When I entered the field of cultural resource management, I thought I was walking into a field dedicated to the protection of Native American heritage. A small part of me still believes that is everyone's common goal. Then one of our tribal leaders laid a piece of wisdom on me that quickly changed my expectations. He told me, "sovereignty is a living thing. We are not born inherently understanding the Treaty, our culture or our rights. It is incumbent upon us [as tribes] to teach the public about our rights spelled out under the Treaty."
After 11 years with the Tribe, the most frustrating and hopeless part of my job is responding to Archaeological Resources Protection Act permits. For years, my comments have been ignored by certain agencies. Now, I know that ARPA is supposed to be a good thing for archaeological sites. It protects against looting and vandalism. It creates a permit tracking system for "legitimate" excavation of archaeological resource on federal lands with a tribal comment period. Before ARPA, there was only the Antiquities Act of 1906 which limited its power to enforce looters. So, comparatively, ARPA is a better law. We are supposed to be grateful for the law. However, there are cracks in the law that cannot be overlooked. Cracks that walk the fine line of impinging on Tribal resource rights.
1) Here, I refer to Section 4 of ARPA entitled Excavation of archaeological resources and highlight were Tribes play a role in ARPA:
Excavation and Removal SEC. 4.
(a) Any person may apply to the Federal land manager for a permit to excavate or remove any archaeological resource located on public lands or Indian lands and to carry out activities associated with such excavation or removal. The application shall be required, under uniform regulations under this Act, to contain such information as the Federal land manager deems necessary, including information concerning the time, scope, and location and specific purpose of the proposed work.
(b) A permit may be issued pursuant to an application under subsection
(a) if the Federal land manager determines, pursuant to uniform regulations under this Act, that-
(1) the applicant is qualified, to carry out the permitted activity,
(2) the activity is undertaken for the purpose of furthering archaeological knowledge in the public interest,
(3) the archaeological resources which are excavated or removed from public lands will remain the property of the United States, and such resources and copies of associated archaeological records and data will be preserved by a suitable university, museum, or other scientific or educational institution, and
(4) the activity pursuant to such permit is not inconsistent with any management plan applicable to the public lands concerned.
(c) If a permit issued under this section may result in harm to, or destruction of, any religious or cultural site, as determined by the Federal land manager, before issuing such permit, the Federal land manager shall notify any Indian tribe which may consider the site as having religious or cultural importance. Such notice shall not be deemed a disclosure to the public for purposes of section 9.
So, what does "notify" mean? For answers, I look to the Code of Federal Regulations under ARPA. According to section 7.7:
(a) If the issuance of a permit under this part may result in harm
to, or destruction of, any Indian tribal religious or cultural site on
public lands, as determined by the Federal land manager, at least 30
days before issuing such a permit the Federal land manager shall notify
any Indian tribe which may consider the site as having religious or cultural importance. Such notice shall not be deemed a disclosure to the public for purposes of section 9 of the Act.
(1) Notice by the Federal land manager to any Indian tribe shall be sent to the chief executive officer or other designated official of the tribe. Indian tribes are encouraged to designate a tribal official to be the focal point for any notification and discussion between the tribe and the Federal land manager.
(2) The Federal land manager may provide notice to any other Native American group that is known by the Federal land manager to consider sites potentially affected as being of religious or cultural importance.
(3) Upon request during the 30-day period, the Federal land manager may meet with official representatives of any Indian tribe or group to discuss their interests, including ways to avoid or mitigate potential harm or destruction such as excluding sites from the permit area. Any mitigation measures which are adopted shall be incorporated into the terms and conditions of the permit under Sec. 7.9.
Tribes need to be notified, are provided a 30-day comment period, the land manager can meet with the Tribe if there are concerns, and the Tribe can insert provisions with the permit and seek ways to avoid or mitigate potential harm or destruction to sacred sites. That sounds reasonable, so far. Let's visit Section 7.9:
(a) In all permits issued, the Federal land manager shall specify:
(1) The nature and extent of work allowed and required under the permit, including the time, duration, scope, location, and purpose of the work;
(2) The name of the individual(s) responsible for conducting the work and, if different, the name of the individual(s) responsible for carrying out the terms and conditions of the permit;
(3) The name of any university, museum, or other scientific or
educational institutions in which any collected materials and data shall
be deposited; and
(4) Reporting requirements.
(b) The Federal land manager may specify such terms and conditions
as deemed necessary, consistent with this part, to protect public safety
and other values and/or resources, to secure work areas, to safeguard
other legitimate land uses, and to limit activities incidental to work
authorized under a permit.
(c) The Federal land manager shall include in permits issued for
archaeological work on Indian lands such terms and conditions as may be
requested by the Indian landowner and the Indian tribe having
jurisdiction over the lands, and for archaeological work on public lands
shall include such terms and conditions as may have been developed
pursuant to Sec. 7.7.
Here is where the contradiction of ARPA sets in. A tribe declares a site sacred and the resources removed from the site are sacred. Then a request is made to have those resources reburied so as to avoid harm to these sacred objects pursuant to Section 7.7. Then the federal manager comes back and states that it cannot do that as it violates Section 7.9 (a)(3) The name of any university, museum, or other scientific or educational institutions in which any collected materials and data shall be deposited. That the law implies a disposition to an institution. What about the "avoid or mitigate potential harm or destruction" of sacred sites part? What about Executive Order 13007 or the American Indian Religious Freedom Act? Was it the intention of ARPA to protect American Indian sacred sites up to the point where protection of archaeological resources is sacred? At what point do artifacts collected under ARPA lose their sacred value, and why are Federal agencies interpreting this on behalf of Tribes?
Some may not see value in my side of the argument. That I should stop whining and be grateful that anything is being done at all with archaeological resource protection. They may actually have a point, however, that does not stop the fact that our museums and university collections are piling up with ARPA-related collections, gathering dust, never to be looked at again. What purpose does this serve to have the "wealth of archaeological information" that was intended to "secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data" sitting in decadence waiting to unveil the its secrets? This must be such great information that it would drive Federal managers to ignore the Tribe’s claims to sacred sites and resources. My question to those who think ARPA is actually doing a great job: How long will it take until all archaeological sites are put into boxes for this purpose?
Does ARPA deserve some analysis of its own? For those sites deemed sacred by Tribe’s, perhaps, we can set time limits on the analysis performed by archaeologists. If a site hasn’t been looked at for the last 5, 10, 15 years, we can move to rebury in a safe location. We have seen some collections sit in museums for 30 years without analysis. Perhaps this timeline might drive graduate students and their professors to actually complete their studies which may actually result in more archaeologists with degrees. This may also change the ratio of excavation-related versus analysis-related theses and dissertations (conservation is not a four-lettered word). After all, we will eventually run out of archaeological sites if we demand excavation-related theses/dissertations. Is that really where we want resource management to go in the U.S.?
Tribes can benefit from laboratory analysis. Information gathered can be utilized in arguments over resource rights, hunting/fishing rights, natural resource management, and protection measures in light of global warming. However, when the choice is eliminated from the ARPA process, it creates barriers on both sides of the argument that inevitably effect the resources. Despite being locked in museums, Tribes can still have a strong say on who looks at collections and what is done with them. You can probably guess how much access is allowed by Tribe’s given the state of ARPA law described above.
ARPA was meant to be a preservation-based law. It was meant to protect from the obvious problem of looting on federal and tribal lands. However, it has further perpetuated what the Antiquities Act of 1906 started, it legitimized archaeology while simultaneously de-legitimizing claims by Tribes. It took the traditional forms of cultural resource management practiced by Tribes for millennia and put it in the hands of archaeologists. Yet another barrier to entry for Tribe’s to actually manage their resources. Wherever you are in your career, think consciously about the laws you are dealing with and the impacts they can have on Tribes. Find creative ways of suiting the needs of all parties, and act conservatively when it comes to putting artifacts in boxes to be housed for eternity. Unless you like being just another brick in the wall.