I am reliably informed that the AAA & SAA relented in their opposition to S
1980 only after Senator Inouye had a heart to heart talk with them in his
senatorial woodshed.
Deward Walker
Native American Rights Fund
Fact Sheet
TO CORRECT MISSTATEMENTS PUBLISHED BY THE AMERICAN ANTHROPOLOGICAL
ASSOCIATION (AAA)
The current newsletter of the AAA renews its lobby effort against
repatriation of human remains, sacred objects and national Indian patrimony
to Indian nations and religious leaders. The AAA's house organ carries an
attack on S. 1980, Senator Daniel Inouye's bill, which is widely supported
conceptually by Native American peoples, misstatement and
mischarterizations regarding S. 1908; these are discussed in more detail on
the attached pages.
1. The AAA does not represent any museums, nor Indian tribes or Indian
museums. However, most of the AAA complaints are made in their name.
2. S. 1980 does not "set up a simplistic and perilously adversarial
dichotomy" between museums and tribes and "undercut" their ability to solve
repatriation problems, as the AAA claims. The opposite conclusion was
reached by the year-long dialogue and Report on Museum/Native American
Relations (hereinafter, "National Dialogue Report")
3. The AAA claim that any national legislation will "prevent
communications" between tribes and museums is unsupported and is refuted by
the National Dialogue Report process and recommendations.
4. AAA's assertion that repatriation problems can be handled
"infinitely better at the local level" is off-base for three reasons: 1)
it is not a local issue; 2) "local solutions" have not solved the problems
which exist in the 50 states and are not substitutes for federal policy, as
recognize the the National Dialogue Report; 3) S. 1980 does not preclude
local solutions.
5. The AAA seriously misrepresents the impact of S 1980 on Indian
museums, which do not display or retain items over tribal objection.
6. The burden of proof requirement of S. 1980 is fair and proper.
7. Legitimate scholarly work will not be "jeopardized" by S. 1980.
8. Inventory costs are addressed by S. 1980.
9. The concern for more inventory time and other details can be easily
addressed. That is the purpose of hearings and mark-up sessions.
10. An express study provision is not necessary.
11. Though it can be refined, the repatriation requirement of Sec. 4 is
consistent with mainstream values, as confirmed by the National Dialogue
Report, and the change of policy recently announced by the Secretary of the
Interior.
12. The "constitutional issues" raised by the AAA are red herrings
without any legal merit.
DISCUSSION
TO CORRECT MISSTATEMENTS IN THE AAA ATTACK ON S. 1980
1. The AAA does not represent any museums, nor Indian tribes or Indian
museums, and its attack upon s. 1980 is largely moot since a substitute
bill is being developed. The bulk of AAA's complaints about S. 1980 are
about the alleged impacts on museums and Indian museums or communities, not
of which are AAA members or have authorized the AAA to speak for them on S.
1980. The AAA is strictly a special interest group of individual
anthropologists and archaeologists. As stated by the AAA President in a
1989 letter to the New York Times, no American museums or research
institutions in possession of deceased Natives "are themselves members of
the Association or constituent units of the Association." Similarly, the
AAA does not represent or speak for any Indian Tribes or Indian museums.
Tribes and museums (Indian or otherwise) can speak for themselves. The AAA
strategy attempts to enlist others to advance its own more narrow
interests.
The AAA criticisms or S. 1980 are not very helpful because of the present
plan for a substitute bills. However, it is useful to clarify some issues
raised by AAA in order to prevent confusion.
2. S. 1980 DOES NOT "SET UP A SIMPLISTIC AND PERILOUSLY ADVERSARIAL
DICHOTOMY" BETWEEN MUSEUMS AND TRIBES AND "UNDERCUT" THEIR ABILITY TO
RESEOLVE REPATRIATION PROBLEMS. First, the AAA does not represent any
museums or tribes, which may not agree with its assertion. Second, the
AAA does not point out any provision or procedure in S. 1980 to support
this claim, nor offer any explanation as to how the bill is "simplistic",
sets up an "adversarial dichotomy", or "undercuts" any ability to solve
problems. This lack of substance or explanation is particularly glaring,
because nothing in the bill reasonably leads to such conclusions.
On the contrary, the standards and procedure of S. 1980 are consistent with
the thoughtful and workable recommendations of the National Dialogue
Report. Unlike the AAA Commission, which is composed solely of
anthropologists and archaeologists, the National Dialogue Report
recommendations were submitted to Congress only after a one-year dialogue
on the repatriation issue between a diverse and representative panel
composed of bone fide tribal, museum, and anthropological(cultural,
physical, and archaeological) representatives. The lack of representative
composition on the AAA Commission is intentional: While the National
Dialogue process was underway, and while Congress was considering the
Repatriation Sections of the National Museum of the American Indian Act
(P.L. 101-185), the AAA denied Indian requests to meet or to have public
discussion on the subject during the 1989 AAA Convention. The closed AAA
commission which wrote the recent attack on S. 1980 met only twice, did not
meet with any "non-anthropologists" or Indian representative, and went far
beyond its charge to revise AAA guidelines for the treatment of Native
human remains. One AAA Commission member was also engaged in the National
Dialogue process and went against the majority opinion that repatriation of
Indian human remains must be viewed in the context of Human Rights
principles, even thought she verbally agreed with this point in the
Dialogue sessions.
3. THE CLAIM THAT ANY NATIONAL LEGISLATION WILL "PREVENT DIRECT
COMMUNICATIONS" BETWEEN TRIBES AND MUSEUMS IS UNSUPPORTED AND ABSURD. The
AAA represents no museums or tribes. Its specious claim that national
legislation "of any kind" will will hamper the ability of these parties to
communicate is patently absurd and not supported by known experience of any
Indian tribe or museum, and is directly contradicted by the National
Dialogue Report recommendations. That Report specifically recommended
federal legislation and judicially enforceable repatriation standards as
necessary means to resolve this longstanding human rights problem. Id. at
2, 15, 19. Congress consistently has reversed for itself the paramount
role in development of human rights and Indian rights policy. Moreover, no
facts were offered to support AAA's claim that communications will somehow
be hampered by federal legislation. Because of the fundamental human
rights which are at stake, Congress should insist upon receiving hard facts
from special interest groups.
4, AAA'S ASSERTION THAT REPATRIATION ISSUES CAN BE HANDLED "INFINATELY
BETTER AT THE LOCAL LEVEL" IS WRONG FOR THREE REASONS. First, American law
has consistently recognized that Congress is the appropriate entity for
resolution of Indian policy questions, and that states and other local
entities are the most immediate competitors for Indian resources and
deadliest opponents of Indian rights. The Founding Father set this
standard by nationalizing dealings with Indian tribes in the U.S.
constitution. Second, repatriation is definitely not a "local issue",
because most museum collections of dead Indians and tribal patrimony are
located hundreds of miles away from the tribes of origin. Repatriation and
grave looting are distinctly inter-state problems. The National Dialogue
Report recognizes that the longstanding repatriation problems in all 50
states will not be resolved without national legislation. Tribes have
negotiated patiently with physical anthropologists, their special interest
group organizations, and others in possession or their dead for most of
this century with only isolated success, but without any measurable change
in overall policy or practices. Just as it takes federal civil rights laws
to remedy major areas of discrimination against Black and other minority
groups, "local solutions" are no substitute for federal protections of the
fundamental Native human rights that are at stake here. Third, S. 1980
does not preclude any "local solutions", either directly or indirectly; on
the contrary, "local solutions" will be facilitated by clarifying the
general guidelines, principles, and ownership issue to be followed.
5. THE AAA HAS SERIOUSLY MISREPRESENTED THE IMPACT OF S.1980 UPON
INDIAN MUSEUMS. The AAA does not speak for nor represent Indian museums,
which are very able to represent their own views on S. 1980. There are two
obvious reasons why S. 1980 will not "severely impact" Indian museums nor
cause their collections to be "threatened by demands for repatriation" in
any measurable way as suggested by the AAA. First, Indian museums do not
house or display dead bodies against the will of their own people and
governments. Second, Indian museums do not withhold stolen or improperly
acquired religious objects or national patrimony against the wished of
tribal citizenry or governments. Thus, their collections will not be
"terribly threatened" by S 1980. On the contrary, their collections likely
will increase in size as Indian museums become repositories for some
repatriated material. The AAA "concern" for Indian museums is gratuitous,
misleading, and insulting. The AAA should stick to representing its own
special interest and let Indians represent themselves, rather than
attempting to use Indians to fight Indians for the primary benefit of
non-Indian private collectors.
6. THE BURDEN OF PROOF REQUIREMENT OF S. 1980 IS ELEMENTARY, FAIR, AND
PROPER. No one, including presumably the AAA, suggests that museums should
retain property that legally belongs to another against the wishes of the
rightful owner. When there is a dispute, museums must prove their title to
requested material as a matter of basic property law. S. 1980 merely
codifies that fundamental American property law principle, and it is
appropriate to place that burden of proof on museums, because they
typically have exclusive possession of all the records documenting their
ownership and accession. In that regard, S. 1980 is consistent with the
existing federal burden of proof statute (25 USC 194) which governs
property disputes between Indians and non-Indians. ("In trials about the
right of property . . . the burden of proof shall rest upon the white
person, whenever the Indian shall make out a presumption of title in
himself from the fact of previous possession or ownership.")
7. S.1980 WILL NOT "JEPORDIZE" LEGITIMATE SCHOLARY WORK IN ANY
MEASURABLE WAY FOR THREE REASONS. First, S. 1980 merely requires that
persons interested in studying dead Indians obtain the consent of the next
of kin, descendants, or tribal governments. (The "right" of scientists to
dig up, retain, and study the dead has always been a contingent
authorization dependent upon the informed legal consent of third parties,
and physical anthropology has been able to thrive under that requirement
when it comes to studying the dead of all other races.) Second, it is
important to remember that the vast collections of dead Indians throughout
the nation have been held for decades, and some for over 100 years, and
have been amply studies by generations of scholars already. If one carries
the AAA concern to its logical conclusion, no person in the country would
ever be entitled to rest in peace. The skewed notion and value system
articulated by the AAA is one that all normal people reject. Reburial of
some of these Indian dead upon tribal request, under these circumstances,
will have no more adverse impact upon science than circumstances, will have
no more adverse impact upon science than statutes in effect in all 50
states that already require the reburial of human remains donated to
science after the remains have been studies. Third, insofar as the
retention by scholars of stolen or improperly acquired Indian religious
property and items of Indian national patrimony are concerned, everyone
recognized that legitimate scholarship and education are not and have never
been dependent upon retaining stolen property against the wishes of the
rightful owner.
8. INVENTORY COSTS ARE ALREADY RECOGNIZED AND ADDRESSED BY S. 1980.
The National Dialogue Report (p. 17) recommended and Sections 3 (f) (3) and
(g) of S. 1980 expressly authorize appropriations for museum inventories.
9. THE CONCERN FOR MORE INVENTORY TIME CAN EASILY BE ADDRESSED. The
AAA concern that the inventory period of S. 1980 is too brief is a minor
issue that can easily be addressed in appropriate instances. However, it
must first be pointed out that the AAA seems confused about the very
limited scope of the inventory requirement of the bill. The bill merely
requires a simple inventory. This is something that most museums already
have done and all should have done as a matter of basic museum practice.
The inventory should be based on "available information" with only
sufficient detail necessary to identify Native parties for notification and
possible repatriation purposes. S. 1980 does not require that every item
in every collection be extensively "analyzed and studied". A simple
identification inventory of this nature is vastly different in scope, time,
and cost that the detailed scientific study and analysis that the AAA would
like others to believe is desired or required. Moreover, changes to this
or any bill can be made during the hearing and mark-up sessions, as bills
are essentially draft laws, and representatives of the Indian lobby for
this legislation remain willing to discuss S. 1980 in detail. for example,
a change to the bill as introduced could be explored that would empower the
Review committee to grant an extension of time to certain museums who
cannot comply with the time requirements, upon a written request and a
showing of a good faith need.
10. AN EXPRESS STUDY PROVISION IS NOT NECESSRY. The AAA complains that
S. 1980 has no express study provisions (not to be confused with the
inventory requirement) so that museums may "analyze and document" the
materials "as fully as possible" before they are returned to proper Native
parties. Such express provisions are unnecessary, because museums can
retain Indian dead bodies and property for study purposes when they have
secured proper informed Native consent. It must also be remembered that,
first and foremost, S. 1980 is a repatriation measure deemed necessary to
redress prior human rights violations, and not a bill to engender funds for
more studies of deceased Indians and stolen or improperly acquired Native
property,
11. REPATRIATION OF NATIVE AMERICAN DEAD BODIES AND RELATED FUNERARY
MATERIAL EXCAVATED BY FEDERL PERMITS TO NATIVE AMERICAN GROUPS, UNDER SEC.
4 OF S. 1980, THOUGH OBJECTED TO BY SPECIAL INTEREST GROUPS SUCH AS THE
AAA, IS CONSISTENT WITH MAINSTREAM AMERICAN SOCIETY VALUES. Since 1906,
federal statutes protecting "archaeological resources" on public land have
classified dead Indians and tribal burials interred on federal lands as
"federal property" which must be "permanently preserved in public museums".
This classification of Indian dead a "resources" and the conversion of
humans into property has resulted in injustices against Indian people, as
literally thousands of Indian burial sites have been dug up over the
ensuing 84 years under federal permits. Section 4 of S 1980 recognized the
injustice of this misclassification that has led to federal expropriation
of deceased Native Americans and their burial possessions under federal
rules promulgated by the Secretary of the Interior. The provisions of Sec.
4 could be refined, but they simply reflect current policy and practice.
For example, the repatriation principle embodied therein is something that
the Secretary of the Interior already appear to embrace, as reflected by
his press release of March 20, 1990, which states:
>From now on, our policies will affirm the rights of American Indian groups
to determine the handling of their remains--whether they wish to re-bury or
allow researchers to study remains with respectful treatment. . .. We must
respect these burial finding s as the sacred remains of past generations.
That's why I've directed the national Park Service to develop a new policy
to ensure that we are more sensitive of this issue.
Sec. 4 also is consistent with the majority panel recommendation of the
National Dialogue Report, at 1, 18, which states that all deceased Native
peoples who did not donate themselves to science re entitled to a decent
place of rest and that a process must be developed with the consent of
interested Native peoples for that purpose, which should also incorporate
legitimate scientific interests in appropriate instances, where Native
consent is secured. This recommendation, of course, reflects mainstream
American values on the basic right and sanctity of the dead and is further
supported by statutes of all 50 states, including the District of Columbia,
which guarantee that all persons (including indigents, strangers, and
unclaimed persons) are entitled to a decent burial under all conceivable
circumstances (even remains donated to science are typically buried after
study.)
The AAA is a special interest group with understandable self-interest at
stake. As such, it naturally raises a long line of miscellaneous
objections against this provision. However, its objections, on examination
and reflections, are a transparent plea to protect the discipline' complete
dominion over what it has long considered its exclusive property. Whether
society at large and justice will continue to allow this special interest
group exclusive dominion over deceased Indian people is precisely what S,
1980 is intended to resolve.
12. THE "CONSTITUTIONAL ISSUES" RAISED BY THE AAA ARE RED HERRINGS
WITHOUT ANY LEGAL MERIT WHATSOEVER. The three"constitutional" issues
raised by the AAA would not be sustained in a legal proceeding. Briefly,
they can be addressed in the following way: 1) Ample federal authority for
S. 1980 exists under the same constitutional authority that Congress has
used to: a) resolve all Indian political questions; b) regulate or dispose
of federal property belonging to the United States; c) regulate inter-state
commerce; and d) protect human civil rights and liberties of persons
secured to them by the U.S. Constitution. 2) Condemnation is a non-issue,
insofar as the disposition of federal property interests are concerned
(i.e., Indian remains and property excavated under federal permits or
owned/controlled by federal museums or agencies). Section 4 deals only
with federal property; thus, no taking of property issue arises. As to
non-federal museums, S. 1980 expressly does not "take" any property, but
merely clarifies ownership issues to be followed if the museum wishes to
continue to be eligible to receive federal funds. 3) Any issue regarding
private land use is far outside the purview of any provision of S. 1980 and
is so intangential that it fails to raise to the level of a due process
inverse condemnation issue. (See, e.g., Kansas Attorney General Op. No.
88-73, May 25, 1988). 4) The "equal protection" argument that S. 1980
must either protect all races or be violative of the equal protection
clauses is frivolous. This argument is commonly raised by archaeologists
to frustrate legislative efforts to protect Indian burials. It is one
which already has been squarely rejected by the only court which has
considered it. People v. Van Horn, No. 4 CIV E00527 (4th App. Dist. Ca.,
Div. 2, 1988), aff'd, _p.2d_ (App. Ct., 4th Dist., No. 182719, Mar. 1989)
(Cert. for publication).
CONCLUSIONS
The AAA does have an existing code of ethics, which calls on the profession
to measure its actions within the context of the potential impact of the
culture being studied:
In research, an anthropologist's, paramount responsibility is to those he
studies. When there is a conflict of interest, these individuals must come
first.
No other issues so adversely affects Native tribes, communities, and
cultures than the ones which S. 1980 attempts to redress--and, of all
people, anthropologists should be among the first, not last, to recognize
this human rights problem and to stand up for the peoples they study. Many
anthropologists who work among the tribes has long held this view. It is
unfortunate that the AAA has chosen initially to stand as a
non-constructive critic of S. 1980, which is a good point of departure for
development of mature and healing policy. The AAA is out of step with the
choice that society and its representatives in Congress have made, however,
it is not too late for this group to act more responsibly and
constructively.
For more information contact NARAF staff attorneys:
Walter R. Echo-Hawk, (303) 447-8760
Henry J. Sockeson, (202) 785-4166
:
End of first installment