anthropology writing -16

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Answer ONE of the following three questions for this weeks assignment:

Write 1 page, single-spaced, about NAGPRA, your response to the Kennewick Man saga. More specifically, identify the problems and concerns with NAGPRA. What should the role of archaeologists be? What rights should the native people have? Is there room for compromise? Do you agree with the repatriation?

https://www.smithsonianmag.com/smart-news/over-900...

https://www.nps.gov/archeology/kennewick/index.htm

https://www.nps.gov/nagpra/

Do some research on the web, read the Week One readings, and check out the websites posted. Write a page or two, single-spaced, on an archaeological method that employs a technique other than "digging in the dirt". What are the benefits to the technique? Give an example of an archaeological site where this technique was used (outside research!) Be sure to provide citations and references cited for all references used.

http://www.saa.org/ForthePublic/Resources/Educatio...

https://www.npr.org/sections/alltechconsidered/201...

Write 1 page, single-spaced, discussing the significance of Paisley Caves including the types of artifacts, ecofacts, and/or features found at the site. Why is the site significant?

http://westerndigs.org/ancient-feces-from-oregon-c...

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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 Stable URL: http://www.jstor.org/stable/25684264 . Accessed: 31/08/2011 23:16 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. Board of Regents of the University of Oklahoma and University of Oklahoma College of Law are collaborating with JSTOR to digitize, preserve and extend access to American Indian Law Review. http://www.jstor.org 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 . Accessed: 31/08/2011 19:57 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. Society for American Archaeology is collaborating with JSTOR to digitize, preserve and extend access to American Antiquity. 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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