 1894 did little to change the popular attitudes against the American Indian. They were still considered to be savages by those who studied them, destined to vanish from the face of the earth in the wake of the inexorable crush of civilization. In the late nineteenth century, Franz Boas had brought to the USA the value of a historical approach as a technique for explaining cultural variation and archaeologists began to adopt this method as a means of constructing chronologies and delineating small-scale changes that had taken place in prehistoric times. It corrected the erroneous claim that American Indians had not changed dramatically and did contribute to a more positive view of the American Indian, but there was still a general tendency not to give credit to American Indians for creativity. The change in archaeological interest from cultural evolution to cultural chronologies to cultural process has carried with it an associated change in the manner in which archaeology as a whole has viewed native peoples. From the beginning of the twentieth century, American Indians have been viewed as ‘savages’ incapable of change, as invisible producers of artifacts and as invisible producers of data irrelevant to themselves, but of use only to Euro-American scientists. Trigger suggests that ‘archaeologists have turned from using their discipline to rationalize Euro-American prejudices against native people, as they did in the 19th century, to simply ignoring native people as an end of study in themselves’ (Trigger, 1986: 206). In a more critical history of archaeology, Kehoe (1998) argues that archaeology continues to treat American Indians as belonging outside of science and that scientists act as if only they have the ability to present and understand the processes which led to the development of American Indian culture and prehistory. The ‘Pan-Indian’ movement of the 1960s, one that identified the remains of any one native group from any time period a matter of concern for all living Native Americans, reflected a new political consciousness. Proponents of Native unity were a threat to many archaeologists who viewed attempts at control of the resource as attempts to control their freedom of research. The idea that archaeologists have a moral right of access to archaeological material because their research is aimed at 039850 (to/d) 8/1/04 8:39 am Page 64

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producing knowledge for the public benefit is in apparent conflict with concepts held by most American Indian groups that cultural material remains the property of the descendants of the people who produced it, rather than the entity that owns the land. In summary, archaeologist Bruce Trigger feels that the Euro-American stereotype that portrayed American Indians as ‘unprogressive’ influenced the development of archaeology to a great extent, arguing that Euro- American scholars defined ‘history’ as studying themselves and anthropology as the science of allegedly simpler peoples. While Trigger and Kehoe feel that the conflict between archaeologists and American Indians is rooted in the very way archaeologists define what it is they do, archaeologist Joseph Winter’s view of controversy more than 20 years ago seems more to the point: ‘This confrontation is basically a conflict of values in which the repre- sentatives of competing cultures hold radically differing views of resource definition, ownership, significance and use’ (Winter, 1980: 124).

■ ‘EQUAL UNDER THE LAW’: NAGPRA AND OTHER FALLACIES

The 1969 publication of Vine Deloria’s book, Custer Died for Your Sins, had a profound inﬂuence on the relationships between American Indians and anthropologists. The printing of excerpts of ‘Custer’ in Playboy magazine in August 1969 made the academic world sit up and take notice of the quiet contempt, distrust and discontent that many American Indians held for the discipline. An analysis of American Indian protests as indicated in articles within American Indian newspapers and magazines for the decade from 1969–1979 (Watkins, 1994: Appendix B) shows that this distrust revolved primarily around the perceived threat to their ancestors and their remains. The American Indian Movement’s disruption of excavations at Welch, Minnesota, in 1971 was one such way that Pan-Indian political groups organized to stop or impede the excavation of prehistoric archaeological sites and cemeteries. Such Pan-Indian groups also drew attention to the treatment of American Indian human remains and sensitive material by museums through such means as the occupation of the Southwest Museum in Los Angeles in 1971, and they also began addressing the desire for the repatriation of human remains and artifacts of cultural patrimony, such as the ﬁght for the return of the Onondaga wampum belts in 1969. Deloria suggested that American Indians were tired of being considered ‘objects for observation . . . for experimentation, for manipulation and for eventual extinction’ (Deloria, 1969: 81). American Indian newspapers carried articles that outlined the general attitudes of the more radical Indians in the 1970s – articles such as ‘Indian 039850 (to/d) 8/1/04 8:39 am Page 65

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Skeleton’, which detailed excavation of skeletal material by Buffalo State University, with: ‘HOW LONG WILL WE ALLOW THIS KIND OF SACRILEGE TO CONTINUE? – your grandmother’, penned in the margin (Anonymous, 1970: 12); ‘Don’t Exploit Our Dead or Our Cere- monies or Our Dances’ (a statement issued by the ‘Indians of All Tribes Organization’, Anonymous, 1971: 1); and ‘Archaeologists and the Indians’, a paraphrased letter stating that the Bering Strait theory of migration into North America was nothing more than a ruse by archaeologists to justify the white man’s presence in America and make the red man think he is also alien in his own land (Hall, 1971: 10). These seemed to indicate that the general views of American Indians were that archaeology was counter- productive to American Indian wishes. In the early 1980s, important breakthroughs between American Indian groups and the public and private sectors were made through the concerted efforts of individuals in tribes and museums, such as the repatriation of the Zuni War Gods by the Millicent Rogers Museum and the Denver Art Museum. But the development and passage of the National Museum of the American Indian Act (NMAIA) in 1989 and Native American Graves Protection and Repatriation Act (NAGPRA) in 1990 changed the underlying structures upon which the relationships between archaeologists and American Indians were based. While scientists argued that the Acts jeop- ardized their research, American Indians claimed that science could no longer operate within a cultural and social vacuum as it had since the investigations of burial mounds in the 1790s (Bettinger, 1991; McGuire, 1992; Trigger, 1980). The passage of NAGPRA signaled a shift in policy of the USA regarding the treatment of American Indian materials in federally-controlled museums and facilities and gave American Indians hopes that they were getting some of the tools necessary to implement the changes they had protested for in the 1970s. Many authors (Hutt, 1992; Hutt, Jones and McAl- lister, 1992; Tsosie, 1997; Welsh, 1992) believe that NAGPRA is human rights legislation aimed at providing equal treatment to all human remains under the law, without consideration of ‘race’ or cultural background. The law, they believe, was meant to remedy the unequal treatment of Native American remains by previous generations of American military, bureaucrats and scientists. But with the law’s passage, tribal groups quickly realized it was not the panacea they hoped it would be and Indians and archaeologists alike realized there were inadequacies and ambiguities to the law.

■ PERCEIVED INADEQUACIES OF NAGPRA

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the cultural affiliation of a set of human remains (Section 5 (b)(2)), or when ‘such items are indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States’ (Section 7(b)). In the 1995 oversight hearing on the implementation of NAGPRA, Kunani Nihipali, a leader of Hui Malama I Na Kapuna Ò Hawaiì Nei, a Native Hawaiian organization, called for a clarification of the role of scientific study, asking that NAGPRA ‘. . . state that where existing documentation establishes geographic location and cultural affiliation by clear, reasonable belief, or the preponderance standard of evidence, scientific studies of any kind on ancestral skeletal material remains are prohibited’ (Nihipali, 1996: 158). Other tribes were concerned about the apparent authorization of study prior to repatriation of materials allowed in Section 7 of NAGPRA. Another interesting comment made by Owsley and Jantz relates to research on early human remains in the Western Hemisphere: Following reports on early discoveries during the first half of the twentieth century . . . and until the last decade, ancient American skeletons rarely received much attention in the professional literature. This circumstance is partly because the reigning paradigm . . . identified ancient Americans as being just like recent Native Americans and they were, therefore, not of unusual research interest. (Owsley and Jantz, 2001: 566, emphasis added) This is strangely reminiscent of a claim made by Jesse Taken Alive, Chairman of the Standing Rock Sioux Tribe, at a 1995 oversight hearing on the implementation of NAGPRA: It was only when Native people . . . rose to stop the racist practice of the robbery and study of our graves was the ‘loss’ to science loudly and arrogantly lamented. Amid great gnashing of teeth, the rush was on to study, document, analyze and further desecrate our relatives before the precious ‘scientific and cultural materials’ could be ‘destroyed’ through reburial. (Taken Alive, 1996: 231, emphasis in original) A second failure of NAGPRA is its inability to protect human remains on private land. Many American Indian groups cannot understand why the graves protection portion of NAGPRA was not applied to all lands within the USA, rather than just to federal or tribal lands. Since the entire conti- nent was at one time Indian land, they have a difficult time understanding why federal protection of graves should be extended only to federal or tribal lands. In a review of the legislative history of NAGPRA, Trope and Echo-Hawk (1992: 52) noted that 34 states had enacted burials protection laws, which ‘typically prohibit intentional disturbance of unmarked graves, provide guidelines to protect the graves and mandate disposition of human remains from the graves in a way that guarantees reburial after a period of study’. They also noted the constitutionality of the laws had been upheld, 039850 (to/d) 8/1/04 8:39 am Page 67

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citing as examples cases in California, Minnesota and Oregon (Trope and Echo-Hawk, 1992: 53). If such state laws designed to protect human remains have been upheld as constitutionally valid, there arises a question as to why NAGPRA was not applied to all lands. The National Congress of American Indians, the oldest and largest national organization representing American Indians, at its 1993 Annual Convention held in Reno/Sparks, Nevada, called for ‘amendatory language to the NAGPRA to extend protection of funerary remains and objects on all lands within the exterior boundaries of the US wherever they may be situated’ (NCAI Resolution No. NV-93–170). Even the past NAGPRA Review Committee Chairwoman Tessie Naranjo of Santa Clara Pueblo, New Mexico, noted that the Review Committee itself experienced frustration over this issue (Naranjo, 1996: 149). Why is such extension of NAGPRA important? According to Melinda Zeder’s survey of American archaeologists (1997: 47), approximately 49 percent of archaeologists worked either within the government (23 percent), the private sector (18 percent), or within a museum setting (8 percent). Although these figures might vary from the true proportions of archaeologists employed in these areas, Zeder feels they are a good fit to the actual make-up of American archaeology (Zeder, 1997: 48). If one assumes that private sector and museum archaeologists are as closely tied to federal regulations as their government counterparts, NAGPRA or the NMAI Act affects the research of only about one-half of all American archaeologists. Academic archaeologists, those more often participating in ‘pure research’, are less confined by federal regulations and made up 35 percent of the survey population. When these archaeologists conduct research on federal or tribal lands, their research is covered under NAGPRA, as are the artifacts that they might collect. However, if their research is conducted on private land, they are less constrained. While the artifacts they collect might eventually come under control of NAGPRA (if the museums that curate the artifacts receive federal funds), their initial excavations may not be as stringently controlled. The ascription of property rights to archaeological resources is, as Knudson notes (1991: 4), ‘a complicated legal, as well as social, issue’. While human remains may be protected under various state laws, federal inter- vention on private land can sometimes be seen as a violation of the ‘takings clause’ of the 5th Amendment to the Constitution if the land owner is somehow denied access or free use of his property without adequate compensation. Another inadequacy is NAGPRA’s failure to protect ‘culturally unidentifiable human remains’, something the NAGPRA Review Committee has tried to remedy (NAGPRA Review Committee, 1999, 2000) through recommendations which have yet to be codified. Section 7, subsection (a)(4) of NAGPRA concerns Native American human remains and 039850 (to/d) 8/1/04 8:40 am Page 68

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funerary objects whose cultural affiliation has not been established by inventories or summaries prepared by museums. At the 1995 oversight hearing on the implementation of NAGPRA, Cecil Antone, Lieutenant Governor of the Gila River Indian Community at Sacaton, Arizona, noted: ‘Even though they are not identified [as to culture], they are human beings. They were human beings. And so in our situation . . . we took them in and reburied them because they deserved that’ (Antone, 1996: 37). Jesse Taken Alive of the Standing Rock Sioux Tribe of Fort Yates, North Dakota, said the tribe believes ‘those remains dating back 500 years or more are American Indians . . . Give them back to the people and let us decide how that should be done, because, after all, as American Indians, as indigenous people, those are our ancestors’ (Taken Alive, 1996: 42). Even the NAGPRA Review Committee felt this issue was a point of frustration. Dan Monroe, a member of the Committee at the time of his testimony at the oversight hearing, noted that ‘[T]he most difficult unre- solved NAGPRA issue involves the disposition of human remains and funerary objects’ (Monroe, 1996: 125, emphasis in original). He further noted:

[T]he controversy is hottest in respect to disposition of ancient Native American remains . . . [which] can seldom be affiliated with a specific tribe. . . . Native Americans almost unanimously argue that they are culturally and otherwise affiliated with these remains and that their religious and cultural beliefs dictate that the remains be returned and reburied. (Monroe, 1996: 125, emphasis in original)

In 1997, Washington State’s Representative to Congress, ‘Doc’ Hastings, introduced a bill that would have amended NAGPRA to require certain levels of study prior to repatriating ‘culturally unidentifiable human remains’. HR 2893, introduced into Congress in November 1997, would have, according to biological anthropologist Richard Jantz, made it ‘much easier for (scientists) to gain study access to any unaffiliated material’ and ‘require that (cultural) affiliation be documented to a much greater extent’ (Lee, 1997). The National Congress of American Indian’s response to this bill was Resolution SFE-97–091, titled ‘Amendments to NAGPRA Senate Bill 110 and House Report 2893’, which voiced their opposition to the proposed changes. In 1998, the NAGPRA Review Committee issued a set of ‘Draft Prin- ciples of Agreement Regarding the Disposition of Culturally Unidentifiable Human Remains’. These principles presented guidelines for the ultimate disposition of these types of remains. While no specific remedies are defined for every case, they do offer suggestions for disposition in cases where the human remains are associated with a non-federally-recognized tribe and suggest regional consultations where such approaches would prove beneficial in situations where the human remains represent a population for 039850 (to/d) 8/1/04 8:40 am Page 69

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which there are no present-day cultural survivors or where the present-day cultural survivors are members of non-federally-recognized Indian tribes. American Indian views on this issue are divided, but for differing reasons. Many tribes feel that non-federally-recognized tribes are no less Indian than their federally-recognized counterparts, while others are afraid that to allow standing under NAGPRA would allow such groups to bypass the normally tedious process of federal recognition. Again, Tessie Naranjo, then the Chairwoman of the NAGPRA Review Committee, noted at the 1995 oversight hearing that Congress needed to find a way to ‘permit Native American groups not presently recognized by ... the BIA to repatriate their human remains, funerary objects, sacred objects, or objects of cultural patrimony’ (Naranjo, 1996: 22). Additionally, testimony provided by the Keepers of the Treasures-Alaska also called for such Congressional action: ‘it didn’t matter . . . when the human remains of non-federally-recognized Indian tribes were taken . . . it irks me that living human beings are technically not in existence merely because the US Government does not recognize them’ (Keepers of the Treasures-Alaska, 1996: 72). Additionally, Duane Champagne, Director of the American Indian Studies Center at UCLA, provided a five-page letter noting the problems with such a policy in California alone (Champagne, 1996: 99–103). While all tribes agree that human remains of unrecognized American Indian groups always were and always will be American Indian, many are concerned about extending rights to groups under NAGPRA. In a statement prepared for the March 1997 Review Committee meeting in Oklahoma, seven tribes from southwestern Oklahoma – the Apache Tribe of Oklahoma, the Caddo Tribe, the Comanche Tribe, the Delaware Tribe of Western Oklahoma, the Fort Sill Apache, the Kiowa and the Wichita and Affiliated Tribes – felt repatriation should occur only to federally- recognized groups. While they felt that human remains, regardless of affiliation, should not be left in museums, they expressed a concern that to repatriate human remains to non-federally-recognized tribes could poten- tially assign rights and authority to groups that have come into existence without a legitimate claim of continuity. The seven tribes feel that culturally-unidentifiable human remains should be repatriated to the federally-recognized tribes on whose aboriginal lands the remains were found, with the Review Committee making decisions in cases of multiple tribes claiming the same ancestral lands.

■ PERCEIVED AMBIGUITIES IN NAGPRA

There are many ambiguities under NAGPRA, but I will focus my discussions in this section on the ambiguous treatment within NAGPRA of 039850 (to/d) 8/1/04 8:40 am Page 70

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excavated human remains and those human remains encountered as a result of inadvertent discovery situations during construction or earth- moving projects. Under Sections 3(c) and (d) of NAGPRA, the excavation of Native American human remains and objects must follow the Archaeological Resources Protection Act of 1979 (ARPA), but tribal authority under that law is limited. If the tribe has the permitting authority for the land where the remains are located, the tribe may refuse to issue an antiquities permit and thereby prevent excavation, but in the absence of any such authority, the tribe has limited options. ARPA requires only that consultation occur, not that tribal permission be granted. Additionally, if the tribes are to have the right of ownership and control as called for under 3(c)(3) of NAGPRA, the artifacts become tribal property only after the scientist is finished removing and/or studying them, not before. Tribes have even less authority in the case of an inadvertent discovery of human remains on federal land if there are no known or easily discovered lineal descendants. If the material cannot be reasonably identified as to tribe, then the material becomes the ‘property’ of the tribe which has the closest cultural affiliation with the material and which states a claim for the material. Of course, this might require scientific study of the material to determine which group might have the ‘closest’ affiliation, something the tribes may not want, but something to which the tribes may be forced to agree in order to regain the human remains for reburial. If the cultural affiliation of the material cannot be identified as to tribe but are found on federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe, then the material goes to the tribe which is recognized as the aboriginal occupant of the land. If, however, another tribe can demonstrate a stronger cultural affiliation than the aboriginal occupant of the land on which the materials were found, the tribe with the stronger cultural affiliation may claim the human remains. Ultimately, it can happen that no tribe may be judged to be an aboriginal occupant of the land as defined through a final judgment of the Indian Claims Commission or the United States Court of Claims. It can also happen that no tribe will be viewed as being culturally affiliated with the materials as defined under NAGPRA. And both of these happened in the case of Kennewick Man.

■ KENNEWICK AS THE EPITOME OF NAGPRA’S INADEQUACIES AND AMBIGUITIES

1 The 6 ⁄2-year-long battle over Kennewick Man is a perfect example of NAGPRA’s inadequacies and ambiguities. I cannot go into a long, detailed 039850 (to/d) 8/1/04 8:40 am Page 71

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discussion of Kennewick Man, as space is short, but readers who wish to gain more information on the situation should go to the website maintained by the Tri-City Herald (http://www.kennewick-man.com). Articles featur- ing Kennewick Man have been published in popular venues such as The New Yorker (Preston, 1997), the U.S. News and World Report (Petit, 1998), Discover (Wright, 1999) and Newsweek (Begley and Murr, 1999) and more detailed discussion of the situation is presented in books by David Hurst Thomas (2000), Roger Downey (2000) and James Chatters (2001). Even the CBS television news program Sixty Minutes (CBS, 1998) has presented a discussion of the Kennewick case. When a nearly-complete set of human remains was discovered on the shore of the Columbia River in 1996 by a couple of college students, no one could foresee the resulting court challenge of many of the major tenets of NAGPRA. The area containing the human remains was originally treated, by Dr James Chatters, as a crime scene, as is normal practice. After a flaked stone projectile point was discovered embedded in the pelvis of the skeleton, Chatters sent off a portion of bone to a radiocarbon labora- tory and when the dates came back indicating the remains were approximately 9200 years old, NAGPRA went into action. The human remains were treated as an ‘inadvertent discovery’ under NAGPRA and the US Army Corps of Engineers (which controlled the federal land upon which the remains were found) determined to repatriate the remains to the Umatilla. But, shortly before the remains were to be returned, eight anthropologists filed suit in the district court to block the repatriation. From the beginning, the human skeletal remains intrigued scientists since they represented one of the most complete skeletons recovered from that time period. Archaeologist Rob Bonnichsen was quoted as saying: ‘There’s a whole book of information [in Kennewick Man’s bones]. To put him back in the ground is like burning a rare book so we’ll learn nothing. . . . It seems to be the case that there is a major effort to block scientific inquiry into the study of American origins’ (O’Hagan, 1998: 8). But American Indians were not amenable to further study. To repre- sentatives of the Umatilla, it did not matter how old the remains were. ‘If this individual is truly over 9000 years old, that only substantiates our belief he is Native American’, Armand Minthorn (1996) was quoted as saying. He went on:

Some scientists say that if this individual is not studied further, we, as Indians, will be destroying evidence of our own history. We already know our history. It is passed on to us through our elders and through our religious practices.

Scientists have dug up and studied American Indians for decades. We view this practice as desecration of the body and a violation of our most deeply held religious beliefs. Our beliefs and policies also tell us this individual must be reburied as soon as possible. (Minthorn, 1996) 039850 (to/d) 8/1/04 8:40 am Page 72

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Don Sampson, a former Board of Trustees Chairman for the Confederated Tribes of the Umatilla Indian Reservation, stated in a position paper that:

We want the public and scientists to understand that we do not reject science. In fact, we have anthropologists and other scientists on staff and we use science every day to help in protecting our people and the land. However, we do reject the notion that science is the answer to everything and therefore it should take precedence over the religious rights and beliefs of American citizens. (Sampson, 1997)

A year later, another group involved in the process reaffirmed the stance. Marla Big Boy, an attorney for the Colville Tribe, told reporters at a press conference in Santa Fe in December 1998: ‘The Colville Tribe is not against science. We are against the use of science to discriminate and disenfran- chise Native American tribes’ (Coleman, 1998). Thus, the question at the outset was not a question of science versus religion, as some of the popular press reported, but rather a conflict between American Indian philosophy and the unilateral application of American science. And even scientists were not of a single mind in relation to this case. Articles and letters in the American Anthropological Associ- ation’s Anthropology News discussed the political and academic implications of Kennewick, especially in relation to the scientific and social definitions of ‘race’. The court case involving the scientists and the US Department of the Interior over the disposition of the human remains continued from October 1996 until Jelderks’ August 2002 decision. The lawsuit was put on hold, however, while the Department of the Interior performed tests on the skeleton in an attempt to better determine the ‘cultural affiliation’ of the human remains. One such study subjected the bones to statistical analyses of skeletal measurements in an attempt to better determine morphological relationships between the skeleton and other world populations. Analyses performed by Powell and Rose of the Department of the Interior’s scientific team (Powell and Rose, 1999) raised some interesting paradoxes. Statistical tests conducted on the skull led them to conclude that: ‘[T]he Kennewick skeleton can be excluded, on the basis of dental and cranial morphology, from recent American Indians. More importantly, it can be excluded (on the basis of typicality probabilities) from all late Holocene human groups’ (emphasis in original). Yet their research also points out that ‘the Kennewick cranium is morphologically similar to Archaic populations from the northern Great Basin region and to large Archaic populations in the eastern woodlands’, suggesting that the Archaic (middle Holocene) populations of North America that followed may have derived some of their morphological characteristics from the population of which the Kennewick individual was a member (Powell and Rose, 1999). Equally intriguing is Powell and Rose’s conclusion that their statistical 039850 (to/d) 8/1/04 8:40 am Page 73

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analyses of various skull measurements support the conclusion that, ‘the Archaic samples from the southeastern U.S. are clearly distinct’. While the ultimate disposition of the skeletal remains is the focus of the court case, one of its main issues is whether NAGPRA should have application to human remains as old as Kennewick Man. In 1997, Amanda Horn examined the legal issues surrounding NAGPRA and its application to the ancient human remains, as well as the battle ‘for the right to control the disposition of human remains discovered on federal land in Washington’ (Horn, 1997: 503). Horn’s examination focused on Congress’ failure to recognize the religious relationship between cultural items (including human remains) and Indian tribes, the differences in application of certain state statutes regarding Native American human remains, as well as a history of the Kennewick discovery. Horn details the challenges to NAGPRA inherent in the eight anthropologists’ court case against the Corps of Engineers: that is, that Congress did not contemplate remains as old as Kennewick in its enactment of NAGPRA, that modern tribes will not be able to demonstrate adequately a ‘cultural affiliation’ with material as old as Kennewick and that the Corps action to repatriate the material was unwarranted until further study allowed an accurate determination of the Kennewick material’s ethnicity and cultural affiliation (Horn, 1997: 512). The archaeologists also relied upon the scientific exceptions provision of NAGPRA, which allows scientific testing of materials when the results would be of a major benefit to the USA. American Indian concerns with the human remains were also discussed. Horn argues that, strictly speaking, under NAGPRA the Agency must immediately repatriate the remains upon request to Native American tribal groups that can provide evidence of cultural affiliation [25 USC 3005(c)], which the tribes might furnish through oral histories. Moreover, in the Kennewick case, the land upon which the remains were found is considered to be within the aboriginal homeland of the Columbia Basin tribes, based upon an 1855 treaty between the Umatilla and the federal government which secured the tribes’ hunting, fishing, gathering and other rights on their traditional homeland (Horn, 1997: 513). In relation to the scientific exception clause of NAGPRA, Horn’s analysis illustrates what many Native Americans feel about the scientific study of human remains: The scientists’ arguments . . . are reduced to a belief that their interests in knowledge and education outweigh the religious, civil and sovereign rights of the Native Americans . . . From the Native American perspective, the proposed compromise constitutes no compromise at all as the word is commonly defined. Instead, the compromise illustrates another example of the subordination of Native American ideals by the dominant power. (Horn, 1997: 516) 039850 (to/d) 8/1/04 8:40 am Page 74

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In conclusion, Horn realizes that ‘Kennewick Man will probably be subjected to a complete scientific examination before he is released to a tribe for reburial’ (Horn, 1997: 516), that the disposition of the remains will ‘significantly impact decisions regarding the control of remains discovered in the future’ (Horn, 1997: 517) and also that ‘the discovery and the long journey that the Kennewick Man will inevitably travel before being put to rest, solidifies a foundation for discussion between the Native Americans and archaeologists’ (Horn, 1997: 517). An additional point that Horn discusses, but does not analyze, is the status of the land upon which the human remains were located. While the land in question is in fact within territory which the 1855 treaty between the Umatilla and the federal government did secure as a portion of the tribes’ traditional homeland (Horn, 1997: 513), the report on the non- destructive examination of the Kennewick remains states that Section 3(a)(2)(c) of NAGPRA (25 U.S.C. 3002(a)(2)(c)) does not apply because ‘[A] careful legal analysis of the judicial decisions by the Indian Land Claims Commission and the Court of Claims shows that the land where the remains were discovered has not been judicially determined to be the exclusive aboriginal territory of any modern tribe (McManamon, 1999: 2, emphasis added). If remains as ancient as those exemplified by the Kennewick material are excluded from protection or disposition under NAGPRA, Congress or the court will need to provide further guidance on the antiquity of human remains in order to be considered outside of the scope of NAGPRA and whether science or tribal oral history should be used to define that threshold. It also might be argued that the court decision will be binding only in this judicial circuit and that other challenges to NAGPRA will occur within each federal District Court, as was the case with tests of the Antiquities Act in the Ninth (US vs. Diaz) and Tenth (US vs. Smyer) Circuits of the US Court of Appeals (Hutt, Jones and McAllister, 1992: 24–5) in the 1970s. The testing of some of the major inadequacies and ambiguities of NAGPRA has just begun and both the scientific and Native American communities are awaiting the results. Perhaps the Kennewick case should not be considered a good test case for NAGPRA, however, because of the relative absence of cultural material associated with the human remains. Even the projectile point lodged in the skeleton’s pelvis is ambiguous in relation to the question of cultural affiliation. Powell and Rose (2000) suggest the spear entered Kennewick Man’s body from behind and slightly below the horizontal plane: was he speared by an enemy, or was the wound the result of an accident? Perhaps Kennewick Man slipped and a foreshaft being carried in a pouch was driven into his body before lodging in the pelvis. Or perhaps the point was imbedded in his pelvis through some other manner. Perhaps it is the absence of cultural material associated with the human 039850 (to/d) 8/1/04 8:40 am Page 75

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remains that led Jelderks to assert that ‘Kennewick Man’s culture is unknown and apparently unknowable’ (Jelderks, 2002: 31). It is this lack of cultural material associated with the skeleton that reduces the widespread applicability of the opinion in other NAGPRA cases, but the Jelderks opinion still might be used to add an additional barrier to tribes wishing to participate in the NAGPRA process since claimants for human skeletal material could first be required to prove they are ‘indigenous’, then to prove they might be related to the individual skeletal material under consideration and then to proceed with the process. Jelderks asserts: ‘it is reasonable to infer that Congress intended the term ‘Native American’ to require some relationship between remains or other cultural items and an existing tribe, people, or culture that is indigenous’ (Jelderks, 2002: 27) and that ‘[T]he culture that is indigenous to the 48 contiguous states is the American Indian culture’ (Jelderks, 2002: 30). This implies that there is only one American Indian culture. Taken to its logical conclusion, then, there would therefore be only one European culture or one Asian culture or one African culture. Arguably, that is not the case. Even though there might be a ‘stereotypical’ European or Asian culture, such stereotyping reduces any sort of utility in practice. Additionally, as another indication of the political ramifications of the case, Jelderks (2002: 32) wrote: ‘It is arguably unnecessary to review the Secretary’s related conclusion that the remains are culturally affiliated to a coalition of tribal claimants’, yet went on to do so because, in his opinion, ‘judicial economy favors creating a complete record for possible appellate review and perhaps avoiding more delays in this litigation’. Jelderks asserts that ‘[A] finding of “cultural affiliation” with human remains requires proof of a relationship of shared group identity which can be reasonably traced . . . between a present day Indian tribe . . . and an identifiable earlier group of which the decedent was a member’ (Jelderks, 2002: 37, emphasis in original). Again, taken to its extreme, there is no way of demonstrating any shared group identity with human remains and other populations unless there exists written documentation of a relationship. What exactly is a ‘shared group identity’? Is it knowable from the archaeological record? Is the shared group identity ‘biological’ or ‘cultural’? Specialized scientific tests such as DNA testing can determine biological affinity, but that tells us nothing about cultural affinity. Biological affinity does not equal cultural affinity, as can be demonstrated by the situations where American Indian tribal groups in the nineteenth century adopted members from other tribes and cultures into their cultural groups. As most archaeologists will readily agree, the primary focus of most archaeological studies is on the cultural refuse of past archaeological cultures. And it is this cultural refuse in various iterations and proportions that we have used to ‘describe’ archaeological cultures to the point that the 039850 (to/d) 8/1/04 8:40 am Page 76

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terms have taken on meanings of their own. In the American Southwest, for example, the term ‘Basketmaker’ has no meaning other than as an archaeological culture, but it is so entrenched in the archaeological literature that to try to redefine it would be nearly impossible. And occasionally archaeologists rely too heavily on the use of durable artifacts such as stone tools and debris as cultural descriptors – what Martin Wobst (2001) calls ‘the glorification of materiality in archaeology’. Perhaps an archaeologi- cally-defined group of people based their culture on an entire suite of artifacts not easily preserved within the archaeological record (such as fabric, netting, artwork, bone, body decoration, tattoos, hair style). Based solely on the durable artifacts, ‘Punk’ culture today would not be easily differen- tiated from ‘mainstream’ culture, even though their members are visually distinguishable in most situations. When Janet Spector asked, ‘what are the ramifications of the fact that until fairly recently academic knowledge has been produced almost exclus- ively by white, middle-class men of European descent, socialized in cultures that discriminate on the basis of race, sex and class?’, she began an internal questioning that led her to become ‘acutely aware of the exclusion of Indian people from the creation of archaeological knowledge about their histories and cultures’ (Spector, 2000: 134). And the recent court ruling regarding Kennewick seems to contribute again to the exclusion of Indian people from their histories and cultures. NAGPRA has been demonstrated to be a politically-charged law that has been freely interpreted by US bureaucrats, sometimes to the benefit of tribes and sometimes to their detriment. Jelderks talks of Congress not intending its definition of ‘Native American’ to be applied so that

[A]ll pre-Columbian people, no matter what group they belonged to, where they came from, how long they or their group survived, or how greatly they differed from the ancestors of present-day American Indians, would arbitrarily be classiﬁed as ‘Native Americans’ and their remains and artifacts could be placed off-limits to scientiﬁc study. (Jelderks, 2002: 29, emphasis in original)

No such restrictions occur or are even hinted at in any records of any Congressional hearings prior to implementation of the law, however. Even the Society for American Archaeology, the professional organization of archaeologists in America, in its amicus brief presented to the court, agreed with the defendants that all human material from prior to 1492 recovered within the political boundaries of the current USA should be considered to be ‘Native American’ under the deﬁnitions of NAGPRA. But the court ruling, at least in the Kennewick case, argues that such a determination must be made on a case-by-case basis. And so we are stuck with a magic threshold through which humans passed as they entered ‘PaleoAmerica’, a temporal as well as a spatial threshold. NAGPRA, as it 039850 (to/d) 8/1/04 8:40 am Page 77

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is currently interpreted, would make it continually necessary to deﬁne at what point an individual ‘Beringian’ became a ‘Paleoamerican’, at what point a ‘Paleoamerican’ became a ‘Paleoindian’ and even when the population of the USA became ‘American Indian’. We should agree at what point to give up trying to separate cultural afﬁnities from biological ones, or we will continually face litigation rather than cooperation.

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JOE WATKINS, half Choctaw Indian by blood, has been working in archaeology for 35 years. Currently he is an Associate Professor in the Department of Anthropology at the University of New Mexico but, over the course of his career, he has worked in the government and private sectors of cultural resource management and public archaeology. As both an American Indian and an archaeologist, his primary interests include the ethical practice of anthropology and the study of anthropology’s relationships with descendant communities and aboriginal populations. [email: [email protected]]