Becoming American or Becoming Indian

7/27/2019 Becoming American or Becoming Indian

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Journal of Social Archaeology

DOI: 10.1177/14696053040398502004; 4; 60Journal of Social Archaeology

Joe WatkinsCultural Affiliation

Becoming American or Becoming Indian?: NAGPRA, Kennewick and

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60

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 KennewickMan is not Native American under the Native American GravesProtection and Repatriation Act (NAGPRA), will likely have far-reaching impacts on the relationship between American Indians andAmerican archaeologists. More than a legal decision, the opinion alsopoints to the inadequacies of NAGPRA. The following article looks

at some of the political implications of the judges decision and themost recent crack in the fragile peace between archaeologists andNorth Americas indigenous people and discusses some of the short-comings and ambiguities of NAGPRA.

KEYWORDS

indigenous people Kennewick Man NAGPRA NativeAmericans and archaeologists Paleoindians

Journal of Social Archaeology A R T I C L E

Copyright 2004 SAGE Publications (www.sagepublications.com)

ISSN 1469-6053 Vol 4(1): 6080 DOI: 10.1177/1469605304039850

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61Watkins Becoming American or becoming Indian?

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 ofBonnich-sen et al. v. United States of America, that proclaimed Kennewick Man wasnota Native American under the Native American Graves Protection andRepatriation Act (NAGPRA). This decision, while legally restricted to thespecific District Court within which Washington state is situated, is likelyto have far-reaching political impacts not only on the conduct of archae-ology in the American Northwest, but also for Paleoindian studies in NorthAmerica 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 termPaleoamerican for Paleoindian, since, as they note,

when comparing early skulls [in the New World] with available modernpopulations, we note that most of them fall far outside the normal range ofrecent population variation. More specifically, they especially fall outside therange of American Indian populations and are so different that it may bemore correctto refer to them as Paleoamerican rather than Paleoindian asmany do. (Owsley and Jantz, 2001: 5667, emphasis added)

The change in terminology may have no impact on the study of early popu-lations in North and South America, but the change certainly carries withit political implications since, by replacing Indian with American, it illus-trates the political aspects of naming.

Thomas (2000: 4) writes about the impact of naming geographic featuresas part of the discovery and conquest of the Western Hemisphere:

The names established an agenda under which the rest of the encounterwould be played out. After discovering a patch of unclaimed land, theconqueror would wade ashore and plant his royal banner. He proclaimed

that these newly discovered lands were now his patrons domain and laidclaim to the new-found riches, the natural resources and the things living andinanimate all of which was simply wilderness before being discovered anddefined by Europeans. . . . The power to name reflected an underlying powerto control the land, its indigenous people and its history.

If the naming of geographic features carries with it such power, imagine thepower of being able to name the culture that used that geography.

A brief re-examination of the relationships between archaeologists andAmerican 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 archaeolo-gists to have an understanding of the history of those relationships.

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62 Journal of Social Archaeology 4(1)

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 notdemonstrated) that American colonialist attitudes have had a tremendousamount of influence not only on the manner in which the government hastreated American Indians but also the way that anthropologists havestudied and portrayed them. Trigger (1980) notes that the problems socialscientists choose to research and (hopefully less often) the conclusions thatthey reach are influenced in various ways . . . (among them) . . . the atti-tudes and opinions that are prevalent in the societies in which they live(Trigger, 1980: 662). He also argues that, during the first half of Americasexistence (1770s1870s), American Indians were held to be inferior to civil-ized men in order to rationalize the seizure of Indian lands; and that,eventually, racial myths grew to supplant any other myths about the Indiansas a justification for waging war on the Indians and violating their treatyrights.

An example of the scientific treatment of American Indian developmentrevolved around what Willey and Sabloff (1993: 22) call the Moundbuildercontroversy. The Moundbuilders were believed to have been a non-Indian race, perhaps related to the prehistoric Mexicans, Danes, or evenHindus, who had withdrawn from eastern North America or had been

exterminated by the newly-arrived Indians. Most writers of the period feltthat the Indians of North America were not capable of such feats of engi-neering required to construct the mounds in eastern North America andthat, therefore, there obviously must have been a race of non-Indians whohad constructed the enormous mounds.

But the controversy has been seen to be more than merely a scholarlydebate. Some scholars argue that the extermination of American Indiansby westward moving settlements of the USA was somehow made morallyeasier 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 Americas only civil-ized culture (Trigger, 1980: 665). Bettinger (1991: 323) agrees, stating[m]uch simplified, Indians were savages . . . Americans were civilized . . .The philosophy of social evolutionary progress assured Americans it wastheir manifest destiny to civilize the New World, to replace savagery withcivilization. McGuire argues that the Moundbuilder myth also worked toremove the Indians ancestors from the history of the USA: By routing thered 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 thatarchaeologists went out on a limb and helped American Indians by provingscientifically that they were more accomplished than many had perceived



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them to be during a time when Americans were carrying on genocidalwars 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 archaeologistswho finally finished off the Moundbuilder controversy were not necessarilypro-Indian, but perhaps more pro-scientific, emphasizing scientific viewsrather than cataclysmic theories that postulated any intrusive or extinctraces. Regardless of the reason, by the time archaeologists finally provedthe mounds were products of the ancestors of the Indians, the Indiansmostly had been dispossessed of their land. The demolition of the lostMoundbuilder race hypothesis in 1894 did little to change the popular atti-tudes against the American Indian. They were still considered to be savagesby those who studied them, destined to vanish from the face of the earthin the wake of the inexorable crush of civilization.

In the late nineteenth century, Franz Boas had brought to the USA thevalue of a historical approach as a technique for explaining cultural vari-ation and archaeologists began to adopt this method as a means ofconstructing chronologies and delineating small-scale changes that hadtaken place in prehistoric times. It corrected the erroneous claim thatAmerican Indians had not changed dramatically and did contribute to amore positive view of the American Indian, but there was still a generaltendency not to give credit to American Indians for creativity.

The change in archaeological interest from cultural evolution to culturalchronologies to cultural process has carried with it an associated change inthe manner in which archaeology as a whole has viewed native peoples.From the beginning of the twentieth century, American Indians have beenviewed as savages incapable of change, as invisible producers of artifactsand as invisible producers of data irrelevant to themselves, but of use onlyto Euro-American scientists. Trigger suggests that archaeologists haveturned from using their discipline to rationalize Euro-American prejudicesagainst 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 amore critical history of archaeology, Kehoe (1998) argues that archaeologycontinues to treat American Indians as belonging outside of science andthat scientists act as if only they have the ability to present and understandthe processes which led to the development of American Indian culture andprehistory.

The Pan-Indian movement of the 1960s, one that identified the remainsof any one native group from any time period a matter of concern for allliving Native Americans, reflected a new political consciousness.

Proponents of Native unity were a threat to many archaeologists whoviewed attempts at control of the resource as attempts to control theirfreedom of research. The idea that archaeologists have a moral right ofaccess to archaeological material because their research is aimed at



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producing knowledge for the public benefit is in apparent conflict withconcepts held by most American Indian groups that cultural materialremains 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-Americanstereotype that portrayed American Indians as unprogressive influencedthe development of archaeology to a great extent, arguing that Euro-American scholars defined history as studying themselves and anthro-pology as the science of allegedly simpler peoples. While Trigger and Kehoefeel that the conflict between archaeologists and American Indians is rootedin the very way archaeologists define what it is they do, archaeologist JosephWinters view of controversy more than 20 years ago seems more to thepoint: This confrontation is basically a conflict of values in which the repre-sentatives of competing cultures hold radically differing views of resourcedefinition, ownership, significance and use (Winter, 1980: 124).

EQUAL UNDER THE LAW: NAGPRA AND OTHER

FALLACIES

The 1969 publication of Vine Delorias book, Custer Died for Your Sins,

had a profound influence on the relationships between American Indiansand anthropologists. The printing of excerpts of Custer in Playboymagazine in August 1969 made the academic world sit up and take noticeof the quiet contempt, distrust and discontent that many American Indiansheld for the discipline.

An analysis of American Indian protests as indicated in articles withinAmerican Indian newspapers and magazines for the decade from19691979 (Watkins, 1994: Appendix B) shows that this distrust revolvedprimarily around the perceived threat to their ancestors and their remains.

The American Indian Movements disruption of excavations at Welch,Minnesota, in 1971 was one such way that Pan-Indian political groupsorganized to stop or impede the excavation of prehistoric archaeologicalsites and cemeteries. Such Pan-Indian groups also drew attention to thetreatment of American Indian human remains and sensitive material bymuseums through such means as the occupation of the Southwest Museumin Los Angeles in 1971, and they also began addressing the desire for therepatriation of human remains and artifacts of cultural patrimony, such asthe fight for the return of the Onondaga wampum belts in 1969. Deloria

suggested that American Indians were tired of being considered objectsfor observation . . . for experimentation, for manipulation and for eventualextinction (Deloria, 1969: 81).

American Indian newspapers carried articles that outlined the generalattitudes of the more radical Indians in the 1970s articles such as Indian



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Skeleton, which detailed excavation of skeletal material by Buffalo StateUniversity, with: HOW LONG WILL WE ALLOW THIS KIND OFSACRILEGE TO CONTINUE? your grandmother, penned in the

margin (Anonymous, 1970: 12); Dont Exploit Our Dead or Our Cere-monies or Our Dances (a statement issued by the Indians of All TribesOrganization, Anonymous, 1971: 1); and Archaeologists and the Indians,a paraphrased letter stating that the Bering Strait theory of migration intoNorth America was nothing more than a ruse by archaeologists to justifythe white mans presence in America and make the red man think he is alsoalien in his own land (Hall, 1971: 10). These seemed to indicate that thegeneral views of American Indians were that archaeology was counter-productive to American Indian wishes.

In the early 1980s, important breakthroughs between American Indiangroups and the public and private sectors were made through the concertedefforts of individuals in tribes and museums, such as the repatriation of theZuni War Gods by the Millicent Rogers Museum and the Denver ArtMuseum. But the development and passage of the National Museum of theAmerican Indian Act (NMAIA) in 1989 and Native American GravesProtection and Repatriation Act (NAGPRA) in 1990 changed the under-lying structures upon which the relationships between archaeologists andAmerican 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 theinvestigations of burial mounds in the 1790s (Bettinger, 1991; McGuire,1992; Trigger, 1980).

The passage of NAGPRA signaled a shift in policy of the USA regard-ing the treatment of American Indian materials in federally-controlledmuseums and facilities and gave American Indians hopes that they weregetting some of the tools necessary to implement the changes they hadprotested 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 remainsunder the law, without consideration of race or cultural background. Thelaw, they believe, was meant to remedy the unequal treatment of NativeAmerican remains by previous generations of American military, bureau-crats and scientists. But with the laws passage, tribal groups quickly realizedit was not the panacea they hoped it would be and Indians and archaeolo-gists alike realized there were inadequacies and ambiguities to the law.

PERCEIVED INADEQUACIES OF NAGPRA

While NAGPRA does not authorize the initiation of new scientific studies,it does not preclude it when the museum deems it necessary for determining



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the cultural affiliation of a set of human remains (Section 5 (b)(2)), or whensuch 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 ofHui Malama I Na Kapuna `O Hawai`i Nei, aNative Hawaiian organization, called for a clarification of the role of scien-tific study, asking that NAGPRA . . . state that where existing documen-tation establishes geographic location and cultural affiliation by clear,reasonable belief, or the preponderance standard of evidence, scientificstudies of any kind on ancestral skeletal material remains are prohibited(Nihipali, 1996: 158).

Other tribes were concerned about the apparent authorization of studyprior to repatriation of materials allowed in Section 7 of NAGPRA.Another interesting comment made by Owsley and Jantz relates to researchon early human remains in the Western Hemisphere:

Following reports on early discoveries during the first half of the twentiethcentury . . . and until the last decade, ancient American skeletons rarelyreceived much attention in the professional literature. This circumstance ispartly because the reigning paradigm . . . identified ancient Americans asbeing just like recent Native Americans and they were, therefore, not ofunusual 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 hearingon the implementation of NAGPRA:

It was only when Native people . . . rose to stop the racist practice of therobbery and study of our graves was the loss to science loudly andarrogantly lamented. Amid great gnashing of teeth, the rush was on to study,document, analyze and further desecrate our relatives before the preciousscientific 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 onprivate land. Many American Indian groups cannot understand why thegraves protection portion of NAGPRA was not applied to all lands withinthe 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 understandingwhy federal protection of graves should be extended only to federal ortribal lands. In a review of the legislative history of NAGPRA, Trope andEcho-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 humanremains from the graves in a way that guarantees reburial after a period ofstudy. They also noted the constitutionality of the laws had been upheld,



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citing as examples cases in California, Minnesota and Oregon (Trope andEcho-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 wasnot applied to all lands. The National Congress of American Indians, theoldest and largest national organization representing American Indians, atits 1993 Annual Convention held in Reno/Sparks, Nevada, called foramendatory language to the NAGPRA to extend protection of funeraryremains and objects on all lands within the exterior boundaries of the USwherever they may be situated (NCAI Resolution No. NV-93170). Eventhe past NAGPRA Review Committee Chairwoman Tessie Naranjo ofSanta Clara Pueblo, New Mexico, noted that the Review Committee itselfexperienced frustration over this issue (Naranjo, 1996: 149).

Why is such extension of NAGPRA important? According to MelindaZeders survey of American archaeologists (1997: 47), approximately 49percent of archaeologists worked either within the government (23percent), the private sector (18 percent), or within a museum setting (8percent). Although these figures might vary from the true proportions ofarchaeologists employed in these areas, Zeder feels they are a good fit tothe actual make-up of American archaeology (Zeder, 1997: 48). If oneassumes that private sector and museum archaeologists are as closely tiedto federal regulations as their government counterparts, NAGPRA or the

NMAI Act affects the research of only about one-half of all Americanarchaeologists. Academic archaeologists, those more often participating inpure research, are less confined by federal regulations and made up 35percent of the survey population. When these archaeologists conductresearch on federal or tribal lands, their research is covered underNAGPRA, as are the artifacts that they might collect. However, if theirresearch is conducted on private land, they are less constrained. While theartifacts they collect might eventually come under control of NAGPRA (ifthe 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. Whilehuman remains may be protected under various state laws, federal inter-vention on private land can sometimes be seen as a violation of the takingsclause of the 5th Amendment to the Constitution if the land owner issomehow denied access or free use of his property without adequatecompensation.

Another inadequacy is NAGPRAs failure to protect culturally uniden-

tifiable human remains, something the NAGPRA Review Committee hastried to remedy (NAGPRA Review Committee, 1999, 2000) throughrecommendations which have yet to be codified. Section 7, subsection(a)(4) of NAGPRA concerns Native American human remains and



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funerary objects whose cultural affiliation has not been established byinventories or summaries prepared by museums. At the 1995 oversighthearing 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 andreburied them because they deserved that (Antone, 1996: 37). Jesse TakenAlive of the Standing Rock Sioux Tribe of Fort Yates, North Dakota, saidthe tribe believes those remains dating back 500 years or more areAmerican Indians . . . Give them back to the people and let us decide howthat should be done, because, after all, as American Indians, as indigenouspeople, those are our ancestors (Taken Alive, 1996: 42).

Even the NAGPRA Review Committee felt this issue was a point offrustration. Dan Monroe, a member of the Committee at the time of histestimony 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 furthernoted:

[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 culturalbeliefs dictate that the remains be returned and reburied. (Monroe, 1996: 125,emphasis in original)

In 1997, Washington States Representative to Congress, Doc Hastings,introduced a bill that would have amended NAGPRA to require certainlevels of study prior to repatriating culturally unidentifiable humanremains. HR 2893, introduced into Congress in November 1997, wouldhave, according to biological anthropologist Richard Jantz, made it mucheasier 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 Indians response to thisbill was Resolution SFE-97091, titled Amendments to NAGPRA SenateBill 110 and House Report 2893, which voiced their opposition to theproposed changes.

In 1998, the NAGPRA Review Committee issued a set of Draft Prin-ciples of Agreement Regarding the Disposition of Culturally UnidentifiableHuman Remains. These principles presented guidelines for the ultimatedisposition of these types of remains. While no specific remedies are defined

for every case, they do offer suggestions for disposition in cases where thehuman remains are associated with a non-federally-recognized tribe andsuggest regional consultations where such approaches would provebeneficial in situations where the human remains represent a population for



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which there are no present-day cultural survivors or where the present-daycultural 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 lessIndian than their federally-recognized counterparts, while others are afraidthat to allow standing under NAGPRA would allow such groups to bypassthe normally tedious process of federal recognition.

Again, Tessie Naranjo, then the Chairwoman of the NAGPRA ReviewCommittee, noted at the 1995 oversight hearing that Congress needed tofind a way to permit Native American groups not presently recognized by. . . the BIA to repatriate their human remains, funerary objects, sacredobjects, or objects of cultural patrimony (Naranjo, 1996: 22). Additionally,testimony provided by the Keepers of the Treasures-Alaska also called forsuch Congressional action: it didnt matter . . . when the human remains ofnon-federally-recognized Indian tribes were taken . . . it irks me that livinghuman beings are technically not in existence merely because the USGovernment does not recognize them (Keepers of the Treasures-Alaska,1996: 72). Additionally, Duane Champagne, Director of the AmericanIndian Studies Center at UCLA, provided a five-page letter noting theproblems with such a policy in California alone (Champagne, 1996: 99103).

While all tribes agree that human remains of unrecognized AmericanIndian groups always were and always will be American Indian, many are

concerned about extending rights to groups under NAGPRA. In a state-ment prepared for the March 1997 Review Committee meeting inOklahoma, seven tribes from southwestern Oklahoma the Apache Tribeof Oklahoma, the Caddo Tribe, the Comanche Tribe, the Delaware Tribeof Western Oklahoma, the Fort Sill Apache, the Kiowa and the Wichitaand Affiliated Tribes felt repatriation should occur only to federally-recognized groups. While they felt that human remains, regardless of affili-ation, should not be left in museums, they expressed a concern that torepatriate human remains to non-federally-recognized tribes could poten-

tially assign rights and authority to groups that have come into existencewithout a legitimate claim of continuity. The seven tribes feel thatculturally-unidentifiable human remains should be repatriated to the feder-ally-recognized tribes on whose aboriginal lands the remains were found,with the Review Committee making decisions in cases of multiple tribesclaiming the same ancestral lands.

PERCEIVED AMBIGUITIES IN NAGPRA

There are many ambiguities under NAGPRA, but I will focus mydiscussions in this section on the ambiguous treatment within NAGPRA of



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excavated human remains and those human remains encountered as aresult of inadvertent discovery situations during construction or earth-moving projects.

Under Sections 3(c) and (d) of NAGPRA, the excavation of NativeAmerican human remains and objects must follow the ArchaeologicalResources Protection Act of 1979 (ARPA), but tribal authority under thatlaw is limited. If the tribe has the permitting authority for the land wherethe remains are located, the tribe may refuse to issue an antiquities permitand 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 havethe right of ownership and control as called for under 3(c)(3) of NAGPRA,the artifacts become tribal property only after the scientist is finishedremoving and/or studying them, not before.

Tribes have even less authority in the case of an inadvertent discoveryof human remains on federal land if there are no known or easily discoveredlineal descendants. If the material cannot be reasonably identified as totribe, then the material becomes the property of the tribe which has theclosest cultural affiliation with the material and which states a claim for thematerial. Of course, this might require scientific study of the material todetermine which group might have the closest affiliation, something thetribes 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 theIndian Claims Commission or the United States Court of Claims as theaboriginal land of some Indian tribe, then the material goes to the tribewhich is recognized as the aboriginal occupant of the land. If, however,another tribe can demonstrate a stronger cultural affiliation than the abor-iginal occupant of the land on which the materials were found, the tribewith the stronger cultural affiliation may claim the human remains.

Ultimately, it can happen that no tribe may be judged to be an aborigi-nal occupant of the land as defined through a final judgment of the IndianClaims Commission or the United States Court of Claims. It can alsohappen that no tribe will be viewed as being culturally affiliated with thematerials as defined under NAGPRA. And both of these happened in thecase of Kennewick Man.

KENNEWICK AS THE EPITOME OF NAGPRAS

INADEQUACIES AND AMBIGUITIES

The 612-year-long battle over Kennewick Man is a perfect example ofNAGPRAs inadequacies and ambiguities. I cannot go into a long, detailed



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discussion of Kennewick Man, as space is short, but readers who wish togain more information on the situation should go to the website maintainedby the Tri-City Herald (http://www.kennewick-man.com). Articles featur-

ing Kennewick Man have been published in popular venues such as TheNew Yorker(Preston, 1997), the U.S. News and World Report(Petit, 1998),Discover(Wright, 1999) and Newsweek (Begley and Murr, 1999) and moredetailed discussion of the situation is presented in books by David HurstThomas (2000), Roger Downey (2000) and James Chatters (2001). Eventhe CBS television news program Sixty Minutes (CBS, 1998) has presenteda discussion of the Kennewick case.

When a nearly-complete set of human remains was discovered on theshore of the Columbia River in 1996 by a couple of college students, noone could foresee the resulting court challenge of many of the major tenetsof NAGPRA. The area containing the human remains was originallytreated, by Dr James Chatters, as a crime scene, as is normal practice. Aftera flaked stone projectile point was discovered embedded in the pelvis ofthe skeleton, Chatters sent off a portion of bone to a radiocarbon labora-tory and when the dates came back indicating the remains were approxi-mately 9200 years old, NAGPRA went into action.

The human remains were treated as an inadvertent discovery underNAGPRA and the US Army Corps of Engineers (which controlled thefederal land upon which the remains were found) determined to repatriate

the remains to the Umatilla. But, shortly before the remains were to bereturned, eight anthropologists filed suit in the district court to block therepatriation.

From the beginning, the human skeletal remains intrigued scientistssince they represented one of the most complete skeletons recovered fromthat time period. Archaeologist Rob Bonnichsen was quoted as saying:Theres a whole book of information [in Kennewick Mans bones]. To puthim back in the ground is like burning a rare book so well learn nothing. . . .It seems to be the case that there is a major effort to block scientific inquiry

into the study of American origins (OHagan, 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. Ifthis individual is truly over 9000 years old, that only substantiates our beliefhe is Native American, Armand Minthorn (1996) was quoted as saying. Hewent 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 viewthis practice as desecration of the body and a violation of our most deeplyheld religious beliefs. Our beliefs and policies also tell us this individual mustbe reburied as soon as possible. (Minthorn, 1996)



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Don Sampson, a former Board of Trustees Chairman for the ConfederatedTribes 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 weuse science every day to help in protecting our people and the land.However, we do reject the notion that science is the answer to everythingand therefore it should take precedence over the religious rights and beliefsof 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 pressconference in Santa Fe in December 1998: The Colville Tribe is not againstscience. 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 versusreligion, as some of the popular press reported, but rather a conflictbetween American Indian philosophy and the unilateral application ofAmerican science. And even scientists were not of a single mind in relationto this case. Articles and letters in the American Anthropological Associ-ations Anthropology News discussed the political and academic impli-cations of Kennewick, especially in relation to the scientific and socialdefinitions of race.

The court case involving the scientists and the US Department of theInterior over the disposition of the human remains continued from October1996 until Jelderks August 2002 decision. The lawsuit was put on hold,however, while the Department of the Interior performed tests on theskeleton in an attempt to better determine the cultural affiliation of thehuman remains. One such study subjected the bones to statistical analysesof skeletal measurements in an attempt to better determine morphologicalrelationships between the skeleton and other world populations.

Analyses performed by Powell and Rose of the Department of the

Interiors scientific team (Powell and Rose, 1999) raised some interestingparadoxes. Statistical tests conducted on the skull led them to concludethat: [T]he Kennewick skeleton can be excluded, on the basis of dental andcranial morphology, from recent American Indians. More importantly, itcan be excluded (on the basis of typicality probabilities) from all lateHolocene human groups (emphasis in original). Yet their research alsopoints out that the Kennewick cranium is morphologically similar toArchaic populations from the northern Great Basin region and to largeArchaic populations in the eastern woodlands, suggesting that the Archaic

(middle Holocene) populations of North America that followed may havederived some of their morphological characteristics from the population ofwhich the Kennewick individual was a member (Powell and Rose, 1999).Equally intriguing is Powell and Roses conclusion that their statistical



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analyses of various skull measurements support the conclusion that, theArchaic 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 appli-cation to human remains as old as Kennewick Man. In 1997, Amanda Hornexamined the legal issues surrounding NAGPRA and its application to theancient human remains, as well as the battle for the right to control thedisposition of human remains discovered on federal land in Washington(Horn, 1997: 503).

Horns examination focused on Congress failure to recognize thereligious relationship between cultural items (including human remains)and Indian tribes, the differences in application of certain state statutesregarding Native American human remains, as well as a history of theKennewick discovery.

Horn details the challenges to NAGPRA inherent in the eight anthro-pologists court case against the Corps of Engineers: that is, that Congressdid not contemplate remains as old as Kennewick in its enactment ofNAGPRA, that modern tribes will not be able to demonstrate adequatelya cultural affiliation with material as old as Kennewick and that the Corpsaction to repatriate the material was unwarranted until further study allowedan accurate determination of the Kennewick materials ethnicity andcultural affiliation (Horn, 1997: 512). The archaeologists also relied upon the

scientific exceptions provision of NAGPRA, which allows scientific testingof 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 mustimmediately repatriate the remains upon request to Native American tribalgroups that can provide evidence of cultural affiliation [25 USC 3005(c)],which the tribes might furnish through oral histories. Moreover, in theKennewick case, the land upon which the remains were found is consideredto be within the aboriginal homeland of the Columbia Basin tribes, based

upon an 1855 treaty between the Umatilla and the federal governmentwhich secured the tribes hunting, fishing, gathering and other rights ontheir traditional homeland (Horn, 1997: 513).

In relation to the scientific exception clause of NAGPRA, Hornsanalysis illustrates what many Native Americans feel about the scientificstudy of human remains:

The scientists arguments . . . are reduced to a belief that their interests inknowledge and education outweigh the religious, civil and sovereign rightsof the Native Americans . . . From the Native American perspective, the

proposed compromise constitutes no compromise at all as the word iscommonly defined. Instead, the compromise illustrates another example ofthe subordination of Native American ideals by the dominant power.(Horn, 1997: 516)



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In conclusion, Horn realizes that Kennewick Man will probably besubjected to a complete scientific examination before he is released to atribe for reburial (Horn, 1997: 516), that the disposition of the remains will

significantly impact decisions regarding the control of remains discoveredin the future (Horn, 1997: 517) and also that the discovery and the longjourney that the Kennewick Man will inevitably travel before being put torest, solidifies a foundation for discussion between the Native Americansand archaeologists (Horn, 1997: 517).

An additional point that Horn discusses, but does not analyze, is thestatus of the land upon which the human remains were located. While theland in question is in fact within territory which the 1855 treaty betweenthe Umatilla and the federal government did secure as a portion of thetribes traditional homeland (Horn, 1997: 513), the report on the non-destructive examination of the Kennewick remains states that Section3(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 LandClaims Commission and the Court of Claims shows that the land where theremains were discovered has not been judicially determined to be theexclusive aboriginal territory of any modern tribe (McManamon, 1999: 2,emphasis added).

If remains as ancient as those exemplified by the Kennewick materialare excluded from protection or disposition under NAGPRA, Congress or

the court will need to provide further guidance on the antiquity of humanremains in order to be considered outside of the scope of NAGPRA andwhether science or tribal oral history should be used to define that thresh-old. It also might be argued that the court decision will be binding only inthis judicial circuit and that other challenges to NAGPRA will occur withineach federal District Court, as was the case with tests of the Antiquities Actin the Ninth (US vs. Diaz) and Tenth (US vs. Smyer) Circuits of the USCourt of Appeals (Hutt, Jones and McAllister, 1992: 245) in the 1970s.The testing of some of the major inadequacies and ambiguities of

NAGPRA has just begun and both the scientific and Native Americancommunities are awaiting the results.

Perhaps the Kennewick case should not be considered a good test casefor NAGPRA, however, because of the relative absence of cultural materialassociated with the human remains. Even the projectile point lodged in theskeletons pelvis is ambiguous in relation to the question of cultural affili-ation. Powell and Rose (2000) suggest the spear entered Kennewick Mansbody from behind and slightly below the horizontal plane: was he spearedby an enemy, or was the wound the result of an accident? Perhaps

Kennewick Man slipped and a foreshaft being carried in a pouch was driveninto his body before lodging in the pelvis. Or perhaps the point wasimbedded in his pelvis through some other manner.

Perhaps it is the absence of cultural material associated with the human



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remains that led Jelderks to assert that Kennewick Mans culture isunknown and apparently unknowable (Jelderks, 2002: 31). It is this lack ofcultural material associated with the skeleton that reduces the widespread

applicability of the opinion in other NAGPRA cases, but the Jelderksopinion still might be used to add an additional barrier to tribes wishing toparticipate in the NAGPRA process since claimants for human skeletalmaterial could first be required to prove they are indigenous, then to provethey might be related to the individual skeletal material under consider-ation and then to proceed with the process. Jelderks asserts: it is reason-able to infer that Congress intended the term Native American to requiresome relationship between remains or other cultural items and an existingtribe, people, or culture that is indigenous (Jelderks, 2002: 27) and that[T]he culture that is indigenous to the 48 contiguous states is the AmericanIndian culture (Jelderks, 2002: 30). This implies that there is only oneAmerican Indian culture. Taken to its logical conclusion, then, there wouldtherefore be only one European culture or one Asian culture or oneAfrican culture. Arguably, that is notthe case. Even though there might bea stereotypical European or Asian culture, such stereotyping reduces anysort of utility in practice.

Additionally, as another indication of the political ramifications of thecase, Jelderks (2002: 32) wrote: It is arguably unnecessary to review theSecretarys 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 appellatereview and perhaps avoiding more delays in this litigation.

Jelderks asserts that [A] finding of cultural affiliation with humanremains requires proof of a relationship ofshared group identity which canbe reasonably traced . . . between a present day Indian tribe . . . and anidentifiable 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 thereexists written documentation of a relationship. What exactly is a sharedgroup identity? Is it knowable from the archaeological record? Is theshared group identity biological or cultural? Specialized scientific testssuch as DNA testing can determine biological affinity, but that tells usnothing about cultural affinity. Biological affinity does not equal culturalaffinity, as can be demonstrated by the situations where American Indiantribal groups in the nineteenth century adopted members from other tribesand cultures into their cultural groups.

As most archaeologists will readily agree, the primary focus of mostarchaeological studies is on the cultural refuse of past archaeologicalcultures. And it is this cultural refuse in various iterations and proportionsthat we have used to describe archaeological cultures to the point that the



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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 anarchaeological culture, but it is so entrenched in the archaeological litera-

ture that to try to redefine it would be nearly impossible. And occasionallyarchaeologists rely too heavily on the use of durable artifacts such as stonetools and debris as cultural descriptors what Martin Wobst (2001) callsthe glorification of materiality in archaeology. Perhaps an archaeologi-cally-defined group of people based their culture on an entire suite of arti-facts not easily preserved within the archaeological record (such as fabric,netting, artwork, bone, body decoration, tattoos, hair style). Based solelyon the durable artifacts, Punk culture today would not be easily differen-tiated from mainstream culture, even though their members are visuallydistinguishable in most situations.

When Janet Spector asked, what are the ramifications of the fact thatuntil fairly recently academic knowledge has been produced almost exclus-ively by white, middle-class men of European descent, socialized in culturesthat discriminate on the basis of race, sex and class?, she began an internalquestioning that led her to become acutely aware of the exclusion of Indianpeople from the creation of archaeological knowledge about their historiesand cultures (Spector, 2000: 134). And the recent court ruling regardingKennewick seems to contribute again to the exclusion of Indian peoplefrom their histories and cultures.

NAGPRA has been demonstrated to be a politically-charged law thathas been freely interpreted by US bureaucrats, sometimes to the benefit oftribes and sometimes to their detriment. Jelderks talks of Congress notintending its definition of Native American to be applied so that

[A]llpre-Columbian people, no matter what group they belonged to, wherethey came from, how long they or their group survived, or how greatly theydiffered from the ancestors of present-day American Indians, wouldarbitrarily be classified as Native Americans and their remains and artifactscould 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 anyCongressional hearings prior to implementation of the law, however. Eventhe Society for American Archaeology, the professional organization ofarchaeologists in America, in its amicus brief presented to the court, agreedwith the defendants that all human material from prior to 1492 recoveredwithin the political boundaries of the current USA should be considered tobe Native American under the definitions of NAGPRA.

But the court ruling, at least in the Kennewick case, argues that such adetermination must be made on a case-by-case basis. And so we are stuckwith a magic threshold through which humans passed as they enteredPaleoAmerica, a temporal as well as a spatial threshold. NAGPRA, as it



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is currently interpreted, would make it continually necessary to define atwhat point an individual Beringian became a Paleoamerican, at whatpoint a Paleoamerican became a Paleoindian and even when the popu-

lation of the USA became American Indian. We should agree at whatpoint 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 anthro-

pologys relationships with descendant communities and aboriginal

populations.

[email: [email protected]]

Becoming American or Becoming Indian

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