Interim Report, AAA Commission on Native American Remains
Nancy Oestreich Luris, Milwaukee Public Museum
In 1989, the Executive Committee of the Association, at the suggestion of
then president Roy Rappaport, requested me to form and chair a Commission
on American Indian Remains. Our charge was to study and report on the
issue for presentation to the AAA membership by the Executive committee at
the 1990 annual meeting. The Commission is representative of the
sub-disciplines, Indians and non-Indians, museums and academia, and a range
of experiences and views on the subject. I am grateful for the willingness
of these people to participate on the Commission and for the hours of hard
an thoughtful work they dedicated to our task. The commission, besides
myself, is made up of two archaeologists, Lynne Goldstein, University of
Wisconsin-Milwaukee, and Shirley Powell, University of Northern Arizona;
two biological anthropologists, Michael Blakey, Howard University, and
Douglas Owsley, National Museum of Natural History, Smithsonian Institution
(MNHN-SI), and Alfonso Ortiz, University of New Mexico; and H. Marcus
Price, University of Missouri, an attorney and anthropologist with special
expertise in reburial legislation.
We held our first meeting Nov. 15, 1989 during the AAA annual meeting and
scheduled our next meeting for Jan. 27 to flesh out the general points that
evolved from our first meeting. In the meantime, on Nov. 21, 1989, Sen.
Daniel Inouye introduced two Bills, S. 1979, dealing largely with Indian
freedom of religion and sacred sites, and S. 1980, dealing with
repatriation of remains, grave goods, and sacred objects. We concluded
that we should direct our attention specifically to S. 1980 as an urgent
informational service to the AAA membership and take up our initial charge
of a general study/report later in the light of action that might be taken
in regard to S. 1980. We all appreciated the humanistic concern
underlying Senator Inouye's efforts, but recognized serious potential
problems of interpretation and implementation of S. 1980 as it stands. The
following statement was arrived at in consensual discussions. We include
the complete text of S. 1980 for reference to keep our statement as
succinct as possible for informed assessment of our conclusions.
STATEMENT OF THE AMERICAN ANTHROPOLGICL ASSOCIATION COMMISION ON THE
TREATMENT OF HUMAN REMAINS.
INTRODUCTION:
There is great diversity in cultural and religious values
concerning the treatment of human remains. Individuals and communities
have valid concerns derived from cultural religious beliefs about the
treatment and disposition of human remains that may conflict with valid
research and educational interests.
A balance must be struck between the research and educational
interests in each situation and the concern of different cultures as
presented by their designated representatives and leaders. Satisfactory
and lasting solution can only be achieved by direct communication between
such representatives and leaders and persons currently charged with
responsibility for the care and preservation of remains and objects in
question. Imposed national legislation that undermines local efforts will
prevent effective and lasting solutions.
Human remains are to be treated with respect. Respect can include
careful curtain and a recognition that valuable anthropological,
historical, and medical information can be obtained through analysis.
Remains have important value to the science of humanity. Examples of this
value include knowledge about diet, disease, demography, and migration.
This information has provided in more realistic understanding of the human
past and has benefit for everyone. Such research can, for example, lead to
a better medical understanding of health problems that still haunt living
populations, such as osteoporosis, rheumatoid disease, and tuberculosis.
Anthropologists have a responsibility to make clear the local
relevancy of their work and be open to questions generated by descendant
communities, including projects that these people would like to see
undertaken. Concerned descendant communities should be involved in the
decision making process.
ASSESSMENT OF PENDING NATIONAL LEGISLATION
General Considerations.
Collections exist which will and should be offered to appropriate
recipients. The Museum and Indian communities are increasingly working
together to accomplish this objective. Senate Bill 1980 is a commendable
attempt to legislate this process. However, the thrust of the Bill sets up
a simplistic and perilously adversarial dichotomy of Native Americans on
one side and Museums on the other. It undercuts what is presently working
in many places and gaining increasing momentum, that is, the development of
mutually satisfactory accommodation across the country on a local basis.
Questions can be handled infinitely better at the local level where
there is intimate knowledge of points at issue. Sites differ, collections
differ, tribes differ, interests within tribes differ. Candid and open
discussion at a pace native people and scholars are comfortable with are
promoting mutual knowledge and deeper understanding of one another's
positions and willingness to reach workable agreements appropriate to
particular situations. Further, legislation of the kind proposed
perpetuates the stereotypes of THE American Indian rather than respecting
tribal distinctiveness and local options.
While it may not be the intent of the Bill, its provisions can
jeopardize serious scholarly concern with antiquity as expressed in the
material record of the human past. The ancient history of North America is
our common historic heritage. Just as the Biking, Roman, and Norman
presence in Great Britain is as much a part of British history as the
angle-Saxon presence, the Native American and Native Hawaiian presence is
integral to any history of this country. With the still imperfectly known
story of Americas past, it is important that native and non-native scholars
have access to all opportunities to expand knowledge.
In addition, there are extant Indian museums whose existence is not
recognized by the Bill, and these will be severely impacted by the proposed
legislation. Such museums -- which are developing across the country --
would seem to be logical repositories for certain repatriated materials,
but may find their own carefully curate collections threatened by demands
for repatriation from other individuals and groups. The growing cadre of
Indian museums professionals was not consulted in the development of this
legislation. Thus, qualified native professionals were deprived of the
opportunity to contribute to the formulations of the Bill.
The potential dangers of this legislation to native communities may
in some instances outweigh advantages that accrue to them. The timelines
contained in the Bill place not only museums under extreme pressures, but
also native communities that may have other pressing concerns. The Bill,
in effect, presumes to dictate the social and economic priorities of these
communities.
SPECIFIC OBJECTIONS TO THIS LEGISLATION
Practical Considerations
There are several questions that emanate from practical application
of the legislation.
1. The Bill implicitly assumes that museums control the evidence
pertaining to the chain of acquisition. In reality, museums do not always
control all the evidence relating to the chain of title. There may be
claimants with good title to items in collections who are previously
unknown to the museum administrators. Thus, unknown individuals could come
forward with claims to items in collections which have been transferred to
native communities through operation of the Bill. There should be in the
statute an indemnification of museums and museum curators/administrators
who make good faith decisions based on the available evidence. Further,
museums are trustees and a museum may not be able to give up collections
even if they want to -- limitations may exist in regard to the wording of
bequests or a larger governing structure which controls a museum and its
holding.
2. The inventory is obligatory. Who is going to pay for inventory of
the collections if no federal funding is provided? The Bill mandates
completion of the a detailed collection inventory to the fullest extent
possible. This obligation will require enormously expensive personnel and
support resources. The Secretary of the Interior is authorized to make
grants to institutions, but no such funds are specified. Without clearer
provision, the probable consequence is the closing of all museums that are
not well funded. Thus, the United States will certainly lose some of its
university museums, and the Bill will impact terribly on American Indian
museums. There is no assurance that tribal museums will be considered as
representatives of those tribes. Thus, tribal museums may not be the
ultimate repository of collections returned to the tribes.
3. Who pays for the cost of return collections to the tribe?
4. The inventory process can not be completed within the brief time
period provided in the bill. While museums maintain records of their
holdings, these re not necessarily in the form called for by the
legislation. Museums' primary function is to collect and curate, holding
and preserving objects with the idea that they will be useful in the
future. This means that not every item has been analyzed and studied to
the extent called for in the legislation.
5. There is no provision for study of collections to be returned. In
evaluating repatriation requests, museums will be making irrevocable
decisions for deaccession, which in many cases will result in the
destruction of materials of recognized importance. The cultural and
scientific issues must be carefully evaluated. When it is determined that
specific collections are to be returned, the institution has the obligation
to analyze and document these materials as fully as possible for the
benefit of future generations.
6. Any native claimants should have the burden of proof by clear and
compelling evidence that they are the duly authorized representative of the
community that they claim to represent.
7. The purpose of Section 4 is to repatriate any human remains, sacred
objects or funerary objects that have been excavated under Federal permit.
The provisions of this section, however, make sweeping determinations that
undermine many years of cooperative agreements as well as federal and state
policies.
This section of the bill undermines all federal and state historic
preservations statutes without any consideration to the impact of such an
action. Many of these laws have been developed with the cooperation of
local Indian communities.
Section 4 (a) allows anyone who calls himself an Indian to request
repatriation of human remains, sacred objects or funerary objects. There
is no burden of proof other than expressed interest. There is also no
indication of repatriation for what purpose. As discussed in 1 above, the
Bill needs an indemnification for museums acting in good faith
Section 4 (b) (2) requires no disturbance of remains or objects
without express consent of the Native American group that is culturally
affiliated with the remains or objects. How would one know with what group
an unexcavated site is affiliated, and what if there is no living group
which is affiliated with said site?
Ambiguities and Equivocation
The bill is filled with ambiguities. The definations of cultural
patrimony as employed in this Bill is unclear. The reference to "sacred"
is so sweeping as to include the entire universe of material remains.
Surely, this cannot have been intended. The term "organized group" is
ill-defined. Does it include social clubs? Ad hoc interest groups?
The whole concept of legal title in a traditional context is often
obscure. Western concepts of legal title often are not directly imputable
to traditional communities. The attempt by the Bill to impose these
principles on traditional communities is naive and will produce confusion
in the process and conflict within the traditional communities.
Constitutional Issues
The Bill provokes at least three contentious issues under the U.S.
Constitution.
1. Is this a valid exercise of Federal Police Power? At least 27
states already have specific legislation dealing with Native American
remains. The Bill may be an unconstitutional exercise of Federal Police
Power as the issue may better be left to the individual states, not handled
at the Federal level.
2. Does the Bill constitute an act of inverse condemnation? Under
Section 4 (b) (2), human remains, sacred objects and funerary objects shall
not be disturbed without the express consent of the Native American group
culturally affiliated with such remains. In addition to the impossibility
of knowing the cultural affiliation prior to excavation, the Bill does not
take into account that a great many remains are revealed by accidental
discovery through development on private property. In this instance,
rights of use of private property are taken away from the property owner,
and he must be compensated for this deprivation. The Bill denies the right
of use of private property in which human remains or artifacts are located.
The U.S. Supreme Court has held that although valid public policies may be
implemented and thus impact on use of private property, the cost burden of
these policies cannot be disproportionately imposed on private property
owners. Compensation to the property owner for the restriction of use
spreads the cost of the public policy among the sovereigns taxpayers.
3. In view of the scientific, medical, and historic importance of
human remains, the holdings of museums and comparable repositories include
not only Native American and Native Hawaiian remains, but representatives
of the entire American populations. In this Bill, however, protections re
granted only to certain portions of the population. If the statute is
designed to protect valid public interests, then it should be extended to
all citizens. Failure to extend the protection to all citizens may violate
the constitutionally guaranteed equal protection under law.
Administrative Procedures
1. "Preponderance of evidence" is ambiguous in the context of the
Bill. What if there is no evidence? What is needed to prove legal title?
2. The constitution of the committee imposes bias. Further, there is
no clear procedure for appeals from the Committee's decision.
Summary
The Commission supports a case-by-case treatment of repatriation
claims made by descendant communities. There are two major problems with
the proposed legislation (S. 1980): 1) much of the wording and several
stipulations perpetuate a confrontational approach t a time when
confrontation is rapidly giving way to reconciliation, and 2) the
legislation requires museums to act in ways that cannot be practically
carried out under present funding constraints and within the specified time
period.