Tribal Challenges and the Transformation of American Anthropology:
A Few Observations
Peter N. Jones
and
Deward E. Walker, Jr.
Abstract:
This paper emphasizes the significance of Tribal legislative achievements that are transforming not only the position of Tribes within the U.S. political system, but also the nature of anthropological research. This well established trend requires that anthropologists understand and acknowledge Tribal sovereignty and begin cooperating in the drive for Tribal self-determination in all areas of research.
Introduction
Over the last several decades various laws and regulations have been advocated by Native Americans and enacted by Congress challenging anthropologists and especially archaeologists. Although many of these laws and regulations have become controversial, especially NAGPRA, in reality NAGPRA is part of a much larger Native American challenge to anthropology that goes to its very foundation. Although archaeologists have been successful in securing several types of protective legislation for archaeological resources and research, Tribes are pursuing a more extensive legislative agenda that sometimes conflicts with archaeological goals and objectives.
Tribal challenges are changing the nature of both archaeological and anthropological research among Tribes in very fundamental ways. It seems likely that these developments will even alter not only how research is conducted, but also the ways in which anthropology has chosen to represent Native Americans, their cultures, their history, and their prehistory in the U.S. Obviously the current situation can be analyzed in numerous ways, but the most powerful Tribal challenges concern the legal and political powers taken on by archaeologists who have traditionally viewed themselves as the stewards of public archaeological resources.
This paper reflects a drive by Tribes for increased control over archaeological sites, data, publication rights, and related aspects of anthropological research. Tribes retain various types of sovereignty and thus may be thought to have control over their cultural and natural resources. As noted by Stapp (2000), Tribes ideally go through four stages of development or involvement with archaeologists and other outside researchers and agencies. Many do not, however, progress far beyond the first two stages due to their culturally contrasting views on excavation, preservation, and publication of data. Stapp also notes that much of the archaeological work conducted under Federal and State laws and regulations continues to be conceptualized as salvage work, and sometimes even as the study of extinct peoples who have no direct cultural link to contemporary Tribes. Likewise, Burney (2000) notes that the three basic issues frustrating anthropologists and archaeologists can be overcome through consultation and compromise. These three basic differences: the concept of time, the role of teachers and students, and the differences between scientific data and cultural values are not necessarily hindrances to the archaeological process. He believes further that they need not prevent the publication of data or impede the careers of anthropologists.
Anthropological and archaeological projects using Federal funding affecting Tribes require consultation with Tribes, a matter of growing importance to contract archaeologists and others. CRM specialists and contractors can no longer devise their own research projects without considering Tribal views and involvement. Many tribes have established their own tribal historic preservation offices (THPO). For example, T.J. Ferguson, in a paper delivered in 1997 in the Opening Session of the 62nd Annual Meeting of the Society for American Archaeology noted that 15 tribes have assumed THPO responsibilities for their reservations and that 57 tribes are actively involved in tribally based archaeological research and historic preservation programs. This is an enormous change from only a decade ago, but this only includes 11 percent of the 500 plus federally recognized tribes. Despite this trend, if one does a cursory search on the World Wide Web for companies currently involved in cultural resource management, few list Native Americans as a significant factor in their operations. Clearly such organizations and the lucrative CRM industry are a real target for Tribes who want a share of CRM wealth as well as a voice in the design and conduct of CRM research.
Anthropology can survive and even prosper in this new world. It need not be compromised by recent Federal laws and regulations that strengthen the Tribal voice and role in CRM and related anthropological research. On the contrary, by working with Tribes numerous benefits become apparent. As Longenecker and VanPelt (2000) have described, working directly with tribes has potentially enormous benefits for anthropology. Not only do we keep learning, but we come to better understand Native American perspectives concerning data and interpretation, thus opening new and more culturally valid interpretations of cultures and their evalutation. Failure of anthropologists to recognize and adjust to this transformation will only intensify the negative effects of Kennewick Man, Spirit Cave, and similar reactionary actions being taken by a handful of archaeologists militantly opposed to the emerging Tribal voice in anthropological research. This struggle has been recently, documented in David Thomas' Skull Wars (Thomas 2000).
Following are a few examples of the Federal laws, executive orders, and memoranda that are transforming the roles anthropologists have traditionally enjoyed in their Tribal research. They are part of a much larger drive by Tribes to secure control (sovereignty) over their lives and cultures. Not all of the following laws and regulations directly concern CRM but all may ultimately affect anthropological research. Importantly, these laws and regulations affect most public institutions, universities, and federally funded programs and agencies who oversee public as well as Tribal lands as well as the numerous cultural resource management for-profit businesses proliferating over the last several decades.
Laws and Regulations
National Historic Preservation Act: 16 U.S.C. 470
The National Historic Preservation Act (NHPA) of 1966 as amended requires agencies to consult with Native Americans if a proposed Federal action may affect properties to which they attach religious or cultural significance. The implementing regulations of the NHPA, 36 CFR 800 address procedures for consultation in more detail. The Advisory Council on Historic Preservation implemented revisions of this act in 1980 and again in 1992, strengthening the role of Tribes. In fact, the Advisory Council has been a major advocate of Tribal consultation and participation in CRM.
National Environmental Policy Act: 42 § 4321 et seq.
Council on Environmental Quality regulations implementing the National Environmental Policy Act (NEPA) of 1969 specify that as part of the NEPA scoping process, the lead agency "…shall invite the participation of affected Federal, State, and local agencies, [and] any affected Indian tribe,…(1501.7[a]1)." This legislation provides Tribes with major leverage but has had to many changes.
American Indian Religious Freedom Act: 42 § 1996
The American Indian Religious Freedom Act (AIRFA) of 1978 establishes the policy of the U.S. "…to protect and preserve for Native Americans their inherent rights of freedom to believe, express, and exercise the traditional religions of the American Indian…including, but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonies and traditional rites." This landmark legislation has given Tribes an important voice in many management issues affecting most Tribal lands.
Archaeological Resources Protection Act: 16 U.S.C. §§ 470aa-470mm
The Archaeological Resources Protection Act (ARPA) of 1979 ensures the protection and preservation of archaeological sites on Federal land and requires that official Federal permits be issued before cultural resource investigations begin on Federal land. It requires that investigators consult with appropriate Tribal groups prior to initiating archaeological studies on Native American sites. Although the question of who are appropriate Tribal groups has been a source of much controversy among Tribes, agencies, and CRM contract researchers, this law requires that all affected Tribes be consulted.
Native American Graves Protection and Repatriation Act: 25 U.S.C. §§ 3001-13
The currently controversial Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 mandates Federal agencies and Federally funded institutions to return both human remains and other various cultural properties to their culturally affiliated Tribes of their origin. This Act specifies that steps also be taken to determine whether a planned activity may result in the excavation of human remains, funerary objects, sacred objects, and items of cultural patrimony from Federal lands or Federally entrusted areas. The 1995 NAGPRA Rules provide specific requirements for notification and consultation with Tribes that all Federal agencies and Federally funded institutions must follow. Because of its direct impact on certain types of research by anthropologists, this legislation is being subjected to various threats of amendment, court challenges, and challenges of interpretation and implementation. At the end of the twentieth century, this legislation is the most direct challenge to anthropology by Tribes and is a harbinger of what is to come in the twenty-first century.
Executive Order 12875, 58 FR 58093, Enhancing the Intergovernmental Partnership
This Executive Order was issued on October 26, 1993. It announces a Federal policy of establishing "…regular and meaningful consultation and collaboration with State, local, and Tribal governments on Federal matters that significantly or uniquely affect their communities." This executive order attempts to remedy the traditional exclusion of Tribes from major and minor Federal undertakings that have traditionally included extensive consultation and cooperation with State and local governments.
This Executive Order, issued in February 1994, directs Federal agencies to identify disproportionately high and adverse environmental effects of their programs, policies, and activities on minority and low-income populations. This legislation also increases Tribal leverage in their efforts to overcome and otherwise mediate the effects of projects affecting their interests whether they be cultural resource management impacts or others. Tribes have long experienced many negative effects from the military, energy, nuclear, recreational, waste disposal, and other Federally sponsored uses of their homelands, especially during and since WWII.
Presidential Memorandum: Government-to-Government Relations with Native American Tribal Governments.
This memorandum issued by the President on April 29, 1994, has been widely opposed - incorrectly - by many Federal bureaus. It mandates more effective day-to-day working relationships with Tribal governments by strengthening Tribes in their often frustrating negotiations with Federal agency bureaucrats who sometimes deliberately frustrate Tribal efforts to engage in meaningful consultation concerning cultural resource management and other issues of Tribal concern. Provisions of this memorandum include the following:
·Each executive department and agency shall consult to the greatest extent practicable and to the extent permitted by law with tribal governments prior to taking actions affecting federally recognized Tribal governments. All such consultations are to be open and candid, so that all interested parties may evaluate for themselves the potential impacts of relevant proposals.
·Each executive department and agency shall assess the impact of Federal government plans, projects, programs, and activities on Tribal trust resources and ensure that Tribal government rights and concerns are considered during development of such plans.
·Each executive department and agency shall take appropriate steps to remove any procedural impediments to working directly and effectively with Tribal governments concerning activities that affect their trust property or their rights.
This memorandum and its requirements have yet to be significantly implemented by most Federal agencies in their dealings with Tribes.
Executive Order 13007, 61 FR 26771, Indian Sacred Sites
Executive Order 13007, issued on May 24, 1996, requires that in managing Federal lands, agencies must facilitate Tribal access and ceremonial use of sacred sites and must avoid adversely affecting the integrity of these sites. This executive order remedies certain weaknesses in the American Indian Religious Freedom Act. It encourages Tribes and authorizes Federal agencies to identify and protect sites deemed to be sacred by Tribes. A problem of site desecration has developed in that Tribes have discovered that once identified, their sacred sites are often desecrated by amateur archaeologists, new agers, and others. Their understandable reluctance to identify such sites, therefore, has been frustrating for Federal agencies and others who seek to implement this executive order.
Executive Order 13084, 63 FR 27655-57 Consultation and Coordination with Indian Tribal Governments
This Executive Order, issued on May 14, 1998, includes the following provisions:
·In formulating policies significantly or uniquely affecting Indian tribal governments, agencies shall be guided to the extent permitted by law, by principles of respect for Indian tribal self-government and sovereignty, for tribal treaty and other rights, and for responsibilities arising from the unique legal relationship between the Federal government and Indian tribal governments.
·Each agency shall have an effective process to permit elected officials and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters significantly or uniquely affecting their communities. This further empowers Tribal governments in their relations with the Federal government by giving them a voice in the formulation of regulatory policies.
Department of Defense American Indian and Alaska Native Policy
This policy was formally issued by the Secretary of Defense on October 20, 1998, in support of Tribal self-governance and Tribal government-to-government relations with the Federal government. It specifies that the Department of Defense will meet its trust responsibilities to Tribes by addressing Tribal concerns related to protected Tribal resources, Tribal rights, and Tribal lands. This policy also calls for creation of stable and enduring relationships with Tribes. According to this policy the principle and practice of meaningful consultation and communication with Tribes will be fully integrated down to staff offices at the installation level with respect for the significance Tribes attribute to certain natural resources and properties of traditional and customary religious or cultural importance. This is a major shift in military policy which traditionally has failed to consider Tribal concerns. In typical military fashion Department of Defense administrations are actively implementing this policy in ways that are empowering for Tribal governments.
Yet other legislation empowering Tribes includes the Endangered Species Act (16 U.S.C.§§ 1531-44), the Indian Self Determination and Education Act (25 U.S.C. §§ 450-450n), the Nuclear Waste Policy Act (42 U.S.C. §§ 10101-10270), and the Indian Arts and Crafts Act (25 U.S.C. §§ 305-10). Each of these potentially affects the work of anthropologists. As well, the Indian Gaming and Regulatory Act (25 U.S.C. §§ 2701-2721), the Indian Reorganization Act (25 U.S.C. § 461), the Indian Financing Act (25 U.S.C. § 1451), and the Tribal Economic Development and Technology Related Education Assistance Act (25 U.S.C. § 1851) are each providing Tribes with an independent funding base that liberates them from dependency on Federal, State, and other external sources of support. Few would fail to see the opportunities for Tribes to employ these laws in strengthening their overall positions in CRM and other areas. When coupled with other laws these four may be viewed as part of a very successful, larger Tribal legislative agenda referred to earlier in this paper.
Conclusion
Tribes are pursuing a successful legislative agenda at both the Federal and State levels (Sprague 1993) strengthening their voice in various areas of concern. It is also clear that a transformation in U.S. anthropology is well underway. This transformation consists of an increasing voice for Tribes in various areas, including anthropology, archaeology, and CRM. Anthropology can benefit from acknowledging Tribal sovereignty and cooperating in the Tribal drive for self-determination in all areas of research. It also appears that we may soon have no choice in the matter.
References Cited
Burney, Michael
2000 Ohio Burial Grounds to Tribal Historic Preservation Programs: Action Anthropology and American Indian Tribes in the Year 2000. In High Plains Applied Anthropologist 20(1):78-89.
Longenecker, Julia, and Jeff VanPelt
2000 Traditional Cultural Values and Non-Indian Advisors. In High Plains Applied Anthropologist 20(1):90-95.
Sprague, Roderick
1993 American Indian Burial and Repatriation in the Southern Plateau with Special Reference to Northern Idaho. In Idaho Archaeologist 16(2):3-13.
Stapp, Darby
2000 Tribal CRM, Archaeologists, and Action Anthropology. In High Plains Applied Anthropologist 20(1):72-77.
Thomas, David
2000 Skull Wars. Basic Books. New York: New York.
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