Can Archaeology Repair Its Past with Indigenous America?

From theory to practice.

Photo by Rohit Tandon on Unsplash

Archaeology and anthropology have long had an uncomfortable relationship with indigenous people. Very few indigenous people today, go into the fields, but this number is growing as efforts are being made to consult and collaborate, respect and return sacred items and human remains.

In the 1960s, the University of Nebraska’s anthropology department ordered the burning of Native American human remains, more than 30 years later, reported as a human rights violation.¹

But when bad faith behaviors continue to erupt it sets back the progress made in healing these old wounds. Recently, several major universities announced that their museums had hundreds if not thousands of artifacts and human remains that had not been repatriated to Native Nations in compliance with federal law, NAGPRA. University of North Dakota,² University of Texas at Austin³, and the University of Kansas just acknowledged in Sept. 2022 it has indigenous human remains in its collection.⁴

History of Laws Protecting Sites

The Antiquities Act of 1906, signed by Pres. Theodore Roosevelt, was intended to prevent looting of archaeological sites for the benefit of the public, presumptively claiming the U.S. has the right to the remains of indigenous people, or at least there was no obligation to protect them despite the U.S. trust responsibility to protect Native Nations and their culture. In fact, the Indian policy of the U.S. was to destroy tribal governments and to allot individual plots of land to Native Americans, and make them farmers through forced assimilation and abandonment of their Tribe’s governing structure and culture (despite treaties stating to the contrary). So this Act was designed to save the relics of the disappearing Indian for the public or for archaeologists and anthropologists.⁵ The National Park Service says the consequences to US indigenous people was “unintended”.⁶

The Antiquities Act reads:

“. . .to declare by public proclamation historic land- lands. etc. public marks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, . . .”

This was not very effective, and only a few prosecutions resulted from this statute⁷ while widespread looting continued. In 2009, a prosecution of two individuals over years of investigations was criticized as being selective and perhaps too harsh,⁸ leading to making the Act even less effective.

The National Historic Preservation Act of 1966 addressed the growing resurgence of Native Nations efforts to reclaim their looted articles and stolen human remains. The US Indian Policy now made a reversal and instead of destroying Native governance, the federal government now supported Native Nations reclaiming their traditions and self-governance. This is called the Tribal Self-Determination Era.

It was not until 1979 that Congress passed ARPA, the Archaeological Resources Protection Act, which was driven by concerns by the professional archaeological community but now included a consent requirement for taking indigenous artifacts.

The Archaeological Resources Protection Act of 1979 reads:

Any exchange or ultimate disposition under such regulation of ar- chaeological resources excavated or removed from Indian lands shall be subject to the consent of the Indian or Indian tribe which owns or has jurisdiction over such lands.

These statutes were failing to protect the objects and human remains of Native Americans who could claim ancestry and presence on the land since before colonization. Museums were disconnected in most cases from the sacred meaning and proper handling of artifacts, and lacked respect for the human remains of indigenous people by defacing them with scientific studies, storing them unceremoniously in boxes with labels and dismissed any responsibility to notify the descendants as irrelevant.

In 1990, the Native American Graves and Repatriation Act (NAGPRA) was signed into law and was focused on the protection and repatriation of sacred objects and human remains that met certain criteria, including those held by museums that received federal funding. The first regulations to implement the Act took five years to become final rules which could be enforced.⁹ It was not until 2003 that regulations were implemented that imposed civil penalties for failure to comply with the Act¹⁰; and not until 2010 were regulations implemented to direct the disposition of culturally identifiable human remains.¹¹ In 2013, there was another rulemaking to clarify the meaning of lineal descent.

But it took until 1992, to pass an amendment to the NHPA of 1966 that authorized Native Nations to develop Tribal Historic Preservation Offices, and for them to take over the historic preservation functions that had been the legal responsibility of the State Historic Preservation Office regarding projects on Native Nations’ lands.

Slow to repatriate

The promise of repatriation has been so slow that it threatened to crawl to a stop as cash-strapped museums claimed they did not have the resources to do inventories required by NAGPRA. The definition of a museum in NAGPRA is:

 “museum” is any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony.¹²

Despite $1,000 a day penalties to museums, and grants for museums to complete their inventories, there is still widespread disregard of the law. This year, the Secretary of Interior, Deb Haaland (Pueblo of Laguna), created a federal NAGPRA investigator for the first time in 2022, to ensure better enforcement.¹³ Museums may be the recipients of bequeaths or outright sales of looted artifacts and human remains and they will need to be increasingly vigilant about compliance.

But museums accepted bequeaths of gifts that were often obtained from looted sites.

Some museums are returning objects that do not fall within the protection of NAGPRA because it is the morally right thing to do, even if it is from pressure brought from the Tribe. For example, the hatchet of Standing Bear (the plaintiff in the case that established Native Americans are persons for purposes of bringing a case or petition to the legal system in federal or military courts) is immensely symbolic to his efforts to establish peace between his tribe, the Ponca and the white society. Harvard said it was a gift bequeathed to them which had been gifted by Standing Bear to his lawyer for his work on his landmark case. Harvard has only now agreed to return it to the Ponca tribe. The tomahawk does not fall within the type of artifact protected under NAGPRA, but the Harvard museum did the morally right thing.

The Historical Society of Nebraska recently completed its inventory of human remains and is engaged in the consultation process with Native Nations, and the University of Michigan just completed its inventory. Better late than never, should come with a $1,000 a day fine, but instead they were just infused with grant funding to complete these inventories.¹⁴

The Amateur Archaeologist is still here

The Antiquites Act of 1906 as well as the Archaeological Resources Protection Act (ARPA) of 1979 were both designed to protect against the looters and amateur archaeologists, but nothing has deterred this phenomena.

The New Yorker published an article highlighting the ease with which digging and looting can occur in Texas, compared to other states with state laws protecting ancient sites. Federal permits can be obtained to excavate known indigenous traditional lands on federal land. Given the vanishingly small federal land in Texas where federal statutes like the Antiquities Act, ARPA, NAGPRA apply, private land is mostly open to pillaging as the owner sees fit. This is limited only by state cemetery laws protecting the remains of cemeteries which could apply to indigenous people as well but does not cover the vast number of unknown remains and objects with cultural connections to US indigenous people on private lands.

States often have permitting systems that implement the federal permitting requirements, but some state laws have permitting systems for state owned land.¹⁵ All states had appointed a State Heritage Protection Officer by 1995, but not all states have "State Archaeologists".¹⁶ Some states have consultation agreements with Native Nations within their borders, and a few have statutes that protect indigenous burial sites from looting. We need more state statutes that cover at least state owned land, and protect burials on private lands.

The Future of Archaeology and Anthropology and their relationship with Indigenous People in America —Documentary

The relationship with evolutionary anthropology ultimately solved the problem with the Kennewick Man and all of the other ancient remains that have been uncovered that are testable with new ancient DNA techniques. Some but not all in the fields of archaeology and anthropology fought for ten years through litigation to have full access to studying the remains of the Kennewick Man, and denied even published books and articles that Kennewick Man was not an ancestor of Native Americans. Ultimately ancient DNA techniques would prove them wrong, and the Colville Tribe who had claimed him as “the Ancient One” all along, eventually saw the remains repatriated and a traditional burial as a reburial was performed. A combination of knowing the remains were on traditional lands was discounted, but DNA scientific evidence was considered conclusory when considered together. The litigation process did not resolve this problem, but a Congressional Act eventually resolved this problem. Consultation with the tribes with less adversarial time would have led to better relationships. Now the Kennewick Man case is remembered for its controversy between Tribes and Archaeology and Anthropology.

There are more indigenous anthropologists and archaeologists entering the fields, but the numbers are still small. There is a small section of indigenous anthropologists which has bred its own form of discontent within itself, so I do not expect true change to come from the professional organization. It really has to occur in practice.

I was fortunate to have been invited to teach and be affilitated with TTU’s Anthropology department, and taught a course in Indigenous Culture and Law. Teaching the next generation of archaeologists and anthropologists about this area seemed like a worthy cause, and I found that students are aware of the past and want to understand how to change the field for the better. But I really did not know how these regulations I had been explaining were actually implemented in the field. How much do students learn about how to treat indigenous artifacts or do they know what to do if they find possible human remains?

So I decided to find out for myself how these excavations were performed, and I got the chance to explore these questions at a site within about 18 miles of where my own indigenous ancestors lived in a village. This is a site that is newly found to be the oldest site for European settlement in the continental United States (no longer Plymouth Rock, or Sir Walter Raleigh’s Lost Colony. It dates back to 1567-68 and the Juan Pardo exploration from Spain, building a fort in the interior of North Carolina. So it was the perfect time and place for me to explore these questions. I enrolled in the field course to learn more about field methods and to experience how archaeology and anthropology explored the first interactions between the Cheraw and Catawba Nations who encountered Juan Pardo and centered here on this site.

It was typical June in the foothills of North Carolina — a hot, humid week, and one day of a rainout. Each morning the professor, a professional archaeologist, would have a debrief session with the class members as well as volunteers under the big tent. To my surprise, he started each day not with a list of instructions and tasks but with an acknowledgment of the land occupied by the Cheraw, Catawba and other tribal people. Then the tasks followed, but he was always teaching students to be respectful. At one point during the week, a bone fragment was found in one of the subsites, and all work stopped — exactly like the regulatory requirement, federal and state; while an expert in paleozoology was consulted first to see if he was an animal bone. Only after an answer came could work be resumed.

During that week, I shot hours of video (with permission) and talked with graduate students in the course. I considered what I had learned: Did my hours of classroom teaching and hypotheticsl about how these federal statutes should be implemented actually happen in the field? What were new archaeologists being taught in the field about indigenous people’s pasts and the respect that is owed? I felt like I had a good story and reason for optimism, so I produced a short documentary on the experience. It has now been in almost a dozen film festivals around the world and won several awards. But most importantly, it is a documentary subject that is being seen and the more understanding around these relationships we have, the better.

You can watch the trailer here:

You can watch the entire documentary for $2.99 here. Paid subscribers can watch the full documentary for free. Consider subscribing for at least one month for free access!

1. https://unlhistory.unl.edu/exhibits/show/bones-unearthed/unearthed-respect

2. https://www.nytimes.com/2022/09/15/us/native-american-remains-university-of-north-dakota.html

3. https://www.cnn.com/2021/07/22/us/indigenous-remains-colleges-universities-nagpra-trnd/index.html

4. https://nativenewsonline.net/sovereignty/university-of-kansas-says-its-has-native-american-remains-in-museum-collection

5. https://www.nps.gov/archeology/sites/antiquities/activities/gwwat.htm

6. https://www.nps.gov/archeology/sites/antiquities/activities/gwwat.htm

7. https://www.newyorker.com/magazine/2022/10/10/the-bodies-in-the-cave

8. https://www.navajotimes.com/news/2009/0709/070909sting.php

9. The Department of the Interior published the initial rules to implement NAGPRA in 1995 (60 FR 62158, December 4, 1995), which have been codified at 43 CFR Part 10.

10. Civil penalties (68 FR 16354, April 3, 2003).

11. Disposition of culturally unidentifiable human remains (75 FR 12378, March 15, 2010).

12. Section 2(8) of the Act codified at 25 U.S.C. 3001.

13. https://www.doi.gov/pressreleases/department-interior-takes-steps-enhance-compliance-native-american-graves-protection

14. https://www.nps.gov/subjects/nagpra/grant-opportunities.htm

15. http://npshistory.com/publications/archeology/state-statutes.pdf (1995).

16. http://npshistory.com/publications/archeology/state-statutes.pdf