Board of Regents of the University of Oklahoma
University of Oklahoma College of Law
NAGPRA REVISITED: A TWENTY-YEAR REVIEW OF REPATRIATION EFFORTS
Author(s): Julia A. Cryne
Source: American Indian Law Review, Vol. 34, No. 1 (2009-2010), pp. 99-122
Published by: University of Oklahoma College of Law
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NAGPRA REVISITED: A TWENTY-YEAR REVIEW OF
REPATRIATION EFFORTS
Julia A. Cryne
Table
Introduction
.
of Contents
99
I. The NATHPO Report:Does This StudyRaise Valid ConcernsAbout
. 104
with NAGPRA?
Non-compliance
A. Determining Cultural Affiliation.
104
B. PriorityofNAGPRA WithinAgencies. 105
to Force Action (Including Cataloguing,
to
Notice
106
Tribes, and Delineating Remains).
Providing
a
D. Concerns About NAGPRA
from Different Perspective.
C. Lack ofMeans
107
II.Why theLaw Has Failed toFulfill thePurposes ofNAGPRA and
Caused theConcernsEstablished in theNATHPO Report . 108
A. Congress.
1. Limited
109
Scope
and Lack of Enforcement
. 109
Implementation
2. Vague Language and Processes.
B. The Judiciary.
112
1. Interpretations of the Language
for Failed
110
of the Statute: Cultural
Affiliation . 112
2. TerritorialLimits ofNAGPRA. 117
C. Agencies
1. Failures
.
118
of Implementation
. 119
2. The Interpretations
Made Are Not in theSpiritofNAGPRA
Conclusion.
.. 120
122
Introduction
The Native American Graves Protection and Repatriation Act1 (NAGPRA)
is but one facet of the great conflict between religion and science faced by
governments when making decisions and creating legislation. Both sides are
concerned with the human
identity and defining our place
*
Third-yearstudent,
UniversityofOklahoma College of Law.
1. 25 U.S.C. ?? 3001-3013 (2006).
99
in the universe, but
100 AMERICAN INDIAN LAW REVIEW
[Vol. 34
themethods employed in achieving these goals are often diametrically
Science uses a specific deductive methodology, valuing the use of
opposed.
demonstrated
facts and quantifiable
information leading to conclusions
supportedby evidence.Religion pursuesdiscoveryusing faith,complexbelief
systems, and longstanding traditions supported by cultural awareness. Neither
iswrong, and both pursuits are invaluable to the lives of human beings both
in the past and today. Our society can ill afford to reject one over the other,
and so a conflict is born, and our government is forced tomake choices about
priorities.
The specific conflict examined
on the human
remains,
patrimony that are
in this comment concerns
funerary and sacred objects,
the value placed
of cultural
and objects
defined within NAGPRA.
The
religious
before Congress by lineal descendants, tribes, and Native
perspective?voiced
American groups?sees
human remains as the remnants of a once-living, once
breathing person deserving of respect and a proper burial. Failure to treat these
people and their sacred possessions with the respect and importance they
All cultures value
the
deserve has religious and social consequences.
as
and
human
remains
of
rites
the
for
dead,2
treating
funerary
importance
is sacrilegious?offensive
both to the
clinically detached
"specimens"
as
as
to
well
the broader culture among many Native
individual and family,
Americans.3
our dead and
It is part of the universal human experience to acknowledge
dispose of their bodies in some particular and reverent fashion, and it is human
to seek treatment of our ancestors' remains with respect.4 Certain cultures vary
an
as to specific practices, but respecting these remains is unquestionably
important goal. Traditional Jewish mores require burial on the same day as
to respect the dead, known as Kevod
death in order to uphold the mandate
traditionally value the bones of an ancestor as
sacred for eternity, and their removal is both a defiance of the wishes of that
person and a means by which the spiritual power of the individual can be
stolen.6 Modern Lakota burials include a viewing of the body no matter its
Harriet.5
Native
Hawaiians
condition, and relatives will often embrace and kiss their loved one before the
2. Cedric Mims, When We Die: The Science, Culture, and Rituals of Death 126
(1999).
and
3. Christine Quigley, Skulls and Skeletons: Human Bone Collections
Accumulations 205 (2001).
4. Mims,
supra
note 2, at 126.
5. Isaac Klein, A Guide to JewishReligious Practice
6. Marilyn
Yalom,
The
American
Resting
Place:
278(1992).
Four
Hundred
History Through Our Cemeteries and Burial Grounds 234-36 (2008).
Years
of
No.
COMMENTS 101
1]
It is a commonplace
belief across multiple Native
closing of the casket.7
American
groups that the disturbance of the dead (either by desecration or
grave-robbing) forces the spirits of those individuals towander without rest.8
this viewpoint as socially valuable
recognized
by enacting
a focus on repatriating remains and sacred objects to their
and tribes.
has
Congress
NAGPRA
with
descendants
The other viewpoint, voiced before Congress by many scientists (including
as well
as the scientific
and biologists,
archaeologists,
anthropologists,
at
as
values
these
remains
and
to increased
critical
community
large),
objects
historical
and scientific understanding.
Historically
important remains and
vast
of
information
about
objects
quantities
past and present
social
and
cultural
and
world
the
climate and
beliefs,
peoples, evolution,
at
the time of death.9 The remains themselves also offer a wealth
environment
can provide
of information about
the individual?including
of death.10 Although
age, gender, race, physical
science has given us great
characteristics,
advances inmany fields, it is ever-evolving and must be supplemented by new
research and learning. Without such continuing work, our knowledge would
become stagnant, and no new advancements would be possible.
and cause
Many physical anthropologistsfeel not only thatunique and valuable
remains should be examined, but also must stay available for testing with the
advancement of future technologies.11 Congress has both inNAGPRA
and in
otherpieces of legislation12
codifiedsupportforscientificstudyby preserving
some access
to remains and objects as a national policy. Problems between
scientists and tribal interests occur when their interests collide.
This is
true because many people
are on the polar extremes of this
especially
issue?either
in continued possession
for research purposes or
believing
insisting on immediate burial without
7. Martin
Brokenleg
& David
Middleton,
study.13
Native
Americans:
Ethnic Variations inDying, Death, and Grief: Diversity
(Donald P. Irishet al. eds., 1993).
8. Arlene
Hirschfelder
&
Paulette
Molin,
Adapting,
Yet Retaining,
inUniversality
of Native
Encyclopedia
American
Religions 33 (2000); see, e.g., id. at 99 (describingtraditional
Navajo beliefs).
9. Myriam Nafte, Flesh and Bone: An Introduction to Forensic Anthropology
27, 32 (2000); see also quigley, supra note 3, at 74-75.
10. Nafte,
11. quigley,
12. See,
supra
note 9, at 32.
supra
note 3, at 205.
e.g., Archaeological
Resources
470mm (2006).
13. Quigley,
supra
note 3, at 205-07.
Protection
Act
of
1979,
16 U.S.C.
in
101, 109
?? 470aa
102 AMERICAN INDIAN LAW REVIEW
[Vol. 34
NAGPRA was passed by Congress in 1990. Before this legislation,there
existed almost no legal protection for treatment, repatriation, or study ofNative
American
human remains and sacred funerary objects.14 American
Indian
groups had long lobbied for protections because museums and governmental
agencies were in possession of vast quantities of remains and objects, many of
were
which
not well-organized.15
government possessed
remains in 1989.16
roughly
In the Smithsonian
18,000 pieces
of Native
Institute alone, the
American
human
Additionally, many of these remains and objects were taken from tribes and
Native American
families without their consent during times before Native
American
rightswere as respected as they are today. There were
long-existing
allegations by tribesof governmenttheftof bodies from battlefieldsand
came as a result of direct orders from
graveyards.17 Some of this behavior
senior government officials to collect remains for study in the early field of
treatment of remains differed depending on their race: unlike
remains, those of Native Americans were often collected
European-American
The
eugenics.18
and held without concern for the families of the dead.19
problems rectified by theAct included grave-robbing and burial
the only means of redress for such acts
site desecration.20 Before NAGPRA,
was a lawsuit based on tortdoctrines such as conversion, and even then a claim
Additional
would
This
only when the remains were not found on federal land.21
no
recourse
for tribes to request a return of remains. NAGPRA
leftalmost
be actionable
and Native
L. Bray, American Archaeologists
of the past: archaeologists,
inthe future
See Tamara
14.
Under
Construction,
1, 2 (Tamara
Ass'n
Repatriation
15.
L. Bray ed., 2001).
of Tribal
Historic
Nat'l
See
Implementation
of the Native
American
Graves
Pres.
Americans:
native
Officers,
and
Protection
A Relationship
and
americans,
Federal
Agency
Act
Repatriation
6
NATHPO report], available at http://www.nathpo.org/PDF/NAGPRA
(2008) [hereinafter
%20Report/NAGPRA-Report.zip.
16. 136Cong. Rec. 31,938 (1990) (statementofRep. B. Campbell).
17. See HlRSCHFELDER& MOLIN, supra note 8, at 33, 243; see also NATHPO REPORT,
supra
15, at 6.
note
18. NATHPO Report, supra note 15,at 6.
Jack F. Trope & Walter
Act: Background
Repatriation
19.
Archaeologists,
Native
R. Echo-Hawk,
and
Americans,
The Native
History,
Legislative
and Repatriation
American
in the
9,22
Graves
future
(Tamara
and
Protection
of
L. Bray
the
past:
ed., 2001)
(quoting 136cong. rec. 35,678 (1990) (statementof Sen. Inouye)).
20. NATHPO Report, supra note 15, at 6.
21. Law pre-NAGPRA provided thatAmerican Indian human remainsfoundon federal
land were
Campbell).
federal
property.
See
136 cong.
rec.
31,937
(1990)
(statement
of Rep.
B.
No. 1] COMMENTS 103
was a key componentof thegrowingbody of Indian civil-rightslegislation
because, for the first time, tribes as well as families could seek to reclaim their
ancestors' bodies and possessions from the government.22
The purpose ofNAGPRA as statedin its legislativehistoryis twofold:to
graves and to repatriate Native American
protect Native American
remains.23
The goal behind repatriationis to allow individualsand tribestogive remains
proper burials
and
rites.24 Congress's
religious
intent with
regard
to the
purpose ofNAGPRA is also evident in thestatutory
language.Ownership of
remains is given (in descending order of preference) to: lineal descendants, the
tribe inwhose territory the remains were discovered, the tribewith the closest
cultural affiliation to the remains, and the tribe in the aboriginal area where the
remains were discovered.25
The law requires agencies
to catalogue
their
collections in order to identify possible Native American remains or objects.26
the remains are identified as possible Native American remains, they go
through a two-step process. First, the remains must be determined to be Native
Once
American
within
the meaning
of the statute.27 If they do not meet the
are
not
considered
Native American, and NAGPRA
does
requirements, they
not apply.
If they do meet the requirements, the second step is utilized to
identify either their descendants or the appropriate tribe to take possession of
the remains. If such individuals or groups are identified, the remains must be
appropriately repatriated as prescribed by the statute.28 If neither descendants
nor a tribe can be identified, the repatriation provision does not
apply.
Since its enactment in 1990, NAGPRA
has facilitated the return of human
remains and sacred objects to tribes. Nevertheless,
certain communities
that the number of remains
there is some concern
in
is only a small
A recent report released
returned
percentage of those actually held by the government.
of Tribal Historic
Association
by the National
Preservation
Officers
it
identified
(NATHPO)
problems
regarding achieving compliance
with the statute.29 This comment will address theNATHPO
Report, along with
This
opposing opinions, and examine the causes for the failures alleged.
discussed
comment argues
enforce NAGPRA
that the NATHPO
seems
Report alleging governmental failure to
to raise valid concerns and that these problems are
22.
Daniel
23.
24.
25.
26.
27.
28.
136Cong. REC. 31,940 (1990) (statementofRep. Udall).
Id
25 U.S.C. ? 3002 (2006).
Id. ? 3003.
Id. ? 3001(9).
Id. ? 3005.
29.
NATHPO
K.
Inouye, Foreword
Report,
supra
toNATHPO
note
15.
REPORT,
supra
note
15, at 4, 4.
104 AMERICAN INDIAN LAW REVIEW
[Vol. 34
likely caused by a lack of congressional enforcement mechanisms,
misinterpretations, and by agencies' failed implementations.
/. The NATHPO
Report: Does
This Study Raise
Valid Concerns
by judicial
About Non
compliancewithNAGPRA?
is a non-profit organization of tribal leaders that implements and
monitors
federal and tribal preservation
In 2008, NATHPO,
in
laws.30
accordance with itsmonitoring duties, released a study regarding government
NATHPO
implementation
of NAGPRA.
The
goal
of the study was
to "assess[]
the
of [NAGPRA] and identify[]
where improvements
implementation
might be
The study looked at inventory notices, the process of determining
cultural affiliation, and surveys returned from federal agencies and tribes about
a variety of NAGPRA
issues.32 This report is critical to any meaningful
made."31
NAGPRA reviewbecause it is theonly one of itskind in the two decades
followingthepassage ofNAGPRA to takea comprehensivelook at theAct's
effectiveness.33
A. Determining
Cultural Affiliation
are given some discretion by Congress
to determine whether
Agencies
remains or sacred objects can be culturally affiliated with descendants or tribes.
as "a relationship
of sharedgroup identity
Congress definesculturalaffiliation
can be reasonably traced historically or prehistorically between a present
organization and an identifiable earlier
day Indian tribe or Native Hawaiian
oral
include Native American
The tools used in this analysis
group."34
which
studies, historical analysis, and
the return of items following a
need to show cultural affiliation by a preponderance of the
histories, archaeological
studies, geographical
other similar means.35 The tribes requesting
notice of possession
evidence.36
The NATHPO
affiliation based
Report noted cases where agencies made determinations of
on pre-determined objectives.37
Some of the agencies were
30. About NATHPO, http://www.nathpo.org/aboumathpo.htm
(lastvisited Jan. 15,2010).
31. NATHPO Report, supra note 15,at 5.
32. Mat9.
33.
Daniel
K.
Inouye, Foreword
to NATHPO
34. 25 U.S.C. ? 3001(2) (2006).
35. Id. ? 3005(a)(4).
36.
Id.
37. NATHPO Report, supra note 15,at 41.
report,
supra
note
15, at 4,4.
No. 1] COMMENTS 105
found by courts to have acted arbitrarily and capriciously in their conclusions.38
Furthermore, an agency's determination of cultural affiliation can take into
account any number of factors, any of which it can prioritize or dismiss at its
discretion. Lastly, determinations of cultural affiliation have been made more
language
complicated by judicial decisions attempting to resolve "ambiguous"
in theAct.39
The findings and examples given in the Report seem to have at least some
merit. The "arbitrary and capricious" standard as applied to agencies under the
Administrative Procedure Act is generally a high burden to prove, especially
given the deference afforded to agency decisions by the courts.40 An agency
cannot be overturned unless it is directly contrary to the terms of the
statute or the agency completely failed to address the evidence in rendering a
reasonable decision.41 This is likely the cause of the limited amount of suits
decision
regarding agency decisions on cultural affiliations of remains. Additionally,
agency decisions of cultural affiliation made without greater study can cause
to be affiliated with
remains
as non-Native.
misidentified
as Native, or
tribe, misidentified
results of poor decisions that fail to take
the wrong
The
into account can be disastrous
(and almost
types of evidence
to
affected
The
of
decisions
agency
irreversible)
parties.
problem
erroneously
certain
findinglackof culturalaffiliationappears tobe validly raisedby theReport.
B. PriorityofNAGPRA WithinAgencies
Federal
are
for vast amounts of rulemaking,
responsible
and
execution all under the authority of
program
investigations,
agencies
adjudications,
many congressional mandates. As a result, the amount of resources provided
to agencies to perform certain functions is a good indication of those functions'
relative importance.One of themajor problemsNATHPO
with
identified
is that compliance with theAct is often
agency implementation of NAGPRA
a low priority of the agency, as evidenced,
for example, by the survey
a
there
is
of
lack
both
responses indicating
training and resources.42 Resource
needs also include personnel to implement the statute and training for those
38. Bonnichsen v. United States, 367 F.3d 864 (9thCir. 2004); Fallon Paiute-Shoshone
Tribe v. U.S. Bureau of Land Mgmt., 455 F. Supp. 2d 1207 (D. Nev. 2006); Yankton Sioux
Tribe v. U.S. ArmyCorps of Eng'rs, 209 F. Supp. 2d 1008 (D.S.D. 2002).
39.
See
40.
See,
infra Part H-B.
e.g., Northern
Spotted
Owl
v. Hodel,
716
F. Supp.
479,
481-82
(W.D. Wash.
1988).
41.
Chevron,
42.
NATHPO
U.S.A.,
Report,
Inc. v. Natural
Res. Def.
note
15, at 24.
supra
Council,
Inc., 467 U.S.
837,842-44
(1984).
106 AMERICAN INDIAN LAW REVIEW
employees.
The resources needed
[Vol. 34
to implement the statutory requirements of
NAGPRA are subject to competingdemands. In addition to theirwork on
NAGPRA-related
activities,
mandated
pay employees, work on
and maintain any other
facility maintenance,
agencies
must
also
activities, provide
agency activities that require funding.
NATHPO
reported that several government
survey responses
agencies'
listed the following problems: small amount of resources, little or no training,
and few-to-no employees designated to work on NAGPRA.43
Furthermore,
each
agency
NAGPRA;
is responsible
for securing
the funds it needs
to implement
only tribes and private organizations are eligible for federal
grants.44 Of the agencies replying to the survey, approximately forty percent
indicated low resource priority as one of their two greatest negative factors in
withNAGPRA.45
complying
The Report thus raises a valid concern.
If agencies do not have the
resources needed to implement NAGPRA,
it should come as no surprise that
are
a
as
not
it
agencies
treating
priority. Furthermore, lack of funding can
to slow and unorganized
inventory work and sloppy research to
determine cultural affiliation. This problem, however, ismore easily rectified
than those in other areas. Congress need only authorize more funding in
contribute
in order to ensure that a lack of resources
agency appropriations toNAGPRA
cannot be used as an excuse for failed compliance.
toForce Action (Including Cataloguing,
ofMeans
to Tribes, and Delineating
Remains)
C. Lack
Providing Notice
that
the exception of a provision for civil penalties against museums
fail to comply with NAGPRA,46
the Act lists no other penalties for non
With
compliance. No federal agency can be penalized for failing tomeet deadlines,
to provide the requisite notice to tribes of the existence of remains subject to
or to provide notice of a change in the delineation of the status of
NAGPRA,
remains. The only option the courts have in these situations is to remand the
Because
neither
to the agency for further review or explanation.47
nor theAdministrative Procedure Act allows for any other penalty,
agencies are thus subject only to procedural review to ensure implementation.
case
NAGPRA
43.
Id. at 21-24.
44.
Id. at 23.
45.
/J. at 24.
46. 25 U.S.C. ? 3007(a) (2006).
47. AdministrativeProcedureAct, 5 U.S.C. ? 706(1) (2006) (allowing courts to compel
action in thecase of delay or unlawfulwithholding).
No. 1] COMMENTS 107
that all inventories were
to be completed by 1995.48 The
federal
indicated that several of
survey responses from
agencies
them had not completed the required inventory as of May 2008.49 Without
NAGPRA
provides
NATHPO
completing the full inventories, it is impossible to know which remains and
sacred objects in government possession
should be repatriated. It is a clear
failure that some of these agencies are more than a decade past the statutory
deadline. Yet there is no remedy for the delay, and no reviewable action can
occur until the remains are completely inventoried, identified, and delineated.
Once remains are identified as "Native American"
after discoveries
and
completed inventories, tribesmust be given notice.50 This allows tribes to be
part of the identification process, to submit any relevant evidence, and tomake
repatriation requests. If notice iswithheld or given too late, such participation
naturally becomes more difficult. In surveys returned from tribes, several
reported knowing of particular remains held by agencies but indicated they had
or delineation activities.51 Congress
not yet been notified of possession
included the notice and inventory provisions inNAGPRA
in order to facilitate
the repatriation process. The repeated failures in these areas are troubling in
light of theAct's purposes.
D. Concerns
from a Different Perspective
About NAGPRA
Indian tribes are not the only groups concerned about NAGPRA.
NAGPRA
the importance of science by allowing for ongoing studies
of remains requested by the lineal descendant or tribe when the items are
to completion and their study "would be of major benefit to
"indispensable"
takes into account
theUnited
States."52 But despite the existence of this provision, theAct favors
of the
repatriation absent the existence of a critical ongoing study. Because
limitations on studies under NAGPRA,
scientific groups have actively sought
to prevent repatriation where further study was
possible.53 The Society for
American Archaeology made several statements in the late 1980s during some
of the large debates in this field:
Research
in archaeology,
and medicine
bioarchaeology, biological anthropology,
depends upon responsible scholars having collections
48. 25 U.S.C. ? 3003(b)(1)(B).
49.
NATHPO
Report,
supra
note
15, at 15.
50. 25 U.S.C. ?? 3002(c)(2), 3002(d)(1), 3003(d).
51. NATHPO Report, supra note 15,at 15.
52. 25 U.S.C. ? 3005(b).
53.
See Friends
15,2010).
of America's
Past, Welcome,
http://www.friendsofpast.org
(last visited
Jan.
108 AMERICAN INDIAN LAW REVIEW
of human
remains
for replicative research and
new questions or employs new analytical
available
research that addresses
[Vol. 34
both
techniques....
. . .Whatever
their ultimate
should receive appropriate
disposition, all human remains
scientific study, should be responsibly
and
and should be accessible
carefully conserved,
or
scientific
educational
legitimate
purposes.54
only
for
Interestingly, some in the scientific community agree with the concerns
thatNAGPRA's
raised by theNATHPO
statutory language
Report?notably
needs to be clarified and that agencies need tomake bias-free interpretations.55
important to distinguish the goals of the scientific
from
those
of the tribes since their desired means of achieving
community
those ends differ wildly.
Scientists want more access to remains for their
Even
so,
it remains
and study in order to bolster our cumulative knowledge.56
want
their ancestors' remains returned for reburial without
generally
It
is
apparent why these groups have such direct conflicts:
study.57
collection
Tribes
further
further
studyand collectioncannotbe done ifthebodies are returnedto thetribeand
reburied.
Despite the concerns of scientists and the academic community, NAGPRA
was primarily designed
to correct the wrongs of the past and allow for
repatriation, not to enable continued study. Ultimately, some of the scientific
is law. The only means
community's concerns are moot now thatNAGPRA
by which NAGPRA's
for change.
critics can hope to alter this reality is to lobby Congress
//.Why theLaw Has Failed toFulfill thePurposes ofNAGPRA and Caused
the Concerns
Established
in theNATHPO
Report
Report has raised serious concerns about agencies failing to
out
the
carry
repatriating the remains of
primary requirement of NAGPRA:
The NATHPO
54. ChristinaE. Garza & ShirleyPowell, Ethics and thePast: Reburial and Repatriation
in American
Archaeology,
in the
future
of
the
past:
archaeologists,
native
Americans, and Repatriation 37, 38 (Tamara L. Bray ed., 2001) (quotingDon D. Fowler,
Report of thePresident, 52 Am. antiquity 214, 215 (1987)).
55.
Friends
of America's
Past, About
Us:
Our
Concerns,
(last visited Jan. 15, 2010).
Garza & Powell,
supra note 54, at 38.
Spirited
Karen
Coody
See generally
cooper,
http://www.friendsotpast.org/
about/concerns/concerns.html
56.
57.
Protest Museum Policies and Practices
100 (2008).
Encounters:
American
Indians
No.
COMMENTS 109
1]
currently held in government collections to their tribes.
is neither a single reason for this failure nor any one branch of
to blame.
The responsibility
lies with the multi-branched
government
Native
Americans
There
is responsible for the
government and the bureaucracy within it. Congress
actual wording of the law, the courts are responsible for how those words are
interpreted, and the agencies must implement the law and make each case's
determination.
Flaws
exist because
problems must be collectively
of problems with each group, and those
to ensure that the implementation of
addressed
NAGPRA complieswith thespiritof the law.
A. Congress
and established as a national policy the
Congress enactedNAGPRA
repatriation requirements to correct the long-standing practices of abuse and
Indian remains.58 As discussed above, this legislation
disrespect of American
was designed to allow descendants and tribes to have their ancestral remains
returned to them and to allow
these remains
to be properly buried.59
But
althoughone of the leading supportersof thisbill in the Senate called ita
"human rights" law,60 the holes and vague language left in theAct are greatly
problematic in light of the purposes forwhich itwas designed.
1. Limited Scope
and Lack
of Enforcement for Failed
Implementation
NAGPRA is limitedinmanyways, butperhapsmost criticallyin therealm
of enforcement. No
internal enforcement mechanism
addresses
the failures of
agencies to implement the Act. NAGPRA
imposes civil penalties only on
as
to
enforcement
silent
museums,61
remaining
against any other actors.
NAGPRA
contains many mandates
for actions by federal agencies, but no
provisions for their enforcement. It is a law almost entirely without teeth. The
to ensure compliance is counterproductive to the
complete lack ofmechanisms
core purpose of theAct: to allow for repatriation of Indian remains and sacred
objects.
The scope of theAct also makes its application so limited that a significant
portion of existing artifacts are not subject to any requirements under
NAGPRA.
Essentially,
remains
or sacred objects will
be
subject
to the
NAGPRA provisionsonly if theyare discovered on propertyowned by the
58.
See Trope
59. Mat22.
&
Echo-Hawk,
supra
note
19, at 9.
60. Id. (quoting 136Cong. Rec. 35,678 (1990) (statementof Sen. Inouye)).
61. 25 U.S.C. ? 3007(a) (2006).
110 AMERICAN INDIAN LAW REVIEW
[Vol. 34
federal government or a tribe.62 In the inventories provision, only federal
are required to go through an
and federally funded museums
agencies
inventory of their collections to determine whether they hold any remains
The Smithsonian Institution, for example, is entirely
subject toNAGPRA.63
exempt from NAGPRA64
(although
it is covered
separately in another Act).65
Anotherproblemwith thescope ofNAGPRA is that,besides proven lineal
descendants, only federally recognized tribesmay request repatriation of their
Tribe v. Babbitt involved the Bureau of Indian
remains.66 Muwekma
people's
an
Affairs and
Indian tribe that had sought federal recognition
unrecognized
than ten years.67 The court noted that not having a recognized status
is harmful inmany ways, including being ineligible for repatriation of ancestral
remains.68 The Muwekma
people knew of several collections of their ancestral
remains, but they were left unable even to attempt to claim them until their
formore
recognition process was completed.69
itself is responsible
Because
of its construction, the language of NAGPRA
with
the
formany of the problems associated
achieving
primary purpose of the
Act.
all legislation, Congress must make political choices when
interest groups are involved, and many such choices have the effect
As with
multiple
of handicapping thegoals behind the legislation.This seems to be thecase
here, and only Congress can fix these problems by passing a new law or by
in order to allow it to better serve its primary purpose.
amending NAGPRA
2. Vague Language
and Processes
is problematic in that the critical definitions
The language used inNAGPRA
used are too vague to provide agencies with much guidance. The most critical
is identifying remains that are subject to the statute. Only
function ofNAGPRA
are
and "culturally affiliated" with
both "Native American"
those remains that
is
a present-day tribe will be eligible for repatriation.70 "Native American"
defined under the statute as "of, or relating to, a tribe, people, or culture that is
62.
63.
64.
65.
66.
67.
Id. ? 3002(a) ("on Federal or triballands").
Id. ?? 3001(8), 3003(a).
Id. ? 3001(8).
National Museum of theAmerican IndianAct of 1989, 20 U.S.C. ? 80q-9 (2006).
Id. ? 3001(7); see also 25 U.S.C. ? 3005(a).
133 F. Supp. 2d 42, 42-43 (D.D.C. 2001).
68. Mat43-44.
69. Mat44.
70. 25 U.S.C.
remains
...
such remains
? 3005(a)(1) ("If...
is established,
....").
then the Federal
the culturalaffiliationofNative American human
agency
or museum
...
shall expeditiously
return
No. 1] COMMENTS 111
indigenous to the United States."71 As discussed more in-depth below, the
Ninth Circuit has interpreted this provision to require that the remains have a
isnot obvious
linkto a presentlyexistingtribe.72
Although this interpretation
in the statute, it raises another question if true: towhat degree must the remains
be linked? That question remains unanswered.
step, determination of "cultural affiliation," requires "a
of
shared
group identitywhich can be reasonably traced historically
relationship
or prehistorically between a present day Indian tribe or Native Hawaiian
The
second
and an identifiable earlier group."73 Essentially,
organization
this step requires
(1) a specificgroup towhich theremainsbelonged, (2) a modern group that
shares some type of identity with the previous group, and (3) some minimal
Congress
degree of evidence of a link to reach a level that is "reasonable."
in determining cultural
provided a list of factors that may be considered
on geography,
kinship, folklore,
and
oral
traditions.74
anthropology, biology, linguistics,
Although Congress
or determining what
types of evidence, establishing
provided for many
constitutes a "link" is patently vague. With ancient remains, the ability to prove
theAct's requirements will be more difficult. Despite such difficulty, ancient
affiliation,
including
remains were
evidence
based
certainly contemplated
by Congress
as indicated by the word
"prehistorically."75
Because
such vagueness
exists in the statute, it is left to the agencies tomake
of eligibility. Such unfettered discretion without guidance or
checks will inevitably lead to agencies making decisions on whatever grounds
they choose as long as they are reasonably explained. Congress provided for a
determinations
to the agencies.76 NAGPRA
of
nominated
persons
(made up
by tribes,museums,
and scientific organizations)
it to review identification and
and empowered
repatriation cases at the request of interested parties.77 The findings of the
review committee
established
to make
recommendations
theCommittee
committee, however, are only advisory, and agencies are free to come
No review or decision given by the Committee
differing conclusions.78
on
any party.
binding
71.
72.
73.
74.
75.
76.
25 U.S.C. ? 3001(9).
Bonnichsen v. United States, 367 F.3d 864, 876 (9thCir. 2004).
25 U.S.C. ? 3001(2).
Id. ? 3005(a)(4).
Id. ? 3001(2).
Id. ? 3006.
77.
Id.
to
is
78. 43 C.F.R. ? 10.16(b) (2009). See also 25 U.S.C. ? 3006(e) and thestatute'suse of the
term "recommendations."
112 AMERICAN INDIAN LAW REVIEW
[Vol. 34
Congress has leftopen toomany holes indraftingthelanguageof thisstatute
and isundoubtedlyresponsibleformany of theconcernsraised intheNATHPO
Report. Congress is solely in charge of appropriations79 and therefore controls
the amount of money given to agencies for particular programs. Not
only has
NAGPRA
been underfunded, but the statutory scheme leaves agencies without
limitingstandardsor guidance. Such failuresare theresultof the inabilityof
Congress topass an Act thathas adequate
standards to limit agency discretion.
enforcement mechanisms
or sufficient
B. The Judiciary
In thefamouswords ofChief JusticeJohn
Marshall, "It is emphaticallythe
province and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases, must of necessity expound and interpret that
rule."80 After Congress creates a law, the courts are left to interpret itsmeaning.
In the issue at hand, the courts have had understandably varied reactions to this
law and the necessarily
complicated
fact scenarios
that have arisen under it. In
thisspecialized fieldof law, thereis littleguidancefromappellate courtson
these issues. The Supreme Court has yet to issue an opinion on a NAGPRA
the issue of NAGPRA
issue, and only two circuit courts have addressed
repatriation. With such little guidance, it is obvious why lower courts have
reached differing results on the issues. Courts have resolved some of the vague
wording used in the statute, especially
surrounding the issue of cultural
andNAGPRA eligibility.Theyhave also placed strict
affiliation
boundarieson
the application
of the statute.
1. Interpretations
of the Language
of the Statute: Cultural Affiliation
The single most important case in this field of law, famously known as the
Kennewick Man case, was decided by the Ninth Circuit Court of Appeals
in
2004.81 This case revolved around the inadvertent discovery of ancient human
remains dated between 8340 and 9200 years old.82 The remains were originally
in thepossession of theU.S. Army Corps of Engineers,which holds the
federally owned landwhere the body was discovered. Early studies revealed the
date estimate and postulated that the physical characteristics of the bones were
not identical to modern Native Americans.83
A coalition of local tribes
79.
U.S.
Const,
art. I, ? 9, cl. 7.
80. Marbury v.Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
81. Bonnichsen v. United States, 367 F.3d 864 (9thCir. 2004).
82. Mat
83.
869.
Id. at 870.
No.
COMMENTS 113
1]
requested the remains for reburial, and the Corps halted study and published a
notice of repatriation.84 A group of scientists opposed the repatriation and asked
for further study.85When their request was denied, they sued and won a remand
to the Corps for further evidentiary hearings on thematter.86
Subsequently, theCorps agreed to allow the Secretary of the Interior tomake
theNAGPRA
determinations.
Following a non-destructive examination, the
Secretary
decided
the remains were
both Native
American
and culturally
with thetribalcoalitionand orderedrepatriation.87
affiliated
The scientistsfiled
an amended
complaint, and the district court found that the Secretary had acted
and
arbitrarily
capriciously in violation of theAdministrative Procedure Act in
to repatriate.88 The Ninth Circuit affirmed.
the
determination
making
The appellate
court reasoned that the Secretary, who used only the age of the
remains,failed to follow the languageprovided by Congress inmaking the
to repatriate.89 Note that this conclusion was premised on the
in
the
definition of "Native American"
found within the statute: "of,
language
or relating to, a tribe, people, or culture that is
indigenous to the United
States."90 The court held that because Congress used the present-tense "is,"
determination
intended that only remains bearing some relationship to a presently
existing tribe can be Native American.91 The Secretary of the Interior's decision
was deemed arbitrary because it stood contrary to
congressional intent.92Under
the test formulated by the U.S. Supreme Court in Chevron, U.S.A., Inc. v.
Congress
Natural Resources Defense Council, Inc., agencies must be given due deference
for their expertise, except where Congress has directly spoken to the issue.93
to a lack of substantial evidence, the court set aside the
Due
Secretary's
determination that the remains were "Native American."
84.
Id.
85.
Id.
86. Mat
87.
871.
Id. at 871-72.
88. Id. at SI 2. The districtcourtalso held thattherequirementsofNAGPRA were notmet,
but theNinth Circuit did not review thisportionof thedecision because itheld thatNAGPRA
did not apply to theremains. Id. at 872 n. 11.
89. Mat 876.
90. 25 U.S.C. ? 3001(9) (2006) (emphasis added).
91.
93.
367 F.3d
Bonnichsen,
92. Mat
at 877.
876.
Id. at 877
(citing Chevron,
837, 842-43 (1984)).
U.S.A.,
Inc. v. Natural
Res.
Def.
Council,
Inc., 467 U.S.
114 AMERICAN INDIAN LAW REVIEW
[Vol. 34
the court examined the evidence in the record and made the
Additionally,
the
final determination that the remains are not Native American.94 Because
"remains are so old" and the court found no reliable evidence of a cultural link
between Kennewick
Man
and modern
tribes, they are not "Native American"
underNAGPRA.95 The courtthusimpliedthatanyancientremainswill likely
reasons and thus be exempt from
were
there
oral
histories presented, the court dismissed
NAGPRA.96
Although
these as "just not specific enough or reliable enough or relevant enough" to
consider,97 claiming that the histories often contained "myths" and were "limited
fail the same
criterion for the same
by concerns of authenticity, reliability, and accuracy."98 Lastly, the court stated
that because the remains failed the firstprong of theNAGPRA
test, therewas
no need to address specific tribal affiliation.99
The court's interpretation of the language of the statute, as well as the
decision itreachedon themeritsof theNAGPRA affiliationissue,
independent
is troublingin lightof theNATHPO Report's findingson the failure to
First, Congress has expressly provided for the
implementNAGPRA.
of oral-history evidence along with a wide range of scientific
and "other relevant information."100 The fact that theNinth Circuit
consideration
evidence
simplybrushedaside thisevidence isquestionable in theface of itsclaim that
itheld steadfastly to the intent of Congress. The court should not have simply
dismissed the oral evidence in this case. The statute expressly allows for the
consideration of these tribal histories, as they can potentially indicate an
affiliation between
the current tribe and the remains.
itself, the court failed
Next, within the definition of "Native American"
the
words
of
to
the
address
"of, or relating
potential implications
adequately
word
"is"
that
the
to."101 Although the court is correct
implies present-day
cultures or tribes, the definition does not elaborate on the clause "or relating to."
It is the realm of the agencies tomake interpretations of language not clearly
so in this case, not
explained by Congress.102 The Department of the Interior did
but
of
"is,"
by interpreting the words "or
by ignoring the express wording
relating to." Such an interpretation is expressly within
94. Mat
95.
882.
Id.
96. Id
97. Mat
98. Mat
99. M.
881.
882.
at 877.
100. 25 U.S.C. ? 3005(a)(4) (2006).
101. Id. ?3001(9).
102.
itspower, and under the
Chevron,
U.S.A.,
Inc. v. Natural
Res.
Def.
Council,
Inc., 467 U.S.
837,
843
(1984).
No.
COMMENTS 115
1]
test the agency does not have to arrive at the same interpretation as the
court, just a reasonable one.103
It is reasonable that an agency's interpretation of "or relating to" can be based
Chevron
on oral histories, age, and other evidence. As long as the agency takes all of the
information into account and adequately explains its decision as reasonable,
deference must be given to that decision.104 The court in theKennewick Man
case brieflyacknowledges thispoint before concluding thatNAGPRA
is
designed only to aid in the return of actual close genetic kin?and
essentially no
one else.105 This view is inconsistent with the plain language of the Act.106
Ownership, after passing to lineal descendants, passes to a tribe}01
if the court's interpretation stands, the determination of cultural
Next,
affiliation (the second prong ofNAGPRA
analysis) becomes superfluous. If an
are
"Native American"
under the Ninth
agency determines that remains
Circuit's framework, then itnecessarily has shown that the remains bear "some
relationship to a presently existing tribe."108 Thus, the cultural-affiliation prong
has already been proved. It defies common sense to suggest that Congress
intend the result reached by theNinth Circuit: the creation of a two-step
process where both findings were achieved within a single step. The court
the counterpoint, but dismisses
it by claiming the two steps
acknowledges
would
remain distinct: the first step ismore "general" because
it includes more than
federally recognized tribes, and the second step is "specific" because itrequires
a federally recognized tribe.109Even though the first step advocated by the court
is broader, as a practical matter therewould be no reason for a non-federally
claim and meet the first prong because
recognized tribe to bring a NAGPRA
103.
Id.
104.
See Northern
Spotted
Owl
v. Hodel,
716 F. Supp.
479,
482
(W.D. Wash.
105. Bonnichsen v. United States, 367 F.3d 864, 879 (9thCir. 2004).
106.
Note
that the court believes
is not necessarily
associated
with Western
That
evidence
quoted
1988).
the term "ancestor"
the correct usage
to refer only to closely related kin. Id.
of the term in context.
The court uses the term as
cultural norms. The court lacks both the expertise and the
("white")
to different tribes?even
the meaning
of "ancestor"
though the sources
usage of the term. Id. at 866-67
by the court utilize tribal members'
(using quotations
to determine
from the following sources: H.r. rep. No.
U.S.C.C.A.N.
4367,4369;
H.r.
Rep. No.
101-877,
101-877, at 9 (1990), reprinted in 1990
at \3, reprinted
in 1990U.S.C.C.A.N.
4367,
4372).
107. 25 U.S.C. ? 3002(a)(2) (2006). After the linealdescendants,ownershippasses to the
tribeon whose land the remains are discovered, then to the tribewith the closest cultural
affiliation,and thento the tribethathas aboriginal (orpre-discovery)ties to the land. Id.
108.
Bonnichsen,
109.Mat
877.
367 F.3d
at 879.
116 AMERICAN INDIAN LAWREVIEW
only recognized
[Vol. 34
tribes can have remains repatriated under the second prong.110
The court's reasoning in distinguishingthe two stepsdisappears in lightof
practical
application,
disorganized
Lastly,
American"
again blending
analysis.
the court's
decision
the two steps into one amorphous
that the Kennewick
Man
and
is not "Native
is potentially problematic in a logical sense. It implies that, in the
case of ancient remains, it is "almost impossible to establish any relationship...
[with] presently existing American Indians."111 If remains are found from pre
times and no DNA or similar bulletproof link is
discovery (and pre-European)
cannot apply because the remains are "too old" to be
found, then NAGPRA
Native American. Under this reasoning, the time period for the application of
to remains could potentially be as narrow as from the nineteenth
NAGPRA
century to present day for some groups.
"Native Hawaiians"
is used for comparison,
Furthermore, if the definition of
it seems odd thatNative Hawaiians
could claim remains outdating Kennewick Man when other Native American
tribeswould hold no such claim to similarly dated remains.112 It ismore logical
to conclude
in their
that Congress
intended that each group's occupants
respective territorieswould have similar timelines, as opposed to imposing an
to
it seems illogical for Congress
arbitrary timeline on one. Additionally,
to
to
the
ties
for
tribes
the
claim
remains
that
have
"aboriginal"
ability
provide
land113 ifno ancient remains can even be classified as "Native American."
If the court had reached the same decision based on the second prong for
would notbe
failureto show culturalaffiliationratherthanthefirst,thenthere
as much of a problemwith circumventing
theprimarypurpose ofNAGPRA.
The result of the decision
actually Native American
as it stands, however, is that older remains, whether
or not, will not be classified as such under the statute.
The problemswith this decision will likely include the exemptionfrom
NAGPRA ofNative American remainsthatunder thespiritof theAct should
be eligible for repatriation. This case demonstrates why the judiciary has been
a part of the failure to achieve the purpose of NAGPRA.
Tribe v. United States Bureau
In Fallon
Paiute-Shoshone
of Land
as
District
the
Court
for the
U.S.
the
Cave
known
also
case,
Spirit
Management,
110. See thedefinitionof "Indian tribe"underNAGPRA, 25 U.S.C. ? 3001(7) and the
subsequentuse of the terminNAGPRA's repatriationsection, id. ? 3005.
111. Bonnichsen, 367 F.3d at 879.
112. "NativeHawaiian" isdefinedby theAct as "any individualwho is a descendantof the
aboriginalpeople who, prior to 1778, occupied and exercised sovereigntyin thearea thatnow
constitutestheState ofHawaii." 25 U.S.C. ? 3001(10).
113. See id. ? 3002(a)(2)(C).
No.
COMMENTS 117
1]
directionthandid theNinthCircuitCourt in
DistrictofNevada tooka different
Man case.114 The Spirit Cave case revolved around the 10,000
a Native American man discovered in a famed cave adjoining
of
year-old body
Fallon-Paiute Shoshone tribal lands and the question ofwhether he was related
theKennewick
in anyway to themodern tribe.Although the SpiritCave decision briefly
addressed
the Kennewick
Man
case
time), the court did not automatically
(which was only recently issued at the
exclude the ancient remains as non-Native
(as did theNinth Circuit).115In fact,theparties in theSpiritCave case had
and were only
already stipulated that the remains were "Native American"
concerned with the determination of tribal cultural affiliation.116 The court
found that there was
no problem with
the substantive decision made
by the
agency (thatthe remains lacked culturalaffiliation),but itdid find thatthe
agencyhad erredinfailingtoconsiderall evidencebeforeitand in inadequately
addressing why it chose to value some evidence over other evidence.117 In
failing to take all of the required procedural steps, the agency acted arbitrarily
and capriciously in violation of theAdministrative Procedure Act.118
2. TerritorialLimitsofNAGPRA
The second area of NAGPRA-repatriation
had some influence centers around theAct's
case
law where
the courts have
territorial limits. Specifically, as
stated under the "Federal lands" provision, NAGPRA
applies only to remains
and objects found on federally "controlled or owned" land,119on tribal land,120
or in existing collections in federal agencies121 and federally funded museums.122
The word "controlled" has been applied narrowly, ensuring that only lands
of thefederalgovernmentqualify.
wholly under theauthority
For example, theU.S. District Court for theNorthern District of New York
has found that even where federal agencies exercise power over state land,
including through the issuance of permits that control use or access, the federal
presence and power does not meet the statutory requirements: "'federal lands'
denotes a level of dominion commonly associated with ownership, not funding
114. 455 F. Supp. 2d 1207 (D. Nev. 2006).
115.
Id. at 1216.
116.
Id.
117. Mat
1224.
118. AdministrativeProcedureAct, 5U.S.C. ? 706(2)(A) (2006).
119. 25 U.S.C. ? 3001(5) (2006).
120. Id. ? 3001(15).
121. Id. ? 3001(4).
122. Id. ? 3001(8).
118 AMERICAN INDIAN LAW REVIEW
[Vol. 34
to statutory obligations or regulatory permits."123 The Western
had an additional claim that their purported right-of-way, which
tribe
Mohegan
supposedly granted access to the land inquestion, should be construed as "tribal
pursuant
argument thatwas similarly dismissed.124 Thus,
lands controlled or owned by the states are ineligible, even where the federal
government controls their use or access.
lands" under the statute?an
lands owned privately or by municipal
Additionally,
authorities have been
Inone case, theFifthCircuitCourt
held similarlyineligibleunderNAGPRA.
of a "federal agency...
involved
in a supervisory role... does not convert the land into 'federal land' within the
so less
meaning of the statute."125 This area of law has had far fewer cases?and
of Appeals
concluded
that even the presence
the interpretation of cultural affiliation,
widespread
impact on NAGPRA?than
the
because
used
is far clearer in defining
mostly
wording
by Congress
territorial limitations than in its definitions of statuses. The courts could
construe "control" more
is Congress's
liberally, but themain
word choice.
thrustof the problem
in this area
C. Agencies
Agencies have adopted the functions of all three branches of government, but
have retained their subservient role toCongress's
guidance in establishing law
and agency duties. It is their quasi-executive
and quasi-judicial
functions that
are most
discussed
for
of
the purposes
this
comment
because
the
ofNAGPRA and theagencies' decisions in individualcases
implementation
most affect the issue at hand. Although the agencies are the actual bodies given
the task of complying with and implementing NAGPRA,
the responsibility for
are not "bad
cannot rest solely with them. Agencies
as a
NAGPRA
remains
because
view
they
guys," conspiratorially withholding
bad law. Instead, agencies are beholden to the power of Congress and must act
any failures of purpose
within
the law.
Congress has given agencies many laws to implement, and each agency has
a primary mission, which itviews as its firstpriority. Such primary missions
lands (Bureau of Land
include managing
and conserving federal public
123. W. Mohegan
Tribe & Nation
v. New
York,
100 F. Supp.
2d
122,
125-26
(N.D.N.Y.
2000), aff'd inpart and vacated inpart, 246 F.3d 230 (2d Cir. 2001). Note thatthisdecision
was
partially
vacated
on separate First Amendment
grounds,
but thematerial
discussed
here was
leftuntouchedbecause thematterwas not argued at theappellate level.
124. Id. "[T]ribal lands"underNAGPRA are less inclusivethanthemore common "Indian
country,"
defined
at 18 U.S.C.
? 1151
(2006).
125. Castro Romero, Jr.v. Becken, 256 F.3d 349, 354 (5thCir. 2001).
No.
1]
COMMENTS 119
and protecting human health
(Environmental Protection Agency).127
Management)126
pollution
and
the environment
from
significant reason
The most
behind thefailureof theagencies to achieve thepurpose ofNAGPRA is that
their primary missions.
As with all
bureaucracies, agencies often move slowly and inefficiently toward a primary
are often pushed aside as part of a
mission.
Conflicting minor missions
to
above any
the primary mission
choice
fulfill
and
conscious
necessary
resource
demands
laws because
require
competing
impedimentary
NAGPRA's
conflicts with
purpose
Often itis thesmalleror competingprogramslikeNAGPRA that
prioritization.
are set aside, as the primary mission
allocations.
1. Failures
requires the greatest budget and resource
of Implementation
mandate, but
agency has been completely unresponsive toNAGPRA's
more than a few have failed to implement aspects of the Act. Agencies'
their
is especially
important because
compliance with statutory mandates
actions represent theUnited States and thereforemust demonstrate legitimacy.
No
have consistently failed tomeet all of the requirements
Agencies
thembyNAGPRA.
imposed on
Several agencies reportedthattheyhad yet to complete
theirNAGPRA-required
inventories of Native American
Federal
agencies have "lag[ged] far behind...
objects.128
institutions and museums
remains and sacred
the federally funded
also subject to the law,"129 mostly because
the
are subject to sanctions for failures while federal agencies are not.130
the Bureau of Indian Affairs reported that, of 4185 sets of human
museums
In 2001,
remains in its known possession, 3890 had yet to be evaluated.131
When an agency has only limited amounts of funding and employees,
it is
limited in what it can achieve. Nevertheless,
this excuse only goes so far.
When an agency so clearly deprioritizes certain projects as being of lower value,
In the case of the Bureau of Indian Affairs, NAGPRA
there is a problem.
should actually be
126.
U.S.
Bureau
in line with
of Land Management,
the agency's
About
the BLM,
About BLM.html (last visited Jan. 15,2010).
127.
U.S.
Environmental
epa.gov/epahome/whatwedo.htm
128. NATHPO
report,
Protection
Agency,
primary mission,
little
http://www.blm.gov/wo/st/en/info/
Our Mission
(last visited Jan.
supra note 15, at 15.
leaving
and What
We
Do,
http://www.
15, 2010).
129. RobertH. McLaughlin, NA GPRA, Dialogue, and thePolitics ofHistorical Authority,
inLegal Perspectives on Cultural Resources 185,191 (Jennifer
R. Richman & Marion
P. Forsyth eds., 2004).
130. Id. at 192.
131.
Id.
120 AMERICAN INDIAN LAW REVIEW
[Vol. 34
reasonforwhy theagencyhas not implemented
therequirements
ofNAGPRA
within a reasonable
timeline.
a case
In Yankton Sioux Tribe v. United States Army Corps of Engineers,
an
on
inadvertent
of
Native
American
remains
and
artifacts
involving
discovery
a construction site, theU.S. Army Corps of Engineers
failed to provide adequate
noticeof thediscoveryto theaffectedtribes.132
The Corps also failed toprotect
the remains itdid not remove, leaving some of them exposed.133 Furthermore,
the removal of some of these remains occurred without consulting the tribe.134
The Corps also failed to halt construction when itbecame apparent that further
remains were being threatened and actually "crushed" by such activities.135 The
court, after reviewing a long list of failures on the part of theCorps to follow its
issued a preliminary injunctionhalting
legal duties under NAGPRA,
construction and requiring the Corps
to abide by NAGPRA.136
All
of these
actions by the Corps were illegal and in direct violation of NAGPRA
regulations, and the court clearly articulated the list of problems with the
Corps's actions. Despite this, a final decision about the ultimate disposition of
the construction project will not be made until the Corps makes a substantive
about the cultural affiliation of the remains.137 Although the court was
able temporarily to halt the destruction and removal of remains, the construction
was not permanently addressed because the substantive decision to be made by
decision
theagencywill ultimatelybe theprimaryfactorinallowingor disallowing the
continued project. This case is but one example of an agency failing in its legal
without any sanction other than a temporary
obligations under NAGPRA,
injunction.
2. The Interpretations
Made AreNot in theSpiritofNAGPRA
case, where ancient remains were found on Bureau
The Spirit Cave
of Land
Management (BLM) propertyadjoining theFallon-Paiute Shoshone tribe's
reservation and on that tribe's traditional lands,138 ismost demonstrative
of the
spiritofNAGPRA being ignored. The dispute in thiscase centeredon the
132. 209 F. Supp. 2d 1008, 1020 (D.S.D. 2002).
133.
Id.
134.
Id.
135.
Id. at 1022.
136. Id. at 1025.
whether
137. See id.at 1027 (orderingthattheCorps "expeditiouslyand formallydetermine
the human
remains
...
are Native
American
138.
Fallon
2006).
Paiute-Shoshone
Tribe
v. U.S.
and
items
Bureau
of Land Mgmt.,
with those items").
culturallyaffiliated
Nev.
...
cultural
if so, which
Indian
455 F. Supp.
tribe is
2d 1207 (D.
No.
COMMENTS 121
1]
determination
BLM's
tribe in question
that the remains were not "culturally affiliated" with the
therefore be studied.139 The court
and that the body could
found thatthe agency had acted arbitrarily
by failing to considerall of the
evidence
before making
eligible.140 The agency's
the decision
that the remains were
not NAGPRA
less tenable by the fact that the
decision was made
after
the
evidence
the tribe submitted and
agency,
"apparently
ignoring"
case
to
the
the
NAGPRA
Review
Committee, then proceeded to ignore
referring
the Committee's
The Nevada
finding in its final decision.141
federal district court furthernoted that
NAGPRA requiresBLM tofully andfairly considerthisevidence
and to uphold or reverse itsdetermination of non-affiliation based on
a reasoned and coherent discussion of the evidence and BLM's
reasons
or disbelieving
it. This discussion never
determination was
occurred, necessitating a finding that BLM's
and
arbitrary
capricious.142
for believing
It seems as though the agency sought to achieve a pre-determined
outcome and
was willing to reviewonly evidence that itfeltsupportedthatdecision. Not
only are such actions patently inviolation ofNAGPRA
and theAdministrative
ProcedureAct, but theycompletelyviolate thespiritofNAGPRA: to end the
practice of taking remains without respect for the tribes and bodies involved.
The actions of agencies are often the only exposure the public has to actions
of the United
States, and it is those agencies'
responsibilities
to represent the
nation ina positive lightby complying
with thelawnotonlywhen itsuitsthem,
but
in all circumstances.
implementation ofNAGPRA
some of the problems with agency
Although
are caused by inadequate resources and expertise,
otherproblemsby allowingfora fulland fairpresentation
agencies can rectify
of evidence before deciding an issue. Agencies can also rearrange their internal
priorities and take itupon themselves to comply with the law even without fear
of penalties. As the primary actors, it is important that they present themselves
as fairand comporting
with thespiritofNAGPRA?especially
history theAct
sought to correct.
139. Mat
1211-12.
140. Mat
1225.
141.
Id.
142. Id. (emphasis added).
in lightof the
122 AMERICAN INDIAN LAW REVIEW
[Vol. 34
Conclusion
and religion do not have to be mutually exclusive, but each should
respect the other. When remains are discovered that have potential religious
stands at
significance and also potentially important scientific value, NAGPRA
Science
the intersection of these two public values but has not sufficiently established
as a national policy how these values should be compared and preserved while
with the
givingpriorityto theclaimsofAmerican Indianshavingan affiliation
to better allow for the best interests of each
remains. Amending NAGPRA
ensure
to
the
is
justice and maintain the rights of both.
only way
community
More thoughtmust go into how remains are classified and affiliated to prevent
should be a special provision
error. There
for ancient remains to correct the
of theNinthCircuitCourtofAppeals. Lastly,agencies shouldbe
interpretation
given the resources to see that thisAct can be practically
sacrificing other priorities.
implemented without
passed by Congress for policy reasons that have not been
The failures to ensure that
fully implemented by the federal government.
remains actually become repatriated lie in the hands ofmany, as is common in
was
NAGPRA
a bureaucracy. The responsibility falls on all three branches of government, and
none of them can be distinctly isolated. Congress is responsible for not making
the language clear enough to achieve itsgoals, and it is responsible for allowing
too many loopholes that agencies may utilize to avoid compliance with the
The courts are responsible for interpreting language
purposes of NAGPRA.
inconsistently with the clear purposes of the statute and for failing to hold
are responsible for not following the spirit of
agencies accountable. Agencies
the Act through more thorough implementation and for disregarding the
interests at stake by giving lower priority to allocating
scarce resources
to this
work.
laying blame will not create the solution. It is up to Congress to
the teeth itneeds and to clear up ambiguous language. It is up
to follow themandates of the law to achieve themost just results.
Ultimately,
give NAGPRA
to agencies
of the
It isup to thecourtstouphold thewill ofCongress and ensurethe intent
is carried out through adequate implementation. It is up to all of us to see
that all of these things happen. The final check must always remain the power
of the vote.
Act
Society for American Archaeology
The Systematic Use of Radiocarbon Dating in Archaeological Surveys in Coastal and Other
Erosional Environments
Author(s): Jon M. Erlandson and Madonna L. Moss
Source: American Antiquity, Vol. 64, No. 3 (Jul., 1999), pp. 431-443
Published by: Society for American Archaeology
Stable URL: http://www.jstor.org/stable/2694143 .
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http://www.jstor.org
THE SYSTEMATIC USE OF RADIOCARBON DATING IN
ARCHAEOLOGICAL SURVEYS IN COASTALAND
OTHER EROSIONAL ENVIRONMENTS
Jon M. Erlandsonand MadonnaL. Moss
Traditionally,archaeologists have used 14C datingprimarily as a postexcavation analytical tool to establish the age offeatures,
strata, or assemblages. In coastal zones and other environmentsaround the world, however,thousands of archaeological sites
are rapidly eroding or endangered by other destructiveprocesses. Webelieve archaeologists should expand their use of 14C
dating, systematically incorporating it into surveys in coastal, lacustrine, riverine, and other environmentswhere erosional
exposures often provide access to extensive stratigraphicprofiles. Withexamplesfrom the Pacific Coast of North America, we
show how widespread 14C dating of sites during surveys can be used to help manage archaeological sites more effectively and
identify significant patterns of paleoenvironmental change, site survival, settlement and demography,technology, and social
organization. Withoutmore widespread application of such techniques, and a reallocation of research and cultural resource
managementfunds,thousandsof sites will be lost before even the most basic informationabout their age and contents is known.
El uso tradicional de la tUcnicade fechado de 14C se ha limitado a establecer la edad de rasgos, estratos, o conjuntosartefactuales despues de la excavacion. Sin embargo,en zonas costeras y otros medioambientesmiles de sitios estdn siendo erosionados
o destruidospor otros procesos. Creemosque los arqueologos deben expandirel uso de esta tecnica incorporandolasistematicamenteenprospeccionesde medioambientescosteros,lacustres,o riverinos,dondeprocesos erosivoshan expuestoperfiles estratigrdficos. Ejemplos de la costa pacifica de Norte America indican como se ha utilizado la tecnica defechado por radiocarbono
para ayudaraproteger sitios mas efectivamenteypara identificarpatronessignificativosde cambiopaleoambiental,asentamiento
y demografia, tecnologia, y organizacion social. Se necesitanfondos para poder continuar la arqueologia de rescate e implementaresta tecnica a gran escala; de lo contrario,miles de sitios seran destruidos antes de que se los haya estudiado.
Since
its developmentby WillardLibby in the
1940s, radiocarbondatinghas revolutionized
archaeology.To a large extent, it was radiocarbondatingthatfreedarchaeologistsfromthecompulsiveclassificationschemesthatdominatedculture
historical approaches prior to the 1960s (Taylor
1985:321). As radiocarbondating became more
acceptedandaccessible,the importanceof seriation
and other typological dating techniques waned,
enablingarchaeologiststo focus more attentionon
developingnew methods,theories,and paradigms.
Although typological cross-dating still plays an
importantrole in archaeology,todaysuchchronoloorother
gies arealmostinvariablytiedto radiocarbon
chronometriccalendars.Despitethedevelopmentof
a number of additional techniques, 14Cdating
remains the most important and widely utilized
chronometricdatingtechniqueused by New World
and Old Worldscholarsstudyingevents of the past
30,000 to 40,000 years. With the developmentof
acceleratormass spectrometry(AMS) for dating
small samples, more sophisticated sampling and
decontaminationtechniques,high precisiondating,
and calibrationprogramsto convert 14Cdates into
calendaryears(e.g., StuiverandReimer1993;Vogel
et al. 1993), the applicabilityand resolutionof 14C
datingalso have improved.
As the numberof 14Cdates has grown in many
regions of the world, so too has knowledge of the
timing and patternsof culturaland environmental
changes, and the relationshipbetween the two. As
14Cdateshavebeen compiledintolocal andregional
databases,archaeologistshave developed increasingly sophisticatedandinnovativeuses for the dates
Jon M. Erlandson and Madonna L. Moss * Departmentof Anthropology, University of Oregon, Eugene, OR 97403-1218
AmericanAntiquity,64(3), 1999, pp. 431-443
Copyright( 1999 by the Society for AmericanArchaeology
431
432
AMERICAN ANTIQUITY
themselves.A numberof investigators(e.g., Erlandson, Crowell,Wooley,andHaggarty1992;Glassow
et al. 1988; Rick 1987), for example,have used the
temporaldistributionof 14Cdateswithina regionto
estimate fluctuationsin human population levels
over time. Kennettet al. (1997) and Ingram(1998)
recentlyused 14Cdatesand otherisotopic measurements from stratifiedarchaeologicalsites to examine temporal fluctuations in marine or estuarine
environments, including changes in marine
upwelling,oceaniccirculation,rainfall,andclimate.
Despite these encouragingtrends, radiocarbon
datingis still underusedby archaeologists.Generally, 14Cdatingis used to date excavatedsites, as a
methodof establishingtheage of discretestrata,features,or objects and their associationwith broader
cultural or environmental changes. Despite an
increasing emphasis on systematic survey and
regionalanalyses,mostarchaeologicalfundsarestill
spenton laborintensiveexcavationand analysisof
a limited numberof sites for which 14C dates are
obtainedto establishrelativelyprecisechronologies'.
Especiallywherehighly time-sensitiveceramicsor
otherartifactsarerareor absent,most sites in a local
or regionalsettlementsystemremaineitherundated
or crudelydatedvia temporallydiagnosticartifacts,
features,or structures.This situationoften inhibits
reconstructionsof changes in humandemography
throughtime, as well as understandingthe relationships between environmentalchange and human
adaptiveshifts.
From a regionalresearchand managementperspective,the focus on the intensiveinvestigationof
a relatively small numberof sites is problematic.
Althoughmanysuchinvestigations,especiallythose
focused on large and deeply stratifiedsites, have
helped elucidategeneralpatternsof culturaldevelopmentin manyregions,thelackof comparativedata
from a broader range of sites in many regions
obscures a tremendousamount of variabilitythat
helps us transcendnormativeculturalreconstructions of the past.Researchfocused on a smallnumberof sitesis particularlyproblematicin areaswhere
archaeologicalsites arerapidlybeing lost to erosion,
looting, or development,and many sites often end
up being destroyedbefore theirbasic occupational
chronologyhas been established.The destructionof
suchundatedsites representsan incalculableloss in
our abilityto understandspatialand temporalvari-
[Vol. 64, No. 3, 1999]
ations in humanadaptationsor the specific developmentaltrajectoriesof ancientcultures.While we
may establishthe broadpatternsof a region's history in this manner,we risk the loss of the detailed
knowledge of local or temporalvariationsthat are
so characteristic
of therichdiversityof thehumanpast.
In our researchalong the Pacific Coastof North
America,we have reliedincreasinglyon 14C dating
as a reconnaissancetool to place sites in space and
time duringthe earlystagesof archaeologicalinvestigation.Given the rightcircumstances,incorporating systematic14Cdatingintoarchaeologicalsurveys
can help approacha wide varietyof archaeological
researchproblems,includingevaluatingsite survival
in dynamicgeomorphologicalsettings,delineating
broad patterns of settlement and environmental
changes,identifyinglocalandregionaltrendsin paleodemographyandtechnologicaldevelopments,and
in some cases, pointingto changingsocial dynamics throughtime. As we demonstrate,the early use
of 14C datingcan be especiallyeffective in archaeologicalsurveysin coastal,riverine,orlacustrineareas
where erosion often provides access to extensive
stratigraphic
profiles,whereshell middensarecommon site types, andwherethe accumulationof such
shellmiddensresultsin thepreservationof abundant,
readily datable, and culturally derived organic
remains.
One of the firstinvestigatorsto use 14C datingin
a reconnaissancemode was Carl Hubbs (1955), a
geographerwho datednumerousBajaandAlta California shell middens to explore temporalchanges
in coastlines,oceanictemperature
regimes,andintertidal and nearshorecommunities.Because the precise location of some of Hubbs' archaeological
sampleswas not recorded,however,it is sometimes
difficult to correlate his sampling localities with
known archaeologicalsites. In the 1970s, Michael
Glassow(1980, 1993)collected14Candcolumnsamples from 13 Santa Cruz Island sites to examine
changesin marineresourceuse alongthe California
Coast. Glassow's work, which influencedour own
thinkingaboutthearchaeologicalapplicationsof 14C
dating,was intermediatebetweentraditionalarchaeological methods and the approachwe propose in
thispaper.Inthefollowing sections,we illustratethe
potentialof using 14C datingas a systematicreconnaissance tool, with case studies drawn from our
work along the Pacific Coastof NorthAmerica.
REPORTS
Site Types, Settlement, and Warfare on the
Northern Northwest Coast
Our initial use of 14C dating in a reconnaissance
mode grew out of a programof field survey,ethnohistoricalresearch,and limited subsurfacetesting
directedby Moss (1989; Moss et al. 1989, 1990) in
southeastAlaska.This studyfocusedon 10 sitesnear
Angoonon AdmiraltyIsland,includinga numberof
site types: villages, shell middens, forts, fishing
camps,and wood stakefishing weirs. Moss (1989)
showed that some of these site types had greater
antiquitythanothersin the studyarea:fishing weirs
firstappearedat least 3,200 years ago, for instance,
while four investigatedforts were all occupiedless
thanabout 1,000 years ago.
Realizing we had to increasethe size and geographicdistributionof our sample to determineif
more thanjust a local patternwas represented,we
broadenedourinvestigationsto examineevidenceprimarilyin theformof 14Cdatesgatheredduringsurface surveys of forts and fishing weir sites-for
settlementshifts and other culturalchanges over a
broaderareaof southeastAlaska.
Withagencyarchaeologists (motivatedby the threatof coastal erosion
andthe need to developregionalresearchquestions
to guide theirown work) and others(e.g., Langdon
et al. 1995),we workedto enlargethe sampleof 14Cdatedfishingweirs andfortsin southeastAlaska.
Theconstructionof largeorcomplexfishingweirs
andtrapswas a key technologicaladvancewithwide
rangingconsequencesforthedevelopmentof Northwest Coastcultures.Largefishingweirsrequireconsiderableeffortto constructandwereusedto harvest
largenumbersof salmonandotherfish whichhadto
be processedquicklyto providethe storablewinter
staples NorthwestCoast Indiansrelied on. Ethnographicand historicalaccountsclearlydemonstrate
the importanceof weir fishing to NorthwestCoast
tribes,yetjustovera decadeagoFladmark(1986:105)
suggestedthatmassharvestof salmonwas probably
a lateprehistoricor earlyhistoricdevelopmentin the
area.Numerouswood-stakefishing weir sites were
known to exist in NorthwestCoastintertidalzones,
but very few of these were dated until the 1980s,
probablybecausethey were thoughtto be relatively
recent.In 1985,we mappedover600 well-preserved
wood stakesin the FavoriteBay Weirsite (49-SITthreestakes
33) on AdmiraltyIslandand 14C-dated
to between 3200 and 2150 cal B.P. Not long after,
433
ReamandSaleeby(1987)dateda stakefromthelarge
Exchange Cove Weir (49-PET-319) in southeast
Alaskato about3430 cal B.P.andEldridgeandAcheson (1992) reporteddatesfor4 wood stakesfromthe
GlenroseWetsite (DgRr6) in BritishColumbiathat
rangedfrom 5300 to 4420 cal B.P. In a recent synthesis, we listed 71 14C dates from 42 southeast
Alaskanfishingweirs,suggestingthatweirusebegan
by at least the Middle Holocene and extendedwell
into postcontact times (Moss and Erlandson
1998a:Table1). Not all weirs and trapsare largeor
complex,however,andongoingstudiesof thedevelopmentof weir types throughtime may resultin a
betterunderstandingof these evolving technologies
(see Byram 1998;Erlandsonet al. 1998).
Defensive sites (fortsorrefugerocks),locatedon
steep-sidedrocky headlandsor small islands with
commandingviews, arecrucialto understanding
the
developmentof NorthwestCoast settlement,social
organization,and warfare(Maschner 1991; Moss
and Erlandson1992). Historically,individualclans
in many Tlingit villages maintainedseparateforts,
so severalfortsites areoften foundin the vicinityof
a single village. Numerousfortsarerecordedin oral
and writtenhistoriesor in Native place names (de
Laguna1960;Moss andErlandson1992).Afterour
initialworknearAngoon, we collected 14Csamples
duringreconnaissanceat 9 morefortsites on Admiralty Island and in the Juneau and Sitka areas.
Because many fort sites contain actively eroding
shell middens,it was relativelyeasy to collect 14C
sampleswith adequatestratigraphicand contextual
controls.We then compiled 39 14C dates from 20
fortsandfoundthatdefensivesites
southeastAlaskan
probablyfirst developed between about 1450 and
1550 cal BP, but that most of the datedforts were
first used between about 1000 and 1200 years ago.
To explain the proliferationof southeastAlaskan
forts,we proposeda modelof populationgrowth,territorial expansion, Neoglacial environmental
changes, and increased social stress (Moss and
Erlandson1992). Examiningthe data availableon
the age of fort occupationsfromthe broaderNorthwest Coast (Figure1), including 10 other 14Cdated
forts or fort-like sites from Washingtonto Prince
William Sound, the broaderregional patternwas
essentially consistent with the southeastAlaskan
sample,althoughone possible fort site nearOzette
in Washingtonmay firsthave been used as muchas
2,000 years ago (Moss andErlandson1992).
434
AMERICANANTIQUITY
[Vol. 64, No. 3, 1999]
f
a
e
S
0
X
2
4
2-
~~
~
~ ~ ~ ~
CalendarYears (250 year increments, with millennia indicated)
Figure 1. Temporal distribution of calibrated 14Cdates (n = 48) from 27 Northwest Coast fort sites (data from Moss and
Erlandson 1992).
As theseexamplesdemonstrate,dataon theantiquity of varioussite types along the northernNorthwest Coasthas been a useful point of departurefor
generatinghypothesesaboutregionalculturaldevelopments. Patternswere identified and examined
largelythroughreconnaissanceworkwith 14Csamples taken from existing surface or stratigraphic
exposures.Basedon theresults,we wereableto propose and evaluate models of significanttemporal
changes in NorthwestCoast technology,land use,
settlement,social organization,and warfare.
Paleoenvironments and Human Adaptations
of the California Coast
Along the southernCaliforniaCoast, researchers
have long been interested in the relationships
betweenchangesin coastalenvironmentsandhuman
adaptations(e.g., Arnold1992;Glassowet al. 1988;
Hubbs1955;Kennett1998;Warren1964).Thebasic
culturalsequenceof the regionhas been known for
decades(e.g., Moratto1984; Rogers 1929;Wallace
1955;Warren1968),althoughextensionsandrefinementscontinue.Increasingly,Californiaresearchers
are using large 14Cdatabases(e.g., Breschiniet al.
1996) to examine trendsin local and regionalpopulationlevels as potentialstimulito culturalchange
andas potentialresponsesto environmentalchanges
(Glassowet al. 1988).
Along the westernSantaBarbaraCoast,Erlandson (1994, 1997) used 14C dating as a reconnaissance methodto help reconstructregionalchanges
in coastalenvironmentsandhumanadaptations.The
westernSantaBarbaraCoast,backedby foothillsand
mountainsthatrise relativelyrapidlyfrom the sea,
consists of a narrowcoastal plain that extends for
about50 km betweenPoint Conceptionon the west
and the Goleta Slough on the east. Unlike areasto
the east, wherethe remnantsof severallargeestuaries still exist, no productiveestuariesnow exist on
the westernSantaBarbaraCoast.Littlewas known
aboutthe archaeologyof the area-and not a single
14Cdate was availablefor a known archaeological
site-until planningstudiesfor severallargeoil and
naturalgas facilitiesstimulatedconsiderablearchaeologicalresearchin the 1980s (e.g., Erlandson1988;
Erlandsonet al. 1993; Santoroet al. 1993).
Througha combinationof reconnaissance,limited excavation,andbackgroundresearch,a picture
of dynamicchangesin coastalgeographyandhuman
adaptationsoverthepast9,000 yearshasbeenreconstructedfor the westernSantaBarbaraCoast. This
reconstructionis now based on the examinationof
shellfish assemblagesfrom 52 shell middens,with
a chronologyanchoredby 148 14Cdates.Forroughly
40 percentof these sites, 14Cdates and dataon the
natureof shellfishassemblagescome primarilyfrom
surveywork-in which little or no excavationwas
conducted-and sampleswere collected from midden deposits eroding from stratigraphicprofiles
exposed in sea cliffs, creek banks, and railroador
roadcuts.Whileanalysisof faunalassemblagesfrom
excavatedsites helped identify general changes in
REPORTS
coastalpaleogeography,14Cdatingof a wide range
of siteswas crucialto establishingthattheidentified
changesrepresenteda regionallycoherentpattern.
Thedatafromat leastnine sites clearlyshow that
a series of productiveestuaries existed along the
westernSantaBarbaraCoast between about9,000
and 6,000 years ago. Shellfish assemblages from
severalsites in the area are dominatedby bivalves
(e.g.,Argopectenaequisulcatus,Chionesp., Ostrea
lurida,Sanguinolarianuttalli, Saxidomusnuttalli,
Tresus nuttalli) and gastropods (e.g., Polinices
lewisii)commonin southernCaliforniaestuaries.A
varietyof datasuggestthattheseestuarieswereboth
magnets for human settlement and the focus of
human subsistence during the Early Holocene
(Erlandson1991, 1994).
By the Middle Holocene, between about 6,500
and3,000 years ago, most of the molluscanassemblages from the area contain little or no estuarine
shell,suggestingthattheproductiveestuariesin local
canyonmouthshadessentiallyceasedto exist, either
filled with sedimentsor blockedfrommarinecirculationby theformationof sandbars.Afterabout6,000
years ago, most Middle Holocene shellfish assemblages in the area are dominatedby Pismo clam
(Tivelastultorum)or mussel (Mytiluscalifornianus,
Septifer bifurcatus) shells harvested from sandy
beachandrockyshorehabitatsof the exposed outer
coast(Erlandson1997:101).Because such habitats
aremorewidely dispersedalong the westernSanta
BarbaraCoast, Middle Holocene settlementin the
areaseems to have been less sedentaryor sustained
than the estuarine-focused pattern of the Early
Holocene(Erlandson1997).
After about 3,500 years ago, shellfish assemblages from the western SantaBarbaraCoast suggest that the coastal geography took on an
witha mosaicof outer
increasinglymodemcharacter,
coast habitats (rocky coast, sandy beach, cobble
reefs,etc.) includingsome highly dynamichabitats
where edible shellfish were virtually nonexistent
(Erlandson,Dugger, Carrico, and Cooley 1992).
Whereproductiveshellfish habitatspersistedinto
the Late Holocene, the majorshellfish taxa identified in several sites can still be found in local site
catchmentstoday.The relatively high diversity of
severalshellfish assemblagesalso indicatesthat a
widerrangeof shellfishtaxawere harvestedandthe
averagesize of the shellfishcollectedwas relatively
small (Erlandson et al. 1993; Erlandson and
435
Snethkamp1993). These patternssuggest that the
intensityof shellfishharvestingincreasedas human
populationsgrew,the productivityof shellfishhabitatsdeclineddue to environmentalchanges,orboth.
Finally, small shellfish samples from two historic
Euroamericansitesaredominatedby relativelylarge
Pismo clam and mussel shells typical of modern
habitats, suggesting that shellfish populations
reboundedsignificantlyafterthe catastrophicpostcontact decline in Native Californianpopulations
and the commercialextirpationof sea otters.
Heritage Management and Research on the
Oregon Coast
Ourmost explicit use of 14C datingas a reconnaissance tool involves a fouryearevaluationof Native
Americansites locatedon Statelandsof the Oregon
Coast(ErlandsonandMoss 1993;Moss andErlandson 1994, 1995b). The Oregon Coast, facing west
andexposedto thefull forceof stormsmovingacross
the North Pacific, "has one of the highest waveenergy climates anywhere in the world" (Komar
1992:7). This wave energy, when combined with
tectonic and geological instability,leads to heavy
erosionalong muchof the OregonCoast,including
both the gradualattritionand catastrophicloss of
archaeologicalsites. Explicit concernfor the rapid
destructionof Oregon Coast archaeologicalsites
goes backmorethan60 years(e.g., Berreman1935;
Collins1953;Newman1971).In 1953,LloydCollins
wrote of the erosionof OregonCoast sites:
I haven'tpresenteda brightpictureof the
situation,but one thatspells doomfor the prehistoryof the coastalregionof Oregonif some
formof scientificreclamation
isn't attempted...
I recommendthat excavationproceduresbe
institutedimmediately.I fear,if some actionis
not taken, that in the not too distantfuture,
knowledgeof the culturalposition,culture,and
chronologyof the OregonCoastwill be as they
are today-mostly theoretical (Collins
1953:55).
Lyman(1991:308) suggestedthat"if the loss of
coastalarchaeologicalresourceseven approximates
the rate indicatedby earlierinvestigators,the profession has an obligationto samplethose resources
still extantin such a manneras to preservevia collection as many dataas possible."
In the 1970s and 1980s, continuing erosion
promptedthe Oregon State Historic Preservation
Officeto sponsorarchaeologicalsurveysandassess-
436
AMERICAN ANTIQUITY
ments of coastal state parks (Minor 1986; Ross
1976),theinvestigationof severalthreatenedarchaeological sites (i.e., MinorandGreenspan1991), and
the nominationof a few sites to the NationalRegister of HistoricPlaces (NRHP) (e.g., Minor 1993a,
1993b). Still, scores of uninvestigatedcoastal sites
on statelandscontinuedto erode into the sea.
In 1992, we agreedto lead a four-yearstudy of
archaeologicalsites on coastal statelands designed
to assess the condition of over 100 documented
NativeAmericansites, locate andrecordadditional
sites, andnominateeligible sites to the NRHP.Traditionalmethodsof site evaluationand nomination
for over 100 widely scatteredsites, involving systematicsubsurfacetestingandboundarydefinition,
would have takenmany years and millions of dollarsto successfullycomplete.Given statebudgetary
constraintsandtherapidpaceof site erosion-problemstypicalof manyheritagemanagementsituations
aroundthe world-the developmentof an alternative strategywas essential.The resultwas a cooperative effort funded with a combinationof Historic
PreservationFund grantsand matchingfunds provided by the Universityof Oregonthroughdonated
labor and reduced indirect cost (overhead) rates.
After a four-yeareffort and about$100,000 in historic preservationfunds, we submitteda Multiple
PropertyNRHP nominationfor 89 Oregon Coast
NativeAmericansites (Moss andErlandson1996).
In 1997, all 89 sites were officially listed on the
NationalRegister.2
OurOregonCoastfieldworkfocused on the survey and nondestructiveevaluationof a variety of
sites:shellmiddens,villagesites,lithicscatters,quarries, fishing weirs, and ethnographicplaces. A crucial partof ouranalysis,andtheprimaryexpenditure
(54 percentof directcosts) of historicpreservation
funds, was the 14Cdating of organic samples collectedalmostexclusivelyduringfield surveys.Since
most of the evaluatedsites consistedof coastalshell
middensor intertidalwood stakefishing weirs that
containedabundantorganicremainsexposedin eroding sea cliff, streambank,or mudflatexposures,we
could relatively quickly document site contents,
structure,andstratigraphy.
Thus,the evaluationand
boundary definition phases of the project relied
almostexclusively on survey-basedexaminationof
surfaceexposuresand stratigraphicprofiles, along
withlimitedprobingwithsoil coresortrowels.From
such exposures,we collected 14Csamples to place
[Vol. 64, No. 3, 1999]
each site withina chronologicalsequence(Terminal
Pleistocene,Early,Middle,andLateHolocene, and
Postcontactperiods)andestablishits relevanceto a
series of related research domains and questions
(Moss andErlandson1996).
In general,our14Csamplingprocedureswereorientedtowardsbracketingtheage of theculturaloccupationsidentifiedat each site. Among the evaluated
sites, the numberof 14Csamples datedvariedconsiderably(from 1 to 7), dependingon the size of the
comsite,thenumberof discreteloci or stratigraphic
ponentspresent,andthe varietyof datablematerials
present.Whereverpossible,to avoidproblemsassociatedwith stratigraphicmixing (see Erlandsonand
Rockwell 1987; Wood and Johnson 1978) and the
"old wood problem"(Schiffer 1986), we relied on
14Csamplesconsistingof single objects and shortlived materials(i.e., individualshell fragmentsand
wood or charcoalsamples from discretebranches
ratherthanpotentiallyoldertrunkwood).3
To maximize the resolutionof our radiocarbon
chronology,we analyzed13C/12Cratiosfor 54 estuarineandmarineshell samplesfromsites locatedup
and down the OregonCoast (Moss and Erlandson
1995b). 13C/12C
correctionsvariedfrom ? 400 to ?
430 years, consistentwith data from other Pacific
Coastareas,values thatroughlycompensatefor the
global marinereservoireffect (Stuiveret al. 1986;
Taylor1987).Calendricalcalibrationof 14Cdateson
marinesamples, however, as well as the effective
comparisonof dates for marineand terrestrial(or
mixed) samplesfrom a site or region, also requires
correctionfor the regional reservoir effect (AR).
Theseregion-specificcorrectionsformarineorestuarine samples are caused primarilyby upwelling
coastalcurrentsor localized influxes of fresh water
that can introduceold carbon into coastal waters
(Ingramand Southon 1996). Stuiver et al. (1986)
recommendedAR correctionsfor coastal regions
aroundthe world,includinga generalcorrectionof
-390 ? 25 years for the NorthwestCoast of North
America.This figurecomparedto values of -225 ?
35 yearsfortheCaliforniaCoastand-220 ? 50 years
for the coast of southernAlaska. The higher value
for the NorthwestCoast was based on seven dates
for marine shells collected historically in British
Columbia,Washington,and Oregonwaters.Three
Oregon Coast dates (two from YaquinaBay, one
from SunsetBay) produced14Cdatesinflatedby an
averageof +382 years(Stuiveret al. 1986:1019).In
REPORTS
using this figure to calibrateour marineshell dates
fromOregonCoastarchaeologicalsites,it was clear
that somethingwas wrong with the regionalvalue
proposedby Stuiveret al. (1986). Many of our 14C
dates for marineshells from stratifiedand clearly
NativeAmericanculturalcontextscould not be calibratedusingthe CALIB3.0.3 program.Calibrating
them with the -390 AR value suggested that they
were contaminatedby "post-bomb"radiocarbon
(producedby atomictestingafter1950). Investigating this problem, we collected and dated several
closely associatedpairs of marineshell and wood
charcoalsamplesto helpresolvethe appropriate
correctionfor OregonCoast marineor estuarinesamples. This led us to lower our delta-Rcorrectionto
-240 ? 50 years-much moreconsistentwith adjacent areasof the Pacific Coast-which allowed the
effective calibrationof the shell-charcoalpairsand
most of ourproblematicshell dates.Additionaldating of OregonCoastmarineshell samplesof known
age may furtherrefine this correction(see Ingram
and Southon 1996), but spatialand temporalvariations in the intensity of upwelling and freshwater
influxalongthe PacificCoastmay inhibitmoreprecise calibrationsof marine samples without additionalisotopic analyses(180/160 ratios,etc.).
Duringourfour-yearstudy,we obtained205 14C
dates for 109 archaeologicalsites, roughlyquadruplingthe numberof datedsites on the OregonCoast
(see Lyman 1991:30-32). These dates representa
significantbody of archaeologicalinformationin
theirown right,whichhas alreadycontributedto the
moreeffectivemanagementof OregonCoastarchaeological sites. The datingprogramalso contributed
to the investigation of a number of key research
issues, includingthe antiquityof shell middensand
fishing weirs along the southernNorthwestCoast,
the Late Holocene demographyof Oregon Coast
tribes, and the study of regional taphonomic
processes and their effects on the preservationof
southernNorthwestCoast sites.
As recently as 1986, for instance, the oldest
archaeologicalsites known from a 1200 km stretch
of thePacificCoast-from SanFranciscoBay to the
Canadianborder-were only about3,000 yearsold
(Lightfoot 1993; Moss and Erlandson 1995a). In
contrast,over 80 Early Holocene sites are known
fromthe southernandcentralCaliforniaCoast,with
over 20 more from the northernNorthwestCoast
(Erlandson1994; Erlandsonand Moss 1996). The
437
paucityof early OregonCoastsites led some scholarsto proposethatmarineresourceswere not heavily exploited along the southernNorthwestCoast
until relatively late in time (e.g., Lightfoot 1993;
Lyman 1991; Ross 1984), a conclusionchallenged
by the identificationof an early site at Tahkenitch
Landing(MinorandToepel 1986;but see Moss and
Erlandson1998b:18-19).
Regionalcomparisonsalso showedthatrelatively
little archaeologicalresearchhad been done along
the southernNorthwestCoast,suggestingthatsampling biases might accountfor the poor representation of early sites on the southernNorthwestCoast.
Untilrecently,most investigatedOregonCoastsites
also were relativelylarge,the type of site thatmight
be expected to develop relativelylate in time. Our
coastalsurveyprojecttriedto rectify such potential
samplingbiases by investigatingand 14Cdating a
variety of coastal site types-including small and
low-density shell middens-found in a variety of
coastal habitats.The cumulativeresults (Figure2)
showed that the vast majority(over 95 percent)of
the sampledOregonCoast sites do date to the Late
Holocene, with 78 percentof the identifiedcomponentsdatingto the past 1,000 years.We also identified one Early Holocene shell midden over 8,000
years old (Moss and Erlandson 1995a,
1998b:19-21), however,andseveralotherEarlyand
MiddleHolocenesiteshavebeenidentifiedalongthe
Oregon Coast in recent years (see Minor 1993b,
1995; Minor and Greenspan1991; Tasa and Connolly 1995).
Throughour dating program,we demonstrated
thatthe preponderanceof LateHolocenesites along
the OregonCoastis not due solely to samplingerror,
anddebateaboutthe antiquityof coastaladaptations
alongthe southernNorthwestCoastnow focuses on
issues such as the relative productivityof marine
versusterrestrialresources,the functionandformationof "lithic"siteslackingfaunalremains,andpossible geological explanationsfor the dearthof early
coastal sites and the survivalof existing ones (e.g.,
Cole et al. 1996;Erlandsonet al. 1998; Hildebrandt
and Levulett 1997; Lightfoot 1993; Lyman 1997;
Minor1995,1997; MinorandGrant1996;Moss and
Erlandson1995a,1998a,1998b).Clearly,thearchaeological recordof the southernNorthwestCoasthas
been shaped by geographical factors and coastal
processes differentfrom those of adjacentareasto
thenorthandsouth,buttheeffectsof theseprocesses
438
AMERICANANTIQUITY
[Vol. 64, No. 3, 1999]
80-
-
60
#40-
20-
0
1
3
2
4
5
6
7
9
8
CalendarYears(250 year increments,with millenniaindicated)
Figure 2. Temporal distribution of calibrated 14Cdates (cumulative, n = 257) and 14Ccomponents (gray, n = 211) from 140
Oregon Coast sites (adapted and updated from Moss and Erlandson 1995b). 14Ccomponents combine all dates from each
site or site locus that fall within the same 250-year time span.
on theregionalarchaeologicalrecordarestill poorly
understood.
For example, researchon OregonCoast fishing
weirsandtrapsprovidesdataagainstwhich to comparethe southeastAlaskanweirs (Figure3). In Oregon Coastestuaries,workingwith ScottByramand
MarkTveskov,we have now mappedmorethan50
wood stakeweirs andobtained54 14Cdatesfor weir
stakesor otherelementsfrom31 sites (Byram1998;
Erlandsonet al. 1998; Moss andErlandson1998a).
So far, the oldest fish weir on the OregonCoast is
about2,400 yearsold, butthe vast majorityof weirs
date to the last 1,000 years (Moss and Erlandson
1998a). The greaterapparentantiquityof fishing
weirs of the northernNorthwestCoastis interesting
becauseit could indicatethatintensiveweir fishing
did not develop on the southernNorthwestCoast
until considerablylater.Recent geological studies
(e.g., Atwateret al. 1995; Darienzo and Peterson
1990)haveshown,however,thatmassivesubsidence
20-
0
f
|
1
<
1
0
12
3
13ESouthern
Northen
45
Calendar Years (250 year increments, with millennia indicated)
Figure 3. Temporal distribution of calibrated 14Cdates from fishing weir sites of the northern and southern Northwest Coast
(adapted and updated from Moss and Erlandson 1998a). For the southern Northwest Coast, 57 dates from 35 sites are plotted; for the northern Northwest Coast, 77 dates from 44 sites.
REPORTS
earthquakesandcoseismic tsunamishave struckthe
southernNorthwestCoast several times in recent
millennia.These tectonicevents, generatedby plate
movements along the Cascadia SubductionZone,
may have led to the differentialpreservationor visibilityof fishingweirsandothersitesalongthesouthernNorthwestCoast(see Cole et al. 1996;Erlandson
et al. 1998;MinorandGrant1996;Moss andErlandson 1998a:189-90). Compoundingtheproblemis the
factthatthehighlyexposedOregonCoastis battered
by powerfulNorthPacific stormsin winter,causing
landslidesand severe erosion independentof large
earthquakesand tsunamis (Komar 1997). Finally,
along the more heavily developedsouthernNorthwest Coast,sedimentationdueto logging,landreclamation via dike construction, dredging of river
channels,and othernineteenth-and twentieth-centuryindustrialdevelopmentsalso may have buried
or destroyedolder weir sites (Moss and Erlandson
1998a:190).
Thus, geological, oceanographic,and archaeological researchalong the OregonCoast combines
to provide an importantcautionarytale about the
interpretation
of regionalcompilationsof 14Cdates
from archaeologicalsites. Clearly,in interpreting
radiocarbonevidence for the timing of regional
changesin humansettlement,demography,subsistence,socialorganization,orotherculturalshifts,we
mustcarefullyevaluateif suchchangesaretheresult
of biases in the preservationor visibility of archaeologicalsitesresultingwholly orpartlyfromnatural
processes, from human-inducedlandformmodifications,or fromthe vagariesof archaeologicalsampling and other factors. Only after satisfactorily
rulingout such biases can we confidentlyattribute
observed cultural patterns to changes in human
behavior or societal organization. Better understandingof coastalprocesses,moreover,can lead to
animprovedunderstandingof how humansadapted
to such dynamiclandscapesin the past.
Summary and Conclusions
As ourcase studiesdemonstrate,radiocarbondating
canbe usedeffectivelyduringarchaeologicalsurveys
to investigatea varietyof regionalresearchandmanagementproblems.We believe therearecompelling
reasonsfor archaeologistsandresourcemanagersto
reconsiderthe methodsthey have traditionallyused
to managearchaeologicalsites as heritageresources.
The alarminglyrapidloss of sites to erosion,devel-
439
opment, looting, and other destructive processes
stronglysuggests thatwe must do more to evaluate
the age of existingsites, placingthemfirmlyin both
space andtime beforethey arelost forever.By placing a widerrangeof sites in a well-definedchronological framework, archaeologists may more
effectively evaluate the significance and research
potentialof individualsites or site components,then
moreefficientlyutilizescarcefundsforsalvagework
or data recovery. Increasingthe numberand percentage of 14C-datedsites within a region also has
the potentialto enhancethe resolutionof local and
regionalchronologiesandthe utilityof chronological databases.Withlargersamplesof datedsites, we
canmoreeffectivelysearchforlocal andregionalpatternsin thetemporaldistributionof site typesorconstituents,thendevelopstrategiesto evaluatewhether
such patternsresultfrom biases in samplingmethods or site preservation,or arerelatedto changesin
local environments,human demography,technology, social organization,and so on.
Systematicallyusing 14Cdatingin archaeological surveys may be particularlyproductivewhere
highlysensitiveartifactualtimemarkers(i.e., ceramics) arerare,precludingprecisechronologicalassignments based on conventional survey data. Since
knowledgeof past landuse patternsis often limited
by relianceon small samples of datedsites-often
the largest, deepest, or most dramaticon a landscape-systematic 14Cdatingof sites duringarchaeological surveyscan greatlyexpandunderstanding
of largertrendsin regionalsettlement.Italsocanhelp
researchersidentifysites thatmay be uniquerepresentativesof little-knowntime periods that would
otherwise go unrecognized. It is quite likely, for
instance,that some of the oldest and most significant sites along the Pacific Coastof NorthAmerica
have gone unrecognizedby archaeologists,or have
been destroyedby erosionor development,because
theirsmall size or low artifactdensity suggestedto
some investigatorsthat they were not even worth
radiocarbondating.
In our experience,Nati...
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