A SOCIETY OF LAWS

BY

TOM BROWNER

Laws are written when a perception that a societal problem exists, and government makes the determination that the problem must and can be corrected through legislative action.  As society changes and evolves, the concerns of society and their related laws also change.  The question then becomes, is there a real problem.  Are we the problem?  Do our actions spur the creation of new restrictive laws on our hobby?  Does history support this evolution of mores and law?

Thomas Jefferson is considered the father of American Archaeology.  His curiosity caused him to excavate some Adena mounds on his Virginia plantation.  In the beginning this fledgling country was struggling for an identity.  We lacked the large stone Basilicas, pyramids, coliseums, acropolis,  etc. of the old world.  We did not even have the stone cities of South America and Mexico.  What we did have were earthen works.  Due to a manifest destiny need to reduce the importance of the Native Americans, we tended to ignore them and focused on mythical Atlantians, lost tribes of Israel, Norsemen and other equally ridiculous origins of the earthen mounds and enclosures.  There were no laws on archaeology and religious groups, local academies of science, and the curious, all excavated and explored without the restraint of law.   Their interpretations of what they found were defined by who they were and their pre-conceived expectations and beliefs.  As the American population expanded, so did their contact with the mounds and monuments. 

DeSotoís chronicler, La Vega, made a few observations of the mounds, almost as an afterthought.  From 1776 to 1846, there were a handful of observations recorded in various pamphlets, reports and books.  Basic pot hunting was the norm, with artifacts being the driving force, much that was found went undocumented.  The Smithsonian was formed in 1846 through a donation of property by James Smithson of England.  Itís purpose was the, ďincrease and diffusion of knowledge among men.Ē1  Squire and Davis approached the Smithsonian in 1847 to fund their project to publish the mounds and monuments they and others had surveyed.  Thus the Monuments of the Mississippi Valley was published as the first of many publications from the Smithsonian.  In that publication, it was said that, ďThousands have already disappeared, or retain but slight and doubtful traces of their former populationsĒ2  the reference was speaking of the mounds and monuments of that time.  They went on to say that examinations had to be left to private enterprise, learned associations, local explorers and government to attempt to record the mounds and monuments before they were all destroyed.  That there were just too many for any one group to salvage, excavate or record.  The same authors and their legion of contributors, and prior references could not identify any Native Americans tribes to be directly associated with any of the mounds or monuments.  True, infringement burials of later native groups were occasionally found in the mounds or monuments, but they differed so much, that the authors could not make a case for a relationship between the earlier and later groups entombed.  So the authors spent their time attempting to make associations for the earthen works, burials and artifacts with Sweden, Peru, Mexico, Egypt and other groups not associated to Native Americans. 

Cyril Thomas became the first director of the Smithsonian. He took the logical stance that the mounds and monuments, had to be related in some way to earlier groups of Native Americans.  Current Indian groups lack of knowledge of the moundís origins by did not matter, and did not support a non Native American origin of the mounds.  He concluded that long forgotten Native Americans, not related to the groups found in the areas in the 1700ís and early 1800ís, must have engineered the mounds.

In 1906 the Antiquities Act was passed.  It gave the president the power to identify national landmarks on Public lands and to protect them.  From this act, came the ability for the Nation to set aside National parks, and protect, permit and control archaeological features on public lands.  

Most excavations were done by local academies of science or individuals.  In the early 1900ís the likes of Titterington, Wadlow, and a host of other amateurs had made their mark and their names are still associated with Phases, sites and artifacts.  Government was slow to spend limited resources on archaeology.  The first shows were informal weekend meetings at E K Petrieís, Brownís Lake, Wisconsin home.  later Parks, Wachtel, Townsend, Knoblock and others had their meetings and picnics. The major collectors came together to visit and exchange information.  From these associations, the Illinois State Archaeological Society was founded in 1939.  Indiana  in 1941, and the Greater St. Louis in 1951 followed.  Central States was founded by these three societies and the first journal came out July of 1954.  The first shows as we know know them were held in the Lincoln Douglas Hotel in Quincy, Illinois and were sponsored by Byron Knoblock and B W Stephens.  The early societies included the leading archeologist of their day.  Warren K Moorehead, Thorne Duel and others.  Faye Cooper Cole, the father of Illinois archaeology began the first Archaeological degree program in this country at the University of Chicago. Later he was instrumental in beginning a second program at Northwestern Illinois University.  There was a lot of cooperation between the fledgling State museums and archaeological departments and the avocation archaeologist.  No one thought that there was a lot of need for restrictive archaeological laws.  No Indian tribes made any fuss over the archaeological activities being done by the professional or ad vocational archaeologist.

In the 1920ís through 1970 there were few archaeological laws.  A few cities had laws protecting ruins or mounds within their jurisdiction, the Federal Government had the Antiquities Act, a handful of states had some general laws concerning lands they controlled.   Archaeology was still artifact focused.  Museums and archaeological departments were understaffed and under funded.  Then in the 1950ís and 1960ís there was a major change in focus which split off many professionals from the collectors.

First change, the shows, and the buying and selling of artifacts.  Artifacts had always been bought and sold at farm auctions, between collectors, antique dealers, and flea markets.  The shows brought more exposure to the hobby and more people wanted to collect.  With top grade artifacts a rarity even then, the 1950ís and 1960ís saw a huge increase in fakes.  With the focus changing from information to value and with the association of fakes to the hobby, some professionals dropped their memberships to form State endorsed societies which attempted to maintain an information non-selling focal point.  Central States has always attempted to be a platform for the dissemination of information and an opportunity to record artifact finds.  There have never been paid advertising or artifacts for sale within the journal.  Each individual state society controls their respective meetings or shows.  However, we are associated with shows that sell artifacts and a perception exists that we endorse fakes and pot hunting.  This perception, then leads the misinformed to join the ranks of the militants to promote legislation to restrict out hobby. 

From the 1920ís through the 1960ís, universities expanded their programs and thousands of students graduated with degrees in archaeology, to then find that there were no jobs.  This created the second problem.  With a masters degree, they might get hired at $16,000 a year for a job in their field, if they also agreed to teach.  High educational cost, low pay and almost no jobs created some archaeologist who did not want ad vocational amateurs doing their jobs for free.  These archaeologist wanted to legislate away the rights of collectors from doing any archaeology, and went so far as to tell farmers who allowed local excavations that the collectors were raping history. Picking up a surfaced arrowhead from a plowed field was identified as ripping a page out of the history book.  The fact that if it was not picked up, the artifact would be broken by the plow or livestock and lost forever, did not matter.  The fact that there was not enough professionals or money to check even 1% of the disturbed sites lost every year, did not matter.  All that did matter is that they wanted to be paid, and did not want any collectors potentially doing anything that they could be contracted to do.

Then add the militant Indians to the mix, and you have another focal group wanting to stop all archaeology by anyone.  Using Federal funds intended for the good of their respective tribes,  these groups began to use the money to finance lawsuits to regain lands lost to them during the Indian wars and subsequent treaties.  The law suits were also used to secure power within the tribes for their organizations. Of course their personal incomes came from their paid activities.  In the 80ís forward, gambling casino funds flowed into tribal and organizational coffers and made them financially stronger. Their harassment of Federal and State agencies, museums and parks became a constant problem and cost to the taxpayer.  Every state saw these nuisance lawsuits.  Demands that parklands be given to them, restrictions on city developments, even demands that whole cities be turned over to them, (Seneca, New York).  They claimed that every broken arrowhead and pot shard was sacred.  These militants sued for control of river sites, escarpments and ancient campsites because they were sacred places.

Meanwhile, another hundred thousand sites either disappeared from development or were so altered than nothing much remained.  Militant archaeologist and militant Indians joined forces with liberal legislators to push new legislation.  I maintain that less than 1% of the population knows or cares anything about archaeology.  If the caring factions of the Native Americans, Museums, Archaeologist and Collectors do not agree to share information and preserve the past, then we jointly condemn history to destruction.

In 1966, The National Historical Preservation Act was passed as a supplement to the Antiquities Act of 1906.  In added Indian lands to Federal lands and made it illegal to destroy, excavate or remove information from any Archaeological resource without permit.  It further went on to say that only educational or scientific institutions would apply for a permit.  Anything found would then belong to the Federal government for the American people or to the tribe if found on Indian lands.

Then in rapid order came a new litany of laws.  In 1974 the Archaeological and Historic Preservation Act was passed.  It specifically provided for the saving of historical and archaeological data, including artifacts that might be lost due to flooding, construction, housing, rail roads, dams or other projects receiving federal funds or licensed activities.  Up to 1% of the cost of any project involving the federal government, had to be set aside for surveys and archaeological salvage.  This was a change from the previous legislation, as it did not just cover federal or Indian lands.

In 1978, the American Indian Religious Freedom Act was passed and it recognized the importance of sacred sites, including burial sites to traditional religions and the religious practices of Native Americans.  The act protected both, although they did not define what constituted a protected traditional religion was, nor what constituted a sacred site.

The Archaeological Resources Protection Act of 1979 was passed.  The introduction clearly stated that if was for Public and Indian lands.  The Justice Department had said before itís passage that it could not be applied to private lands due to the Takings Clause of the Constitution.  Itís author, stood on the floor of  the Senate and stated that ARPA did not cover private lands.  January 4, 1984, The government added the Rules and regulations which attempted to define the law and governments use of the law. 

In 1987, the Slack farm; a 40 acre Mississippian site in Union County, Kentucky, excavated by the Smithsonian in 1868, then abandoned by the Indiana, Kentucky and federal archaeological communities, became the turning point.  The land was in use as a farm for over a hundred years. Every year, countless fragments of pottery, daub, shell, flint, granite and bone, including human bone, eroded from the plowed rows.  Ten collectors finally leased the field.  Their intentions were to probe and dig the storage pits and house floors for artifacts.  Then to use a bulldozer to fill the holes and level the field back to its original state for further farming that spring.  The result of any proposed excavation is an unknown.  The collectors hoped to find some pottery or other artifacts that had not as yet been destroyed by cultivation.  There were no state or federal laws against such activities. They had a limited amount of time to dig, so they were using probes and then would dig if they hit pottery or stone, an activity called pot hunting.  Over 450 exploratory holes were dug.  However, one problem did exist.  If you have an extensive site made by ancient man, there would be burials through out the field and perhaps in the storage pits and house floors.  Human bone was found on the surface of the field every year, so finding burials was to be expected, perhaps a lot of burials.  Expected also was the fact that such shallow burials would normally be disturbed by the plow, disarticulated, and badly decomposed from normal moisture and molds found near the surface in plowed fields.  Left alone, they would continue to be plowed out and eventually would rot away.  It was not a secret that the collectors were there, and there was no intent to desecrate any human remains.  Native Americans of the Mississippian period, often disturbed previous burials and evidently there was no taboo to such disturbance once the ceremonies had been completed and time had passed.  There are no proven descendants to the Mississippian people at the site, so there was also no intent to injure or show disrespect to any specific Native Americanís or tribe.  Kentucky did have a law against the unauthorized digging of any graves.  However, in a 40 acre plowed field, how can you identify a grave unless you actually find one?  Remember the first line?  Laws are written when a perception that a societal problem exists?

We have already identified the players and their reasons for being involved.  The Slack Farm was the focal point that the players had been waiting for.  First the police got a cease and desist order.  Then Cheryl Ann Munson, then an archaeologist with the University of Indiana Glenn Black Laboratory of Archaeology and Native American Activist and others orchestrated the publicity, set the stage and drew up the blueprint for the laws that would follow.  Tepees were set up, militant Indians from across the country massed at the site.  By 1988, disturbing a grave in Kentucky became a felony.

S. 187 was introduced in congress on January 6, 1987 To provide for the protection of Native American rights for the remains of their dead and sacred artifacts.  The act would  cover Universities, government agencies. This bill failed.

Then the March 1989 National Geographic article3 came out.  Now, everyone knows that National Geographic knows what they are going to publish about a year ahead of time.  They tell you the previous year in the solicitations to renew what is coming.  The article was published with such terms as looters, desecrators, grave robbers, then went on to saying that they hoped the case would lead to a national burial preservation act.  The words were augmented by pictures of tepees, militant Indians trying to do the right thing, militant protestors at an Indian Relic Show and even a picture of collectors at the show with artifacts on the tables and a collectors lunch money for his wife laying in plain site.   Later in the article, a militant Indian called the professional archaeologist grave robbers, and another stated, ďThat the archaeologist simply donít want to deal with modern Indians who might interfere with their work and make claims to grave contents- and to many museum collections as well.Ē4  How prophetical would these words become to the militants intended goals and their steps to obtain ownership of Americaís Past.

Within weeks of the article hitting the American home,  a symposium entitled Save the Past for the Future, Actions for the 90ís was held in Taos, New Mexico, May 7th to `12th. Sponsored by a host of government agencies like the Bureau of Land Management, U S Corps of Engineers, U S Fish and Wildlife, Forest Service, etc.  The focus was Preventing Archaeological Looting and Vandalism. Included in the conference were Professional Looters, Casual or opportunistic collectors, Intensive collectors whose activities may be both ethically and legally wrong, developers etc.5  They went on to suggest that,  Legislators should redefine archaeological resources as public, (government) not private property, analogous to endangered species, that require protection wherever they are found.  They also wanted the Internal Revenue to capture unreported income from trafficking in artifacts and to scrutinize write offs for collections donated to museumsĒ6  They also encouraged the use of ARPA on private land to prosecute collectors who trespass or do not have permission to collect on the land.  Stings using undercover agents was suggested.7

One line, out of context was used to apply to the GE Mound in Posey County, Indiana.  Line 6C was included in ARPA to grandfather existing State and municipal laws covering ruins and sites within their jurisdictions,  was used instead to cover private land.  The GE Mound was a Hopewell  ceremonial center, 80% destroyed by construction equipment for landscaping fill at the General Electric plastics plant.  The mound had been 400 feet long, 80 feet wide and about 26 feet high. 80% was a lot of dirt. Over a hundred collectors walked the site looking for artifacts and some probed the destroyed site and dug for artifacts.  One collector, Art Gerber, tried to purchase artifacts found by the construction company employees and others at the site and ended up spending a year in jail because line 6C was used against him in court.  They based the local law violation on the Indiana misdemeanor trespass law.  The site was in an unfenced, unposted, flood plain on the Ohio river.  The statute of limitations was 2 years for trespass, yet the government three years later, used trespass to trigger ARPA.  GE, the construction company and their employees went free, even though the prosecutionís expert witnesses, archaeologist, both testified that it was not a burial mound and the damage by all the collectors combined was less than 1% of the destruction done and was insignificant.

On February 27, of 1989, H.R. 1124 was introduced to direct the Secretary of the Smithsonian Institution to transfer Indian skeleton remains to the Indian tribes to provide appropriate internment.  This bill was for remains originating in the year 1500 A.D. or later.

On January 3, 1989, S. 1578 was introduced which would provide for the creation of an independent Historic Preservation Agency and a National Center for Preservation Technology and for other purposes.  Although on the surface this act was for historical buildings, etc., two Native Americans had to be a part of the board of directors.

On August 4th, 1989 S. 1597 was introduced to modify S. 1578 and to include the Historic Sites Act and Archaeological Resources Protection Act and the Abandoned Shipwreck act.  This act went to 77 pages.  It allowed for claims for cultural property to be based on folklore as well as biological, archaeological or anthropological research.  It also dropped section 6 including 6C to define that the local law, rule or regulation had to pertain to an archaeological resource.

March 14th, 1989; congress introduced H. R. 1381 Ė To prohibit the excavation of Native American Burial Sites and removal of contents thereof. 

March 23, 1989; congress marched out H.R. 1646 To provide protection of Indian graves and burial grounds.    This act was monumental. The Native American Graves and Protection Act instructed that a mechanism be to provide for the respectful return of skeletal remains in government collections, State, Federal and private museums to Indian claimants.  That identifiable and identifiable skeletal remains to be included.  This would include skeletal remains collected under government funding from public and private construction projects and contrary to the saving for the American people provisions of the Antiquities Act of 1906 and the 1974 Historic Preservation Act.  It demanded full inventories be provided to the tribes of all skeletal remains and artifacts in any collection that received any government funding and allowed the tribes to make claims on any artifact or remains.  This act also included associated and unassociated grave offerings and ceremonial objects.  Of course ceremonial was undefined, but did say that it should be devoted to a tribal religious ceremony and essential to continuing observance of religious ceremony.  

May 17, 1989 S. 1021 was introduced by McCain. it was like H.R. 1646 addressed the museums using the Antiquities Act of 1906 to prove their responsibility to preserve skeletal remains excavated on public lands with federal funds.  This was the Native American Grave and Burial Protection Act.  It bypassed commissions like in S 187, and went further to set aside the Antiquities Act of 1906 and give relatives or tribes the power to claim all skeletal remains.  It forced any museum receiving federal funds to adhere to the law, provide inventories, publish the inventories to all tribes and all repatriation of anything deemed important by any tribe.  Non cooperation by any museum would cause a cessation of federal funding.  The bill also included heavy fines for anyone who trafficked in illegally obtained skeletal remains or artifacts.

By November, McClain introduced S. 1980 which was to provide for Native American cultural patrimony.  The title of the bill was The Native American Graves Protection and Repatriation Act.  This was to become law.  The archaeological community did not have any problem with human remains that were readily identifiable as to cultural affiliation or where affiliation could be determined with reasonable certainty.  During the Indian wars, numerous remains had been shipped East to the Smithsonian and the Surgeon Generals museum for study.  Along with these remains, sacred bundles, and associated artifacts had also been sent, so their return was also agreeable.  Archaeological excavations and removal due to construction has also allowed many museums to obtain similar human remains and artifacts.

The problem, as I wrote at the time, is that the definitions were too loose.  Cultural affiliation was defined as a relationship between a present day Native American group with a historic or prehistoric Indian tribe or native Hawaiian group that reasonable establishes a continuity of a group identity from the earlier to the present day group. 8  The basis of group identity is not defined.  There are no time limits, so I feel can become an Adam and Eve relationship in Africa.

On the surface, logical, direct relationships were not a problem.  Sacred objects used in ceremony or funeral objects placed with identifiable blood related dead were not a problem.  However, when militants then say that every broken pot shard or broken arrowhead is sacred, and the concept that past, present and future are the same, so there are no unrelated remains and nothing that is not sacred.  Then we have a major problem.  Basically, an agreement problem between the militants Indians and dominating culture, separated by culture, religion and a common language.

The house version was H. R. 5237 which came out in July 10, 1990.  Basically the same law with committees, jurisdictions defined etc.  This was the final bill that would then become law as the Native American Graves Protection and Repatriation Act.

As you can easily see, there was no problem for over a century and then after the Slack Farm, there was an avalanche of bills.  Since it can take weeks to months for a bill to be formulated and pushed into committee.  The March of 1989 conveniently appears within weeks before and after the appearance of all of these bills.  I suggest that since National Geographic know there printing schedule a year ahead of time, and since a bill can take weeks to months to formulate and be printed, that the convergence of all of this activity was not a coincidence but a manipulation of the ignorant emotional public and weak kneed ignorant legislators to push an anti-science, anti-museum, anti-archaeology, anti-collecting agenda.

The other problem is that the new laws were too loose in wording and the new NAGPRA committee, immediately took the stance that there were no unrelated skeletal remains or unidentifiable sacred items or artifacts.  In short, everything was on the table for repatriation.

So what changed?  First is that most Americans have never had anything to do with archaeology, Native Americans.  400 years have passed since smallpox removed over 90% of the Eastern tribes. In the interim, we continued to march West and took control of the continent.  In the path of this march over time, was left a huge national conscious of feeling pity for the replaced noble savage or other communal  images of Native Americans.  Meanwhile, the Native American groups through lumping in reservations, intermarriage, citification, the pow wow, adapted and adopted religions have lost their unique tribal identities.  A Pan-American Indian Movement has evolved that neither represents traditional tribal identifications, religions, cultural uniqueness, individual language, dress, themes, myths or identity.  Lacking leaders, this Pan American movement has been hijacked by militants who push their agendas through secular organizations who receive donations or finance their activities through solicited funds.  One headline or picture in the paper is worth real money as the perception of that they are attempting to make change is the reality that they are leading the cause.   They want to control all archaeology and anthropology.  By control, I mean that they want it all abolished or minimally to have all information, reports or books filtered through their religious and cultural censoring.   So archaeological evidence for cannibalism would have to be scratched  from any reports.  Evidence of prehistoric warfare or anything disruptive of the image of the noble red man like over use of resources or denuding the land would have to be removed from reports.  Any evidence that groups present on the land were not there a thousand years earlier would have to be removed.  Even evidence that they were not here for all time or groups prior to their colonization might have to be removed as contrary to their creational myths and verbal history.

    

The Humpty Dumpty to all this legislation is Kennewick Man.  Kennewick man will either put a halt to irrational claims or destroy forever the rights of any Archaeologist to excavate and record their findings without the Native Americans giving permission for the project, determining the fate of the artifacts and dictating the results of the information.   In 1996, two young men, Will Thomas and Dave Deacy  intent on getting a better free view to watch some hydroplane races on the Columbia Riverís Lake Wallula, waded the shore line.  About 10 feet from shore in a foot and a half of water, Will Thomas discovered a skull, brown in color, impacted with mud and with teeth showing in the maxilla.  Not wanting to miss the races they hid the skull in the bushes.  On July 30th of 1996 an ARPA permit was issued.   Jim Chatters went to the site and collected more bones.  Most of the bones of a male individual were obtained.  A few of the small foot and finger bones were missed. Chatters thought the bones to be those of an early settler because they were Caucasoid and lacked The dentition and bone structure of Native Americans.   Carbon 14 then surprised everyone when the date came back as over 9000 years ago.  Immediately 5 tribes made claim for the remains under Native Graves Protection and Repatriation Act.  The Corps of Engineers took the position of  let the claiming tribes have the remains, that they had bigger problems with fishing rights and other concerns.  They then went so far as to attempt to destroy the site and prevent further study of the site and remains.   Years of court fights between the archaeologist and scientific community and the tribes, Department of Interior and Corps of Engineers culminated in the spending of millions of dollars in  taxpayer money to destroy the remains without further study by reburial.

  On February 5, 2004, the Appeals Court judge agreed with the lower court that there was no evidence that the Kenniwick man was Native American, related to any of the claiming tribes or fell under the repatriation guidelines of NAGPRA.  Unless the Supreme Court takes up the issue, this should be the end.  Just as a victory for the five tribes would be a legal precedent for them then to claim everything younger than Kenniwick man, the loss is legal precedent for claiming tribes to have to prove a blood relationship for Archaic, Adena. Hopewell, Mississippian and other more recent cultures.

  The 1989 focus was the graves.  It was maintained that every site was made by human hands and the logical consequence of all graves had to be protected and undisturbed was that every site had to have burials somewhere, so all sites and surrounding areas had to be protected and disturbing activities like farming, mining, city expansion had to be stopped.

The new focus of the militant activist is that all sites had religious activities and any site, tree, rock  or other sacred feature has to be protected under the Native American Religious Rights act.   Again this would stop archaeology and any other activity that might impact a site as a being culturally important as a religious site.  A new direction from an old cause.

Laws are written when a perception that a societal problem exists, and government makes the determination that the problem must and can be corrected through legislative action.  As society changes and evolves, the concerns of society and their related laws also change.  The question then becomes, who has the ear of the legislators and does their agenda make any sense?  Since less than 1% of all Americans care, it becomes a fight between science, history and property rights Native American religion, myth and sensitivities.  Militant archaeologist who believe large governmental bureaucracies would be a source of funds and jobs.  For years they have decried field archaeologist and their emphasis on research and publication.  As museum and site interpreters, government bureaucrats, and historical librarians, they believe there would be more jobs for them.

In the middle of the struggle are the collectors.  From the farmer, field walker to the investor if the museums can now own an artifact, where would our rights begin and end?  Many good field archaeologist depend on collectors for site information, field assistance and contributions.  Many museums depend on the historically interested for volunteers and donations.  Many Indians collect, often they also volunteer their knowledge and interest to the archaeologist, museums and collectors.  My advice is that if we are not part of the solutions, we may be perceived as part of the problems.  As a problem, legislation will be pushed to stop our hobby.  Many states have already passed laws to limit farmer rights, collectors rights and removed artifact collections from their museums and put a stop to archaeologist investigating sites with burials.  Science is under attack.  If the traditional Indians, the archaeologist, museums and collectors do not agree to work together to save history, then it will be destroyed.  The museums empties, sites destroyed forever without a footnote, original customs and art lost, and information like artifacts driven underground.  Everyone will lose.  You the reader must get involved, take a stance and then donate your time and money to the professionals.  In the end, we must all cooperate or all lose. Have you noticed over the last decade that nearly all of the archaeological articles in National Geographic are about South America, Mexico and the rest of the world?  What happened to American archaeology in the premier American National Geographic?  Will the American historical record before the pilgrims be saved for future generations, or are we systematically allowing the Native American to commit historical genocide by aiding them to destroy the artifacts of their previous cultures and the information they represent?  All done in the guise of liberal, I feel your pain legislation to protect them?  Think about it, but not too long, as daily, hundreds of sites are diminished or destroyed.  Recklessly ignoring the problem and not opening the system to a mutual system of sharing and recording information from all that are interested will only condemn the destruction of everyone's past legacy. 



1 Monuments of the Mississippi Valley, Squire & Davis, Smithsonian, 1847, Vol. 1: pg. III

2 Monuments of the Mississippi Valley, Squire & Davis, Smithsonian, 1847, Vol. 1: pg. IV

3 National Geographic: WHO OWNS OUR PAST?, V175#3, March 1989, pg. 376

4 National Geographic: WHO OWNS OUR PAST?, V175#3, March 1989, pg. 388

5 Save the Past for the Future, Final Report, 1989, pg 12

6 Save the Past for the Future, Final Report, 1989, pg 15

7 Save the Past for the Future, Final Report, 1989, pg 18

8 S. 1980, November, 1989, pg. 6

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as in the 1700ís and early 1800ís, must have engineered the mounds.

In 1906 the Antiquities Act was passed.  It gave the president the power to identify national landmarks on Public lands and to protect them.  From this act, came the ability for the Nation to set aside National parks, and protect, permit and control archaeological features on public lands.  

Most excavations were done by local academies of science or individuals.  In the early 1900ís the likes of Titterington, Wadlow, and a host of other amateurs had made their mark and their names are still associated with Phases, sites and artifacts.  Government was slow to spend limited resources on archaeology.  The first shows were informal weekend meetings at E K Petrieís, Brownís Lake, Wisconsin home.  later Parks, Wachtel, Townsend, Knoblock and others had their meetings and picnics. The major collectors came together to visit and exchange information.  From these associations, the Illinois State Archaeological Society was founded in 1939.  Indiana  in 1941, and the Greater St. Louis in 1951 followed.  Central States was founded by these three societies and the first journal came out July of 1954.  The first shows as we know know them were held in the Lincoln Douglas Hotel in Quincy, Illinois and were sponsored by Byron Knoblock and B W Stephens.  The early societies included the leading archeologist of their day.  Warren K Moorehead, Thorne Duel and others.  Faye Cooper Cole, the father of Illinois archaeology began the first Archaeological degree program in this country at the University of Chicago. Later he was instrumental in beginning a second program at Northwestern Illinois University.  There was a lot of cooperation between the fledgling State museums and archaeological departments and the avocation archaeologist.  No one thought that there was a lot of need for restrictive archaeological laws.  No Indian tribes made any fuss over the archaeological activities being done by the professional or ad vocational archaeologist.

In the 1920ís through 1970 there were few archaeological laws.  A few cities had laws protecting ruins or mounds within their jurisdiction, the Federal Government had the Antiquities Act, a handful of states had some general laws concerning lands they controlled.   Archaeology was still artifact focused.  Museums and archaeological departments were understaffed and under funded.  Then in the 1950ís and 1960ís there was a major change in focus which split off many professionals from the collectors.

First change, the shows, and the buying and selling of artifacts.  Artifacts had always been bought and sold at farm auctions, between collectors, antique dealers, and flea markets.  The shows brought more exposure to the hobby and more people wanted to collect.  With top grade artifacts a rarity even then, the 1950ís and 1960ís saw a huge increase in fakes.  With the focus changing from information to value and with the association of fakes to the hobby, some professionals dropped their memberships to form State endorsed societies which attempted to maintain an information non-selling focal point.  Central States has always attempted to be a platform for the dissemination of information and an opportunity to record artifact finds.  There have never been paid advertising or artifacts for sale within the journal.  Each individual state society controls their respective meetings or shows.  However, we are associated with shows that sell artifacts and a perception exists that we endorse fakes and pot hunting.  This perception, then leads the misinformed to join the ranks of the militants to promote legislation to restrict out hobby. 

From the 1920ís through the 1960ís, universities expanded their programs and thousands of students graduated with degrees in archaeology, to then find that there were no jobs.  This created the second problem.  With a masters degree, they might get hired at $16,000 a year for a job in their field, if they also agreed to teach.  High educational cost, low pay and almost no jobs created some archaeologist who did not want ad vocational amateurs doing their jobs for free.  These archaeologist wanted to legislate away the rights of collectors from doing any archaeology, and went so far as to tell farmers who allowed local excavations that the collectors were raping history. Picking up a surfaced arrowhead from a plowed field was identified as ripping a page out of the history book.  The fact that if it was not picked up, the artifact would be broken by the plow or livestock and lost forever, did not matter.  The fact that there was not enough professionals or money to check even 1% of the disturbed sites lost every year, did not matter.  All that did matter is that they wanted to be paid, and did not want any collectors potentially doing anything that they could be contracted to do.

Then add the militant Indians to the mix, and you have another focal group wanting to stop all archaeology by anyone.  Using Federal funds intended for the good of their respective tribes,  these groups began to use the money to finance lawsuits to regain lands lost to them during the Indian wars and subsequent treaties.  The law suits were also used to secure power within the tribes for their organizations. Of course their personal incomes came from their paid activities.  In the 80ís forward, gambling casino funds flowed into tribal and organizational coffers and made them financially stronger. Their harassment of Federal and State agencies, museums and parks became a constant problem and cost to the taxpayer.  Every state saw these nuisance lawsuits.  Demands that parklands be given to them, restrictions on city developments, even demands that whole cities be turned over to them, (Seneca, New York).  They claimed that every broken arrowhead and pot shard was sacred.  These militants sued for control of river sites, escarpments and ancient campsites because they were sacred places.

Meanwhile, another hundred thousand sites either disappeared from development or were so altered than nothing much remained.  Militant archaeologist and militant Indians joined forces with liberal legislators to push new legislation.  I maintain that less than 1% of the population knows or cares anything about archaeology.  If the caring factions of the Native Americans, Museums, Archaeologist and Collectors do not agree to share information and preserve the past, then we jointly condemn history to destruction.

In 1966, The National Historical Preservation Act was passed as a supplement to the Antiquities Act of 1906.  In added Indian lands to Federal lands and made it illegal to destroy, excavate or remove information from any Archaeological resource without permit.  It further went on to say that only educational or scientific institutions would apply for a permit.  Anything found would then belong to the Federal government for the American people or to the tribe if found on Indian lands.

Then in rapid order came a new litany of laws.  In 1974 the Archaeological and Historic Preservation Act was passed.  It specifically provided for the saving of historical and archaeological data, including artifacts that might be lost due to flooding, construction, housing, rail roads, dams or other projects receiving federal funds or licensed activities.  Up to 1% of the cost of any project involving the federal government, had to be set aside for surveys and archaeological salvage.  This was a change from the previous legislation, as it did not just cover federal or Indian lands.

In 1978, the American Indian Religious Freedom Act was passed and it recognized the importance of sacred sites, including burial sites to traditional religions and the religious practices of Native Americans.  The act protected both, although they did not define what constituted a protected traditional religion was, nor what constituted a sacred site.

The Archaeological Resources Protection Act of 1979 was passed.  The introduction clearly stated that if was for Public and Indian lands.  The Justice Department had said before itís passage that it could not be applied to private lands due to the Takings Clause of the Constitution.  Itís author, stood on the floor of  the Senate and stated that ARPA did not cover private lands.  January 4, 1984, The government added the Rules and regulations which attempted to define the law and governments use of the law. 

In 1987, the Slack farm; a 40 acre Mississippian site in Union County, Kentucky, excavated by the Smithsonian in 1868, then abandoned by the Indiana, Kentucky and federal archaeological communities, became the turning point.  The land was in use as a farm for over a hundred years. Every year, countless fragments of pottery, daub, shell, flint, granite and bone, including human bone, eroded from the plowed rows.  Ten collectors finally leased the field.  Their intentions were to probe and dig the storage pits and house floors for artifacts.  Then to use a bulldozer to fill the holes and level the field back to its original state for further farming that spring.  The result of any proposed excavation is an unknown.  The collectors hoped to find some pottery or other artifacts that had not as yet been destroyed by cultivation.  There were no state or federal laws against such activities. They had a limited amount of time to dig, so they were using probes and then would dig if they hit pottery or stone, an activity called pot hunting.  Over 450 exploratory holes were dug.  However, one problem did exist.  If you have an extensive site made by ancient man, there would be burials through out the field and perhaps in the storage pits and house floors.  Human bone was found on the surface of the field every year, so finding burials was to be expected, perhaps a lot of burials.  Expected also was the fact that such shallow burials would normally be disturbed by the plow, disarticulated, and badly decomposed from normal moisture and molds found near the surface in plowed fields.  Left alone, they would continue to be plowed out and eventually would rot away.  It was not a secret that the collectors were there, and there was no intent to desecrate any human remains.  Native Americans of the Mississippian period, often disturbed previous burials and evidently there was no taboo to such disturbance once the ceremonies had been completed and time had passed.  There are no proven descendants to the Mississippian people at the site, so there was also no intent to injure or show disrespect to any specific Native Americanís or tribe.  Kentucky did have a law against the unauthorized digging of any graves.  However, in a 40 acre plowed field, how can you identify a grave unless you actually find one?  Remember the first line?  Laws are written when a perception that a societal problem exists?

We have already identified the players and their reasons for being involved.  The Slack Farm was the focal point that the players had been waiting for.  First the police got a cease and desist order.  Then Cheryl Ann Munson, then an archaeologist with the University of Indiana Glenn Black Laboratory of Archaeology and Native American Activist and others orchestrated the publicity, set the stage and drew up the blueprint for the laws that would follow.  Tepees were set up, militant Indians from across the country massed at the site.  By 1988, disturbing a grave in Kentucky became a felony.

S. 187 was introduced in congress on January 6, 1987 To provide for the protection of Native American rights for the remains of their dead and sacred artifacts.  The act would  cover Universities, government agencies. This bill failed.

Then the March 1989 National Geographic article3 came out.  Now, everyone knows that National Geographic knows what they are going to publish about a year ahead of time.  They tell you the previous year in the solicitations to renew what is coming.  The article was published with such terms as looters, desecrators, grave robbers, then went on to saying that they hoped the case would lead to a national burial preservation act.  The words were augmented by pictures of tepees, militant Indians trying to do the right thing, militant protestors at an Indian Relic Show and even a picture of collectors at the show with artifacts on the tables and a collectors lunch money for his wife laying in plain site.   Later in the article, a militant Indian called the professional archaeologist grave robbers, and another stated, ďThat the archaeologist simply donít want to deal with modern Indians who might interfere with their work and make claims to grave contents- and to many museum collections as well.Ē4  How prophetical would these words become to the militants intended goals and their steps to obtain ownership of Americaís Past.

Within weeks of the article hitting the American home,  a symposium entitled Save the Past for the Future, Actions for the 90ís was held in Taos, New Mexico, May 7th to `12th. Sponsored by a host of government agencies like the Bureau of Land Management, U S Corps of Engineers, U S Fish and Wildlife, Forest Service, etc.  The focus was Preventing Archaeological Looting and Vandalism. Included in the conference were Professional Looters, Casual or opportunistic collectors, Intensive collectors whose activities may be both ethically and legally wrong, developers etc.5  They went on to suggest that,  Legislators should redefine archaeological resources as public, (government) not private property, analogous to endangered species, that require protection wherever they are found.  They also wanted the Internal Revenue to capture unreported income from trafficking in artifacts and to scrutinize write offs for collections donated to museumsĒ6  They also encouraged the use of ARPA on private land to prosecute collectors who trespass or do not have permission to collect on the land.  Stings using undercover agents was suggested.7

One line, out of context was used to apply to the GE Mound in Posey County, Indiana.  Line 6C was included in ARPA to grandfather existing State and municipal laws covering ruins and sites within their jurisdictions,  was used instead to cover private land.  The GE Mound was a Hopewell  ceremonial center, 80% destroyed by construction equipment for landscaping fill at the General Electric plastics plant.  The mound had been 400 feet long, 80 feet wide and about 26 feet high. 80% was a lot of dirt. Over a hundred collectors walked the site looking for artifacts and some probed the destroyed site and dug for artifacts.  One collector, Art Gerber, tried to purchase artifacts found by the construction company employees and others at the site and ended up spending a year in jail because line 6C was used against him in court.  They based the local law violation on the Indiana misdemeanor trespass law.  The site was in an unfenced, unposted, flood plain on the Ohio river.  The statute of limitations was 2 years for trespass, yet the government three years later, used trespass to trigger ARPA.  GE, the construction company and their employees went free, even though the prosecutionís expert witnesses, archaeologist, both testified that it was not a burial mound and the damage by all the collectors combined was less than 1% of the destruction done and was insignificant.

On February 27, of 1989, H.R. 1124 was introduced to direct the Secretary of the Smithsonian Institution to transfer Indian skeleton remains to the Indian tribes to provide appropriate internment.  This bill was for remains originating in the year 1500 A.D. or later.

On January 3, 1989, S. 1578 was introduced which would provide for the creation of an independent Historic Preservation Agency and a National Center for Preservation Technology and for other purposes.  Although on the surface this act was for historical buildings, etc., two Native Americans had to be a part of the board of directors.

On August 4th, 1989 S. 1597 was introduced to modify S. 1578 and to include the Historic Sites Act and Archaeological Resources Protection Act and the Abandoned Shipwreck act.  This act went to 77 pages.  It allowed for claims for cultural property to be based on folklore as well as biological, archaeological or anthropological research.  It also dropped section 6 including 6C to define that the local law, rule or regulation had to pertain to an archaeological resource.

March 14th, 1989; congress introduced H. R. 1381 Ė To prohibit the excavation of Native American Burial Sites and removal of contents thereof. 

March 23, 1989; congress marched out H.R. 1646 To provide protection of Indian graves and burial grounds.    This act was monumental. The Native American Graves and Protection Act instructed that a mechanism be to provide for the respectful return of skeletal remains in government collections, State, Federal and private museums to Indian claimants.  That identifiable and identifiable skeletal remains to be included.  This would include skeletal remains collected under government funding from public and private construction projects and contrary to the saving for the American people provisions of the Antiquities Act of 1906 and the 1974 Historic Preservation Act.  It demanded full inventories be provided to the tribes of all skeletal remains and artifacts in any collection that received any government funding and allowed the tribes to make claims on any artifact or remains.  This act also included associated and unassociated grave offerings and ceremonial objects.  Of course ceremonial was undefined, but did say that it should be devoted to a tribal religious ceremony and essential to continuing observance of religious ceremony.  

May 17, 1989 S. 1021 was introduced by McCain. it was like H.R. 1646 addressed the museums using the Antiquities Act of 1906 to prove their responsibility to preserve skeletal remains excavated on public lands with federal funds.  This was the Native American Grave and Burial Protection Act.  It bypassed commissions like in S 187, and went further to set aside the Antiquities Act of 1906 and give relatives or tribes the power to claim all skeletal remains.  It forced any museum receiving federal funds to adhere to the law, provide inventories, publish the inventories to all tribes and all repatriation of anything deemed important by any tribe.  Non cooperation by any museum would cause a cessation of federal funding.  The bill also included heavy fines for anyone who trafficked in illegally obtained skeletal remains or artifacts.

By November, McClain introduced S. 1980 which was to provide for Native American cultural patrimony.  The title of the bill was The Native American Graves Protection and Repatriation Act.  This was to become law.  The archaeological community did not have any problem with human remains that were readily identifiable as to cultural affiliation or where affiliation could be determined with reasonable certainty.  During the Indian wars, numerous remains had been shipped East to the Smithsonian and the Surgeon Generals museum for study.  Along with these remains, sacred bundles, and associated artifacts had also been sent, so their return was also agreeable.  Archaeological excavations and removal due to construction has also allowed many museums to obtain similar human remains and artifacts.

The problem, as I wrote at the time, is that the definitions were too loose.  Cultural affiliation was defined as a relationship between a present day Native American group with a historic or prehistoric Indian tribe or native Hawaiian group that reasonable establishes a continuity of a group identity from the earlier to the present day group. 8  The basis of group identity is not defined.  There are no time limits, so I feel can become an Adam and Eve relationship in Africa.

On the surface, logical, direct relationships were not a problem.  Sacred objects used in ceremony or funeral objects placed with identifiable blood related dead were not a problem.  However, when militants then say that every broken pot shard or broken arrowhead is sacred, and the concept that past, present and future are the same, so there are no unrelated remains and nothing that is not sacred.  Then we have a major problem.  Basically, an agreement problem between the militants Indians and dominating culture, separated by culture, religion and a common language.

The house version was H. R. 5237 which came out in July 10, 1990.  Basically the same law with committees, jurisdictions defined etc.  This was the final bill that would then become law as the Native American Graves Protection and Repatriation Act.

As you can easily see, there was no problem for over a century and then after the Slack Farm, there was an avalanche of bills.  Since it can take weeks to months for a bill to be formulated and pushed into committee.  The March of 1989 conveniently appears within weeks before and after the appearance of all of these bills.  I suggest that since National Geographic know there printing schedule a year ahead of time, and since a bill can take weeks to months to formulate and be printed, that the convergence of all of this activity was not a coincidence but a manipulation of the ignorant emotional public and weak kneed ignorant legislators to push an anti-science, anti-museum, anti-archaeology, anti-collecting agenda.

The other problem is that the new laws were too loose in wording and the new NAGPRA committee, immediately took the stance that there were no unrelated skeletal remains or unidentifiable sacred items or artifacts.  In short, everything was on the table for repatriation.

So what changed?  First is that most Americans have never had anything to do with archaeology, Native Americans.  400 years have passed since smallpox removed over 90% of the Eastern tribes. In the interim, we continued to march West and took control of the continent.  In the path of this march over time, was left a huge national conscious of feeling pity for the replaced noble savage or other communal  images of Native Americans.  Meanwhile, the Native American groups through lumping in reservations, intermarriage, citification, the pow wow, adapted and adopted religions have lost their unique tribal identities.  A Pan-American Indian Movement has evolved that neither represents traditional tribal identifications, religions, cultural uniqueness, individual language, dress, themes, myths or identity.  Lacking leaders, this Pan American movement has been hijacked by militants who push their agendas through secular organizations who receive donations or finance their activities through solicited funds.  One headline or picture in the paper is worth real money as the perception of that they are attempting to make change is the reality that they are leading the cause.   They want to control all archaeology and anthropology.  By control, I mean that they want it all abolished or minimally to have all information, reports or books filtered through their religious and cultural censoring.   So archaeological evidence for cannibalism would have to be scratched  from any reports.  Evidence of prehistoric warfare or anything disruptive of the image of the noble red man like over use of resources or denuding the land would have to be removed from reports.  Any evidence that groups present on the land were not there a thousand years earlier would have to be removed.  Even evidence that they were not here for all time or groups prior to their colonization might have to be removed as contrary to their creational myths and verbal history.

    

The Humpty Dumpty to all this legislation is Kennewick Man.  Kennewick man will either put a halt to irrational claims or destroy forever the rights of any Archaeologist to excavate and record their findings without the Native Americans giving permission for the project, determining the fate of the artifacts and dictating the results of the information.   In 1996, two young men, Will Thomas and Dave Deacy  intent on getting a better free view to watch some hydroplane races on the Columbia Riverís Lake Wallula, waded the shore line.  About 10 feet from shore in a foot and a half of water, Will Thomas discovered a skull, brown in color, impacted with mud and with teeth showing in the maxilla.  Not wanting to miss the races they hid the skull in the bushes.  On July 30th of 1996 an ARPA permit was issued.   Jim Chatters went to the site and collected more bones.  Most of the bones of a male individual were obtained.  A few of the small foot and finger bones were missed. Chatters thought the bones to be those of an early settler because they were Caucasoid and lacked The dentition and bone structure of Native Americans.   Carbon 14 then surprised everyone when the date came back as over 9000 years ago.  Immediately 5 tribes made claim for the remains under Native Graves Protection and Repatriation Act.  The Corps of Engineers took the position of  let the claiming tribes have the remains, that they had bigger problems with fishing rights and other concerns.  They then went so far as to attempt to destroy the site and prevent further study of the site and remains.   Years of court fights between the archaeologist and scientific community and the tribes, Department of Interior and Corps of Engineers culminated in the spending of millions of dollars in  taxpayer money to destroy the remains without further study by reburial.

  On February 5, 2004, the Appeals Court judge agreed with the lower court that there was no evidence that the Kenniwick man was Native American, related to any of the claiming tribes or fell under the repatriation guidelines of NAGPRA.  Unless the Supreme Court takes up the issue, this should be the end.  Just as a victory for the five tribes would be a legal precedent for them then to claim everything younger than Kenniwick man, the loss is legal precedent for claiming tribes to have to prove a blood relationship for Archaic, Adena. Hopewell, Mississippian and other more recent cultures.

  The 1989 focus was the graves.  It was maintained that every site was made by human hands and the logical consequence of all graves had to be protected and undisturbed was that every site had to have burials somewhere, so all sites and surrounding areas had to be protected and disturbing activities like farming, mining, city expansion had to be stopped.

The new focus of the militant activist is that all sites had religious activities and any site, tree, rock  or other sacred feature has to be protected under the Native American Religious Rights act.   Again this would stop archaeology and any other activity that might impact a site as a being culturally important as a religious site.  A new direction from an old cause.

Laws are written when a perception that a societal problem exists, and government makes the determination that the problem must and can be corrected through legislative action.  As society changes and evolves, the concerns of society and their related laws also change.  The question then becomes, who has the ear of the legislators and does their agenda make any sense?  Since less than 1% of all Americans care, it becomes a fight between science, history and property rights Native American religion, myth and sensitivities.  Militant archaeologist who believe large governmental bureaucracies would be a source of funds and jobs.  For years they have decried field archaeologist and their emphasis on research and publication.  As museum and site interpreters, government bureaucrats, and historical librarians, they believe there would be more jobs for them.

In the middle of the struggle are the collectors.  From the farmer, field walker to the investor if the museums can now own an artifact, where would our rights begin and end?  Many good field archaeologist depend on collectors for site information, field assistance and contributions.  Many museums depend on the historically interested for volunteers and donations.  Many Indians collect, often they also volunteer their knowledge and interest to the archaeologist, museums and collectors.  My advice is that if we are not part of the solutions, we may be perceived as part of the problems.  As a problem, legislation will be pushed to stop our hobby.  Many states have already passed laws to limit farmer rights, collectors rights and removed artifact collections from their museums and put a stop to archaeologist investigating sites with burials.  Science is under attack.  If the traditional Indians, the archaeologist, museums and collectors do not agree to work together to save history, then it will be destroyed.  The museums empties, sites destroyed forever without a footnote, original customs and art lost, and information like artifacts driven underground.  Everyone will lose.  You the reader must get involved, take a stance and then donate your time and money to the professionals.  In the end, we must all cooperate or all lose. Have you noticed over the last decade that nearly all of the archaeological articles in National Geographic are about South America, Mexico and the rest of the world?  What happened to American archaeology in the premier American National Geographic?  Will the American historical record before the pilgrims be saved for future generations, or are we systematically allowing the Native American to commit historical genocide by aiding them to destroy the artifacts of their previous cultures and the information they represent?  All done in the guise of liberal, I feel your pain legislation to protect them?  Think about it, but not too long, as daily, hundreds of sites are diminished or destroyed.  Recklessly ignoring the problem and not opening the system to a mutual system of sharing and recording information from all that are interested will only condemn the destruction of everyone's past legacy. 



1 Monuments of the Mississippi Valley, Squire & Davis, Smithsonian, 1847, Vol. 1: pg. III

2 Monuments of the Mississippi Valley, Squire & Davis, Smithsonian, 1847, Vol. 1: pg. IV

3 National Geographic: WHO OWNS OUR PAST?, V175#3, March 1989, pg. 376

4 National Geographic: WHO OWNS OUR PAST?, V175#3, March 1989, pg. 388

5 Save the Past for the Future, Final Report, 1989, pg 12

6 Save the Past for the Future, Final Report, 1989, pg 15

7 Save the Past for the Future, Final Report, 1989, pg 18

8 S. 1980, November, 1989, pg. 6

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