July 2004

Grave Injustice

Federal laws about burial remains put politics before science.

Steven Vincent
scvincent@att.net

Imagine an America where the federal government takes an active role in promoting the spiritual values of a certain cultural group. This group rarely documents its largely unknown religious practices and in fact considers many rituals too secret for public knowledge. Yet should outsiders violate its beliefs, the government can threaten them with lawsuits, fines, or prison sentences.

Many people believe this scenario needn't be imagined at all, because this America exists now. A statute called the Native American Graves Protection and Repatriation Act (NAGPRA) has created a legal and cultural imbroglio that has scientists frustrated, art dealers scared, and the general public befuddled. In the words of one archaeologist, Geoffrey Clark of Arizona State University, "What we're seeing here is the triumph of political correctness over logic and reason."

To Native American groups and their supporters, NAGPRA and similar laws are long-overdue measures that protect burial remains and sacred objects, helping redress the wrongs Indians have suffered since 1492. According to Arizona Judge Sherry Hutt, speaking before the U.S. Senate in 1999, NAGPRA is "one of the most significant pieces of human rights legislation since the Bill of Rights." For Fort Lewis College anthropologist Kathleen Fine-Dare, author of Grave Injustice: The American Indian Repatriation Movement and NAGPRA, "This was more than a law; it was a change in the American consciousness." Cherokee tribe member Steve Russell, an associate professor of criminal justice at Indiana University, says the law "has helped transform Indian bones from archaeological specimens to the remains of human beings."

The law's critics disagree. "This law presents a clear and present danger to our study of the past," says Alan L. Schneider, an attorney with the Oregon-based pro-archaeology group Friends of America's Past. "The people in Congress who voted for this measure never thought it would go this far." The sentiment is echoed by a leading dealer of Indian artifacts who, like many people interviewed for this article, prefers not to be identified by name. "NAGPRA frightens everyone — dealers, collectors, everyone," he says. "I don't want Big Brother snooping around my business."

How did a well-intentioned piece of legislation come to provoke fears of Orwellian snooping? The answer involves the weighted history of Indian relations, a vaguely written federal law, and the zealous agencies that seek to enforce it, as well as aspects of Native American culture that strike some non-Indians as confusing and often contradictory.

Repatriation Rising

Signed by the first President George Bush in 1990, NAGPRA requires federal agencies, and institutions that receive federal money, to inventory any bodily remains or important cultural artifacts of Indians, native Alaskans, or Hawaiian peoples in their collections — and to return those items, on request, to "culturally affiliated" tribes or descendants. In addition, the statute restricts commercial trade in those objects. Exempt from the law are objects held by the Smithsonian Institution (a separate statute, the 1989 National Museum of the American Indian Act, covers those) or objects found after 1990 on state-owned lands (most states have their own repatriation laws). Nor does NAGPRA apply to items amassed in private collections before 1990 or discovered on private land.

"Congress was seeking a balance between private rights and the rights of Indians," says Jack Trope, executive director of the not-for-profit Association on American Indian Affairs (AAIA), who served as an instrumental adviser to legislators during the creation of NAGPRA. "But at the same time, most people drafting this law felt that our legal system needed to do a better job of representing Native American culture."

The act was the latest in a series of often faltering efforts to preserve Native American culture and grant Indians equal protection under the law. Congress established the Antiquities Act of 1906 in part to prevent the looting of Native American sites. In 1978 legislators passed the American Indian Religious Freedom Act, under which the government recognized Indian religious values and rituals, and in 1988 they created the Archaeological Resources Protection Act, which mandated stiff penalties for removing Native American objects from public lands without a permit. The law, however, stipulated that recovered objects remained the property of the United States, to be "preserved by a suitable university, museum, or other scientific or educational institution" rather than repatriated to tribes.

The sea change in public attitudes toward Native American culture began in the most unlikely of places. In 1976 Maria Pearson, a Yankton-Sioux woman living in Iowa, learned that a road crew had excavated a grave site, unearthing 26 Caucasian skeletons and one of an Indian woman. State officials reburied the white bones in a new cemetery but shipped the Indian remains to Iowa City for further study. "That's discrimination," said Pearson, recalling the incident for an Iowa newspaper in 2002. "What made those white people not worth studying? The Indian has got to remain buried just like everyone else."

Arguing that the issue was a civil rights violation, Pearson went to Iowa's governor, only to be rebuffed. Undeterred, she fought on, rallying a grassroots movement that led, in 1982, to the first state law requiring that public agencies return Native American remains to their affiliated tribes. Coupled with a rising interest nationwide in Indian rights, Iowa's statute gave impetus to a legal groundswell that eventually led to NAGPRA.

Today museums across the country are inventorying and repatriating thousands of bones and funeral objects held in their collections. For example, the Smithsonian's Museum of Natural History is returning some of the 18,500 human remains and tens of thousands of artifacts it possesses from over 90 indigenous peoples. In the largest repatriation case to date, the Robert S. Peabody Museum at Phillips-Andover in 1999 returned the bones of 2,000 Pecos Indians and over 500 funerary items to the pueblo of Jemez, New Mexico. As recently as last October, Chicago's Field Museum returned the bones of 150 people to the Haida tribe in British Columbia.

"It's been good for everyone," says Fort Lewis College's anthropologist Fine-Dare, who applauds her own institution's efforts to inform more than 25 Indian tribes about the school's holdings of Native American bones. "It helps show that historical wrongs can be corrected — and that museums don't have to be gutted in the process." Still, in part because of the huge number of bones possessed by American museums, "only around 10 percent have found their way back to their tribes since NAGPRA's passage," estimates Karenne Wood, repatriation coordinator for the AAIA.

Abusing the System

Few, if any, critics take issue with returning bones of Indians to their descendants. It's the abuse of the process that angers many archaeologists and anthropologists. They argue that NAGPRA has given Native Americans license to claim human remains whether or not there is a genealogical link, often at the expense of scientific knowledge.

In 1988, for example, an 8,000-year-old skeleton was found in Hourglass Cave in the Colorado Rockies. The National Parks Service repatriated that skeleton to the Ute Indians after a study that many leading anthropologists thought was inadequate. In 1989, similarly, an 11,000-year-old skeleton was discovered in Idaho. State officials turned it over to the Shoshone-Bannock — permitting only one anthropologist to examine the bones — even though the tribe is believed to have dwelled in the region for only 2,000 years. "NAGPRA and similar laws have created expectations among Native American activists and some government officials that they can use these statutes to impede scientific study," says Schneider of Friends of America's Past.

Worse, critics contend, the law encourages Indians to assert claims based on myths, rituals, oral traditions, and other tribal practices not normally recognized by the scientific community. Some Indians now argue that information garnered from the study of their ancestors' bones is "proprietary" and thus the exclusive possession of the tribe. Others attempt to prevent the publication of photographs of sacred objects or to dictate the circumstances in which institutions exhibit certain artifacts, based on claims that the items are "alive" or otherwise possess a divine spirit.

In many cases Indians have persuaded state agencies to uphold tribal taboos, such as preventing menstruating women from handling certain objects. "A lot of this nonsense comes from the politicization of NAGPRA," says one physical anthropologist who wishes to remain anonymous. "Many Indian tribes are just creating traditions as a way of pursuing social, legal, and cultural power."

The issue came to a head with Kennewick Man. In this much-publicized case, the chance discovery of a skull along the Columbia River in Kennewick, Washington, in 1996, led to the finding of 9,000-year-old skeletal remains. Although scientists believed the bones originated from a Caucasian man, a coalition of Indian groups claimed the remains, asserting that the skeleton lay in territory that has traditionally belonged to their people. Or, as one tribal leader stated, "From our oral histories, we know that our people have been part of this land since the dawn of time." The U.S. Army Corps of Engineers — which has jurisdiction over the Columbia River — accepted this argument and announced it would repatriate the skeleton.

Members of the scientific community cried foul and filed a lawsuit; the government and Native American tribes appealed. As the case awaited resolution, archaeologists found they had to battle Indians and their government supporters for every scrap of information they could glean from the skeleton. "The government did a CAT scan of the bones and we asked for the results," says Schneider, who served as a lawyer representing the scientists in the case. "Native Americans objected, and we had to file a motion to see the data." In the words of one physical anthropologist, "It's clear to me that Native Americans are eager to block study of the skeleton. Otherwise it might prove they were not the first to inhabit this continent."

On February 4, a three-judge panel of the 9th Circuit Court of Appeals ruled in favor of the scientists, arguing, in effect, that the Indians had put forth an "extreme" definition of "Native American." At press time, the tribes had not yet decided whether to appeal the ruling.

To NAGPRA's credit, the law has been used to deny many of the more outrageous claims. In 1993, for instance, archaeologists working on a 10,000-year-old site in Montana discovered some ancient human hairs and announced their intention to study them. Although there was no evidence of burials at the site, two Indian tribes, the Confederated Salish and Kootenai and the Shoshone-Bannock, filed a NAGPRA suit, contending in part that such research was sacrilegious. The government rejected their argument — although the lengthy court battle prevented study of the hairs for years.

A similar case involves the Fallon Paiute-Shoshone, who in 1997 attempted to assert "cultural affinity" with the 9,500-year-old remains found in Spirit Cave, Nevada, basing their claim largely on tribal traditions that indicated their ancestors had lived in the area since "time immemorial." In that case the tribe's claim was rejected. In November 1999 the Confederate Tribes of Grand Ronde, Oregon, claimed the Willamette Meteorite on display in New York's Museum of Natural History, calling it a "holy object" that conveyed messages from the spirit world. The case was settled with an arrangement that allows the Indians access to the meteorite for cultural and religious purposes.

Perhaps the most bizarre NAGPRA case involves Honolulu's Bishop Museum. This institution had in its collection 83 artifacts and human remains taken in 1905 from the Kawaihae Cave complex on Hawaii. In 2000 the museum gave the objects to an ethnic Hawaiian organization called the Hui Malama, which proceeded to rebury them somewhere in the cave complex. Several other native Hawaiian groups complained, arguing that the Bishop had not allowed them time to assert their claims to the objects, as stipulated by NAGPRA. The issue was taken up by the NAGPRA Review Committee, which last May castigated the museum for giving the Hui Malama possession of the objects and ordered the group to return the objects to the museum. When the Hui Malama refused, the Bishop requested the right to break into the complex and seize the objects. The Department of Hawaiian Homelands declined the request, and the matter is heading for the courts.

It's this affirmation of group — or tribal — rights over the imperatives of science and the free transmission of knowledge that outrages so many critics. "This is a question of who owns the past," maintains Arizona State's Clark. "I believe in an archaeology that is scientific and belongs to the national patrimony, not to any ideology or ‘consciousness group.'" Others worry about the statute's effect on the law in general. Argues attorney Schneider, "A lot of people in government agencies have bought into the idea that they can do anything they want to do right by Indians. Look at the state of Nebraska — it repatriated all skeletal remains to Indian tribes, even those which were Caucasian."

Meanwhile, Schneider continues, "you have agencies giving tribal oral traditions the same weight as written documentation — and people in the federal Justice Department contending that scientific study of Indian culture is a savaging of that culture." Add to these concerns the extraordinary sensitivity the government shows toward Native American religion, and you have what many perceive as a kind of touchy-feely attack on fundamental standards of science and knowledge. As the late Clement Meighan, a UCLA archaeologist and fierce NAGPRA critic, wrote in the November 1994 issue of Archaeology magazine, "The New Age disposition to invoke or invent beliefs no one really holds, and to maintain they are of a value at least equal to, if not supremely greater than, those that account for the triumph of Western civilization, is given concrete expression in the repatriation movement."

Crackdown

At least no one's going to jail. Well, not in the museum community. The story is different among commercial traders of Native American artifacts. Says Jeff Myers, a New York dealer of Eskimo artifacts, "What started as a way to return Indian bones and protect Native American burial grounds from looting has turned into something far more complex and troubling."

The first case of a private individual convicted under NAGPRA occurred in 1994. FBI agents arrested an Arizona man, Richard Corrow, for attempting to sell sacred Native American artifacts he had purchased on tribal lands. He also possessed objects containing bald eagle feathers, in violation of the 1940 Eagle Protection Act and the 1918 Migratory Bird Treaty Act (MBTA). He received five years' probation. In 1997 a federal court in New Mexico sentenced Arizona dealer Rodney Tidwell to 33 months in prison for selling Acoma priest robes and Hopi ritual masks. Both Corrow and Tidwell appealed, arguing that NAGPRA is too vague regarding which Native American objects are sacred and which aren't. Although their appeals were unsuccessful, the debate they started continues.

Critics maintain that the whole idea of "sacred objects" is often highly problematic and open to various interpretations and politicization. Many Indians converted to Christianity, they observe, and sold or gave away objects they once considered holy. Now, encouraged in part by NAGPRA, Indians are rediscovering their ancestral beliefs and demanding the repatriation of those items. "A lot of Native Americans are born-again animists," Ramona Morris, president of the Antique Tribal Art Association, notes wryly. Others complain that, given more than 2 million Native Americans of over 769 federally recognized tribes, no one knows the full extent of Indian rituals and methods of worship, including many that Indians keep secret.

The only authorities are Indians themselves. As one leading Santa Fe dealer moans, "The government will ask Indians, ‘Is this important to your tribe?,' and of course they'll say yes in order to get possession of the objects. Next thing you know, they're putting it back on the market." Perhaps even more troubling, by relying on the subjective judgment of tribal leaders, government agencies edge closer toward a relationship with Native American spirituality that violates the constitutional separation of church and state.

Tribal art dealers stay on the right side of the law by avoiding human remains, objects known to be deemed sacred (such as tribal masks), and anything containing the feathers of eagles and other birds protected by law. At the same time, dealers handle only artifacts they know have come from private collections, since NAGPRA's jurisdiction over Native American objects is limited to those that originate from federal or tribal lands. But some observers worry that even this affirmation of private ownership is eroding. "Although the law was originally intended just for museums," says Albuquerque's Robert Gallegos, one of the few dealers unafraid to publicly criticize NAGPRA, "federal agencies are trying to make it apply in the private sector."

In the early 1990s this fear was palpable among dealers in the southwest. Back then there were stories of raids by a joint task force that included agents from the FBI, the Bureau of Land Management (BLM), the Bureau of Indian Affairs, and the National Park Service, among others. This task force would storm into even the most respected Santa Fe businesses looking for contraband "as if we were crack houses," in one dealer's words. The feds disbanded the task force in 1992, but a BLM spokesman defended the agents' actions at the time: "For years dealers have had a free hand in illegally trafficking Native American artifacts...so of course they're going to complain and spread accusations against us." These days, dealers say, NAGPRA enforcement has eased up. Unchanged, however, is the government's dismissive attitude toward dealers' concerns. For example, when I asked a spokesman for the U.S. attorney in New Mexico about the trade's criticisms of NAGPRA, he replied that he didn't know of any negative comments. After hearing a list of complaints about the law and its enforcement, he scoffed that "somebody's fed you a lot of paranoia." Dealer Gallegos thinks that paranoia is just the point. "The government wants dealers to get paranoid about the law," he says. "They want us to become so afraid of NAGPRA that we voluntarily stop trading in this field and don't challenge the law in court."

In the view of Gallegos and others, the feds will often bundle a NAGPRA violation together with court-tested laws such as the MBTA. "But prosecutors will get the dealer to plead guilty to NAGPRA," Gallegos adds. "In this way, they build legal precedents to buttress NAGPRA, while spreading a climate of fear through the dealer community."

The Sting

This strategy is what many observers believe lay behind the government's sting operation against respected Santa Fe artifact dealer Joshua Baer, perhaps the most alarming private-sector application of NAGPRA so far. The case began in August 1999, when Baer was approached by an art dealer named Bob Clay. Clay told Baer he was representing a wealthy Norwegian collector named Ivar Husby who was interested in buying some first-rate Indian artifacts. In fact, Clay was undercover FBI agent Robert Whitman and Husby was an agent of the Norwegian National Bureau of Investigation. During the next 16 months, Baer did some $40,000 worth of business with the two men, as they wormed their way into his confidence. In September 1999, the agents expressed interest in purchasing items from the dealer's personal collection. Baer at first declined, noting that the objects contained eagle feathers, which the MBTA forbade him to sell.

The agents persisted in their requests, with Husby threatening to terminate future business dealings. In need of cash — his gallery was suffering financial difficulties — Baer relented under the pressure and offered Husby more than a dozen Indian artifacts from October 1999 to January 2000. Federal agents raided Baer's gallery in January 2000, confiscating artifacts and business records; in October 2001, he was indicted for violating NAGPRA and the MBTA.

"This was a classic abuse of the law, when cops enforce a vague statue and make criminals out of people," says Albuquerque lawyer Peter Schoenburg, who represented Baer in the case. "How do you define what's sacred to Indians? The traditions are secretive, sometimes contradictory, and tribes refuse to write them down. Take the Navajo bull-roarers, for instance — Navajos will say some, none, or all the bull-roarers are sacred. How is anyone to know?" (A bull-roarer is musical instrument consisting of an oval piece of wood attached to a lasso.) Even worse, Schoenburg argues, was the way the two agents manipulated Baer. Agent Whitman actually became a close friend of the Baer family, writing to the dealer soon after the raid on his gallery: "I've been doing this all over the world for a long time. This was the toughest case I ever had because I truly like you and your family." Schoenburg filed a motion arguing that the agents' behavior constituted entrapment, but the court dismissed it.

In September 2002, Baer pleaded guilty to six charges of violating the MBTA and three charges of violating NAGPRA, crimes that carried a maximum penalty of 10 years in prison. But Judge John Edwards Conway sympathized with the dealer, noting at Baer's sentencing that many of the types of objects he had offered for sale had been sold by Native American tribes themselves. Conway refused to give Baer prison time. "This is not my favorite statute, so I'm not going to put him in jail," the judge remarked. Astonishingly, he even encouraged Baer to spread the word about NAGPRA to other dealers because "most people have no idea this law exists."

Native Americans and their advocates respond that most people have no idea how important NAGPRA has been in protecting Indian culture from looters, who regularly pilfer objects. (Archaeology magazine once estimated that thieves have ransacked 90 percent of the known archaeological sites in the Southwest.) "Native Americans suffered from a kind of historical trauma," says the AAIA's Trope. "The repatriation of ancestral objects is a very emotional, healing experience for them." Moreover, the horror stories about the statute ignore the ways NAGPRA has increased scientific knowledge. "Through consultation with Indians, we've learned more about tribes than ever before," says Thierry Gentis, assistant curator and collections manager of the Haffenreffer Museum at Brown University.

But even if you grant those points — and not every critic of the statute will — that would simply suggest that the law should be reformed rather than repealed outright. In practice, NAGPRA's opponents say, the law has done far more for new age sophistry and legal abuse than for science and justice. "In the end," says archaeologist Clark, the struggle is "all about identity politics and power."

Steven Vincent is a freelance writer living in New York City.

scvincent@att.net