The most recent opinion in the so-called Kennewick Man or Ancient One
(as many American Indians1
In this article I
use the terms Indian, American Indian, and Native American
interchangeably, fully knowing that there are very emotional arguments
associated with each term. All three are com-monly used by Indians and
non-Indians to refer to the Indigenous people of what Europeans called the
Americas. Of course, at one level this very issue is part of the
court's opinion, a fact hardly lost on me.
choose to call
the skeleton) case by the United States Court of Appeals for the Ninth
Circuit unfortunately resurrects some very old and contentious issues in
America. Indians mostly view the opinion as one more echo of the same old
story of Native American property issues raised in the courts, but they
also understand that some implications may be broader. The most direct
impact of the opinion is that the Umatilla people will not be allowed to
return the Ancient One to the earth, but others could be portents of a
larger resurgence of anti-Indian sentiment and scientific colonialism in
America. Specifically, though not directly stated as such, the
court's opinion supports a notion that archaeological materials are a
public heritage, no matter their culture of origin. In addition, by
affirming the plaintiffs' position, the court essentially declared
archaeologists and associated scientists to be the primary stewards of
that heritage, much to the chagrin of many American Indian people. Along
the way, the court reinforced the idea that scientifically generated
evidence has greater validity than oral tradition in court, outright
denying oral tradition's validity and undercutting a major intention
of the Native American Graves Protection and Repatriation Act (NAGPRA).
Worse still, the court reflects—and by its decision
supports—an idea that there may be a “white” or European
history for the Americas that predates the arrival of Indians. The most
damaging and long-term impact is that the decision reinforces
fundamentally erroneous definitions and stereotypes about Indians as
tribes, which has plagued Indian-white relations for
generations.
As I explore these ideas here, realize that I write from a perspective
largely respectful of Indigenous peoples' concerns about archaeology.
At the same time, my training and interests are those of an archaeologist.
I reject, however, that there are only bipolar positions in disputes
between Indians and archaeologists. Rather, there is a continuum of
opinion among both archaeologists and Indians about Kennewick, just as
there is about the entire repatriation issue.
As an archaeologist, I would like to see study done on most human
remains, whether from recent deaths studied by autopsy or ancient ones,
where osteologists do the primary examinations. There is much to learn
from remains about diet, disease, trauma, and even gene flow in a
population. At the same time, I learned long ago that the wishes of
scientists do not necessarily outweigh those of people who claim such
remains as their ancestors. Nor should science have greater authority than
the expectation or, at least, the desire most people have when they die,
that their remains will be treated respectfully and, if they are buried,
that they will be left in the ground.2
What I
write here is not meant to speak for any Indian people as individuals or
as a group, but only to suggest what I have learned in 30 years of dealing
with repatriation issues.
What many Indians see as having happened with the Bonnichsen v.
United States opinion is yet another violation of that respect,
typical of the way remains of their ancestors have been treated. As it
happens, many Indians had just begun to have confidence that NAGPRA
supported their claims to a heritage that was their own, which, before
NAGPRA, had been usurped by non-Indians. Moreover, the opinion is bound to
have impacts on other Indigenous people around the world who are watching
the case carefully, dealing with their own worries about archaeology.
Fortunately, many Indigenous people and archaeologists gradually have
begun to understand that models for doing archaeology based on scientific
colonialism3
See Galtung, “After Camelot,” for a more complete discussion
of scientific colonialism.
—where the center of gravity for
information about a people's pasts resides elsewhere than with the
people themselves—need to be replaced. Pushed by the repatriation
issue, descendant community members and some archaeologists have been
collaborating. Commonly called
indigenous archaeology or
community archaeology, community concerns drive research agendas,
methods, and interpretations. This approach has expanded the
epistemological range of both communities and archaeologists, where both
recognize that an understanding of pasts can be expanded by cooperation.
Because of mutually respectful relationships and trust, the Kennewick
opinion will have virtually no impact except, perhaps, to make for
interesting conversation. For media that thrive on controversy and those
community members or archaeologists new to the issue or who choose to
remain intransigent about working with the other, the case will be raised
at every opportunity and used to foment distrust. The struggle over
Kennewick can also serve as a good role model for how not to do things, as
it already has in Canada with Kwaday Dän Sinchí (Long Ago
Person Found).
4 See Beattie et al.,
“The Kwäday Dän.” for
discussion of how the remains of “Long Ago Person Found” were
handled in British Columbia. Cooperation between scientists and First
Peoples was extraordinary, in part based on what had been observed with
the struggle over Kennewick.
For those already working together,
the Kennewick opinion will not diminish respectful interaction.
DISRESPECT FOR THE ANCIENT ONE AS A HUMAN
BEING
The meaning of the concept of respect for many Indian people is
difficult for many non-Indians to understand. A major impact of the
opinion is that it shows great disrespect for the Ancient One, let alone
those trying to see that he is reburied. This is no small matter and is
hurtful to many Indian people. Except for Native American expressions of
concern, the Ancient One's wishes about treatment of his own remains
have been utterly ignored by all levels in the judicial process. So long
as the courts support the plaintiffs' position, the Ancient One will
not continue on the journey his spirit began at his death. For some Indian
groups, the dead still live but on a different plane of existence. As
matters stand, he will not be put back into the ground as the Umatilla and
many other Indian people wish. Many non-Indians or Indians who are not
traditionally oriented have a hard time understanding that death does not
end existence and that respectful treatment of mortal remains after death
is an obligation for the living. Failure to care properly for the remains
may even endanger the living. Many non-Indians do understand this,
however, as suggested by the intensive and expensive treatment of remains
by many Americans and an abundance of laws protecting those remains from
disturbance. This apparent double standard puzzles many Indian people.
Non-Indians, particularly scientists, may argue that no one can know
Kennewick Man's wishes about his remains or can assume that he would
be at all offended by the study of his remains. Many Indian people (and
probably most non-Indians) might argue that whatever contemporary people
might think about death, the Ancient One probably believed that upon death
he would be buried and that his remains would stay buried until their
journey was complete. Although scientists consistently say they treat
human remains with respect and that Kennewick Man might even appreciate
contemporary scientists telling his story, to many Indians keeping his
bones out of the ground or using destructive techniques to study them says
otherwise. Though many scholars, non-Indians, and even some Indians might
claim that the whole matter is “identity politics,”5
for
many Indians, being unable to return the Ancient One to the ground was the
most profound impact of the court's opinion.
Public Heritage?
The entire issue of repatriation of objects of cultural patrimony
raises the fundamental question of whether any group has a primary right
to what that group defines as its own cultural heritage. In other words,
can any group own the past? The archaeological community has long insisted
that the past is a public heritage and even teaches that concept in their
textbooks.6
Some groups, such
as the Society for American
Archaeology (SAA),
have developed professional stewardship of that past as an ethic.
7 The Society for American Archaeology Principles of Archaeological Ethics notes
stewardship of the past as its first principle. See
〈http://www.saa.org/aboutSAA/ethics.html〉
(retrieved February 14, 2005).
As the SAA's First Principle,
for example, states:
It is the responsibility of all archaeologists to work for
the long-term conservation and protection of the archaeological record by
practicing and promoting stewardship of the archaeological record.
Stewards are both caretakers of and advocates for the archaeological
record for the benefit of all people; as they investigate and
interpret the record, they should use the specialized knowledge they gain
to promote public understanding and support for its long-term
preservation. [emphasis mine]
That idea conflicts with the position of many Indigenous people who
contend that their heritage is their own, as in Article 12 of the
Draft Declaration on the Rights of Indigenous Peoples8
Draft Declaration on the Rights of Indigenous
Peoples,
〈http://www.usask.ca/nativelaw/ddir.html〉
(retrieved February 14, 2005).
, which states:
Indigenous peoples have the right to practice and revitalize
their cultural traditions and customs. This includes the right to
maintain, protect and develop the past, present and future manifestations
of their cultures, such as archaeological and historical sites, artifacts,
designs, ceremonies, technologies and visual and performing arts and
literature, as well as the right to restitution of cultural, intellectual,
religious and spiritual property taken without their free and informed
consent or in violation of their laws, traditions and
customs;
Article 13 goes on to state:
Indigenous peoples have the right to manifest, practice,
develop and teach their spiritual and religious traditions, customs and
ceremonies; the right to maintain, protect, and have access in privacy to
their religious and cultural sites; the right to use and control of
ceremonial objects; and the right to repatriation of human
remains.
States shall take effective measures, in conjunction with the
indigenous peoples concerned, to ensure that indigenous sacred places,
including burial sites, be preserved, respected and
protected.
Although the SAA goes on to codify accountability to publics,
including Native Americans, the only archaeological organization fully to
assert the primacy of Indigenous rights to their own heritage is the World
Archaeological Congress in its First Code of Ethics, which in its
Principle 5 states that members are “to acknowledge that the
indigenous cultural heritage rightfully belongs to the indigenous
descendants of that heritage.”9
“World Archaeological Congress First Code of
Ethics,”
〈http://ehlt.flinders.edu.au/wac/site/about_ethi.php〉
(retrieved February 14, 2005).
Indigenous people have long asked why it is that archaeologists have
an interest in studying remains of their ancestors at all and why they
apparently believe they have a right to do so. Essentially, they wonder
why archaeologists and the courts assume that there is any more right for
archaeologists to study the remains than anyone else.10
They do recognize that archaeologists are named as qualified
investigators in such laws as the National Historic Preservation Act but
often see that as a reflection of a colonization of their pasts.
Of course, these are not the questions addressed by the court, which
looked only at the matter of whether Kennewick Man was Native American and
fell under the definitions of NAGPRA. When the court found, however, that
Kennewick Man was not Native American based on its interpretation of the
intentions of Congress, the court unwittingly came down on the side of
those who promote the past as a public heritage. Worse, they stepped into
the morass of defining who is or is not Indian, a problem that has plagued
Indians from their first contact with whites. The impact is that the
court, by implication, has said that it has the right to define who is
Indian and whether cultural heritage can be owned by any one group. The
perceived reality for Indians is that white courts almost always favor
non-Indians when property issues are involved.
SCIENCE ÜBER ALLES?
When the court's opinion states that the oral traditions
presented to them were “not … adequate to show the required
significant relationship of the Kennewick Man's remains to the Tribal
Claimants,” and supported this comment with other statements about
the malleability of oral tradition,11
Bonnichsen et al. v. United States, 357 F.3d 962
(9th Cir. 2004), 979.
they essentially said that
scientific information had greater validity. On the surface, this
undercuts a major element of NAGPRA, which went to great length to give
oral tradition equal footing with scientific and other scholarly
information. The law states that remains
shall be expeditiously returned where the requesting Indian
tribe or Native Hawaiian organization can show cultural affiliation by a
preponderance of the evidence based upon geographical, kinship,
biological, archaeological, anthropological, linguistic, folkloric, oral
traditional, historical, or other relevant information or expert
opinion.12
25 USC 3005, Sec. 7, (a) (4)
(c).
Tribes have long complained that their traditions weren't being
taken seriously by scientists or by the courts, so Congress essentially
gave them equal status in the law. Certainly, the law demands a
preponderance of evidence to show affiliation, but many Indian people have
complained that the available scientific evidence for Kennewick seems to
be no more specific or reliable than the available oral tradition.
These surface implications, however, may not be the most serious
matter. As I have argued elsewhere,13
being
told that their oral traditions have little or no relevance or
validity—or at least are not as good as scientific
evidence—says to Indians that a foundation of their culture and
identity is essentially worthless to anyone but them. For them to accept
that the scientific stories have greater value or truth would mean that
Indians would have to reject their own traditions, and thus, their
identity. The court and the scientists would undoubtedly say that this was
not their intent, but by implication, it certainly sends that message. The
court has declared in no uncertain terms that science, a very Western way
of knowing, remains the most powerful way of knowing the past, no matter
the feelings of Indians about the matter.
A WHITE HISTORY FOR THE AMERICAS?
Accepting the expert opinion of the scientists, the court notes that,
“They concluded that Kennewick Man's remains were unlike those
of any known present-day population, American Indian or
otherwise.”14
Bonnichsen et
al. v. United States, 969.
Again, unlikely as intent, but
certainly present by implication, is the court's acceptance of the
presence of groups in the Americas who were not the ancestors of
today's Native Americans. Although as an archaeologist, I suspect
that many groups indeed may have visited the continent in the distant
past, the court's opinion reflects a long-term desire on the part of
Euro-Americans to have a
white history of the continent.
This desire began almost from the moment European explorers met
Indians and couldn't explain their presence or their origins. By the
mid-1800s, Euro-Americans had invented a mythical race—the
Moundbuilders—who supposedly built the earthworks seen by explorers
in their travels to the interior of the continent. Key beliefs were that
the Moundbuilders had to have been white because the Indians could not
have been capable of such architectural feats and that they were displaced
by ancestors of the Indians. A white presence on the continent before the
Indians, and displacement of those people by Indians, became a convenient
excuse for moving Indians off the lands the Euro-Americans wanted, a part
of the idea of Manifest Destiny, which declared that American dominance of
the continent was preordained.15
Nowhere was this desire for a white history more visible than in the
media coverage of the Kennewick controversy. The primary evidence for
Kennewick Man being other than Indian mostly came from the use and
assessment of skull measurements. James Chatters initially described the
remains as Caucasoid, a term used by some physical anthropologists to
describe a widely dispersed physical type. The issue of determining race
from skeletal measurements is controversial at best,16
but the media rapidly shifted
Caucasoid to
Caucasian as used in the racial sense of
white. Robert Clinton and I have opined in this journal
17 that the scientists were fully aware of this red flag and even
used race to claim that they were being discriminated against as
“Caucasian scientists.”
The media used race as a hook, because it resonated with a
Euro-American audience. As widely reported, for example, the Asatru Folk
Assembly, a California group claiming descendancy from northern European,
pre-Christian, Germanic, and Scandinavian tribes, filed a claim for the
bones.18
Even in the arguments for this
case, the court mentions in a note (968, n.8) their use of an
amicus brief filed by The Ethnic Minority Society of America,
which suggests that the “potential descendants [of Kennewick
Man] may not be members of the Joint Tribal Claimants or believe in
the expressed ‘Indian’ religious interpretations made by the
political leaders of the tribes.” The court perhaps was not aware
that the “group” (At least for some time, it apparently was
only one man; I haven't tracked it lately.) was started by a
Euro-American who organized the “society” specifically to
combat repatriation.
Taken to its extreme, the media mostly
weighed in on the side of science. The
Oregonian, a newspaper in
the Northwest wrote, “The information from ancient Kennewick Man is
simply too important to be buried by one people.”
19 On CBS Television's
60
Minutes, correspondent Leslie Stahl surmised in a segment on
Kennewick Man that the Indians' fear of scientific study of the
remains resulted from fear that their status as sovereign nations could be
challenged, which might mean a loss of treaty rights and even
“lucrative casinos.” To report that her comments infuriated
many Indian people would be a vast understatement.
The reaction of the media and the Euro-American public is an echo of
the desire to document a white history for the continent, but some
respected scholars also seem to want it, resurrecting at least one
hypothesis that proposed a European connection.20
The court's opinion,
while not specifically stating that there might be a white priority in
America, certainly has the effect of supporting those who believe that
claim.
THE FLUIDITY OF
“INDIAN-NESS”
This history also influenced the court's assessment of
Congress's intention for NAGPRA (p. 1597–8). In their attempt
to define Native American, many Indians believe that the court resorted to
technicalities of interpretation rather than struggling to understand the
spirit of NAGPRA. NAGPRA was meant to redress what the United States
Congress saw as wrongs done to Native Americans and Native Hawaiians and
their ancestors. In the United States, the skeletal remains of Native
Americans probably have been the subject of more study than the remains of
any other group. The history is long and complicated21
but at least partly revolves around two issues.
To reiterate, who Indians are, where they came from, and when and how they
got to the Americas are matters that have engaged Euro-Americans since
they first arrived on the continent. These questions continue to the
present day and lie at the heart of the plaintiff's case. The other
is that Euro-Americans believed Indians were a vanishing race, and that it
was up to Euro-Americans to record all they could about Indians before too
much information was lost.
What this meant is that the very act of defining Indians was a task
that Euro-Americans felt necessary and took upon themselves to do. As
scholars and laypeople developed their definitions, they incorporated a
wide variety of erroneous assumptions and stereotypes. This process
happened to the chagrin of many Indian people who hadn't disappeared
and felt victimized and dehumanized by being defined. At the heart of
their distress was the very notion that they were Indians instead of
Lenape, Anishinabe, and the hundreds of other names they called their
groups. Whether Indian, American Indian, or Native American, the term has
submerged their unique group identities into a category that they feel has
not recognized their diversity.
In addition, the very notion of tribe is difficult for many to deal
with. As non-Indians (and some Indians) see it, tribes have always had
distinct boundaries and definitions for membership, but that is not the
reality. Evidence is growing that before European contact, ethnogenesis
might better be traced through smaller rather than larger groups.22
Even well after contact, many groups remained very
fluid in their notions of who could be a member. Captives from conflicts
were often assimilated into a group, people married into a group, and
groups coalesced in response to social and natural environmental
conditions. Precise tribal identification often was a product of
Euro-Americans, particularly when a government needed to identify someone
to sign treaties or carried out a policy or law that took away lands.
Today, identifying who is or is not Indian—particularly who is or is
not a member of a particular tribe—has become a nearly overwhelming
problem, with competing definitions generated by self identification,
governmental identification, dominant society identification, and tribal
identification. All of these are reflected in the Kennewick opinion.
The relevance for the Ancient One is that the whole notion of defining
him as Native American is seen as inappropriate by many Indian people.
When scientists say that he looks different from the ancestors of modern
Native Americans, Indian people ask, “Why shouldn't he?”
They know that groups were constantly mixing, and many assume that people
who looked like the Ancient One were just absorbed into other groups (a
possibility that some scientists also allow). Thus, the definition of
Kennewick as other than Native American strikes many Native Americans as a
ploy to keep the remains. For many Indians, it's just the same old
problem of scientists wanting Indian bones.
AMERICA'S INDIANS (AS IN “OWNED
BY”)
Americans have had a love-hate relationship with Indians.23
For me, the worst part of writing this piece
is that some might believe that a Euro-American archaeologist is trying to
interpret Indian concerns and trying to speak for Indians, which I in no
way intend. These observations are my own. A close second is that the
structure of this whole case is racialist. I am forced to use terms such
as “Indian” and “Euro-American” with which I grow
increasingly uncomfortable.
They appreciate that Indians were the
first on the land, were close to it, and believe they cared for it as the
first ecologists. They hate Indians because they were the first on the
land, because Indians owned the land, and because they didn't use it
the same way Euro-Americans did. They love Indians because group and
family were important and could be used as role models for understanding
the rights and obligations of kin. They hate Indians because they were
savages who killed whole settler families. They love Indians because they
are spiritual, but hate them because they are heathens.
Love-hate comparisons could go on, but of course, they are
stereotypes. At least two, however, are real. The first is that Americans
love Indians because Indians have a history associated with the land, but
hate them because they have a history associated with the land. Americans
have usurped that history as their own and resist the idea that Indians
might want it back. The second is that Americans love Indians because they
were here, but hate Indians because they are still here. Thus, to many
Indians the Kennewick opinion came as no surprise, seen as just another
courtroom battle for their rights that they wish they didn't have to
fight. For all the discussion and debate over the long-term significance
of the opinion, however, its greatest impact is that the Ancient One
cannot continue his journey, and those who claim him as ancestor cannot
fulfill their obligations to him.
ACKNOWLEDGMENTS
I wish to thank Alexander Bauer and Joe Watkins for their excellent
comments and suggestions on an earlier version of this paper. As it turns
out, Roger Echo Hawk and I were co-authoring a paper for another journal
at roughly the same time I wrote this one, and his thought-provoking
notions about the impact of racialism in American archaeology echoed into
this paper, undoubtedly warping my views one more time. If you don't
like what you read here, blame him.
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