BETWEEN COLONIAL AND INDIGENOUS ARCHAEOLOGIES: LEGAL AND EXTRA-LEGAL OWNERSHIP OF THE ARCHAEOLOGICAL PAST IN NORTH AMERICA
Neal Ferris
McMaster University/Ontario Ministry of Culture, 900 Highbury Ave., London, Ontario N5Y 1A4
neal.ferris@mcl.gov.on.ca
Published in: Canadian Journal of Archaeology 27(2): 154-190 2003Abstract. For over a century and a half, archaeologists have fought to protect the archaeological record from impacts caused by looting, antiquities trafficking, development, and other threats to the preservation of, in effect, the raw material of the archaeological enterprise. But as post-colonial sensibilities slowly permeate North American society, descendant communities challenge the basis for both archaeologists to assert an exclusive stewardship of the archaeological record, and the state's authority to endow this exclusivity to archaeologists. This paper reviews the historical context from which archaeologists have obtained in legislation a privileged trust from the state to manage and protect the archaeological record in North America, and the challenges First Nations have made to being excluded from their ancestor's past. While the changing balance in the politics of archaeology in North America is undermining archaeologists' exclusivity, it also offers opportunities for archaeology to become more inclusive and relevant in society.
Résumé. Depuis plus de cent cinquante ans, les archéologues se sont battus pour protéger le témoignage archéologique du pillage, du trafic d'antiquités et de toutes autres sortes de menaces à la préservation de ce qui est, de fait, le matériel de base de la recherche archéologique. Mais, alors que les sensibilités post-coloniales infiltrent peu à peu la société nord-américaine, les bases qui permettaient aux archéologues de revendiquer l'intendance exclusive des documents archéologiques ainsi que l'autorité de l'Etat qui octroyait aux archéologues cette exclusivité, sont sérieusement mises en question par les communautés descendantes. Cette communication passe en revue le contexte historique à partir duquel les archéologues ont obtenu par législation de l'Etat l'exclusivité dans la gestion et la protection le témoignage archéologique en Amérique du Nord, et la façon dont les Premières Nations ont été évincées de l'accès au passé de leurs ancêtres. Les changements de rapports de force dans la politique de l'archéologie en Amérique du Nord tendent à diminuer l'exclusivité des archéologues, mais ils permettent aussi à cette science de s'intégrer plus globalement et significativement dans la société.
Prior to the late 1970s, the relationship between archaeologists and Native Americans generally consisted of isolated instances of individuals being brought together by conflict or other specific reasons (e.g., King 1972; McKay 1977; Rosen 1980). Today, the relationship between North American archaeologists and Native peoples dominates discussions in the discipline, especially around the control of burial grounds and sacred sites, the repatriation and ownership of institutionally housed human [PAGE 154] remains, and the overarching question of who has authority over the past. In both the Canada and the United States, these issues have found their way into provincial, state, and federal legislation prohibiting the excavation of burials or ownership of burial remains. They have also been incorporated into archaeological codes of conduct (CAA 1997; SAA 1996), and are explored in an extensive literature (e.g., Bray and Killion 1994; Dongoske et al. 2000; Ferguson 1996; Nicholas and Andrews 1997; Stapp and Longnecker 2000; Swindler et al. 1997; Thomas 2000; Watkins 2000, 2003; Zimmerman 1989, 1997). Moreover, this discussion is increasingly part of a more global debate over who should best speak for archaeological heritage or have privileged access to the record (e.g., Hodder 1986; Layton 1989a, b; Lowenthal 1990, 1998; Tilley 1989). Indeed, as Skeates (2000: 7) points out, this global debate now encompasses everyone from archaeologists, legislators, and descendant populations, to looters, landowners, and developers, to museum curators, historians and philosophers, to New Age religious groups and extra-terrestrialists.
Given the cacophony of the debate, it is ironic that the core issue of who can "legitimately" claim ownership or control of the archaeological past has largely been addressed only indirectly through debates around repatriation and treatment of human remains. Often unexplored is the legal basis for archaeologists being on the "inside" of the issue, and First Nations on the "outside." That this is the way it has been for archaeology in North American society up to the end of the 20th century-the archaeological habitus, if you will-is itself a product of larger, historical trends that need be critically examined.
This paper offers such a critical examination. I begin by reviewing the historical basis cited by the governments of Canada and the United States1 when asserting sovereignty over their respective domains in North America. From this I briefly review the manner in which these countries eventually addressed conservation of archaeology through legislation, and the role the emergent archaeological profession in these countries contributed to shaping that legislative framework. I next examine the consequences of excluding Native Americans in shaping that legislative framework, and review Native American efforts to redress those consequences through the court and through legislation. I do this by considering how legal trends have responded to Native American demands for control over the human remains and spiritual objects previously the exclusive domain of archaeologists, and then note how broader legal trends relating to the rights of Native Americans may influence the non-mortuary part of the archaeological record. I conclude by considering the implications of these past and anticipated changes to the practice of archaeology, and by arguing that they represent an opportunity for archaeologists to move beyond the current debate and develop a post-colonial or indigenous form of archaeology in North America, one sympathetic both to the demands of descendant groups, and to the intellectual advances that have occurred internally in the archaeological community over the last few decades.
While the term "ownership" is used here, I don't mean simple property possession, although that is how archaeological ownership tends to be defined in statute and in discussions about repatriation. Rather, the term is intended to convey privileged access [PAGE 155] to archaeological remains, privileged ability to interpret the record and write the stories of the past from those remains, and privileged right to speak on behalf of the record. Archaeologists often cite as a given their responsibility or mandate to protect the past for the future (e.g., Goldstein and Kintigh 1990: 587), and speak of ethical or moral obligations to the resource and data (e.g., Meighan 1984: 219, 1992). In other words, there is a tendency for archaeologists to view themselves as both stewards of, and advocates for, the archaeological record, and thus charged with fulfilling a basic public trust (Knudson 1995; Lynott and Wylie 1995). This self-defined role has also politicised archaeologists (Knudson 1984) and fostered a mentality of equating loss of data, or loss of control over that data, with destruction of the record-something to be challenged wherever the threat arises.
This moral position is more than simple self-assertion. In a myriad of federal and provincial/state statutes, practicing archaeologists are acknowledged as acting on behalf of the state2 for the benefit of the jurisdiction's archaeological heritage. This privilege is usually granted to archaeologists in exchange for consenting to be regulated by the state (through permits, licenses and accreditation). Thus archaeologists, to lesser and greater degrees, serve the state by managing archaeology and by assisting in balancing protection with other needs of the state (such as resource extraction or land development). But what is the basis of the state's legal capacity to enact legislation controlling the pre-contact archaeological record and privileged access to the record by archaeologists, or of the underlying title the state vests itself over this part of the cultural landscape? This is my starting point.
TITLE AND SOVEREIGNTY GOES TO THE STATE
Knowing how the state can exercise authority over archaeology requires an understanding of the historical basis from which the state-Canada and the United States -asserts sovereignty in North America today. From this perspective, the state's authority can often appear to be an assertion of unquestioned fact, the obvious historical outcome of European settlement. Nonetheless, in North America principles of British law are usually reflected in the legal claims the state asserts to its sovereign title (e.g., Asch 1992a, b; Badcock 1976; Slattery 1991; Wilkins 1997). The commonly asserted legal logic for sovereign title is that of terra nullius: the British Crown (and subsequently the United States and Canada) takes claim by right of settlement of an unoccupied territory lacking any other comparable political entity to contest the claim (Asch 2000: 149-150; Churchill 1999; Culhane 1998; Richardson 1993). This assumption is less an omission of the historical reality that people were present in North America at the time Europeans first arrived, and more a Social Darwinian logic that a "superior" sovereign and society can assert title over land held by "primitive" (i.e., non-Western and non-Christian) peoples. In short, sovereignty is asserted by virtue of a past, successful3 imposition of colonial authority over the territory in question, buttressed by whatever particular rationalisations serve the colonial need to justify that assertion (Dickason 1988).
Though self-serving, this thinking was entrenched in early legal tests and articulations of sovereignty(Asch 2000: 150; Asch and Macklem 1991; Fleras and Elliott 1992). In cases such as the British Re: Southern Rhodesia (1919), the Canadian St. Catherine's Milling (1888), and [PAGE 156] the American Johnson v. McIntosh (1823) and Martin v. Waddell (1842), judicial decisions implicitly or explicitly found that state sovereignty had occurred at the time of settlement, creating precedents in legal thinking few modern courts have been reluctant to abandon (Asch 1992b, 2000: 150-152; Bell and Asch 1997: 45-48; Churchill 1999: 24-25; cf. Anaya 1996). That the colonizer determines the rights others might or might not hold in law affirms a Social Darwinian hierarchy that ensures European sovereignty, by weight of "complexity and Western sensibilities," is legally attributed more rights than Indigenous Nations.4
The logic behind the terra nullius reasoning denies the historical fact that colonizing nations regularly entered into negotiations and legal treaties with Native American Nations, adhering to the very sovereign-to-sovereign diplomatic relations that later legal rulings would deny ever existed. Beginning with the arrival of Europeans in North America, and continuing well into the 19th century, these treaties sought everything from military alliances and economic co-operation, to humanitarian aid and consent to occupy (e.g., Borrows 1997; Fairbanks 1995; Tully 2000; Wilkins 1997). These treaties, negotiated with First Nations by the French and British (and later by American and Canadian powers), recognized that under even colonial law Native Americans possessed some kind of separate sovereignty and held some form of title to the lands on which they resided. Thus, the surrender of these lands could only arise from nation-to-nation negotiations (Foster 1993; Ordon 1985: 60).
This view was codified in the Royal Proclamation, issued by the British Crown in 1763 after the resolution of the Seven Years War established Britain as the primary European power in what had been New France (e.g., Borrows 1997; Culhane 1998). The British Crown issued this edict, in part, to assure France's (and its own) former Native allies that the new British order would impose rules and laws that would define and secure the Native sovereign relationship with the Crown and, by extension, also bind the Crown. This was the recognition by the British of the inherent rights of Aboriginal people to their land-a usurfructory right of use and occupancy-and a statement of policy governing the process to be followed when entering into land agreements. This process was formal treaty negotiation, which recognized that transfer of title could only be negotiated between Britain and First Nations. Any Crown assertion of title had to arise from the voluntary surrender of these rights through treaty (Cohen 1947; Donohue 1989: 370). This also affirmed that only the British Crown held the right to negotiate land title, effectively nullifying earlier private land treaties that had been negotiated between individuals.
Notwithstanding the obligations the Royal Proclamation placed on the colonizing state, Canada and the United States stopped adhering to the process of treaty negotiation by the late 19th century. The U.S. Congress passed the Indian Appropriation Act in 1871, effectively removing the requirements to negotiate treaties with tribes, while Canada simply stopped entering into nation-to-nation negotiations over large areas in the west and north of the country (Culhane 1998; Fairbanks 1995; Fleras and Elliott 1992; Tully 2000; Wilkins 1997).
A critical assumption behind the Royal Proclamation-that the British Crown could assign to itself a "supreme legal authority" and thus impose British law over the land and restrict the capacity of Native Americans to act [PAGE 157] independent of Crown interests-can and has been questioned (Borrows 1997, 2002; Williams 1990). Nonetheless, the British Crown did impose, through the Royal Proclamation, rules of law that it had to follow in its relationship with First Nations. Thus, the process of creating a basis for sovereignty in law also established a level of expected responsibility and liability on the part of the state against which all its subsequent actions can be measured against. This would play a key role in latter 20th-century legal rulings on Native rights, especially in Canada.
THE STATE LEGISLATES ARCHAEOLOGY
From within this colonial history arose the sovereignty the British descendant states of Canada and the United States assert over their respective portions of North America today. This sovereignty includes the ability to legislate the management of the archaeological record. While the state has not invested much effort or time with legal debates or philosophical contemplations concerning the archaeological record, when it has, that record is invariably viewed as property or resources subject to state controls (Fowler 1991; Hibbert 1998; Higginbotham 1982; Suagee 1982; Tsosie 1997). This state control arose with the development of archaeological legislation in these countries, and was fostered by the emergent archaeological profession that grew alongside that legislation. This trend is briefly reviewed below.
The Development of Archaeological Legislation
The "antiquity" of the state's impulse to manage heritage remains and burials in North America is found in the early formation of the British colonial power. One early instance of the state articulating care and concern is a proclamation by Peter Russell, issued in 1797, notifying "His Majesty's subjects" to desist from despoiling Mississauga burying grounds and fishing places, and warning that anyone caught would be prosecuted (cited in Cruikshank and Hunter 1935: 41).In the United States, Thomas Jefferson's 18th-century curiosity in the buried past is often cited as a first expression of archaeological scientific inquiry (Friedman 1991; Riding In 1992), and helped shape the particular role archaeologists would subsequently play with respect to the management of archaeological remains. The rise of an anthropological profession during the second half of the 19th century, with its interest in the so-called "primitive" societies still present in the Americas at the time, generated a handful of researchers interested in the archaeological record (e.g., Trigger 1989). By the late 19th century, the emerging professional archaeological community was lobbying the federal government to stop the wholesale looting of sites in the Southwest-efforts that eventually led to enacting the American Antiquities Preservation Act (AAPA) of 1906 (Lee 1970). This act required that only qualified individuals could hold permits to conduct archaeological investigations on federal land, and made it an offence to damage or remove remains without such a permit (Lee 1970; Suagee 1982).
The AAPA effectively asserted the interest and authority of the state over the care and protection of its archaeological heritage (Watkins 2000: 38), and defined archaeological remains as objects controlled by (and, by extension, belonging to) the state (Hibbert 1998: 427). It also affirmed the particular thinking of archaeologists that wanton looting of sites was "bad," and that the [PAGE 158] investigation of these sites for the sake of advancing scientific knowledge was "good," and thus should be permitted by law through the prohibition of non-scientific excavations of these sites. By excluding non-professionals, the state in effect granted academics and museum researchers privileged access to the archaeological record, making it their exclusive property to handle, value and interpret (e.g., Thomas 2000: 141-142; Tsosie 1997).
The AAPA remained in effect for over seventy years, until legal challenges over its vagueness eventually led to the development of a new piece of legislation, the Archaeological Resources Protection Act (ARPA), enacted in 1979. Though much more detailed in language and scope, the principal aim of the ARPA continued that found in the AAPA-namely, to protect the archaeological record from "bad" activities, while allowing it to be excavated and researched by a privileged subset of Americans (i.e., research archaeologists) who, through the issuance of permits by the state, were granted the right to alter the archaeological record. Notably, however, while the ARPA reaffirmed federal ownership of archaeological remains on federal lands, it also stated that those found on Native tribal lands were tribal property (Section 470dd(2)).
The exclusivity provisions of the both the AAPA and ARPA clearly reflect the state view that "professional" archaeologists, in the act of documenting America's archaeological record, are serving the public good. This relationship also works in the other direction in that archaeologists, lobbying the state for site protection for well over a century, are a voice that the state "may" occasionally listen to or seek input from. In short, by dint of assertion and effective action, the archaeological community fostered the view that they best speak for the archaeological record (McGimsey 1995).
Archaeological advocacy in the United States during 20th century has largely remained focussed on the protection of sites, notably from land development. This has been manifest in various U.S. federal legislation affecting development or resource extraction, culminating in the adoption of the National Historic Preservation Act (NHPA) of 1966 and the Archaeological and Historic Preservation Act (AHPA) of 1974. In particular, the Section 106 process of the NHPA has effectively given rise to large-scale archaeological resource management activities and a burgeoning commercial archaeology industry (King 1998, 2000; Suagee 1982).
In Canada, archaeology largely has followed a similar path, though without benefit of federal legislation (Burley 1994; Spurling 1988). Indeed, today the management and conservation of archaeology off federal lands is strictly the domain of individual provinces, as is the responsibility for regulating the activities of individuals wishing to practice archaeology. As in the United States, the professional sector of the archaeological community also emerged in the 19th century (Noble 1972; Turnbull 1977), and actively sought state-level protection for the archaeological record from looters and impacts. Provincial heritage legislation comparable to the ARPA emerged in the 1970s and 1980s (Byrne 1977; Epp and Spurling 1984; Ferris 1998), regulating the archaeological profession through permit or license requirements. Conservation followed, arising out of land-use legislation that included heritage as a provincial interest, one that proponents/approval authorities had to have regard for when assessing the impacts of an undertaking. Reflect-[PAGE 159] ing both the provincial orientation from which that conservation legislation arose, and differences in the rights of individual and community that exists in Canada, conservation legislation over time extended to regulated land use occurring on private lands (e.g., OMC 1997), though today this coverage still varies from province to province.
There is considerable variation in how effective federal and state/provincial archaeological site conservation legislation. Mechanisms for regulating the professional and avocational archaeological communities range from being rubber stamped approval to onerous. Nonetheless, the general trend in archaeological legislation over the last century has been remarkably similar across North America. Legislation has increasingly imposed a higher series of credentials (or constraints, depending on which side of the qualifications measurement an individual falls) required of archaeologists to be licensed or permitted to conduct field archaeology. Legislation has also increasingly situated these qualified archaeologists as mediators between site destruction and preservation. At the same time, this trend has excluded some avocational archaeologists, artifact collectors and the public from access to the archaeological record, while conservation legislation has occasionally mitigated a developer's or landowner's right to alter land containing archaeological sites considered significant by the accredited archaeological community.
Nevertheless, the interests of development proponents and landowners are still taken into account by being balanced with, and mediated by, archaeological conservation values. For example, consulting and government archaeologists must evaluate property potential to determine if a proponent is required to have an archaeologist survey the land, and must evaluate the significance of sites found to determine the extent of excavation the proponent will need to fund in advance of development. This presumably has ensured that archaeological sites are conserved to some degree, while constraining unbridled archaeological desires to recover everything, no matter what the cost.
Curiously, what has largely been absent from this legislative trend until recently has been any recognition that Native Americans, communally or individually, require a role in the general management of archaeology in North America. The consequences of their exclusion as decision makers in archaeology, and efforts to rectify this by Native Americans, are reviewed next.
ARCHAEOLOGICAL LEGISLATION AND NATIVE AMERICANS
In the development and application of archaeological legislation in North America, Native Americans have not been recognized as an important constituency until quite recently. They have generally been ignored by the archaeological community as it has worked to preserve the archaeological record. Despite recent changes, Native Americans have largely remained non-entities in the history of discipline (Thomas 2000).
It is not surprising then that Native American critiques of archaeological activities in North America over the last 150 years present a much different history of archaeology than do its practitioners. In these critiques, archaeologists are not champions of heritage preservation, halting site looting and championing conservation to an indifferent bureaucracy, but rather a complicit part of an oppressive colonialist state intent on the exclusion of Native Americans from [PAGE 160] their heritage and even expunging the Native American past from North American history (Deloria 1995; Hibbert 1998; Higginbotham 1982; Mihesuah 2000, Riding In 1992). To some Native Americans, then, archaeology as practised by the dominant society in North America is thus another manifestation of an enduring "coloniality"(cf. Gosden 2001; Rowlands 1998).
Certainly for statutes written prior to the late 1970s, a Native interest in archaeology was rarely acknowledged. Up to that time, legal challenges to the differential treatment of Native human remains generally failed (e.g., Echo Hawk 1986; Hibbert 1998; Price 1991; Trope and Echo Hawk 1992). This reflects the peculiar sensibility that then existed towards the archaeological record: that the pre-contact record represented the forgotten and obscure remains of an ancient past and dead people (e.g., McGuire 1997; Trigger 1980), and that the loss of this record would deny knowledge to modern society. Trained experts (i.e., archaeologists, not descendants) were thus needed to care for these fragile fragments of that all-but-lost past, while the state was given the responsibility of legislating a conservation ethic to protect those remains.5
Native American Human Remains: From Artifacts to Ancestors
The sanctioned, differential treatment of ancient human remains up to the late 20th century illustrates the degree to which North American society generally perceived of the Native American past as belonging to a "dead" people unconnected to the contemporary world. For example, in the case of Sequoyah v. TVA (620 F.2d 1159, 1979; cert. denied 449 U.S. 953, 1980), the Cherokee tribe objected to the Tennessee Valley Authority's salvage of human remains in advance of water diversion projects. While the burials of Euro- and African-American individuals were promptly reinterred with full attention to religious custom, the graves of over 1,000 Native individuals were retained for research (e.g., Echo-Hawk 1989: note 91; Higgenbotham 1982: 100; Trope and Echo Hawk 1992). In another example, a highway crew in 1971 uncovered an unmarked cemetery in Iowa City. The recovered burials of 26 Euro-Americans were placed in coffins and reburied, while those of a Native woman and child were sent to the State archaeologist's office (Marsh 1992: 109; Quade 1990: 16-17).Other cases reveal at least some judicial discomfort with equating skeletal remains and grave goods with the "abandoned property" of a dead people. For example, in Charrier v Bell (496 So. 2d 601 [La. Ct. App.], cert. denied, 498 So. 2d 753 [La. 1986]), an amateur archaeologist sought legal claim to 2.5 tons of grave goods and skeletal remains collected from 150 burials in an historic Tunica cemetery in Louisiana for the purpose of selling the collection to the Peabody Museum. Here the court denied that a burial ground could be considered abandoned, an argument that previously had resonance with the courts in justifying looting, excavation, or destruction (Echo Hawk 1986: 447-448; Marsh 1992: 106-107; Moore 1989: 207-208). Moreover, while the court had sympathy with the view that the scientific value of the material was significant, they found this could not override the equally valid view that the archaeological recovery represented a "systematic despoliation of ancestral burial grounds" (cited in Echo Hawk 1986: 448). [PAGE 161]
Notably, the Charrier case was heard during a time when popular sentiment towards the exclusive access given archaeological scientists6 to Native human remains and burials was increasing negative (e.g., Hubert 1989; Layton 1989; McGuire 1992; Thomas 2000; Trope and Echo Hawk 1992). Issues of museum ownership and display of human remains, and Native efforts to repatriate those remains, grave goods and ethnographic objects, also became an increasingly important to Indigenous individuals and groups (e.g., Bell 1992a, b; Clements 1991; Coombe 1993; Nichols et al. 1989; Thorton 1998; Welsh 1992).
An important revelation at the time was that the Smithsonian Institution held the remains of close to 18,500 Native individuals. Many of these had been collected in the 19th century under orders from the Surgeon General's office, which had instructed soldiers to dig up Indian burial grounds to recover skulls for phrenological studies (Fine-Dare 2002; Riding In 1992; Thornton 1998; Trope and Echo Hawk 1992). Trope and Echo Hawk (1992: 54-55) attribute the wide public attention to stories about the Smithsonian's holdings as a catalyst for concerted efforts to obtain repatriation legislation, which ultimately led to a significant shift in American legislative policy towards pre- and post-contact Aboriginal burials and sacred places in the United States (cf. Harding 1997).
In 1989, the U.S. Congress passed the National Museum of the American Indian Act (NMAIA), requiring the Smithsonian Institution to inventory and repatriate skeletal remains and grave goods in its possession to Native groups that could show a relationship with the deceased (e.g., Hibbert 1998; Watkins 2000; Welsh 1992). This was followed in 1990 by the Native American Graves Protection and Repatriation Act (NAGPRA), which extended the obligation to inventory and repatriate to all federally funded museums and institutions. In fact, the Act pertains to all federally or tribally owned lands (McManamon and Nordby 1992; Trope and Echo Hawk 1992). NAGPRA covers all Native skeletal material, as well as funary objects, sacred objects, and objects of cultural patrimony. The latter are defined as items of a continuing traditional, historical, or cultural value to a community, which, by being so valuable, can only belong to a community, not a person (Kosslak 1999: 139; McManamon and Nordby 1992: 233-234; Watkins 2000: 56-57). NAGPRA implicitly prohibits federally funded institutions from owning those elements of the archaeological record relating to the treatment of the dead, spiritual values, and communally defined identity, regardless of how they came to possess such collections. Institutions may own these items only if they have received the express consent of the "true" Native American owner.7
In Canada, while issues related to the treatment of Native burials and repatriation have certainly increased in public profile, a NAGPRA equivalent has not yet emerged. This is partly because such issues are more directly addressed at the provincial level of government in Canada, and so the treatment of burials and grave goods varies from province to province. In British Columbia, for example, Native human remains pre-dating the mid -19th century are defined as archaeological objects and subject to archaeological permitting processes (e.g., Klimko and Wright 2000). In Ontario, burials are exempt from Ontario Heritage Act provisions, and are addressed under the Cemeteries Act (1990). This covers any [PAGE 162] instance where human remains (Native or non-Native) are encountered in the ground, and requires that the disposition of discovered remains be negotiated solely by the landowner and designated representative for the deceased, the latter defined in legislation as the First Nation Government nearest to the location of discovery. Archaeologists have no direct role in determining that disposition. Furthermore, the Cemeteries Act explicitly states that scientific studies of skeletal remains or grave goods, other than those required to determine that the remains are actually human and Native, are prohibited without the consent of the representative for the deceased.
While legislation like Ontario's Cemeteries Act does create a NAGPRA-like environment regarding in situ burials, there is little provincial or federal legislated direction respecting skeletal remains and grave goods collected in the past and held in museums and elsewhere.8 It also unclear whether or not a legal claim of ownership could be made by a First Nation community to skeletal remains or grave goods in a museum or academic institution, although the changing legal understanding of Aboriginal title in Canada invites a future test in court (e.g., Asch 1997; Bell 1992a, b; Clements 1991; Coombe 1992). The global debate on repatriation is changing attitudes. Certainly the Task Force Report on Museums and First Peoples (AFN/CMA 1992) developed in Canada strongly advocates a NAGPRA-like process of listing, co-management, repatriation and reburial. In fact, many Canadian institutions have been pro-active by developing their own repatriation policies for skeletal collections and ethnographic objects. To date, mediation has been favoured over litigation in addressing claims and calls for repatriation.
Cultural Affiliation: Whose Ancestors?
In the post-NAGPRA landscape, Native American concerns have become a principal component within decision making relating to burials and human remains, and may carry greater weight than those of archaeologists. But a key point of contention between archaeological and descendant claims has emerged in the years since NAGPRA was adopted, around the Act's requirement for Native Americans to prove their direct cultural affiliation to the burials and human remains they wish to repatriate. For archaeologists, to prove affiliation requires archaeological investigations. And since, archaeologically, it becomes increasingly difficult to prove contemporary cultural affiliation the further back in time one goes, older, unaffiliated remains would remain objects of scientific study (Goldstein and Kintigh 1990; Jones and Harris 1998; Meighan 1992; Mulvaney 1991; Rose et al. 1996). In other words, the onus to prove affiliation was on the group seeking repatriation, and if the "science" of archaeology suggests this couldn't be achieved for older burials, archaeologists must therefore retain access to some portion of the skeletal remains and grave goods housed in research institutions and still in the ground. To Native Americans, however, demonstrating a direct connection should be self-evident by virtue of asserting claim, by virtue of oral history and, by virtue of the burials being old and thus those of ancient Native Americans. An archaeologist's need for proof thus is irrelevant and unnecessary in justifying repatriation and reburial.The difficulties of determining the affiliation of ancient populations to contemporary Native peoples, and the differing expectations of how NAGPRA will [PAGE 163] protect opposing interests seeking access to human remains and grave goods, are two issues that have crystallized around the high profile Kennewick Man dispute. The discovery of skeletal remains eroding out of the banks of the Columbia River in southern Washington State led to the most public attention an accidental skeletal discovery in North America has ever received. The initial identification of a "Caucasoid-like" individual was challenged by the discovery of an Archaic projectile point found embedded in the pelvis, and a radiocarbon date on a bone sample of between 9,200 and 9,600 B.P. (Chatters 2000; Downey 2000).
This discovery has meant different things to different constituencies. To most archaeologists, this was a rare find of an early Archaic period individual. To some scholars, the possibility of the skeleton's biological identity being something other than Native American added an intriguing twist to the early human occupation of North America. To the Umatilla Nation and four other tribes that filed a joint claim under NAGPRA, the individual was clearly an ancestor, culturally affiliated by oral histories, geographic proximity, and antiquity, and thus needed to be reinterred immediately and without study. To the Federal agencies involved (Army Corps of Engineers, Department of the Interior), the age simply confirmed that the remains were Native American (i.e., older than the arrival of Columbus), and so had to be immediately turned over to whichever group could be culturally affiliated with the remains. To groups such as the Druid-like Asatru Folk Assembly, the possibility of an ancient Caucasian skeleton in North America proved that Europeans settled North America first, thus making this individual their ancestor (Watkins 2000: 136-137). Indeed, it was the fact that the remains were so old and possibly something other than Native American that gave the dispute between archaeologists and Natives its most unique dimension, generating so much media interest and putting the specific case (and broader repatriation issues), under such a bright public spotlight.
The skeleton is not osteologically affiliated with any modern Native American group, which is not surprising given its age, but is similar to other documented Archaic-period Plains skeletal collections (McManamon 1999; Powell and Rose 1999). Subsequent to this confirmation of the interment's antiquity, the Department of the Interior announced it would respect the joint claim of cultural affiliation made by the Umatilla and other tribes and return the remains for reburial. This decision was quickly challenged in court by seven American archaeologists wanting to retain the remains for research. Written and oral presentations were made in the Oregon District Court of Judge John Jelderks in June of 2001, and were ruled on in August of 2002 (Jelderks 2002). In his ruling, Judge Jelderks found that the federal agencies involved were interpreting NAGPRA to read any claim was valid to trigger repatriation and reburial, even though (in his opinion), no direct affiliation between this 9,000-year-old individual and modern Native American communities could be firmly established. He dismissed the Federal government's view that all remains in the U.S. pre-dating AD 1492 must be Native American as being contrary to the NAGPRA requirement that direct affiliation be proved (2002: 26-32). Jelderks (2002: 70-73) also concluded that if NAGPRA does not apply, the Kennewick remains are therefore subject to ARPA's "benefit of science" and exclu-[PAGE 164] sive access to researchers provisions. While the Native tribes and federal government have appealed the ruling, and the final resolution of this case is likely several years away, it has demonstrated that the issue of contemporary First Nations' cultural affiliation with ancient human remains is the battleground upon which disputes with archaeologists will continue to play out.
This chronological demarcation of cultural affiliation to determine who has precedence to access-scientists or descendant populations-has also been buttressed by citing historical particulars. For example, a frequent objection voiced by some archaeologists in Ontario to the repatriation of Late Woodland burials to the Six Nations Iroquois of southern Ontario is that the present community represents the descendants of New York Iroquois who were at war with the Iroquoian peoples of southern Ontario (i.e., Huron, Neutral) in the 17th century, and thus would be inappropriate custodians for their ancestral enemies.9 Implicit in such thinking is the assertion that archaeologists, by virtue of being advocates for the archaeological resource are a more sympathetic and "historically true" voice for the deceased than a contemporary First Nations community.
Assertions that archaeologists best speak for the archaeological record fail to acknowledge the position of power from which archaeologists speak in North American society (e.g., Trigger 1985). This is particularly evident in statements that cite scientific integrity and disinterested academic professionalism, which implicitly situate archaeologists on higher moral ground than supposedly ill-informed and less rational non-archaeologists (i.e., non-professionals)-a manufactured dichotomy of objective vs. subjective that does not allow for the validity of differing positions (e.g., Handler 1991: 71).
Indeed, this objective/subjective positioning of opposing claims is inherent in the logic behind compromises offered by archaeologists proposing a chronological "divide" be used to determine whether archaeological or descendant group claims to burials take precedence. For recent, indisputably affiliated remains, descendant claims should take precedence. But older skeletal remains are argued to represent a shared legacy for all humanity, and as such have to be protected from any one group's cultural sensibilities towards the dead (e.g., note the language in Goldstein and Kintigh [1990], Jones and Harris [1998], or McGhee [1989]). Although proposals to use such chronological distinctions to arbitrate opposing claims are usually touted as a kind of co-operative "sharing" with descendant groups, they are really more about archaeologists relinquishing as little of the record as they can. Such proposals also exclude from debate any consideration of whether archaeologists or, for that matter, First Nations, best speak to what is best for humanity.
Moreover, for all the pages, time and energy they use up, the arguments of archaeologists to preserve for themselves access to skeletal remains for research are largely moot. What the U.S. government's actions in the Kennewick case illustrate is that NAGPRA is not about trying to respect the religious wishes of a minority, or about continued scientific access to skeletal remains. Rather, they reflect the underlying assumption accepted by the United States Congress in originally adopting NAGPRA: that the legislation helps redress the past practice, sanctioned in statute, of treating differently human remains based on [PAGE 165] racial categorisation. In other words, by making such practices consistent with the Constitution, Congress did not consider NAGPRA to be heritage legislation but civil rights legislation (e.g., Inouye 1992; Kosslak 1999; McCain 1992; Price 1991; Trope and Echo Hawk 1992). As such, the real lesson from Kennewick is not so much the supposed ineffectiveness or inequity of NAGPRA, but that federal agencies will be inclined to interpret the affiliation provisions in the act as meaning that any Native claim, no matter how tenuous or strong the "science," justifies repatriation.
It is crucial to recognise that the Jelderks ruling is based on the content of NAGPRA as it stands now, while the federal interpretation of the act reflects a wider, popular assumption that NAGPRA does overrule any archaeological claim to remains. Moreover, if the will of Congress continues to be that NAGPRA should be about civil rights, then what Jelderks emphasizes in his ruling is less a limit to Native claims than a contradiction in the Act between intent and outcome that will require revision. Discussion of what should or should not be incorporated into a revised NAGPRA is already gravitating towards whether or not all pre-contact remains discovered should automatically be subject to repatriation and reburial (e.g., Mulick 2002). This is how the Ontario Cemeteries Act works, and it is increasingly the case in other state/provincial laws.
Moreover, regardless of how strictly or loosely affiliation tests are or will be adhered to, it is important to note that the application of NAGPRA is limited in scope. Specifically, NAGPRA only applies to federally owned lands and funded institutions, while state and provincial protection for burials on public or private land or skeletal collections held in private institutions remains variable. While Native groups have objected to the limited applicability of NAGPRA (e.g., Fine-Dare 2002; Watkins 2000), it has also been argued that these limitations protects the legislation from legal challenges such as possible infringements on the scientific community's First Amendment rights (e.g, Hibbert 1998: 451-457; Kosslak 1999), or constitutional challenges of undue takings from private property or Fifth Amendment violations (Hibbert 1998: note 189).
Legislation such as NAGPRA and Ontario's Cemeteries Act serves to constrain, not prohibit, scientific research without consent; there is nothing stopping the development of partnerships based on First Nation consent to conduct studies on skeletal remains or to retain the collections for research (e.g., Hibbert 1998: 455-456). In fact, it may actually create opportunities for archaeologists to undertake research on skeletal remains or grave goods in a context of mutual understanding by requiring them to secure the consent of Native decision-makers after clearly explaining the intent of the study. As many precedents show, there is no reason to assume that all requests will be denied (e.g., Hall and Wolfley 2003; Klesert and Powell 1993; Watkins 2001; Zimmerman 1997). And if some projects are rejected, well it isn't as though rejection is uncommon in research archaeology anyway (e.g., landowner permission, research funding). In other words, consent simply becomes another layer of process and accountability to address in the initial stages of planning research. Given this lack of outright prohibition to archaeology, it is thus hard to foresee future federal or state/provincial legislation and regulations veering far from the underlying intent to enshrine civil rights and vest in Native American communities authority over all decisions regarding Native burials, skeletal remains, and grave goods found in North America.
Native Americans and Non-Burial Archaeology
For many non-archaeologists, excavating burials and studying skeletal material is synonymous with archaeology. However, [PAGE 166] burials represent only a small part of the archaeological record and what archaeology is actually about. Indeed, the rise of archaeological provisions in land-development legislation has meant that archaeology today is primary the pursuit of private sector commercial archaeologists employed by development proponents to identify, evaluate, and mitigate development impacts on the full range of archaeological sites found on the landscape. For example, in Ontario, between 400 to 600 sites, over 80% of which are Aboriginal, are found and documented every year as a result of regulated development activity (Ferris 1998; OMC 1997). Yet of the 100 to 200 sites completely excavated on average each year, less than a handful will contain human remains, and those only rarely contain more than one or two burials.In a post-NAGPRA world, the non-burial part of the archaeological record has increasingly been distanced in law from provisions adopted for burials, remaining the sole jurisdiction of the state (e.g., Denhez 2000; Fowler 1995; Higginbotham 1982; Tsosie 1997). State jurisdiction over non-burial archaeological remains is invariably anchored in heritage legislation. In some instances, there is an overt recognition of a state ownership of the resource (e.g., ARPA, Alberta's Historical Resources Act [1978]). Elsewhere, provisions are vague or fall to the landowner through common law, which is how Canada asserts ownership on federal lands (Canada 1988).
The differing treatment in law between sacred or mortuary archaeology and that of daily life is debatable. For some, this distinction between mortuary and non-mortuary archaeology imposes a Euro-centric separation of religious and non-religious values onto the issue (Bell 1992a, b: 516; Clements 1991; Pask 1994). Certainly separating sacred and mortuary related items from other cultural property neatly removes the latter from legislative provisions that otherwise provide First Nations with control of those items, and places it in the hands of other vested interests, be they archaeologists under permit or license, or importers/exporters and collectors of antiquities (see Anaya 1996; Asch 1997; Bray 1996; Coombe 1993; Tsosie 1997).
For this aspect of the archaeological record, "owning" the past is really less about the physical possession of endless boxes of lithics, animal bones, or ceramic pot sherds, and more about the authority to control and manage the archaeological record, and the ability to construct and tell stories of the pre- and post-contact past (e.g., Anyon 1991; Asch 1997; Jemison 1997; Langford 1983; Ravelsloot 1997; Tsosie 1997). Today, however, there is little in the heritage legislative canon for Canada or the United States that specifically recognises any Native American relationship to non-burial archaeology, with the exception of the tribal lands provisions in the Archaeological Resources Protection Act (U.S.), and formal consultative provisions adopted in British Columbia.10
Legislation in North America generally does not acknowledge a primary or secondary jurisdiction in the non-mortuary archaeological record to First Nations.11 But is there a basis in law to challenge an exclusive state authority over this part of archaeological record? It has been suggested that cultural property title arguments may support Native ownership of the archaeological record (e.g., Asch 1997; Bell 1992a, 1992b; Clements 1991; Coombe 1993; Echo Hawk 1986; Welsh 1992). This may also be the case with intellectual property given that cultural expressions [PAGE 167] of identity, including the heritage of that cultural identity, may be eligible for legal protection (e.g., Bennett 1996; Brown 1998; Nicholas and Bannister in press; Pask 1994; Whitt 1998).
Assertions of cultural and intellectual property rights may well have the capacity to redress a particular circumstance, or substantiate in court a claim to a specific object or narrative. However, asserting a possessive ownership to more than specific items would be difficult as it must be able to successfully be able to challenge fundamental doctrines (and assumptions) of current law in order to be effective (Bell 1992a, b; Pask 1994). This is especially the case for artifacts since, as long as they remain defined as property under common law, the rights of landowners, finders, and the state are significant (e.g., Bell 1992a: 465-467).12
This is not to say the legal forum cannot offer direction on reshaping the future management and control of non-burial archaeology to accommodate First Nations' interests. In the larger scheme of concerns, Langford's (1983: 4) statement that "if we Aborigines cannot control our own heritage, what the hell can we control?" is a poignant reminder not only of the importance of the past to present identities, but also that in a world full of major issues existing between the state and First Nations, the desire for Indigenous people to have a say in decisions about their own heritage may seem self-evident and easily resolved. Popular attitudes towards Native Americans are also shifting, so it is not unreasonable to assume that the state will begin to "think" beyond the logic of existing statutes. Since the exclusive authority currently assigned to archaeologists essentially arises from these statutes, any decline in this authority ultimately will come from the state, as it did in the case of NAGPRA.
Archaeology as Fiduciary Responsibility to Native Americans
In considering how the state's exclusive control over the archaeological record may accommodate more directly Native American interests in non-burial archaeology, knowing the historic role of nation-to-nation treaty negotiation in the formation of state sovereignty is germane. Specifically, when two sovereign nations co-sign a treaty that will lead to one being subsumed by the other, as occurred in North America, the remaining sovereign explicitly enters into a relationship of trust with the other sovereign, inheriting a fiduciary responsibility to protect the interests and rights of that other nation (Donohue 1989; Rotman 1996). In this context, Native treaty rights, negotiated and enshrined in the formal surrender, represent rights retained and unsurrendered by the subsumed sovereign, rather than privileges granted to that group by the remaining sovereign, as is often popularly assumed. Indeed, the concept of one nation subsumed by another underlies early court rulings that viewed First Nations in North America as "domestic, dependent nations" (e.g., Churchill 1999; McNeil 1989; Wilkins 1997). The trust-like relationship between the state and First Nations established by the Royal Proclamation of 1763, and affirmed through treaty negotiations during the 18th and 19th centuries, created an expected level of responsibility and liability for Native interests on the part of the state. While early legal precedents, such as St. Catharine's Milling (1888), dismissed that obligation, recent court rulings have reaffirmed the principle of fiduciary responsibility (Bell and Asch 1997; McNeil 1998; Rotman 1996). [PAGE 168] Therefore, a critical step in changing the state's exclusive control of the Aboriginal archaeological record is to affirm a fiduciary responsibility towards that resource.13In Canada, recent Supreme Court decisions respecting Aboriginal rights provide a possible basis for building a case for archaeology as a fiduciary responsibility of the state. For example, in Guerin vs. the Crown (1984), the court found that Aboriginal land rights were "inalienable," and that "the Crown is under an obligation to deal with the land on the behalf of First Nations when the interest is surrendered." The ruling also stated that the fiduciary obligation owed by the Crown is sui generis or unique, noting the special character both of Natives' interest in the land and of their historical relationship with the Crown (Bell and Asch 1997). If it could be asserted that contemporary First Nations have an interest in the Aboriginal archaeological record in Canada similar to their interest in the land, then presumably it could then be argued that there is a fiduciary obligation on the part of the Crown to care for these archaeological remains.
Section 35 of the Constitutional Act, passed in 1982, recognised the existence of Aboriginal and treaty rights. In the subsequent case of R. vs. Sparrow (1990), the court upheld Section 35 as a means to protect the cultural identity of Aboriginal peoples, and identified the relationship between the Government and Native people as "trust-like, rather than adversarial" (Bell and Asch 1997; Sharma 1998). Although the case was about fishing rights, one could argue that Aboriginal archaeological heritage is also part of the cultural identity of Aboriginal peoples and thus needs protection.
These trends in law were solidified in the Supreme Court decision on Delgamuukw v. British Columbia (1997), which affirmed that Aboriginal title to land is inalienable and open to full use, and exists from the physical fact of prior occupation (e.g., Bell 2002; Borrows 2001; Persky 1998). It also held that title was protected, and state infringement on title had to be justified by compelling societal needs, while still respecting the Crown's fiduciary responsibility to First Nations. One important aspect of fiduciary responsibility emphasized in this decision was the need for the state to ensure meaningful consultation with First Nations when infringement on Aboriginal rights and interests occurred. Presumably, if it can be argued that state management of Aboriginal heritage is a fiduciary responsibility, then meaningful consultation should also extend to state decisions about the conservation of archaeological resources.
Although Delgamuukw addressed unsurrendered public lands in British Columbia, the need to consult can be seen to extend to surrendered public and private property (e.g., Jacobs 2001). Indeed, the Supreme Court decision in Donald Marshall Jr. v Canada (1999; cf. Coates 2000) reinforced the view that the Crown has the responsibility to honour treaty obligations. This is important to the present discussion since recent treaty negotiations now expressly identify First Nations' interest in their archaeological heritage, and specifically recognise both First Nations' jurisdictional control over this heritage on lands to be retained after settlement and the Crown's responsibility for heritage on lands retained by the state (e.g., Bell 1992a; Klimko and Wright 2000).
The fact that cultural patrimony is explicitly recognised as an unsurrendered interest in these negotiations has implications for archaeology, since the [PAGE 169] state is acknowledging a pre-existing Aboriginal ownership or interest to the archaeological record by agreeing to participate in negotiations on this topic. Furthermore, even if a Native interest in cultural heritage and burials on lands to be surrendered is absent from the text of 18th and 19th-century treaties, it can be argued that the interest and underlying title was nonetheless present and protected by the Royal Proclamation of 1763, again supported by the Crown's acknowledgement of heritage as a valid topic for treaty negotiations. Here then could be the basis for arguing the Crown has a fiduciary responsibility towards Aboriginal heritage on lands under its control, whether as a result of surrender or not.
Of course, confirming this position in law would not, in and of itself, necessarily affirm First Nations' exclusive ownership to archaeology, or compel the state to protect Aboriginal heritage over all other societal obligations. This is evident in the recent Supreme Court decision on Kitkatla Band v. British Columbia (2002 SCC 31), where the Kitkatla Band had challenged the province's authority to control the alteration of Aboriginal cultural heritage.14 The court found that British Columbia's Heritage Conservation Act (BCHCA), and particularly its permitting provisions, served an important and intentional function balancing the province's responsibility to care for its heritage, on the one hand, with societal needs such as growth and resource extraction, on the other (2002 SCC 31, Section G, para. 60-63; cf. Little Bear 1988). In this case, the court did not speak to ownership, but clearly saw that the province had an essential role in managing Aboriginal heritage. The court also implicitly endorsed the current government policy of managing the archaeological record (i.e., documentation and removal, rather than preservation), again because of its efficiency in not countering broader societal needs. Indeed, from this ruling it could be argued that current development-related conservation practices represents a tangible demonstration of the state's fiduciary responsibility to Aboriginal archaeology. If so, this would also imply that a failure on the part of the state to acknowledge and conserve that heritage could be read as a neglect of fiduciary responsibility. This presumably is a good justification for the state to adopt and uphold archaeological conservation statutes.
In the United States, it has long been established in law that the American sovereign holds exclusive authority to alienate land from Aboriginal title and thus has a fiduciary responsibility to consider Native Americans' interests (Cohen 1947; Donohue 1989; Ordon 1985). For example, the U.S. Supreme Court decisions on Lac Courte Oreilles vs Wisconsin and Mille Lacs Band vs Minnesota (see McClurken 2000) reaffirmed Native American treaty rights as existing, unless otherwise expressly extinguished by executive order, and constrains any state-level action that would lead to a degradation of those rights.
However, addressing fiduciary responsibility beyond federal or reservation lands in the United States for archaeology or other Native American interests would challenge a much more strongly entrenched principle of the exclusivity of private landowner rights than found in Canadian society, not to mention real jurisdictional and constitutional conflicts between U.S. federal and state levels of government. Moreover, while the Lac Courte Orielles and Mille Lacs decisions are part of a body of court decisions [PAGE 170] affirming Aboriginal treaty rights, particularly for hunting and fishing beyond reservations, these rights nonetheless are continually under attack. Indeed, individual state authorities often take very aggressive legal positions against even the most basic tenets of Aboriginal rights, and challenge the basis of any federal jurisdiction in these areas (Bergman 1993; Loew 1997; McClurken 2000; Turcheneske 1993). In effect then, any impulse to manage and conserve Aboriginal heritage will flow from the will of individual states, and thus it is a distant hope that such principles as the need to prove compelling reasons for state infringement on Aboriginal title, or the fiduciary need to consult, will be acknowledged.
The situation in Australia, where there are no treaties, is that the courts appear reluctant to acknowledge a fiduciary obligation towards Aboriginal nations, and revisions to the Native Title Act in the late 1990s have been seen as a further erosion of the direction taken by the courts in Mabo (e.g., Behrendt 1999; Kamien 1997; Morse 1988). The direction that heritage resource management in Australia will follow (which may include movement towards either informed consent or co-management) will also be steered by the will of individual states, albeit driven by the powerful legal precedent of title recognition arising from Mabo (e.g., Smith 2000).
Regardless of the potential advancement of Aboriginal rights through court recognition of fiduciary responsibility, this debate continues within the structures and strictures of colonial authority and law-the state ultimately remains the arbiter of the level and nature of obligations it owes to First Nations. This is the double-edged sword of rulings such as Delgamuukw (Borrows 2001). Nonetheless, these court decisions have effected real change in how the state meets its obligations to First Nations in North America. It is therefore worth considering what the implications of these court decisions may be on state authority and control over Aboriginal heritage. Delgamuukw and Kitkatla, in particular, offer conceptual "book-ends," defining the parameters within which management of archaeology will likely operate in the future. On the one side, Kitkatla seems to indicate that the state must play an essential role in determining whatever the balance should be between conserving the past and allowing land development and other actions that may degrade the archaeological record to occur. On the other side, Delgamuukw suggests there is a requirement for First Nations to participate in decisions affecting this interest, through the state's obligation to provide meaningful consultation when broader societal needs infringe on Aboriginal interests.
If my reading of the implications these court decisions have for archaeology is correct, then one critical consequence is that the state will need to explicitly address a fiduciary obligation toward the Aboriginal part of the archaeological record, either by its own initiative or by dint of court decision. An obvious means of achieving this, consistent with present practices, would be to expand and strengthen provincial, state, and federal archaeological conservation regimes. Given that full archaeological conservation has been a goal of the archaeological community for over a century, formal recognition of the state's fiduciary responsibility in this area should be acknowledged as a significant advancement for archaeology in North America, regardless of whether the driving force was archaeologists' or First [PAGE 171] Nations' concerns (Anyon 1991; Ferris 2000, Knudson 1995; Nichols et al. 1989; Suagee 1982). The irony here is that a central aim of the archaeological community would finally be achieved only after both their privileged access to the record and their self-assigned advocacy role, had been eroded.
However, as long as the debate stays within the state's legal framing of rights and titles, this fiduciary responsibility will not necessarily affirm an exclusive Aboriginal control to that archaeological heritage, just participation in the decision-making. Likewise, fiduciary responsibility will not establish a basis for asserting an unextinguished title for locales on surrendered lands holding archaeological sites, which presumably would be needed to argue that Native Americans retain ownership of the artifacts and knowledge recovered from these sites. Moreover, the Kitkatla ruling in British Columbia implies that balancing societal needs requires the state to be selective in the conservation of Aboriginal archaeological resources (i.e., some sites, however defined by "significance," will be allowed to be lost), and also champions the current conservation philosophy of documentation and removal rather than preservation and protection by prohibition of development. This is a philosophy that serves the state's interest better than the interests of First Nations, and inherently allows the state a "more than equal" role in such decision-making.
In the future, the absolute authority archaeologists claim for the archaeological record beyond burials will likely erode while the state continues to reserve for itself a primary decision-making role in the management of the resource. But this decision-making process will need to include a means of accounting for First Nations' interests. Typically these means range from little more than a solicitation of comment or informed consent prior to archaeological activities being carried out, as adopted by British Columbia currently (Klimko and Wright 2000; Nicholas 2001), to more of a secondary approval authority role for First Nations, mediated or managed by the state, of archaeological permitting/licensing, reporting and artifact curation. Ultimately, the state will determine where this interest is inserted, a decision that will affect how much the day-to-day business of archaeology is influenced by the direct input of First Nations.
BEYOND OWNING THE PAST: ARCHAEOLOGISTS WITHIN A RECONSTRUCTED ARCHAEOLOGY
Given how state fiduciary obligations to First Nations have been defined in law, it is unlikely that the legislated control of archaeology will not shift to allow for more overt participation of Native Americans in decision-making-this increasingly so for burials, and will be so in time for the entire archaeological record. I would further suggest that, given the extensive use of archaeology as a tool of land development, such a shift towards an increased role for Native Americans may well emerge first from this form of archaeology rather than from the academic setting, which does not need to accommodate so quickly to rapidly changing political and legal realities. Certainly, Native-led opposition to high profile and costly developments impacting sensitive archaeological sites can precipitate agreeable solutions and effect long-term change in practice more rapidly than an endless stream of abstract musings about protecting or sharing data. In fact, indigenous-informed goals for archaeology, such as promoting preservation over removal, or [PAGE 172] documentation informed by both First Nation sensibilities and archaeological methodologies, are part of many recent and large-scale Environmental Assessment undertakings in Canada and the United States.
However, the most important dimension of this change in the practice of archaeology may be one that will only slowly emerge from the evolving relationship between archaeologists and First Nation communities following the adoption of more direct, regularised interaction and co-management in day-to-day decision making. The anxieties and fears some archaeologists may have had over the fate of their research-and their livelihood-will give way to the practicalities of building working relationships with Native Americans to facilitate research. Moreover, regularised interaction with archaeologists would also do much to alleviate some of the distrust Native Americans may hold today towards them. Ultimately, this would move the discipline away from its colonialist pedigree and those vestiges that continue to operate implicitly within the state sanctioned exclusivity to the record archaeologists benefited from, and place it somewhere much closer to the goals of a more "indigenous" form of archaeology (Moser 1995; Nicholas 2001, Nicholas and Andrews 1997, Trigger 1997; Watkins 2000; cf. Smith 1999).
By this, I mean archaeology would become more a study of the past that is inclusive of, and directed to, all of North America's societies; a study of the past that undermines many of the current, unreflexive biases in the practices and practitioners of the discipline; a study of the past that adopts the philosophy behind the aims of a reconstituted ownership over the record (i.e., less about things, and all that entails); and a study of the past that is more accommodating of multiple, potentially contradictory telling tales of the past. These are the goals and philosophies that would emerge following the state inserting First Nations' direct participation into the how and why of archaeology, even though the state will likely retain for itself a greater than equal authority over decision making.
Indeed, I would argue that a future where the state fiduciary responsibility towards the archaeological record has been recognised and implemented will come to be seen by archaeologists as an important advancement of the practice, extending widely the positive impact that cooperative collaborations between archaeologists and Native Americans have been achieving for years at the local level (see examples in Nicholas and Andrews 1997, Swindler et al 1997; Watkins 2000). With an archaeological community serving and meeting the needs of Native Americans who require a meaningful say in the investigation of their heritage, and Native Americans recognising and respecting the commitment and care archaeologists practice, a common ground will emerge-one outside the combative realm of either the courtroom or legislated constraints. This is the shift from a parasitic to symbiotic relationship archaeologists would have with First nations that advocates for an indigenous archaeology such as Watkins (2000: 168) identify as critical to the future relevance of the discipline.
Critically, however, any partnership between archaeologists and Native Americans will remain one of differing constituencies. To me, the trend in legal clarification of First Nation rights and their implications for archaeology suggest that, notwithstanding the idealised goal of indigenous archaeology to be of, by, and for descendants, the form archaeology [PAGE 173] will take in North America will not be a simple resituating of exclusive ownership of the past from archaeologists to Native Americans. Indeed, if a transfer of ownership were the singular goal of indigenous archaeology, it would simply convert archaeology from one set of biases to another (e.g., Trigger 1997). Rather, the implications of legal trends for First Nations' rights would move all those who claim the past away from the concept of "owners" altogether, and towards constituencies of interests with differing authority over decision-making (i.e., First Nations controlling disposition of burials and co-managing with the state the practice of archaeology to ensure consent and values of descendants are part of those decisions), but with equal capacity to interpret the record.
However authority over archaeology ultimately is re-shaped, the end result for archaeological discipline itself will be much more about embracing multiple voices and multiple ways of seeing the past, and this will be a critical element in improving our own interpretations of the past. Significantly, this opening up of what archaeology is about is entirely consistent with the postprocessual, postmodern critique archaeology has been engaged in over the last couple of decades. This theoretical direction in archaeology has challenged as an artifice past claims that the discipline is an objective science, distanced from the data, and revealing "truths" about the past. This critique has demonstrated that the past we create is as shaped by the biases and assumptions we bring to our research as archaeologists, as it is by the material traces of the archaeological record (Hodder 1991; Shanks and Tilley 1987; Tilley 1993). As a result, archaeology is seen as less the telling of a single, master narrative of the past that reveals the singular truth, and more tellings of many differing, contradictory pasts. If this is the case, a reconstituted archaeology in North America allowing multiple voices to shape the practice of archaeology should be welcomed by the archaeological community, as well as the alternative ways of seeing the past these new perspectives will bring.
However, even if archaeologists and First Nations will remain differing constituencies, there is no reason why archaeological and Native conceptions of the past cannot coincide. For example, archaeological accounts of the human settlement of North America do not have to disagree with origin myths of Native Americans being in North America "forever." The essential fact should be that archaeology confirms the assertion that Native Americans have lived in North America for as long as it has been possible for humans to do so (i.e., following the last glacial advance). That archaeology can suggest a timeline for when that "forever" began should not be the defining element to either story. It is irrelevant to the central theme, and forces archaeologists to defend a relatively technical detail of their interpretation of the past that will always be susceptible to revision as new sites come to light.
The key point here is that archaeologists and Native historians are not telling the same stories. Native histories differ markedly from archaeological histories in terms of their emphasis on human behaviour, documentary and oral information, and distinctive conceptions of time, self, and narration (Nabokov 1996, 2002; Zimmerman 2001). On the other hand, an archaeologist's construction of history is based on material remains, cautious interpretation, anthropological perspective and [PAGE 174] (mostly) white middle-class sensibilities. This creates simply another kind of telling, no more or less valid stories of the past than the stories of past found in indigenous societies.
Perhaps Deloria (1992: 596) is not so wrong to suggest that archaeologists seem not quite right in the head, choosing to sift through the ancient garbage of others. But either as cause or effect, this leaves archaeology with the unique ability to draw out and construct distinct histories of human behaviour based on the fragmented detritus of past lives. There is no question that this perspective on human history will at times be at odds with other ways of telling that past based on local histories, origin myths, or documentary histories. Archaeologists see a past that is more detailed, prosaic and mundane than that presented in myths and oral histories, and more encompassing, broad and patterned than those retrieved from documentary sources. Certainly the differences between the histories arising from a Native oral history of a community and the one an archaeologist might tell are as varied as the differences between archaeologists and historians telling tales of the past from Europe or contact era North America (Arnold 1986; Branstner 1992; Deitler 1998; Fletcher 1992). Indeed, it is this unique contribution to understanding the past that ensures archaeologists need not fear a future where their exclusive ownership of the archaeological record has been lost.
CONCLUSIONS
While archaeologists and Native people will likely continue to see the past from differing perspectives, the emergence of a common understanding of why these differences exist will go a long way towards fostering a sense of collaboration and commonality of purpose, rather than the combative distrust so prevalent now. The products of such an archaeology-multiple histories of the past inclusive of differing perspectives-will be as much for non-archaeological communities as for archaeologists, and aid in gaining a wider relevance for this past and a renewed voice for archaeology in contemporary society.
This more inclusive view of interpreting and managing the past is similar to the vision the Royal Commission on Aboriginal Peoples sought for the Aboriginal history of Canada (RCAP 1997). It is an important aim identified in many international statements on Native peoples' participation in their heritage, and has been recognised in archaeological codes of ethics and declarations (see examples in McGhee 1989: 15; cf. CAA 1997; Hammil and Cruz 1989; Murray 1986; Rosenswig 1997; WAC 1990; Watkins et al. 1995). It is also what archaeologists must embrace once we acknowledge and make overt the political and power dimensions of past practice (Criado Boado 2001; Schmidt and Patterson 1995; Wylie 1992, 1996). In the end, it should be welcomed by the archaeological community as an opportunity to find relevancy and move beyond the entrenched differences the discipline has with Native Americans today.
Challenges to the ownership of archaeology will not go away. In fact, change has already begun to shift the power politics of archaeology in North America. Developments in heritage legislation, and the intellectual maturing of the discipline, are encouraging archaeologists to recognise the value of their enterprise beyond the box of the discipline itself. Lament if need be the passing of the cultural-historical, politi-[PAGE 175] cally naïve and exclusionary practices previous generations of archaeologists benefited from-but then move on. The archaeology that can emerge has the potential to be a far more meaningful and relevant examination of the North American past than what has existed over the past 150 years.
Acknowledgements
This paper was originally written as a response to a Ph.D. comprehensive exam question, undertaken in the Department of Anthropology, McMaster University. I thank committee members Aubrey Cannon, Trudy Nicks, and Gary Warrick for their comments and insight on this paper during its oral defence. I also thank my employer, the Ontario Ministry of Culture, for allowing me the opportunity to pursue this professional development. Additionally, the following individuals were kind enough to share ideas, answer questions or help me to understand various issues as I have mulled them over: Michael Asch, Dean Jacobs, Ian Lilley, George Nicholas, John Van West, and, most importantly, Laurie Leclair. Factual or intellectual errors, and certainly any misunderstanding of law, are entirely my fault, while any opinions expressed here represent my own personal take on the issues.
NOTES
1. For the purpose of this paper, I discuss both American and Canadian heritage legislation issues, though primarily at the federal level for the former, and at the provincial level for the latter. While there are significant differences between the two countries, the distinction is arbitrary to many First Nations who would draw borders differently. Both emerged from the same colonial history, so foundations in law are similar. Moreover, trends at least in Canadian archaeology have often followed developments in the United States. While some Australian examples are noted, the scope of the paper is restricted to North America. Other colonized settings in the world (e.g., South Africa, New Zealand) are also grappling with similar issues (Seidemann in press).
2. I use the term "state" to refer collectively to the Canadian and United States sovereign, represented by the actions of federal and provincial/state level governments.
3. "Successful" is used in the historically particular sense of outlasting other colonial contenders (e.g., French, Dutch, Spanish, Norwegian, Portuguese).
4. In Australia, however, the legal logic of a hierarchical distinction in the sovereign rights and titles of cultures was undermined in the ruling of Mabo v Queensland (1992), where the court found that Native title was more than simple occupancy (usurfructory), and that the concept of terra nullius was a fiction (e.g., Asch 2000; Bennett 1996; Glaskin 1999). Instead, the court found that Native title could be recognised in common law. This led to the adoption of the Commonwealth Native Title Act (1993), requiring Australia and individual states to grapple with the recognition of Native title in Australian law. Though the process is ongoing and of variable success in implementing change in law and policy (e.g., Basten 2002; Finlayson and Curthoys 1997; Kamien 1997), it is an important shift in legal thinking and one that is changing the way the state looks at the concept of archaeological ownership and management (e.g., Lilley 2000; Murray 1993; Smith 2000; Veth 2000).
5. It is telling to note that for at least some states and provinces, the protection provisions for Native heritage exist in statute alongside protection provisions for fossil and other palaeontological remains. [PAGE 176]
6. Equating archaeology with science reflects a positivist, processual conception of archaeology-a limitation I am uncomfortable with. However, I use the terms "science" and "scientist" here to reflect the characterization of archaeological research, especially physical anthropological research of skeletal remains, often utilized in critiques of archaeology.
7. By adopting the language of property rights in common law, NAGPRA conceives of burials and grave goods as property, but unabandoned by the "true" owners. Thus, their claim takes precedence over the property rights of the landowner.
8. The First Nations Sacred Ceremonial Objects Repatriation Act (2000) of Alberta does represents a first such effort, albeit one limited to the Alberta Museum.
9. Two points often missed by archaeologists in raising such objections are, first, that the Six Nations Iroquois adopted large numbers of people from the Neutral and Huron Nations whose descendants are part of the Six Nations today, and second, that those conflicts represent a historical moment in millennia of regional interaction.
10. However, several provinces in Canada, such as Saskatchewan and most recently Alberta, do follow a more informal consultative approach to First Nations with respect to archaeological activities.
11. Notably in the English speaking colonized world, the State of Victoria in Australia has enacted legislation that specifically recognises that the archaeological record belongs to the state's Aboriginal groups (Murray 1993; Smith 2000), and the State of Queensland is about to enact similar legislation (Ian Lilley, pers. comm. 2002).
12. In common law objects abandoned on property-and it would be difficult to argue that the detritus and refuse found at an archaeological habitation site was not abandoned-are considered property of the landowner, even if they are unaware of the objects' presence. The state can enact legislation to abrogate landowner rights (such as assert a state ownership of archaeological remains), but any third party claim to supersede that of a landowner's would need to prove the objects were not abandoned. This is not the case for skeletal remains because under common law full ownership cannot be claimed, meaning these items are a form of "quasi property" (Bell 1992: 468).
13. This idea was first developed in Leclair and Ferris (1998).
14. The basis of their argument was that such things as culturally modified trees, subject to the B.C. Heritage Conservation Act, went to the "heart of Indianness," and thus was a federal-only responsibility under Section 88 of the Indian Act.
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