Grave Injustice

Federal laws about burial remains put politics before science.

Steven Vincent from the July 2004 issue

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In 1988, for example, an 8,000-year-old skeleton was found in Hourglass Cave in the Colorado Rockies. The National Parks Service repatriated that skeleton to the Ute Indians after a study that many leading anthropologists thought was inadequate. In 1989, similarly, an 11,000- year-old skeleton was discovered in Idaho. State officials turned it over to the Shoshone-Bannock -- permitting only one anthropologist to examine the bones -- even though the tribe is believed to have dwelled in the region for only 2,000 years. "NAGPRA and similar laws have created expectations among Native American activists and some government officials that they can use these statutes to impede scientific study," says Schneider of Friends of America's Past.

Worse, critics contend, the law encourages Indians to assert claims based on myths, rituals, oral traditions, and other tribal practices not normally recognized by the scientific community. Some Indians now argue that information garnered from the study of their ancestors' bones is "proprietary" and thus the exclusive possession of the tribe. Others attempt to prevent the publication of photographs of sacred objects or to dictate the circumstances in which institutions exhibit certain artifacts, based on claims that the items are "alive" or otherwise possess a divine spirit.

In many cases Indians have persuaded state agencies to uphold tribal taboos, such as preventing menstruating women from handling certain objects. "A lot of this nonsense comes from the politicization of NAGPRA," says one physical anthropologist who wishes to remain anonymous. "Many Indian tribes are just creating traditions as a way of pursuing social, legal, and cultural power."

The issue came to a head with Kennewick Man. In this much-publicized case, the chance discovery of a skull along the Columbia River in Kennewick, Washington, in 1996, led to the finding of 9,000-year-old skeletal remains. Although scientists believed the bones originated from a Caucasian man, a coalition of Indian groups claimed the remains, asserting that the skeleton lay in territory that has traditionally belonged to their people. Or, as one tribal leader stated, "From our oral histories, we know that our people have been part of this land since the dawn of time." The U.S. Army Corps of Engineers -- which has jurisdiction over the Columbia River -- accepted this argument and announced it would repatriate the skeleton.

Members of the scientific community cried foul and filed a lawsuit; the government and Native American tribes appealed. As the case awaited resolution, archaeologists found they had to battle Indians and their government supporters for every scrap of information they could glean from the skeleton. "The government did a CAT scan of the bones and we asked for the results," says Schneider, who served as a lawyer representing the scientists in the case. "Native Americans objected, and we had to file a motion to see the data." In the words of one physical anthropologist, "It's clear to me that Native Americans are eager to block study of the skeleton. Otherwise it might prove they were not the first to inhabit this continent."

On February 4, a three-judge panel of the 9th Circuit Court of Appeals ruled in favor of the scientists, arguing, in effect, that the Indians had put forth an "extreme" definition of "Native American." At press time, the tribes had not yet decided whether to appeal the ruling.

To NAGPRA's credit, the law has been used to deny many of the more outrageous claims. In 1993, for instance, archaeologists working on a 10,000-year-old site in Montana discovered some ancient human hairs and announced their intention to study them. Although there was no evidence of burials at the site, two Indian tribes, the Confederated Salish and Kootenai and the Shoshone-Bannock, filed a NAGPRA suit, contending in part that such research was sacrilegious. The government rejected their argument -- although the lengthy court battle prevented study of the hairs for years.

A similar case involves the Fallon Paiute-Shoshone, who in 1997 attempted to assert "cultural affinity" with the 9,500-year-old remains found in Spirit Cave, Nevada, basing their claim largely on tribal traditions that indicated their ancestors had lived in the area since "time immemorial." In that case the tribe's claim was rejected. In November 1999 the Confederate Tribes of Grand Ronde, Oregon, claimed the Willamette Meteorite on display in New York's Museum of Natural History, calling it a "holy object" that conveyed messages from the spirit world. The case was settled with an arrangement that allows the Indians access to the meteorite for cultural and religious purposes.

Perhaps the most bizarre NAGPRA case involves Honolulu's Bishop Museum. This institution had in its collection 83 artifacts and human remains taken in 1905 from the Kawaihae Cave complex on Hawaii. In 2000 the museum gave the objects to an ethnic Hawaiian organization called the Hui Malama, which proceeded to rebury them somewhere in the cave complex. Several other native Hawaiian groups complained, arguing that the Bishop had not allowed them time to assert their claims to the objects, as stipulated by NAGPRA. The issue was taken up by the NAGPRA Review Committee, which last May castigated the museum for giving the Hui Malama possession of the objects and ordered the group to return the objects to the museum. When the Hui Malama refused, the Bishop requested the right to break into the complex and seize the objects. The Department of Hawaiian Homelands declined the request, and the matter is heading for the courts.

It's this affirmation of group -- or tribal -- rights over the imperatives of science and the free transmission of knowledge that outrages so many critics. "This is a question of who owns the past," maintains Arizona State's Clark. "I believe in an archaeology that is scientific and belongs to the national patrimony, not to any ideology or 'consciousness group.'" Others worry about the statute's effect on the law in general. Argues attorney Schneider, "A lot of people in government agencies have bought into the idea that they can do anything they want to do right by Indians. Look at the state of Nebraska -- it repatriated all skeletal remains to Indian tribes, even those which were Caucasian."

Meanwhile, Schneider continues, "you have agencies giving tribal oral traditions the same weight as written documentation -- and people in the federal Justice Department contending that scientific study of Indian culture is a savaging of that culture." Add to these concerns the extraordinary sensitivity the government shows toward Native American religion, and you have what many perceive as a kind of touchy-feely attack on fundamental standards of science and knowledge. As the late Clement Meighan, a UCLA archaeologist and fierce NAGPRA critic, wrote in the November 1994 issue of Archaeology magazine, "The New Age disposition to invoke or invent beliefs no one really holds, and to maintain they are of a value at least equal to, if not supremely greater than, those that account for the triumph of Western civilization, is given concrete expression in the repatriation movement."

Crackdown

At least no one's going to jail. Well, not in the museum community. The story is different among commercial traders of Native American artifacts. Says Jeff Myers, a New York dealer of Eskimo artifacts, "What started as a way to return Indian bones and protect Native American burial grounds from looting has turned into something far more complex and troubling."

The first case of a private individual convicted under NAGPRA occurred in 1994. FBI agents arrested an Arizona man, Richard Corrow, for attempting to sell sacred Native American artifacts he had purchased on tribal lands. He also possessed objects containing bald eagle feathers, in violation of the 1940 Eagle Protection Act and the 1918 Migratory Bird Treaty Act (MBTA). He received five years' probation. In 1997 a federal court in New Mexico sentenced Arizona dealer Rodney Tidwell to 33 months in prison for selling Acoma priest robes and Hopi ritual masks. Both Corrow and Tidwell appealed, arguing that NAGPRA is too vague regarding which Native American objects are sacred and which aren't. Although their appeals were unsuccessful, the debate they started continues.

Critics maintain that the whole idea of "sacred objects" is often highly problematic and open to various interpretations and politicization. Many Indians converted to Christianity, they observe, and sold or gave away objects they once considered holy. Now, encouraged in part by NAGPRA, Indians are rediscovering their ancestral beliefs and demanding the repatriation of those items. "A lot of Native Americans are born-again animists," Ramona Morris, president of the Antique Tribal Art Association, notes wryly. Others complain that, given more than 2 million Native Americans of over 769 federally recognized tribes, no one knows the full extent of Indian rituals and methods of worship, including many that Indians keep secret.