And how then do the new NAGPRA regulations interface with Section 106 and 110? It seems that undertakings that recover artifacts are just going to be repatriated, thus eliminating their study? How can eligibiliy determinations be done without the collection of artifacts, diagnostic or other. I see the new NAGPRA regs serious;y impacting the scope of Section 106 and 110 projects from here on out.
It's not mentioned. The primary legal conflicts I've seen are with the curation stipulations in both the NHPA and ARPA, which between the two require curation and research access. The people who work with NAGPRA are not archaeologists and are probably don't care much for those laws. I suspect they would argue that NAGPRA supercedes historic preservation laws because it negates all prior ownership. But that would have to be worked out in court.
In a separate policy document, the DOI is working through incorporating Indigenous knowledge into eligibility determinations for Section 106/110. I suspect that is leading toward eliminating archaeological determinations of eligibility altogether in favor of a process entirely determined by THPO offices. I haven't gotten into that issue as deeply yet because it's not a formal regulatory document or law, just a policy statement.
This scares me even more. But the NAGPRA people I work with are archeologists at curation facilities, and they appreciate the difficulties in getting access to collections, since in many cases they do not control the collections, federal agencies do. And federaql agencieds are the problem, along with DOI. THGPO determinations of eligiubility--I don't want to see that, but can imagine it. What about tribes that do not have THPOs?
I should've specified, the NAGPRA people in DC, specifically. Curation folks are on the ground are definitely more sympathetic to historic preservation.
I think there's room for a new criterion specific to Tribal determinations. It would help save some sites that don't typically get protected under D. But I definitely don't want to see D undermined in any way in the process, which is happening now.
In Wyoming, a new "no collection" policy has been adopted and presented by the BLM, and we're now encouraged to throw artifacts back in the hole that have been recovered from excavations or other subsurface tests...and we're also encouraged to ask permission from the feds about collecting diagnostics in general who will then interface with the tribes to get permission first...unless there is a threat of imminent destruction. So there are other policies being adopted along with the New Rules of NAGPRA that will severely impact the ability to confidently make eligibility determinations
Same thing in Texas, except the COE have added no collecdtion to sites being tested for eligibility! The SHPO signed off on it. In one project in East Texas, an archeologist must firsst ask a tribal monitor for permission during survey and testing work if certain artifacts can be brought back to crew housing for study, then tossed back in the hole the next day. If permission can't be acquired, too bad. Artifacts must be studied in the fielfd--historics, fauna, ceramics, lithics, etc. and then dumped back in the hole.
One of my big questions regarding the new NAGPRA is that DOI specifically states in the Final Rule “We (DOI) cannot, as requested by some comments, prohibit exhibition, access, or research on human remains or cultural items as that would exceed the Secretary's authority under the Act and would be contrary to Congressional intent.” How then, does DOI have the authority to delegate consent to the tribes when lack of consent is currently prohibiting exhibition, access, and research?
Frustrating huh? This is another one of those internal contradictions that makes implementing these regs so impossible. I'm not sure why they said that, but I have my guesses. In short, they have to respond in these terms becasue, as they acknowledge, it's the law. The art of writing these regs was to appear as though they remained within the confines of the Law while opening the door for unlawful interpretations. Museums everywhere took the bait and are, as expected, exceeding the Law's intent out of fear of reprisal by the DOI.
Deference means respect, not obedience. This wording seems to intentionally create a playground of uncertainty for the courts. More specific words can sometimes doom well-intentioned legislation by unintentionally tying a court's hands. As court decisions emerge about vaguely-written laws, words in those decisions become the functioning descriptors. Do any relevant court decisions confirm the interpretations of these agencies that already acted to head off future litigation?
Do you think the wording was intentionally vague so that DOI could simply pass the drainage of this quagmire to the courts?
What was the role of Native groups in this lawmaking? If they participated, why would they settle for such vagueness if their goal was to simply seize control or just bury it all again?
How do Native archaeologists do digs on tribal lands? Do the archaeologists themselves hold tribal authority, or will they be legally hobbled also? Will only Native archaeologists eventually be allowed to dig Native sites?
This all seems to be stage-setting for a process that could take decades. Compare to abortion rights. No solid answers for anyone yet. No simple answers ever.
I think the intent of the new regulations, judging based on the activist groups from which they emerged, was to repatriate the entirety of the archaeological record. The actions out of California and Mummy Cave (that I reported on last year) make that intent pretty clear. But when it came down to writing the regs, the DOI was constrained by the actual law (NAGPRA), which was written as a compromise. I think the vague language comes from attempting to reconcile two radically opposing viewpoints while, at least superficially, remaining within the confines of the law and free from litigation. But as we've seen already, people are interpreting the regs in ways that far exceed the legal intent of NAGPRA. If it came to a lawsuit, the DOI can now just say, "Well, that's not what we meant" and remain free from accountability. But there hasn't yet been a lawsuit to test these.
In my experience, different Tribes deal with their archaeological records in different ways, and that's part of the point of my objection. Right now, individual Tribal members can make decisions that impact not just archaeologists but all people for all time by destroying irreplacable objects. That might provide some sense of vindication in today's political moment, but it's robbing everybody now and in the future of the chance to understand that record.
And no, I'm not pessimistic enough to think that we'll partition archaeology entirely according to race in an legal sense. I do think that we're already in a political place where many sneer at archaeologists who excavate materials that weren't created by their own ancestors and police themselves and those around them accordingly. It's billed as a progressive view, but to my eyes partitioning science according to race is an extraordinarily conservative, hyper-nationalistic view.
And how then do the new NAGPRA regulations interface with Section 106 and 110? It seems that undertakings that recover artifacts are just going to be repatriated, thus eliminating their study? How can eligibiliy determinations be done without the collection of artifacts, diagnostic or other. I see the new NAGPRA regs serious;y impacting the scope of Section 106 and 110 projects from here on out.
It's not mentioned. The primary legal conflicts I've seen are with the curation stipulations in both the NHPA and ARPA, which between the two require curation and research access. The people who work with NAGPRA are not archaeologists and are probably don't care much for those laws. I suspect they would argue that NAGPRA supercedes historic preservation laws because it negates all prior ownership. But that would have to be worked out in court.
In a separate policy document, the DOI is working through incorporating Indigenous knowledge into eligibility determinations for Section 106/110. I suspect that is leading toward eliminating archaeological determinations of eligibility altogether in favor of a process entirely determined by THPO offices. I haven't gotten into that issue as deeply yet because it's not a formal regulatory document or law, just a policy statement.
This scares me even more. But the NAGPRA people I work with are archeologists at curation facilities, and they appreciate the difficulties in getting access to collections, since in many cases they do not control the collections, federal agencies do. And federaql agencieds are the problem, along with DOI. THGPO determinations of eligiubility--I don't want to see that, but can imagine it. What about tribes that do not have THPOs?
I should've specified, the NAGPRA people in DC, specifically. Curation folks are on the ground are definitely more sympathetic to historic preservation.
I think there's room for a new criterion specific to Tribal determinations. It would help save some sites that don't typically get protected under D. But I definitely don't want to see D undermined in any way in the process, which is happening now.
I haven't seen that undermining here yet, but will seek information from the SHPO about that.
In Wyoming, a new "no collection" policy has been adopted and presented by the BLM, and we're now encouraged to throw artifacts back in the hole that have been recovered from excavations or other subsurface tests...and we're also encouraged to ask permission from the feds about collecting diagnostics in general who will then interface with the tribes to get permission first...unless there is a threat of imminent destruction. So there are other policies being adopted along with the New Rules of NAGPRA that will severely impact the ability to confidently make eligibility determinations
Same thing in Texas, except the COE have added no collecdtion to sites being tested for eligibility! The SHPO signed off on it. In one project in East Texas, an archeologist must firsst ask a tribal monitor for permission during survey and testing work if certain artifacts can be brought back to crew housing for study, then tossed back in the hole the next day. If permission can't be acquired, too bad. Artifacts must be studied in the fielfd--historics, fauna, ceramics, lithics, etc. and then dumped back in the hole.
One of my big questions regarding the new NAGPRA is that DOI specifically states in the Final Rule “We (DOI) cannot, as requested by some comments, prohibit exhibition, access, or research on human remains or cultural items as that would exceed the Secretary's authority under the Act and would be contrary to Congressional intent.” How then, does DOI have the authority to delegate consent to the tribes when lack of consent is currently prohibiting exhibition, access, and research?
Frustrating huh? This is another one of those internal contradictions that makes implementing these regs so impossible. I'm not sure why they said that, but I have my guesses. In short, they have to respond in these terms becasue, as they acknowledge, it's the law. The art of writing these regs was to appear as though they remained within the confines of the Law while opening the door for unlawful interpretations. Museums everywhere took the bait and are, as expected, exceeding the Law's intent out of fear of reprisal by the DOI.
Deference means respect, not obedience. This wording seems to intentionally create a playground of uncertainty for the courts. More specific words can sometimes doom well-intentioned legislation by unintentionally tying a court's hands. As court decisions emerge about vaguely-written laws, words in those decisions become the functioning descriptors. Do any relevant court decisions confirm the interpretations of these agencies that already acted to head off future litigation?
Do you think the wording was intentionally vague so that DOI could simply pass the drainage of this quagmire to the courts?
What was the role of Native groups in this lawmaking? If they participated, why would they settle for such vagueness if their goal was to simply seize control or just bury it all again?
How do Native archaeologists do digs on tribal lands? Do the archaeologists themselves hold tribal authority, or will they be legally hobbled also? Will only Native archaeologists eventually be allowed to dig Native sites?
This all seems to be stage-setting for a process that could take decades. Compare to abortion rights. No solid answers for anyone yet. No simple answers ever.
I think the intent of the new regulations, judging based on the activist groups from which they emerged, was to repatriate the entirety of the archaeological record. The actions out of California and Mummy Cave (that I reported on last year) make that intent pretty clear. But when it came down to writing the regs, the DOI was constrained by the actual law (NAGPRA), which was written as a compromise. I think the vague language comes from attempting to reconcile two radically opposing viewpoints while, at least superficially, remaining within the confines of the law and free from litigation. But as we've seen already, people are interpreting the regs in ways that far exceed the legal intent of NAGPRA. If it came to a lawsuit, the DOI can now just say, "Well, that's not what we meant" and remain free from accountability. But there hasn't yet been a lawsuit to test these.
In my experience, different Tribes deal with their archaeological records in different ways, and that's part of the point of my objection. Right now, individual Tribal members can make decisions that impact not just archaeologists but all people for all time by destroying irreplacable objects. That might provide some sense of vindication in today's political moment, but it's robbing everybody now and in the future of the chance to understand that record.
And no, I'm not pessimistic enough to think that we'll partition archaeology entirely according to race in an legal sense. I do think that we're already in a political place where many sneer at archaeologists who excavate materials that weren't created by their own ancestors and police themselves and those around them accordingly. It's billed as a progressive view, but to my eyes partitioning science according to race is an extraordinarily conservative, hyper-nationalistic view.
Powerful words my friend! My flippant self would say “I dig it” but , well……
Thanks for an inspiring morning read!