Jane E. Buikstra
The latter half of the 20th century witnessed not only increased visibility of bioarchaeological research but also enhanced concern by Native Americans/First Nations1 about excavation of ancient burial sites and collections of archaeologically recovered remains and associated funerary items held in museums and universities. Such concerns excited public support and led to state and federal repatriation legislation in the United States. At the federal level, the National Museum of the American Indian Act (NMAIA) was passed by Congress in 19892 and the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990.3 State laws vary widely (Ubelaker and Grant, 1989), as discussed later. Similarly variable laws have been promulgated in Canada at corporate, municipal, and provincial/territorial levels, although there was no encompassing federal legislation in place by the end of 2004 (Burley, 1994; Ferris, 2003; Nicholas and Andrews, 1997; Watkins, 2003).
390Tensions derived from burial excavations have deep roots in North America. For example, in 1654, Roger Williams reported the following incident:
I have had a Sollemne debate with Nenekunat and the rest of the Nariganset Sachims in a late great Meeting at Warwick whether [whither] they came downe with 4 Score armed men to demaund Satisfaction for the robbing of Pesiccush his Sisters grave and mangling of her flesh agst John Garriard a Dutchman, whose crue, and it is feard himselfe Committed that gastly and stincking vilanie agst them. (LaFantasie, 1988:425)
Although the charges against the Dutch trader, Jan Gereardy, were dismissed when the plaintiffs failed to appear at court [Rhode Island, Court of Trials 1920:9–10 (1655:13)], a few days later the Warwick commissioners enacted strict sanctions for grave robbing (LaFantasie, 1988:430).
More recent, 19th-century tensions developed in the course of expeditions promoted by institutions such as Chicago’s Field Museum and the Army Medical Museum (Bieder, 1990; Riding In, 1990, 1992). Collecting remains of the recently dead provoked angry responses from descendant communities, which brought no effective relief (Bieder, 1990). In the face of the devastation wrought by advancing waves of Euro-Americans, 19th-century policies anticipated Indian assimilation, which seemed inevitable as the 1890 census reported fewer than a quarter of a million Native Americans (McGuire, 1992). Peripheralized socially and regionally, Indian communities had little political power.
Late 19th-century archaeologists helped restore heritage to American Indians by laying to rest the myth of the Moundbuilders in eastern North America and similar attempts to argue that the Southwestern Indians were newcomers to their land of towering pueblos (McGuire, 1992; Silverberg, 1968). Yet these archaeological approaches reinforced theories that either kept Indians forever “primitive” or argued that they would only advance through acculturation (McGuire, 1992; Trigger, 1980, 1989). As the assimilation model persisted into the early 20th century, archaeologists and physical anthropologists became increasingly peripheralized not only from Indians but also from the ethnologists who, led by Boas (United States) and Jenness (Canada), argued that it was more important to record living Indians before their demise than to explore their heritage through excavations (Trigger, 1997).
After 1914, archaeologists turned to focus on historical sequences and chronology. Artifact analyses became increasingly formal and removed from functional concerns (Willey and Sabloff, 1993). Physical anthropologists sometimes contributed to archaeological interpretations, especially those of origins and migrations, but both specialists became progressively more isolated from ethnologists and the living communities they studied. While the “New Archaeology” of the 1960s and 1970s did restore concern for lifestyle, the search for law-like behaviors did not address the concerns of living communities. Much as 391they had been in the previous century, Native Americans were considered objects of study (Ferguson, 1997; McGuire, 1992; Trigger, 1980, 1989, 1997).
Indian activism would soon change the balance of power, however. Small skirmishes occurred as early as the 1940s, when a confrontation over a Woodland burial displayed at the W.H. Over Museum in Vermillion, South Dakota, led to a hostage situation at the adjacent university (Rhodd, 1990). Activism on both sides of the reburial issue became prominent in California during the 1960s (Meighan, 1984; Ubelaker and Grant, 1989), soon to be followed by additional involvement during the 1970s, both in Canada and in the United States.
In the province of Ontario, the disposition of any buried human remains is covered under the Cemeteries Act. Landowners negotiate with the designated representative of the deceased, who is the First Nations’ government nearest the property. Archaeologists have no defined standing; in fact, studies other than to determine that the remains are Indian are prohibited under the law (Ferris, 2003). During the late 1970s, archaeologist Walter Kenyon was subject to civil suit by the Union of Ontario Indians, thus interrupting his excavations at the Grimsby site. The activist Canadian branch of the American Indian Movement (AIM) became involved and asked to rebury the materials, a move that was not popular with the Iroquois Six Nations Reserve who had unofficially approved Kenyon’s excavations. After protracted negotiations, Kenyon completed his excavations and reburied the bones (Kenyon, 1977, 1982; Kristmanson, 1997).
Meanwhile, in the United States, incidents at three different Iowa sites led to the promulgation of an influential 1975 state law. In 1971, excavations at the multicomponent Kulh (13ML126) site recovered 26 Euro-American remains and one of a historic Indian woman.4 The Euro-Americans were reburied immediately and the Indian bones were removed as archaeological specimens. After acrimonious debate, which included not only the state archaeologist but also the governor of Iowa, the remains were reburied without study. At a second site, the Siouxland Sand and Gravel Quarry (13WD402), human remains had been subject to ongoing destruction. Interaction between AIM and the director of Sioux City Public Museum became violent. Ultimately, an agreement was forged to excavate the site, study all the bones, and rebury them nearby. Such excavation and study did not occur, however, because AIM removed the bones to the Rosebud reservation and reburied them. The site was ultimately destroyed without study after quarrying resumed. In the third incident, the Lewis site (13PW5), an Archaic ossuary, was being destroyed during construction of a school. In this case, archaeologists and Indians forged an agreement and the bones were carefully excavated and 392reburied after study. It was this collaboration that led to the Iowa reburial law (Anderson et al., 1978; Tiffany, 1990).
The Iowa law accomplishes several goals. Importantly, it provides support for the excavation and study of threatened human remains. It also places the state archaeologist in charge of any excavation, study, and report preparation. State-owned cemeteries are established for reburial of remains following study, although no timetable is mandated (Anderson et al., 1978; Tiffany, 1990). Although pre-1975 collections are not covered by this legislation, common practice is to also rebury them, after scientific reporting. Reflecting upon the law after over a decade of implementation, Joseph Tiffany (1990), associate director of the office of the state archaeologist (OSA), reported that one of the most positive aspects had been the trusting relationship developed between the OSA and the Indian community.
Other state laws differ in content and the degree to which the needs of the archaeological and Indian communities were met in constructing legislation. Beck and Teague (2001), for example, report that lobbyists representing developers and artifact collectors heavily influenced Arizona laws governing burials encountered on private property and state land. Thus, a maximum of only 10 days is allowed for burial removal. In addition, landowners can retain artifacts, including sacred items and those of cultural patrimony. Following a period of acrimonious encounters, the implementation of Arizona’s law has moved from the political arena to that of bureaucracy. Beck and Teague (2001) report increasingly productive collaboration between archaeologists and claimant groups.
Summarizing the status of state laws the year before NAGPRA was enacted, Ubelaker and Grant (1989) reported that only Delaware’s reburial law applies both proactively and retroactively. Many laws provide procedures for distinguishing cases of medico-legal importance from earlier interments. With the exception of California, state laws permit study, with varying time limits and different policies concerning destructive analyses.
Other 1970s federal laws were an important part of the mix. These included the Indian Self-Determination Act of 1973, the Indian Education Act of 1973, and the Indian Religious Freedom Act of 1978. The 1978 legislation was the first to give Native Peoples legal rights to burials and sacred sites (McGuire, 1992). These laws tend to contradict and supplant the 1906 Antiquities Act. The 1906 act, designed to preserve sites from looters, permitted excavation and retention of burials for only those holding permits for archaeological excavation and effectively separated Indians from the archaeological record. Similarly, the Archaeological Resources Protection Act (ARPA) of 1979 designated burials over 100 years old as “archaeological resources,” a term distasteful to Indian people as it denies their humanity (Trigger, 1997; Watkins, 2003; Winski, 1992).
As the government’s policy of assimilation waned, urban Indians moved back to the reservations. Initially, there were tensions between traditionalists and 393returning activists, but during the 1970s common interests emerged (McGuire, 1992). One of these involved national repatriation legislation. Rhetoric flowed from both sides of the issue.
Activists gained ascendancy by asserting that Euro-American ancestors were not excavated for scientific study and were never displayed. They further argued that osteological analyses had never benefited living Indian people and that museums were simply “collecting,” gaining status through increasingly larger holdings (Pearson, 1990). One of the most vocal activist spokespersons was Vine Deloria (1969, 1995), who argued for the primacy of Indian traditions and discounted skeletal studies as being “only mildly interesting and, in any case, speculative in the extreme” [Deloria (1989), cited in Lippert (1992:18)].
Traditional Indian people focused on religious beliefs. Although the following examples postdate NAGPRA, they describe traditionalist perspectives well. For example, Rose Kluth and Kathy Munnell of the Leech Lake Reservation in north-central Minnesota expressed their views on life cycles in the following manner:
We are taught that when we die, we are intended to go back into the earth, and that Mother Earth will take care of us. Burials feed the underground spirits and small creatures through the natural decomposition of the body. This is part of the natural order—we all depend on each other to survive. We must not disturb this cycle. (Kluth and Munnell, 1997:117)
The Zuni belief system also specifies the completion of a cycle.
… traditional Zuni beliefs are that each person’s life passes through four stages. The first stage is life as we know it. Little is known of the three other stages. It is essential that each person pass through each of the four stages of his or her life cycle before it is complete. All human burials with which the Zuni Tribe has a cultural affiliation are at some point in their journey through the latter stages of the life cycle. To disturb burials while on their life cycle journey is not the Zuni way. The ramifications of disturbing burials cannot be determined. How disturbance affects the life cycle journey, a journey that must be completed, is unknown, but it may well have detrimental results. (Ferguson et al., 1996:268)
Although individual physical anthropologists such as Audrey Sublett had worked closely with Indians during removals and reburials of historic period (19th to 20th century) graves as early as 1965 (Abrams, 1965; Cybulski, 2001; Lane and Sublett, 1972), the initial response from professional organizations to Native American concerns was not accommodating. The American Association of Physical Anthropologists (AAPA) passed a strongly worded resolution in 1982 emphasizing that the organization “deplored reburial” except when direct lineal descendants were involved. They further resolved that no remains should be reburied without study. It was argued that all remains should be treated in the same manner, however, and “close and effective communication with appropriate ethnic groups” was encouraged. In the same year, the forensic anthropology 394section of the American Academy of Forensic Sciences endorsed a similar motion. Communication was encouraged, although not active collaboration. Physical anthropologists, including bioarchaeologists, based justifications of burial excavation and collection of remains on knowledge gained through scientific study. A few bioarchaeologists and medical scientists attempted to address directly the impact of reburial and the importance of the study of skeletal remains (Buikstra, 1981a, 1982; Buikstra and Gordon, 1981; Neiburger, 1988; Owsley, 1984; Owsley and O’Brien, 1982; Gregg and Gregg, 1987), but their arguments were not regarded as compelling by Native American communities, either activist or traditional.
The American Association of Museums (AAM) in 1973 encouraged sensitivity to the issues surrounding repatriation. Then in 1988, AAM developed a more extended statement, recommending case-by-case decision making. Museums were urged to acknowledge that the ethics of today should supersede those of yesterday. Living descendants were to be privileged and remains acquired illegally were to be repatriated upon request. Remains obtained in a manner legal at the time but today unethical or illegal should be considered on that basis. Groups requesting remains where there were no living descendants had to demonstrate compelling religious or cultural values that outweigh scientific interests (Ubelaker and Grant, 1989).
The Society for American Archaeology (SAA) increasingly assumed the role of spokesperson for the scientific community during the 1980s. The SAA executive committee passed an initial resolution in 1983 (Adams, 1984), which closely resembled that adopted by the AAPA and AAFS. This was followed by a revised version in 1986, reaffirmed in 1999. The four cornerstones of the most recent SAA statements include (1) the legitimacy of both native and scientific viewpoints; (2) careful consideration of scientific importance vs strength of affinity; (3) case-by-case implementation; and (4) communication and consultation. The SAA has argued that from 1986 on it recognized the legitimacy of repatriation and that it worked actively with Congress to create balanced legislation (Lovis et al., 2004). Similarly, the Society of Professional Archaeologists’ (SOPA) code of ethics urged sensitivity to and respect for legitimate concerns of groups whose culture histories are the subject of archaeological investigations (SOPA, 1981).
During the early phases of activism, a few U.S. archaeologists were persuaded by the Indians’ arguments. Elden Johnson (1973), a professor of anthropology at the University of Minnesota, gently reminded the readership of American Antiquity that he believed archaeologists have an ethnographer-like responsibility to the American Indians who are the biological and cultural descendants of those whose sites we excavate. He noted that Indians protest the excavation of any burial and that they resented being objects of scientific study. Native peoples desired consultation and some feared that archaeologists were in league with looters 395(Johnson, 1973:129). Similar concerns were voiced by Joseph Winter (1980) based on his experience in California. He emphasized the advantages of developing collaborations and trying to “see the sites from the Indians’ perspective, which can be radically different from ours, yet just as legitimate” (Winter, 1980:125).
Archaeological support for reburial and repatriation efforts increased during the 1980s. For example, archaeologist Larry Zimmerman (1989, 1997) attended the 1982 SAA board meeting with Jan Hammil, a member of the American Indians against Desecration (AID). At that meeting, Hammil and Zimmerman unsuccessfully attempted to persuade the SAA board not to consider adopting an antireburial stance. Previously, Zimmerman had actively encouraged the 1979 reburial5 of remains from the Great Plains, including those from the Crow Creek Massacre site (39BF11) in central South Dakota (Zimmerman et al., 1981). He subsequently became active in the World Archaeological Congress and was central to the first inter-Congress on archaeological ethics and treatment of the dead held during 1989 in Vermillion, South Dakota. Although the discourse at the inter-Congress was sometimes acrimonious, the six points of the “Vermillion Accord” all emphasize respect—for mortal remains, for wishes of the dead, for local communities, for scientific research value, for final dispositions reflecting a balance between community and scientific/educational interests, and for concerns of various ethnic groups and those of scientists (Zimmerman, 2002:92). Zimmerman (1990:419) also argued that there is “no middle ground” on the issue of reburial.
The National Historic Preservation Act of 19666 (NHPA) has encouraged archaeological research and management of traditional cultural properties. While many tribes now have preservation and heritage programs, those of the Zuni, the Hopi, and the Navajo are among the oldest (Ferguson, 1997). Archaeologists associated with these initiatives have been some of the most vocal in support of reburial and full partnerships between Indian people and archaeologists in archaeological research. They became increasingly visible during the late 1980s and as NMAIA and NAGPRA were implemented (Anyon, 1991; Anyon and Ferguson, 1995; Anyon and Zunie, 1989; Ferguson et al., 1993; Klesert, 1992; Klesert and Andrews, 1988; Klesert and Downer, 1990).
Another influence on the rapprochement between archaeologists and traditional peoples has been the impact of post-processual theories in archaeology. Humanistic and contextual, post-processual theorists argue for multivocality in interpreting the past (Hodder, 1984, 1985; Shanks and Tilley, 1987, 1989). This approach, which began to influence American archaeology during the 1980s, 396appears better suited to the resolution of repatriation issues than processual perspectives (Zimmerman, 2002). Post-processual approaches, however, and their implications for archaeological study and repatriation issues have not been universally applauded (Clark, 1996; Mason, 1997, 2000).
The turbulent 1980s culminated in two federal laws concerning repatriation. The first, the National Museum of the American Indian Act (NMAIA, 1989), established a new national museum dedicated to the history, music, and art of American Indian cultures.7 Important for bioarchaeological research, this act also affects collections of human remains and funerary items held by the Smithsonian Institution. All are to be inventoried and, if possible, tribal or descendant origins determined. Appropriate tribes or descendants may then request that the remains are returned (Winski, 1992). At the time of the law, the Smithsonian held 18,400 sets of Native American remains (Killion and Molloy, 2000). As of mid-October, 2004, an estimated 3323 individuals have been repatriated, with 500 more awaiting tribal decisions. Approximately 3000 more are under claim by tribes and additional claims are anticipated (Billeck, personal communication, October 15, 2004). Thus, it appears that at least 37% of the Native American remains within the Smithsonian’s collections will be returned.
One positive aspect of the NMAIA is that systematic study of remains prior to deaccession is a priority. Destructive analysis is possible during this period. As Killion and Molloy (2000) emphasize, an immense amount of contextual knowledge has been gained due to this law, as well as a systematic catalogue. Repatriation from the Smithsonian’s collections has not been without its tensions, however. Initiating their request in 1987, the Larsen Bay Tribal Council voted to request the return of all remains excavated by Hrdlička from the Uyak site, on Kodiak Island. Hrdlička had excavated there during four field seasons: 1932, 1934, 1935, and 1936 (Hrdlička, 1944). Negotiations were protracted, with the Smithsonian arguing against cultural affiliation, which was offensive to the Larsen Bay community. The Larsen Bay Tribal Council’s claims were bolstered by legal assistance from the Native American Rights Fund (NARF). Following passage of the NMAIA, communication continued and expert outside advice was sought. Finally, secretary Adams decided in favor of repatriation.8 397Ultimately, the remains and 144 associated funerary items were returned to Larsen Bay in September of 1991 and January of 1992, respectively (Bray and Killion, 1994:xiii). The published report of this repatriation experience contains contributions by Native Americans, archaeologists, physical anthropologists, and museum and legal experts whose views diverge substantially. By exposing the sometime fractious process fully, however, as well as perspectives on Hrdlička as a person and a professional, the Smithsonian paints a vivid picture of the complex issues repatriation initiatives raise. A well-articulated statement about the Smithsonian’s newly formed Repatriation Office is also included in the Bray and Killion volume (Zeder, 1994).
Killion and Malloy (2000) also examined the proposition that research on Native American remains was becoming less visible over time due to repatriation. They noted that the number of scientists visiting the Smithsonian Institution’s North American Native American collections decreased during the final decade of the 20th century. A survey of two relevant professional journals, the American Journal of Physical Anthropology (AJPA) and American Antiquity (AA), for the periods 1985–1989 and 1990–1996 saw no decrease in the numbers of articles based on Native American remains. For AJPA, the proportions are 6 and 7%, respectively. The figures for AA are 4 and 7% (Killion and Malloy, 2000:114). Given the small percentages, the change is probably not statistically significant. A further survey of the same journals for the years 1999–2003 conducted during preparation of this chapter yielded figures of 6.3% (AJPA) and 8% (AA), a small but apparently stable proportion. There is no support in these data for the inference that during the period from 1990 to 2003 published osteological studies of Native American remains decreased in the AJPA and AA. Katzenberg (2001), however, inferred that this might not be the case for presentations at professional meetings, referring to both Canadian and U.S. examples.
On November 16, 1990, the 101st Congress passed NAGPRA.9 The provisions of this act are far reaching, including establishing tribal ownership 398of Native American remains and cultural items recovered from federal lands10 after the date the legislation was passed. Provisions also established parameters for considering trafficking in Native American human remains and “cultural items,” specifically funerary objects, sacred objects, and objects of cultural patrimony, a crime. Most important for bioarchaeologists, NAGPRA, in its extension of American Common Law to Native American remains, required all federal agencies, except the Smithsonian Institution, and museums (including state agencies and universities) receiving federal funds to inventory their collections of American Indian remains and cultural items, as defined earlier. The National Park Service (NPS), as well as appropriate lineal descendants and culturally affiliated Indian tribes and Native Hawaiian organizations, was to be notified by these institutions of their holdings. While remains and all forms of cultural items could be requested by Indian tribes, Native Hawaiian organizations, and lineal descendants, only Indian tribes and Native Hawaiian organizations could request objects of cultural patrimony (McKeown, 2002). Nonfederally recognized Indian groups did not have standing to make a request, a provision that has been criticized (Walker, 2002).
The deadline for such notifications was established as November 16, 1995, 5 years after the passage of the law. It quickly became clear, however, that implementation was not proceeding smoothly. The NPS did not meet its 12-month deadline for development of regulations. Part of the problem was a lack of the funding necessary for Frank McManamon, consulting archaeologist (for NAGPRA), to assemble a staff and develop proposed regulations (Walker, 1992). The legislatively mandated funds to assist museums and Indian tribes during the repatriation process were not available until 1994 (McKeown, 2002). Ultimately, Congress appropriated perhaps one-tenth of the necessary resources (Rose et al., 1996), although this may be an overestimate. Issac (2002) discusses the complexity of the problem for Harvard’s Peabody Museum, with its large, geographically diverse, and early collections whose accession records long predate computers. For the Peabody, just the consultation process itself was estimated to require multiple contacts with approximately 500 of the 758 recognized tribes in the United States. Isaac (2002) estimated that the overall cost of inventory completion for Harvard at seven million dollars, only a portion of which had been subvented by grants from the National Park Service. Ferguson et al. (1996:271) reported that the issue is equally daunting for the tribes, for whom decision making on these unfamiliar procedures is remarkably complex and time-consuming. The “sheer volume of work anticipated as a result of NAGPRA is staggering for both the 399tribes and the museums….” A third factor complicating this vastly under funded mandate was a delay in the Department of the Interior’s appointment of the authorized seven-person NAGPRA Review Committee composed of three individuals nominated by Native American groups, three proposed by museums and scientific organizations, and one additional person selected by the committee (Walker, 1992). The first meeting of the Review Committee occurred on April 29–May 1, 1992, in Washington, DC (National Park Service, U.S. Department of the Interior, NAGPRA web page).
Simply completing and systematizing the required inventory has occupied considerable effort upon the part of the NPS. Winski (1992) had estimated that as many as 600,000 Native American remains were held in museums and private collections. Other estimates reached one and a half to two million (Trope and Echo-Hawk, 1992). The minutes of the July 19, 2004, meeting of the NAGPRA Review Committee reported that the inventory of culturally unidentifiable remains was 99% complete (NAGPRA Review Committee, 2004:10), “including 111,000 human remains, including 2,627 human remains that have been transferred as recommended by the Review Committee and 489 that have been affiliated” (National Park Service, U.S. Department of the Interior, NAGPRA web page). If the 18,400 from the Smithsonian Institution were added to this figure, along with an estimated but unknown number in private hands and others repatriated without reporting, it appears that the Congressional Budget Office’s 1990 estimate of ~200,000 remains is consistent with data available in 2004.
NAGPRA’s contentious issues include the definition of “cultural affiliation” and the disposition of “culturally unaffiliated” materials. A group with standing may demonstrate one of five relationships with human remains or cultural items: “(1) lineal descent, (2) tribal land ownership, (3) cultural affiliation, (4) other cultural relationship, and (5) aboriginal occupation” (McKeown, 2002:120). While all five categories are relevant to remains or objects recovered from federal or tribal lands after November 16, 1990, only lineal descendants and recognized Indian tribes and Native Hawaiian organizations may request collections held by federal agencies or museums on November 16, 1990 (McKeown, 2002). This makes the definition of cultural affiliation crucial to the repatriation process.
NAGPRA regulations define cultural affiliation in terms of relationships of shared group identity that can reasonably be traced historically or prehistorically between members of a present-day Native American group and an identifiable earlier group. Timothy McKeown, NAGPRA program officer, whose responsibilities in 2004 included regulations, reports that a
wide variety of evidence can be introduced to document such a relationship, including geographic, kinship, biological, archaeological, linguistic, folklore, oral tradition, historic evidence and other information or expert opinion. Unlike claims of lineal descent in which the relationship between the claimant and the individual whose remains or objects are [sic] be claimed must be direct and without interruption, determination 400of cultural affiliation should be based on an overall evaluation of the totality of the circumstances and evidence and should not be precluded solely because of some gaps in the record. (McKeown, 2002:120)
A preponderance of evidence, i.e., 51% certainly, is considered legal proof rather than more stringent definitions centering on “reasonable doubt” or “scientific certainty” (Rose et al., 1996:91; Thomas, 2001:230).
Thus, both humanistic and the scientific perspectives must be weighed in determinations of cultural affiliation. Especially problematic is the evaluation of oral traditions in relationship to biological and archaeological data.11 Traditional Indians express surprise at the positivist discussion of “extinct cultures” (Binford, 1962) and resent their oral traditions being characterized as myths and legends (Anyon et al., 1997). Archaeologists speak of a division between history and prehistory, while no prehistory exists in Navajo traditions. “Our history begins with the creation of life and the creation of this world” (Begay, 1997:163).
Biological determinations of cultural identity, including those involving modern and ancient DNA, have been characterized by TallBear (2000:1) as “racist ideology.” Even so, the Western Mohegan, an unrecognized tribe, have presented DNA evidence to support recognition petitions (Kaestle and Horsburgh, 2002; TallBear, 2000). Similarly, inherited skeletal morphology has been used to identify Euro-Americans and African-Americans held within “Native American” collections (Jantz and Owsley, 1994; Ousley et al., 2000; Owsley, 1999). Resolution of these apparently conflicting weightings of attributes legally accepted as evidence of “cultural affinity” requires considerable insight concerning rigor in both qualitative and quantitative measures.
Ethnologists and archaeologists have demonstrated convincingly that oral traditions of Indian people may reflect historical events, some occurring before 1492 (Echo-Hawk, 1994; Eggan, 1967; Pendergast and Meighan, 1959; Teague, 1993; Wiget, 1982). More equivocal are assertions that even late Pleistocene or very early Holocene events may persist across the millennia. Arguments have been made, however, for oral traditions about landscapes, including volcanic events and floods, being particularly conservative and accurately represented (Cruikshank, 1981; Echo-Hawk, 1994; Hanks, 1997). Validation methods for oral traditions have also been developed (Vansina, 1985; Whiteley, 2002).
As emphasized by Anyon and colleagues (1997), concepts of time and space differ for archaeologists and traditional Indian people. Archaeologists 401conceptualize the archaeological record in terms of linear time and known space, while for many traditional Native Americans, time is not linear nor are events firmly lodged in space. Thus, Anyon et al. (1997) argue that while oral traditions may inform archaeological interpretations and archaeology may be significant in issues such as land claims, archaeology has little to offer oral traditions. The two do, however, converge in certain broad themes, “such as migrations, warfare, residential mobility, land use, and ethnic coresidence” (Anyon et al., 1997:80). Archaeological study at the site of the Battle of Little Big Horn has, for example, also been used to support Native American rather than western historical tradition (Anyon et al., 1997).
Roger Echo-Hawk (1994, 1997) has illustrated a rigorous approach to conjoining information from oral traditions and archaeology in determining whether the Pawnee were culturally affiliated with the prehistoric Central Plains Tradition and thus had rights to repatriation. First identifying ancient, nonfictional oral traditions, he cross-validated information about earthlodge form from narratives about animal ceremonialism with the archaeological record. The Smithsonian’s Native American Repatriation Committee has accepted his interpretations, and human remains from the prehistoric Steed-Kisker site have therefore been transferred to the Pawnee (Echo-Hawk, 1997).
Echo-Hawk (1997, 2000), like some other indigenous intellectuals today, e.g., Pullar (2001), argues not for the primacy of oral traditions, including origin narratives, but for respect, discounting faith-based literal interpretations that privilege oral traditions, e.g., Deloria (1995). Archaeologists and bioarchaeologists are also embracing the concept, voiced by Thomas (2001:231), that archaeology and oral traditions are “separate ways of knowing the past.” Before archaeologists attempt to use oral traditions, however, they should be made aware that some tribes, such as the Hopi and Navajo, encourage archaeological reporting of oral traditions. Others, such as the Hualapai and Zuni, do not (Anyon et al., 1997, 2000).
However thorny the issue of identifying “culturally affiliated” remains, even more daunting are repatriation issues surrounding “culturally unaffiliated” materials. As noted earlier, in 2004 most of the ~111,000 inventoried remains were classified as unaffiliated. The 1990 NAGPRA legislation does not specify a procedure for the repatriation of culturally unaffiliated remains and therefore decisions have been made by the Repatriation Committee on a case-by-case basis. During this process, for example, remains have been returned to unaffiliated tribes. A section of the NAGPRA regulations (Department of the Interior, Office of the Secretary, 1995:62167) has, however, been reserved to establish continuing responsibilities of federal agencies and museums (McKeown, 2002). At its June 8, 2000 meeting, the Review Committee developed a set of general recommendations concerning the repatriation of culturally unaffiliated remains. They noted that human remains may be culturally unaffiliated due to one of three factors: (1) they are affiliated with an unrecognized tribe, (2) they belong to 402a defined group for whom there are no living representatives, and (3) there is insufficient evidence to identify the earlier group. Regional solutions are recommended, with emphasis on consultation and consensus. In its advisory role, the Review Committee recommended that the NPS develop a draft proposed rule to be considered at the next committee meetings and then to be published for additional public comment in the Federal Register (Department of the Interior, Office of the Secretary, 2000:36463). The National Park Service has provided the Review Committee with draft regulations, which were initially approved and then rejected by the committee (Lovis et al., 2004). As of the end of 2004, no further drafts were presented or published in the Federal Register.
The development of regional consensus may not be a solution well received by all stakeholders. The SAA, for example, does not believe that the secretary of the interior has the authority to issue regulations concerning culturally unidentifiable human remains and that new legislation is required (Lovis et al., 2004). Several tribes, as well, have expressed concern about the repatriation of inappropriately attributed remains. The Wind River Shoshone rejected a proposed repatriation because they felt museum records may have been flawed. The Blackfeet, concerned about the affiliation of 15 skulls sent to the Army Medical Museum in 1892, requested scientific study by Smithsonian staff. Since they were at war with neighboring tribes in 1892, they were afraid that they might be repatriating their enemies rather than their ancestors. Following study, only those remains biologically identified as Blackfeet were repatriated (Thomas, 2000). Shortly before NAGPRA became law, the Museum of New Mexico inquired of the Zuni tribal council concerning repatriation of remains in the museum’s collection excavated from Zuni lands. In response, the tribal council passed a resolution that applies to all ancestral remains and associated grave goods in museums. It stated that removal from their graves had so desecrated the materials that there was no way to reverse the process. Thus, Zuni remains in museums as of ~1989 are not to be repatriated but instead curated with respect (Ferguson et al., 1996).
The issue of cultural affiliation and the differing interpretations of the Indian and scientific communities is writ large in the recent example of “The Ancient One” (Kennewick Man). This example has relevance for the legality of the National Park Service developing guidelines without new legislation and the form those guidelines might take (McLaughlin, 2004).
Reports on Kennewick Man abound, e.g., Chatters, 2000, 2001; Owsley and Jantz, 2001; Swedlund and Anderson, 1999; Thomas, 2000, 2004; Watkins, 2003; Tri-City Herald, Kennewick Man Virtual Interpretive Center: Legal Documents 2005; McManamon, 2004, and are not presented in detail here. Briefly, the case involves remains exposed by erosion in 1996 along the course of the Columbia River in Washington. Referred initially to anthropologist James Chatters as a potential forensic case, the remains contained an ancient projectile point and were 403C-14 dated to 8000–8500 BP. During the course of his investigation, Chatters (1997) initially referred to the remains as showing more European features12 than those of recent American Indians and was quoted in The New York Times as having thought the remains were those of a “white guy” (Egan, 1996, cited in Thomas, 2004). Chatters (2000) later published systematic observations that paralleled earlier conclusions of a team of experts consulting for the NPS. Both studies concluded that the Kennewick remains more closely resembled East Asian and Polynesia peoples rather than recent American Indians. His features were not, however, unlike the few available Archaic remains from North American. This sequence of assessments ultimately attracted considerable attention and led to repatriation requests from not only a coalition of nearby Indian tribes, but also the Asutru Folk Assembly, a traditional European pagan religion, and the Polynesian heritage activist Faumuina (Asatru Folk Assembly, 1997; Jelderks, 2001; Walker, 2002, 2004).
In September 1996, after a month of study by Chatters and the establishment of antiquity, the Army Corps of Engineers (COE) decided to repatriate the remains to the Confederated Tribes of the Umatilla Indian Reservation (Chatters, 2000; Owsley and Jantz, 2001; Watkins, 2003). Before repatriation could occur, however, eight anthropologists13 filed suit that halted the return. As Watkins (2003) emphasizes, there were three main points at issue: (1) the equation of pre-1492 antiquity with “Native American,” (2) the assertion that the study of these ancient remains would be of major benefit to the United States, and (3) the allegation that the scientists’ civil rights were being denied by the Corps’ actions.
Litigation proceeded, with attention focused on the issue of cultural affiliation and whether the Kennewick remains were “Native American.” In March 1998, the NPS/COE commissioned a series of studies by 18 experts who evaluated the remains for cultural affinity through the study of archaeological, biological, historical, and traditional information used for determining the cultural affiliation of remains under NAGPRA. Sections of the report were submitted during 1999 and 2000 (McManamon, 2004). The report well illustrates the difficulty in gaining consensus from humanistic and scientific interpretative traditions in establishing cultural affinity for Native Americans. Studies of the physical remains, as no aDNA was recovered (Kaestle, 2000; Merriwether et al., 2000; Smith, 2000), are cited earlier, and suggest that the skeleton is distinctly different from recent 404Indian groups; the archaeological evidence (Ames, 2000) was equivocal and could not definitively support models for continuity or discontinuity. Boxberger (Boxberger and Rasmus, 2000), in his analysis of traditional historical and ethnographic information, concluded “that the ethnographic and historic data specifically place the Yakama, Wanapum, Palouse, Walla Walla, Umatilla, Cayuse and Nez Perce in this area. The oral traditions place these tribes in this area since the beginning of time.” Linguistic evidence could not definitively establish continuity or replacement, although the ethnobiological terms of the traditional regional language core suggest considerable time depth (Hunn, 2000). Turning to oral traditions, however, Hunn (2000) notes a legend (Lalíik) that specifies a summit above an ancient flood that may reflect a Pleistocene event linking the contemporary language group (Sahaptin) to a very ancient, local past. Radiocarbon dates confirmed the ~8000–8500 BP antiquity of the Kennewick remains (Fiedel, 1999).
Although the report had focused on issues of cultural affiliation, the acceptance of Kennewick as a “Native American” also loomed large in the opinions presented to the court by the NPS. The remains were argued to be Native American, primarily based on the antiquity of the materials (McManamon, 2000). Secretary of the Interior Bruce Babbitt’s (2000) letter to Louis Caldera, then secretary of the Army, concluded that the remains were Native American and that the preponderance of evidence supported cultural affiliation with the Confederated Tribes of the Umatilla Indian Reservation. In reaching his conclusions concerning cultural affiliation, Babbitt privileged geographical evidence and oral traditions. His letter also emphasized that due to the special relationship between Indian tribes and the federal government, “any ambiguities in the language of the statute must be resolved liberally in favor of Indian interests.” As Ferris (2003:165) notes, one of the important lessons from the Kennewick case is “that federal agencies will be inclined to interpret the affiliation provisions in the act [NAGPRA] as meaning that any Native claim, no matter how tenuous or strong the ‘science,’ justifies repatriation.”
The SAA has taken issue with the Department of Interior (DOI) conclusions, arguing that Congress intended that the “earlier group” should be “analogous to a modern tribe in terms of its composition and scale” (Lovis et al., 2004:177). The SAA is also against the repatriation of remains to diverse sets of modern tribes under the guise of joint affiliations on the theory that if the set is sufficiently large, an appropriate relationship must be there somewhere (Lovis et al., 2004:178). For these reasons and others, the SAA filed an amicus curiae brief in support of the plaintiffs. Significantly, however, the SAA has never contested the identity of the remains as “Native American” (SAA Kennewick Legal Briefs web page; see also Kelly, 2004).
On August 30, 2002, Judge John Jelderks, United States Magistrate Judge for the District of Oregon, found secretary Babbitt’s conclusions unwarranted 405and overturned his decision [Bonnichsen v. United States, 217 F. Supp. 2d 1116 (D. Ore. 2002), Jelderks, 2002]. He noted that the coalition, which includes one unrecognized tribe, does not conform to the definition of “tribe” in the singular, as specified by NAGPRA. The judge also largely echoed the SAA’s concern for clear definition of an earlier group, which was lacking in Babbitt’s letter. He explicitly emphasized the difficulty posed by the antiquity of the remains and the absence of associated artifacts. Jelderks discounted the oral tradition evidence, concluding “narratives are of limited reliability in attempting to determine truly ancient events” (p. 53). He also concluded that even if oral traditions “could be relied upon to establish that the ancestors of the Tribal Claimants have resided in this region for more than 9,000 years, the narratives cited by the Secretary do not establish a relationship of shared group identity between those ancestors and the Kennewick Man’s unidentified group” (p. 55).
Following an appeal by a coalition of four Plateau tribes and tribal groups, the SAA filed a second amicus curiae brief (SAA Kennewick Legal Briefs web page) supporting Judge Jelderks’ finding that that the DOI had failed to convincingly argue its case for the definition of Native American and for cultural affiliation. Similarly, the SAA supported the district court’s determination that the tribal claim was constructed improperly, in that the tribes were not a single cultural entity and that a federally unrecognized tribe was included. Concerns about levels of proof and the special relationship of the agency (DOI) to the Indian tribes were also raised.
The decision had been appealed to the Ninth Circuit Court of Appeals, who in February and April of 2004 denied both the appeal and a subsequent petition for a rehearing [Bonnichsen v. United States, 357 F.3d 962 (9th Cir. 2004); superseded and amended by Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004)]. In a final statement, the court concluded that “[n]o recognizable link exists between Kennewick Man and modern Columbia Plateau Indians,” and, in fact “the record does not contain substantial evidence that Kennewick Man’s remains are Native American within NAGPRA’s meaning” (Gould, 2004:1604). The opinion further emphasized that these “remains are so old and the information about his era is so limited, the record does not permit the Secretary of the Interior to conclude reasonably that Kennewick Man shares specialized and significant genetic or cultural features with presently existing indigenous tribes, people or cultures” (Gould, 2004:1608). Thus, while Judge Jelderks had raised several other issues in overturning Babbitt’s determinations, the final appeal was denied largely because the court was not convinced that the remains conformed to NAGPRA’s definition of “Native American.”
As Watkins (2003) observes, this decision implies that Indian people will now have to focus on defining, perhaps at an evidentiary level, when immigrants became Native Americans. Or perhaps scientists can identify the threshold between the two? The real tragedy is that an estimated one to three million dollars 406were spent on this case (Schneider, 2004), when it could have been directed toward tribal or archaeological programs (Watkins, 2003).
The Kennewick case will doubtless be precedent setting, unfortunately so in that the archaeological context was poorly defined and quickly reburied by the COE. The absence of associated cultural materials also makes the issue of tribal associations difficult. However, reverberations may be profound, requiring, for example, that the DOI consider a fourth subcategory of culturally unaffiliated remains: remains of sufficient temporal and cultural distance from contemporary Native American tribes that claims of cultural affiliation cannot be supported under NAGPRA. Judge Jelderks’ decision also reinforces the need for further legislation in reference to the repatriation of culturally unaffiliated remains (McLaughlin, 2004).
The clash between processual “scientific” archaeology and traditional Indian perspectives is frequently glossed as one of ethics. Processualist archaeology is said to be less ethical because it does not unconditionally support the perspectives of living traditional communities. The American Anthropological Association’s ethics statement clearly states that if conflict occurs, the anthropologist must privilege the lives of the people studied. For archaeologists and bioarchaeologists that has traditionally meant the subject of their inquiry, a person not now living. Any shift to focus on living descendants largely postdates 1980. Rather than arguing about ethics and determining degrees of ethicality, a more productive middle ground may be that suggested by Goldstein and Kintigh (1990), who assert that the ethical dispute is better considered a conflict in cultural values. Ethics, as a code of behavior that derives from cultural values, is thus a cultural construct. The preferred behavior, they argue, in situations of culture conflict, is one of tolerance and respect, meaning that compromise is possible. That their proposal may represent a substantive middle ground is reflected in the fact that soon after their 1990 article appeared, it was critiqued by both conservative archaeological interests (Meighan, 1992) and those favoring reburial (Klesert and Powell, 1993). It appears that desirable tolerance is building, following increased communication and the emergence of collaborative community-based heritage programs (Dongoske et al., 2000; Ferguson, 1996; Watkins et al., 1995).
While such collaborations are moving apace in situations where archaeologists are simply mandated to avoid other than endangered interments, there are fewer cases of active involvement of U.S. bioarchaeologists directly in collaborative research efforts. Some examples do exist, however. One of these is the productive alliance forged by Phillip Walker, a physical anthropologist, and the Chumash Indians of southern California. In 2004, Walker had worked with the tribe for 25 years. During this period, the tribe and Walker created a specially designed subterranean ossuary located on Walker’s campus in Santa Barbara, California. This location is near the center of the region where the Chumash lived during 407historic times and was specially designed in consultation with spiritual leaders to ensure it met their needs. It also protects the remains in a context where researchers may continue to provide information about the Chumash past, supervised by the living descendants. Walker has carefully developed this collaboration, sharing information, involving the Chumash in research projects, and assisting the tribe in other preservation initiatives (Walker, 2002).
Another productive collaboration occurred in the midcontinent, involving the Omaha Tribe and physical anthropologist Karl Reinhard. As a result of Nebraska’s 1989 reburial law, the Omaha tribe asked the University of Nebraska for the return of historic remains. At the request of the tribe, Reinhard and colleagues collaborated with the tribe in developing research designed as follows:
(1) to provide an idea of what Omaha life was like during 18th–19th century; (2) to correct some misinterpretations of Omaha culture and history, especially past archaeological studies that suggested the Omaha were warlike; (3) to address past and modern health issues: diet, diabetes, cancer and other diseases; (4) to explain the science of the analysis so that young Omaha people might become interested in pursing careers in science and technology; (5) to define the contributions of Omaha culture to Native American society as a whole and the world at large. (Reinhard, 2000:515)
The full scientific study has been reported in a book chapter (Reinhard et al., 1994). The results have also been communicated to the Omaha, who have been particularly interested in dietary and activity reconstructions indicating that the current high level of diabetes among the Omaha result from recent changes in lifestyle. Reinhard and colleagues also attribute the 19th-century population decrease to epidemic disease rather than warfare, thus confirming Omaha oral traditions. Other points of interest concerning historical figures and the contributions of the Omaha to the history of the Great Plains were also of interest to both the tribe and the scientists. (Reinhard, 2000)
In the Southwest, as another example, the Hopi — who claim cultural affiliation with all prehistoric remains in the American Southwest (Anyon and Thornton, 2002) — appear open to the (nondestructive) study of remains. Importantly, the Hopi cultural advisors are willing to consider professional research designs that address specific problems using specified sets of data, which mutually benefit the Hopi and the anthropologists. Even though reburial is specified, the Hopi are interested in inherited features that may document migrations, as well as life history indicators that define age-at-death, sex, and health status. Funerary items as indicators of social status are also of interest (Ferguson et al., 2000).
Other collaborations involve museums and Indian people. For example, during the 1990s, the University of Missouri opened the Museum Support Center, a new state-of-the-art, 25,000 square-foot curation facility. One portion has been dedicated as a mausoleum, a place that is secure and not open to most visitors. Several Indian groups have visited the mausoleum and blessed it in various ways, 408satisfied with the quality of curation and seclusion (Michael O’Brien, personal communication, November 18, 2004).
There are several important points raised by these collaborations. First is that there is no global solution. Walker’s collaboration works because it is based in Chumash culture history. The issue of diabetes and warfare were of interest to the Omaha, but may not be relevant to many other Indian peoples. The Omaha desire that more young Indian people embark on science careers, which may not be the vocation of preference among other groups. The Hopi are concerned about migrations, which might not interest other tribes. Those visiting the University of Missouri facility are satisfied with the security of the mausoleum and the level of respect accorded the human remains stored there. This may not be an ideal solution in other regions. However, the need for openness, for communication, for mutual respect, and for initiatives that are of interest to all collaborating parties is global.
Canada has no federal legislation comparative to NMAIA and NAGPRA. Some find this situation undesirable in that national heritage legislation could provide uniform policy for federal lands and it is perceived that funding levels would increase (Syms, 1997). Yet, as emphasized by Watkins (2003), relationships between First Nations and archaeologists are strong and becoming stronger. He attributes this to “archaeologists directly taking into consideration the wishes of the indigenous populations in the research arena rather than performing through a regulatory or legal framework” (Watkins, 2003:277). It would appear that relationships between First Nations and physical anthropologists/bioarchaeologists are also quite strong and to be envied by many colleagues in the United States. Why might this be?
One factor may lie in divergent historical paths taken by archaeologists and physical anthropologists working in Canada and in the United States. One clear difference is the timing in which the leadership in both professions began voicing sympathy with concerns expressed by First Nations about burial excavations and the curation of remains and funerary items.14
In 1976, The Royal Society of Canada sponsored a symposium on New Perspectives in Canadian Archaeology. One of five sessions was entitled “Archaeology: New Motivations and Attitudes.” The introductory paper, by William Taylor, then director of the National Museum of Man (NMM, now the National 409Museum of Civilization, NMC) in Ottawa, emphasized the growing engagement of indigenous people.
Another major consideration in new motivations and attitudes in Canadian archaeology is, of course, the rapidly developing involvement of Canadian native groups, based on a long and lasting concern in Canadian archaeology. It is generally recognized now that it is no longer sufficient to explain that white archaeologists also dig up the bones of white men and put them on display. The profession seems to be adjusting with reasonable comfort to a very different situation as native peoples of Canada become more involved at both the local and national level. We have yet a considerable distance to travel…. It seems that we have not, in fact, seriously attempted to provide, by popular publication or museum display or by local teaching, the kind of direct return to the Indians and the Inuit of Canada to which they are entitled — and which we are capable of providing. (Taylor, 1976:154)
Speaking from his experience with Native peoples of Quebec, Laurent Girouard also emphasized the need for engagement.
These days, whether we like it or not, the archaeologist who studies the ancestors of the Amerindians must bear the burden of the colonial past which was forced upon this continent’s first inhabitants by the whites. He must choose one of two alternatives. Either he continues to study the Amerindians’ past as something which has no political meaning, no relationship with the present and therefore with the life of the Indian and Inuit communities today, or he can study this past by consciously placing it in a historical continuum. If he does this, he must take into account the situation of the Amerindian today. (Girouard, 1976:159)
Two additional papers spoke of the need to engage communities as equal partners (Swinton, 1976) and the dissatisfaction of Indians over the excavation and display of burials (Johnston, 1976). Next, Jerome Cybulski, a leading physical anthropologist, located at the NMM spoke about skeletal analyses. Cybulski (1976) emphasized that in response to First Nations concerns, in situ analyses had occurred in Canada during the 1970s and that reburials were occurring in the course of truly collaborative efforts in British Columbia, projects initiated by the tribes. These interactions appeared to lack the antagonisms seen during the 1970s in Iowa, for example.
Other evidence of sensitivity to First Nations concerns is evident in Cybulski, Ossenberg, and Wade’s “Committee Report: Statement on the Excavation, Treatment, Analysis and Disposition of Human Skeletal Remains from Archaeological Sites in Canada” (1979). Prepared for the Canadian Association of Physical Anthropologists, the report was a response to public concern over the “nature and purposes of scientific study of human skeletal remains from archaeological sites in Canada” (Cybulski et al., 1979:32). A significant portion of the report is dedicated to “the concerns of living native peoples in that certain archaeological sites, particularly those of the late prehistoric period and those of the protohistoric period, have direct bearing on their cultural and biological heritage” (Cybulski et al., 1979:32).
410In response to such concerns, the committee emphasized that there were many close working relationships among archaeologists, physical anthropologists, and local native groups. Their recommendations included increased interaction and collaborations with local communities where biological and cultural heritage is demonstrated in archaeological initiative.
It is recommended, therefore, that communication and consultation with local communities, on the part of both individual researchers and the provincial or federal agencies responsible for archaeological sites, becoming a working rule uniformly applied throughout the country. The Canadian Association for Physical Anthropology urges individual researchers — archaeologists and physical anthropologists — to consult with local native band councils about their projects and to keep local communities informed of the progress of those projects. The Association also encourages individual researchers to return information to the communities in the form of unpublished and published reports, and by means of formal lectures and informal/presentations before, during and after field work. (Cybulski et al., 1979:35)
The authors close with an emphasis on equal treatment of all human remains, no matter what the heritage, including pioneer graves (Cybulski et al., 1979). This statement contrasts markedly with the stand taken by the AJPA in 1982.
Thus, it appears that the Canadian bioarchaeologists were developing a pattern of community partnership and consultation that would visibly appear in the United States over a decade later and usually only after consultations were legally mandated. The longer history of collaboration with First Nations has yielded a number of exemplary collaborative case studies, including several projects by Cybulski (1978, 1992; Cybulski et al., 2004), who speaks of his 35 year career in the following terms: “I’ve done field and laboratory osteology in several different regions of the British Columbia portion, ever with the co-operation and active participation of First Nations and their members” (Cybulski, 2001).
Another impressive project is represented in Williamson and Pfeiffer’s Bones of the Ancestors: The Archaeology and Osteobiography of the Moatfield Ossuary (2003), developed in collaboration with the Six Nations Council of Oshweken, Ontario. Multivocal in presentation, it includes indigenous intellectual, physical anthropological, and archaeological perspectives. Destructive analyses to estimate diet were conducted, authorized by the Six Nations Council.
Two additional recent studies of ancient individuals also illustrate close collaborations between communities and bioarchaeologists. In August of 1999, hunters discovered the remains of an ancient body in the mountains of northwestern British Columbia, not far form the Alaska border. After 550–600 years, it was eroding from a glacier. At the request of the local Indian community — the Champagne and Aishihik First Nations (CAFN) — the remains, termed Kwäday Dän Ts’inchí or “Long Ago Person Found,” were carefully recovered, kept in a relatively sterile and chilled condition, flown to Whitehorse, Yukon Territory, and studied prior to reburial. Portions of the associated hat and cloak 411were radiocarbon dated. The collaborative agreement developed between the Province and the local First Nation emphasized, among other points, the need for respectful treatment and a desire for state-of-the-art analyses of both the body and the artifacts. Thus, destructive analyses for various determinations, including diet, were approved (Beattie et al., 2000). Such studies were informative in that they indicated that this young man had lived near the sea most of his life. Following scientific study and the recovery of samples, the ashed remains were buried near the site of discovery (Beattie et al., 2000; Dickson et al., 2004; Lundberg, 2001).
Another recent collaboration developed as a result of a burial eroding from the shoreline of Southern Indian Lake on the Churchill River, Manitoba, first noted during June 1993. Due to fluctuating lake levels, full recovery did not occur until the summer of 1994. These remains of a young woman were considered an ancestor of local Cree and were referred to as kayasochi kikawenow or “our mother from long ago.” The elders concluded that she had permitted herself to be recovered so that she could share her knowledge with present and future generations. Her remains were studied in nondestructive ways, including X-rays of the tibia. Artifacts were photographed, cast, and the originals united with the remains, reburied near the original gravesite. A few artifacts were sacrificed for radiocarbon dating, indicating that she died approximately 330 years ago. In addition to the technical studies, Cree archaeologist Kevin Brownlee authored a book for general audiences in collaboration with Leigh Syms (Brownlee and Syms, 1999). Brownlee also created a permanent interpretative display for the community school at South Indian Lake.
These Canadian examples both show differences and similarities to those reported for the United States. The Kwäday Dän Ts’inchí project promoted state-of-the-art study, including destructive analyses. Many of the other cases also included destructive analyses within their research designs, usually directed toward research questions of mutual interest to the physical anthropologists, archaeologists, and the First Nation community. While Reinhard and colleagues also engaged in destructive bone chemistry analysis to investigate diet, many Native American communities in the United States are against destructive analyses, some including X-ray analysis in this category. The advantage of long-term commitment to community engagement is well illustrated in the work of Cybulski, as it has been for Walker in the United States. All the Canadian examples, however, specified reburial rather than curation for future generations of researchers. As in the United States, each approach reflects the cultural and geographic contexts in which the collaboration developed.
At the level of the national museum, even without a federal mandate, the NMC stopped accessioning aboriginal human remains in the early 1970s. Remains are repatriated according to a policy informed by the 1992 task force document promulgated by the Assembly of First Nations and the Canadian Museum Association. A case-by-case approach has been implemented, with validation 412requiring demonstration of ancestral–descendant relationship or historical connections. Prior to deaccessioning materials, the NMC reserved the right to inventory and study, for both scientific and heritage preservation purposes. The present director of the Archaeology and History Division of the NMC emphasizes that nearly all the collections are vulnerable to repatriation (Morrison, 2004).
The NMC and First Nations, such as the Inuit Heritage Trust (IHT), have, however, reached agreements that may ensure the long-term availability of existing collections. The NMC’s agreement with the IHT, finalized in 1998, affects the Nunavut Territory human bones, approximately one-fourth of the NMC’s human remains collection. Destructive analyses must receive explicit consent of the IHT; other studies require notification. By the end of 2004, two requests for destructive analyses had been received by the IHT and both were approved. Proposals submitted to the IHT must include not only clear statements concerning research design and analytical methods, but also must explain potential benefits to the community. As Cybulski, curator of physical anthropology at the NMC states, such practices “make our work more accessible and less mysterious to the public” (Cybulski, personal communication, Dec. 15, 2004).
In general, Canadian museums, physical anthropologists, and archaeologists appear to favor mediation over litigation in addressing repatriation issues (Ferris, 2003). Pressure from First Nations for additional repatriations continue, however, including activist rhetoric: “Kitigan Zibi, like all other First Nations across Canada, in our relationship with the federal government has been, and still is, impacted by a hierarchy of institutional racism” (Odjick, 2004; Whiteduck, 2004). It remains to be seen whether such pressure will lead to a federal mandate. As emphasized by Watkins (2003), collaborations in Canada appear to be proceeding without the necessity of federal legislation. Such laws of necessity gloss vast differences in cultural perspectives and risk creating a situation in which one size fits none.
Clearly, one of the intended consequences of federal repatriation legislation was increased communication between and active collaboration with Indian communities and those who excavate and study mortuary sites. For archaeologists, this has obviously occurred, especially in regions with large Native American resident populations. An unintended impact, however, appears to be the isolation of most skeletal biologists/bioarchaeologists from Indian people, from archaeologists, and from archaeological contexts.
413Walker (2002:31), who is one of the few success stories in long-term bioarchaeology/Indian collaborative efforts, urges skeletal biologists to be proactive in communicating and lifting “the shroud of mystery” associated with what we actually do. Apparently, few have heeded Walker’s sage advice.
One reason why physical anthropologists are relatively invisible in the debates surrounding NAGPRA and in published results of collaborative ventures is that they are frequently mistaken for archaeologists. One archaeologist who has been a key figure in NAGPRA/NMAIA-related activities suspects that in part this is due to a calculated masquerade by physical anthropologists.
Although the situation has improved dramatically over the last 10 years, it is probably still accurate to say that 10% or fewer of the archaeologists in this country have ever sat down and talked with an Indian, particularly about the archaeologist’s research. I have no doubt that the number of physical anthropologists making such contacts is even less, since several physical anthropologists have told me that they pretend to be archaeologists when placed in a situation where Indians might be present so that they can avoid having physical anthropology be directly attacked. (Goldstein, 1992:68)
In addition to conflict avoidance, Goldstein (Chapter 14) suggests several other reasons for the isolation of bioarchaeologists from archaeological contexts, archaeologists, archaeological problem solving, and Indian peoples. One of the reasons for a divergence of archaeological from bioarchaeological interests is inherent in NAGPRA. Since normally only endangered burials are excavated, mortuary features cannot enter a planned research design, as specified by Buikstra (1977) in her call for interdisciplinary integration in bioarchaeological study. Burials are avoided and thus students — whether archaeologists or bioarchaeologists — have very little experience in excavating and analyzing mortuary contexts as part of larger, problem-oriented research designs. Nuanced interpretations of ancient lifeways depend on an appreciation of the subtleties inherent in the archaeological record. While excavation projects continue, these are infrequently guided by the integrative research strategies that lead to a contextually sensitive bioarchaeology.
Second, since post-NAGPRA archaeologists seldom excavate and analyze mortuary sites, they are thus led to deemphasize data derived from the study of burials (Chapter 14). Meanwhile, bioarchaeologists and osteologists have become increasingly busy generating such data as another consequence of NAGPRA. Clearly, the law does not require research other than that necessary to create and inventory and to conduct the necessary archival review to determine cultural affinity. Neither does NAGPRA (or NMAIA) preclude research. As emphasized by Rose and colleagues (1996), only a small percentage of excavated remains had been studied prior to NAGPRA and data collection protocols varied widely. One of the profession’s responses to NAGPRA has been to develop an extensive set of recommended standards for data collection, begun by the Paleopathology Association (Rose et al., 1991) and later elaborated as Standards 414for Data Collection from Human Skeletal Remains (SOD), with National Science Foundation support (Buikstra and Ubelaker, 1994).
Federal agencies, e.g., the Army Corps of Engineers, CRM firms, and museums, are requiring detailed inventories following recommendations in SOD. While it is imperative that these data be collected, it is being gathered from remains far removed from their archaeological contexts and their living descendants. The quality of archaeological field notes varies, and these are infrequently consulted when the priority is data collection, using a time-consuming protocol. Thus, skeletal samples are commonly reported as aggregates, as if they were de facto representative samples of the populations from whom they were derived. Extensive and rich databases have been generated, for example, from regional surveys sponsored by the COE (Owsley and Rose, 1997; Rose, 1999). Importantly, these investigations include a number of non-Native American ethnic groups, such as Chinese and Euro-Americans. However, with few exceptions, the regional surveys link remains to geographic and environmental zones rather than nuanced considerations of archaeological and cultural contexts. To some degree, the latter is again a by-product of the way NAGPRA inventories have been implemented. Although funerary items must be inventoried and reported, there have been no extensive, standardized studies in the manner specified for skeletal remains.
A further factor relates to the manner in which different “bioarchaeologies” have developed. As Goldstein (Chapter 14) emphasizes, the original bioarchaeological emphasis was on the collaborative integration of skeletal biologists, other specialists (archaeobotanists, geomorphologists, faunal analysts, etc.), and archaeologists in the development and implementation of research designs. In contrast, Clark Larsen’s influential approach to bioarchaeology, while also interdisciplinary, links skeletal study to the physical and natural sciences rather than to archaeology. Furthermore, recent (post-1980) theoretical approaches in archaeology are seldom referenced (Chapter 14).
In a summarizing statement on reburial, Reinhard (2000) dichotomizes the globe into reburial prone and nonprone regions. He contends that within the former, research will center on tribal issues and concerns and it is in such contexts that nontraditional, culturally sensitive approaches will develop. He argues that traditional scientific paradigms will shift to nonprone regions and it is here where training shall occur and where new methodologies will develop. Bioarchaeologists, as natural scientists, will move to nonprone regions or embrace forensic anthropology. Museum curators and archaeologists, as regionally based social scientists, are more likely to remain, to compromise, and to shift paradigms (Reinhard, 2000). It would be a shame if Reinhard’s predictions come to pass, especially since his work with the Omaha combines scientific rigor and community sensitivity in an exemplary manner.
415Reinhard (2000) indicates that the Omaha defined their study goals in collaboration with University of Nebraska officials. The research questions, of concern to living Omaha, required not only knowledge of oral traditions and contemporary medical problems, but also the manner in which analyses of bone chemistry, for example, could be used to implement the research design. Osteological analysis involved not simply standard descriptions of age, sex, and inherited features, but instead the definition of significant research problems drove the protocol. This is exactly the problem-oriented model that anchored “bioarchaeology” as originally conceived (Buikstra, 1977). This model advocated interdisciplinary study whereby all stakeholders collaborated in a spirit of mutual respect to develop anthropologically significant research designs. The conversation is now being extended to include Native Americans, who bring both special humanistic knowledge and defined contemporary concerns to the table. Their perspectives are no less complex and nuanced than the bioarchaeologists’ assessment of variant chemical signatures in bone. The inclusion of living descendants in collaborative “bioarchaeological” initiatives thus poses new challenges, but the opportunities hold remarkable promise for advancing our knowledge of living peoples and their pasts.416