***Trigger warning***
For some of you, this will be difficult to read, it will not be comfortable and will contradict what you might have been taught in school. If you don't already know by now, I have a Master's, am an enrolled Tribal member and an archaeologist. Based on that, you will question my credentials, the things I am writing about, and make attempts at attacking the logic, facts, and thesis of this blog. You may even try to attack my identity, but go ahead, I am a Native archaeologist. If you don't think I have had those internal battles a long time ago, you are lying to yourself. Good luck with that. However, you should know, I am not the first to write about this subject, but I might be one of the first Native archaeologists to blog about it.
The war against cultural appropriation within Indian County is on and the Tribes are winning. Cultural appropriation is defined by the Cambridge Dictionary as "the act of taking or using things from a culture that is not your own, especially without showing that you understand or respect this culture". Most of the battles of cultural appropriation have been fought within the context of Native mascots, the arts, and fashion. Mascots, fashion, and the arts have one thing in common, they are all based on outward representations of Native peoples. While these fronts have been making progress within the last ten years, Natives really haven't brought this war to the field of archaeology, but we need to. Cultural appropriation within archaeology, is less obvious to the public, full of intellectuals who spend their professional lives justifying their careers, positions, theories, and research. They are also working within the context of American Anthropology, which has helped define what does and does not constitute cultural appropriation. This contributes to, what I believe is, one of the biggest academic conflicts of interest in American history. The justification for cultural appropriation in archaeology is typically couched within three contexts: legal, scientific, and ethics. Here I provide you an introductory analysis of all three.
- “Legal Framework”
I should note here that the letter of the law is different than the application of the law. It is similar to building a house. There is the way you planned it, and there is the way it came out which are two different things. It's not bad, it is just what is expected. Unfortunately, the application of the law is different from one person to the next. With high turnover in the public sector, the application of the law is inconsistent as the tides, thus the opinions stated here are based on the legal application as opposed to the letter of the law. Some might say that things were a lot worse before the establishment of these laws, however, when you come from an underrepresented population, such as a Tribe, these laws weren’t built with them in mind.
The Archaeological Resources Protection Act of 1979 (ARPA) was created to protect archaeological sites within the United States. According to McManamon (2000), it was enacted recognizing that “archaeological resources are an irreplaceable part of America's heritage and that they were endangered increasingly because of the escalating commercial value of a small portion of the contents of archeological sites.” Sites were being heavily looted on Federal Lands and the Antiquities Act of 1906 wasn’t strong enough to prosecute individuals. This stronger law would provide for enforcement and fines and an excavation permitting system.
ARPA became an enhanced form of the Antiquities Act, yet the power over archaeological sites remained in hands of Federal Agencies and archaeologists. As we see in Section 4 of the Act, it provides a mechanism for the issuance of archaeological excavation permits to professional archaeologists which then triggers the notification to Tribes. Notification, not consultation. Unlike the National Historic Preservation Act of 1966, which requires consultation with Tribes for Federal projects that have the potential to impact resources significant to Tribes and Hawaiian Natives. This notification piece is a new addition since the Antiquities Act, which in theory was thought to be a benefit to Tribal resources, but in practicality, it has not. Tribal concerns are noted by Federal agencies so long as they don’t interfere with the progress of the academic archaeological inquiry. Therefore, ARPA is the legal mechanism for justifying the appropriation of Native culture through a permit system eligible only to those who have certain qualifications, most of which are older, non-native men.
The National Historic Preservation Act of 1966 (NHPA) was established to preserve and protect heritage sites that were significant to the history and prehistory of the United States. Once set up, it was meant to allow the public to participate in the identification, evaluation of significant sites and protection of them from future federally funded projects. The publics inclusion was short-lived and has since been completely administered, tailored to, and standardized for archaeologists. Archaeologists were only interested in archaeological sites at the time, and specifically those which they deemed as significant. Their significance was measured upon the amount of cool stuff that they could dig up, put in museums and study. Therefore, all the “significant” sites in the US were primarily selected for their archaeological value and little else mattered. But NHPA has much more potential than archaeology and for Tribes, who have been cut out of managing their resources through to the 80s and 90s, there has been a ton of work to do, or undo in some cases.
Pursuant to NHPA, when archaeologists take to the field, they are required to apply the significance criteria in evaluating a site. For a site to be considered eligible for inclusion in the National Register of Historic Places a site must be associated with at least one of the four criteria:
Criterion A, "Event," the property must make a contribution to the major pattern of American history.
Criterion B, "Person," is associated with significant people of the American past.
Criterion C, "Design/Construction," concerns the distinctive characteristics of the building by its architecture and construction, including having great artistic value or being the work of a master.
Criterion D, "Information potential," is satisfied if the property has yielded or may be likely to yield information important to prehistory or history.
Since the NHPA’s inception, archaeologists have been recording, applying the four significance criteria to site evaluation. However, as stated before, archaeologists really were only looking for archaeological value, which falls under criterion D. When Tribes became more involved in management of cultural resources in the 1980s, they had to deal with the fact that almost all sites were exclusively evaluated for their criterion D eligibility, leaving the other three dangling in the wind.
In the 30 years since, there are still many sites that have only been evaluated under criterion D, and federal agencies are still permitting this narrow application of the law. Tribes continue to work diligently to evaluate the sites under all four criteria. For the most part, Tribes are in a unique position and have the only expertise to apply all four. This is a double-edged sword, as Federal agencies are required to work with Tribes in the evaluation of sites, which is both timely and costly. But on the other side of this, if the Federal agencies do not evaluate a site under all four criteria, they are not complying with Federal law. Evaluation, then, moves at a glacial pace and never fully gets resolved as there are so many sites to evaluate and re-evaluate. Most of the time is spent negotiating with Tribes over which sites should be prioritized for evaluation, which is another painstakingly long process exacerbated by the fact that effects to these sites are continuing to occur and require much-needed protection. Since funding can’t be afforded to sites that haven’t been evaluated, sites must wait for protection until the evaluation process is complete.
Section of 106 of the NHPA was created for federal agencies to consider their impact on cultural resources that are NRHP eligible. Just because a site is eligible for the NRHP, doesn’t mean the federal agency has to protect it in place. Instead, NHPA provides a mechanism to avoid, minimize or mitigate a site. The method of mitigating any site is determined by its eligibility criterion. With most sites having only been evaluated under criterion D, Federal agencies are only required to protect those values under criterion D. And how does an archaeologist “preserve” scientific understanding? As they have since the beginning of archaeology: they dig it up and put it in a museum.
You can imagine the conflict this creates for Tribes, who are interested in a site’s value beyond just archaeological value. It should be noted here that criterion D has become the “archaeology” criterion and it is not. You can look back at the significance criteria and see that archaeology isn’t even mentioned in any of them, it’s just that this law has been managed by archaeologists for so long, it is implied that the only true scientific value, is the archaeological value. Yet, tribes have their own scientific hypotheses and the information they can glean from a site’s artifacts should be considered as an equal to the archaeological value, if not higher. The difficulty is that Tribal hypotheses are not accessible to practitioners and are at times unacceptable to archaeologists as they are largely based on preservationist techniques as opposed to “data recovery”, an archaeologist’s euphemism for excavation. Until the Tribes can evaluate a site’s significance according to all the criteria and until the same level of consultation occurs in ARPA, both laws will continue to be legal mechanisms for archaeology to culturally appropriate Native artifacts.
- “Science”
“The archaeological study of Native American ______ is important to science.” As we saw in the battle of the study of Kennewick Man or the Ancient One. Dr. Robson Bonnichsen, one of the Plaintiffs suing the Federal Government over the right to study the ancient remains, stated in his affidavit that:
[i]f we do not utilize all available lines of evidence, we cannot hope to understand Kennewick Man's place in prehistory. Prehistory, like a crime scene, must be approached in a logical, open-minded, methodical and exhaustive manner. Every possible piece of information must be obtained and evaluated to see what it might tell us about ancient humans, their evolution and adaptations. No piece of data is too trivial to collect, and no line of evidence can be stricken from the scope of inquiry. Like a crime scene, the study of the past is a process of learning as much as possible about an individual and the context in which he or she was found. In both situations, the objective is to determine who the individual was and how he or she came to be in their present condition. Every piece of information helps to bring a little more of the context into focus so we can gain a better idea of what happened.
It is statements like this that are heard by Tribes all too often. But there exists a fundamental question: “Who is "we"?”. When archaeologists speak about enlightening “our” understanding, is this inclusive of Native scientific lines of inquiry or despite them? In 2013, at the Wanapum Heritage Center, Dr. Douglas Owsley, another Plaintiff in the Kennewick Man case gave a presentation to a large Native and non-Native audience about his findings. His findings are that Kennewick Man was not Native American, did not look like a Native American and that K-Man had a high marine diet, higher than any person living on the Columbia River at the time (of which there was no comparative evidence). When asked by a Tribal elder whether he considered the possibility that the Kennewick Man had consumed a large number of eels (Pacific Lamprey) as a possible explanation for the high levels of marine-derived nutrients in his bones, he replied simply “that there was no evidence to support that they [Pacific Lamprey] were here [Columbia River]”.
Most marine biologists will tell you that Pacific Lamprey has been in the Pacific Northwest for at least 1 million years. Because of there long life in the ocean, in comparison to salmon, they contain higher levels of marine-derived nutrients. Pacific Lamprey also has no bones aside from two horn-like teeth that are not much bigger than a toenail clipping. Smith and Butler (2008) find that, out of the thousands of archaeological sites in the Columbia Basin, there is only one site with evidence of Pacific Lamprey in the assemblage, but they explain why there is a large data gap. Typically, when conducting archaeological screening, a hardwire mesh is used to screen through the soil and recover archaeological artifacts. Standard mesh widths used are a ¼ inch, whereas Smith and Butler recommend that a 1/8 or even a 1/16 inch hardwire mesh should be used to catch these small, semi-translucent teeth. Within the context of cultural resource management, limited timelines and budgets, these sizes become prohibitive. The dismissal of even the possibility that consumption of Lamprey was consumed in high numbers without testing is questionable.
Contrary to Bonnichsen’s affidavit it appears that the research on Kennewick Man did not utilize all available lines of evidence, was not entirely approached in a logical, open-minded, methodical and exhaustive manner, that not every possible piece of information was obtained and evaluated to see what it might tell them about ancient humans, their evolution and adaptations, and that some data was too trivial to collect, and some lines of evidence were stricken from the scope of inquiry as it would undermine the case that secured their ability to conduct the studies in the first place. In 2015, science made another “discovery” through DNA testing, that Kennewick Man was Native American and was related to Natives of the Columbia River. This was not a discovery, but something that the Columbia River Tribes had been saying all along (see Friends of Americas Past for more affidavits related to the case).
In 2012 and 2013, the Plaintiffs were gaining growing criticism from peers. According to a Seattle Times Article by Mapes (2013), Dr. Peter Lape, Curator at the Burke Museum, where Kennewick Man was housed, reprimanded Owsley and his team for not publishing any peer-reviewed journal articles, which is standard scientific practice, especially for scientists who so strongly touted scientific responsibility as reason for acquiring access to study in the first place. Brigadier General Funkhouser also criticized Owsley and his team in a letter stating:
You and your colleagues have not produced anything for scientific journals despite your historic position of the collection’s immense value to the scientific community and the general public. That value is only realized when the data and the interpretation of those data are available for scrutiny and discourse.
Owsley finally published in 2013 however in the form of two books. Books, however, are not subject to the same scrutiny as an academic journal article. So, the scientific contribution to the study of Kennewick Man’s bones would never be fully realized.
During the years of court proceedings revolving around Kennewick Man, the story was sensationalized as a battle of Natives vs. Science, Rhetoric vs. Fact, Oral History vs. Empirical Data. However, it is unfair and unjust to say that Tribes do not care about science when it comes to archaeology. Many Tribes have their own professional archaeologists who conduct work to benefit the resources. They recognize that the system of archaeology was set up around them, and at times despite them. However, they also have learned, rather painfully, that the legal and academic system of managing archaeology is slow to change and it is better to be a part of it than outside of it. Natives are the original scientists of North America, are willing participants, but in many cases, like Kennewick Man, their scientific perspectives are not allowed at the table. Nothing could be more unscientific than to exclude a hypothesis as it contradicts one’s own theory. Moreover, it is unethical to culturally appropriate remains and artifacts during this process.
- “Ethics”
Just recently, the American Cultural Resources Association (ACRA) published a policy by members of the ACRA, the Society for American Archaeology (SAA), Society for Historical Archaeology (SHA) and the Archaeological Collections Consortium (ACC) entitled “Best Practices for No-Collection Projects and In-field Analysis in the United States”. In this policy statement, they state that the ACC:
is concerned about the growing trends of no-collection, in-field artifact analyses, and collections reburial. The use of these practices is driven by several factors, including limited availability of collections storage space, costs of curation, pressure among agencies to reduce overall project costs, and concerns among some THPOs and tribes about how their patrimonies are being treated by others once archaeological objects are removed from a site.
Due to requests from Tribes, more archaeologists, as policy, are not collecting artifacts when they conduct testing. Instead, they are conducting infield-analysis and placing them back in the ground. Fewer and fewer archaeologists are collecting artifacts for museums, aside from those collected under an ARPA permit (discussed above) that and the ACC has some strong criticisms regarding non-collection policies. They state that:
- These practices negatively impact the types and breadth of archaeological collections available for present and future research, interpretation, and education.
- They impede the archaeologist’s ability to analyze existing artifacts by using future research designs and methods and independently verifying results, actions which are critical to the credibility of an archaeological project and the scientific process in general.
- They also run counter to the professional ethics of the organizations participating in the ACC.
According to this policy, it is unethical to not collect artifacts and build museum collections at the behest of Tribes. However, the ethical codes of these three non-profits run contradictory to Tribal sovereignty and Tribal ethics. Unlike non-profits, Tribes are domestic dependent nations, they are nations within a nation. Tribes are sovereign nations with formulating documents (Treaty, Executive Order) and each has their own form of Tribal government. The Federal Government has a Trust Responsibility to Tribes which was defined and upheld by three Supreme Court Decisions, that are the foundation of Federal Indian Law. Pursuant to the Supremacy Clause (Article 6) of the U.S. Constitution, Treaties are considered the “supreme law of the land.” The interpretation of these Treaty rights is framed by the three canons of treaty construction:
- Uncertainties in treaties must be resolved in favor of the Indians.
- The Indian treaties must be interpreted as the Indians would have understood them at the time of signing the Treaty.
- The Indian treaties must be liberally construed in favor of the Indians.
If a Treaty has not expressly relinquished a right to a resource, it is implied that the respective Tribe retains the right to that resource. Archaeological resources were never mentioned in tribal treaties, therefore, it could be interpreted that Tribes retained the rights to that resource. The legal precedent over cultural resources is lacking and the application of the law is evidence to that. However, legal assumptions can be made reflective of other resource rights cases involving, hunting, fishing, gathering, water, and land. The bottom line here is that non-profit “codes of ethics” have no place in the discussion over Tribal rights to regulate resources, and those that are contradictory to Treaty Rights could and will be interpreted as unconstitutional.
Pursuant to Federal and State laws pertaining to archaeology, Federal and State agencies are required to consult with Tribes. Tribes have been consulted with on ARPA permits since 1979, and NHPA since the 1980s. They have seen the creation and enforcement of these archaeological laws, they have seen the treatment, or mistreatment, of some of their most sacred remains and objects all of which were afforded “protection” under their provisions. The result of all of this can be seen in academic museums across the United States. Museums are lined with collections of boxes full of artifacts containing scientific data. Many of these boxes have never been opened, organized or analyzed by the scientists who touted ethics as a reason for excavating sites sacred to Tribes. Tribes have made thousands of repeated, failed attempts to rebury artifacts that have been neglected by archaeologists. Some of which have been sitting on shelves for over 100 years, collected pursuant to laws and codes of ethics made not for or with Natives, but despite them.
If it is more ethical to collect artifacts and put them in museums, one wonders, how long before every single site in the U.S. is sitting boxed in a museum? How is that ethical or even constitutional to have Federal laws permit the inexplicable excavation of its entire archaeological resource value? For those who say that this will never happen, I ask, why? And when will the line be crossed? Where is that ethical line between more digging and too much digging? To Tribes, what is the tipping point where we move to change the laws that would conserve sacred sites as opposed to the present Federal practice of noting, yet ignoring, Tribal concerns? The fact that these remain a question should reveal that in the U.S. there is a large amount of paternalistic gate-keeping within archaeology. Perhaps, this Native will sit and wait for the gatekeepers to provide the answers.
Archaeology is culturally appropriating Native American heritage and it is doing it in three ways: through the legal system, the vehicle of science and under the cloak of ethics. Unlike, the cultural appropriation is seen with Native American mascots, fashion, and art, it is a covert operation. It is institutionalized, intellectualized and engrained into the woodwork of U.S. History. It was Thomas Jefferson who is commonly known as the father of American archaeology after he dug into burial mounds near his home in Virginia. Just as it has been an American pastime to loot sites for artifacts and showcase them, it has been an American pastime to professionalize the collection, study, and interpretation of artifacts through academic archaeology. More importantly, it has become an American tradition to create laws and codes of ethics that perpetuate this academic form of cultural appropriation.
If you want to learn more about American Indian Law, read Pevar and if you want to learn more about Cultural Resources Law and its history, read King.
If you want to reach out, scold me, thank me, or just bounce ideas off me please email me at nativeanthro@gmail.com. Thanks!
Cited sources:
Bonnichsen, Robson
1999 Plaintiffs Response for Immediate Response Regarding Study Request. Affidavit filed in U.S. District Court for the District of Oregon, CV No. 96-1481 JE. Portland.
Mapes, Lynda
2013 Kennewick Man a debate not easily put to rest. Seattle Times, July 27, 2013. Seattle.
Smith, Ross E. and Virginia Butler
2008 Towards the Identification of Lampreys (Lampretra Spp.) In Archaeological Contexts. Journal of Northwest Anthropology, vol 42 (2). Richland.