| This article was published by the Association on American Indian Affairs in Volume 116 of the Association’s Indian Affairs Journal, in the Summer of 1988. We have adjusted some terminology to align with current language. Though this article was written 35 years ago, these issues continue because of the checker-boarded laws that only protect federal or Native Nation lands; state and private lands are often completely unregulated – even when Native bodies are discovered. Thousands of years ago, Native Peoples laid their dead to rest in above- ground ossuaries or in graves, often surrounding them with pottery vessels, necklaces, baskets or other sacred goods. The mourners never worried that the graves would be deliberately disturbed. |  |
Today, however, these ancient graves are no longer safe. Over the course of time, erosion and river flooding have accidentally exposed grave sites. Farmers plowing their field have unearthed skeletal remains and burial goods. Urban developers have bulldozed mounds to make way for buildings. Road builders have destroyed Native cemeteries. Land-clearing techniques and seismic line construction and logging operations have taken their toll. And worst of all, pothunting vandals deliberately plunder Native burial sites to steal objects valued by collectors in the domestic and international markets. These grave looters scatter bones of the dead in their frenzy to find grave goods. By all accounts, grave desecration and looting have reached epidemic proportions across the nation.
Nationwide, Native Peoples and archaeologists are speaking out against this destruction. Much of their alarm turns on the fact that grave looters and bulldozers damage valuable clues that they use to piece together interpretations of history. Archaeologists, who use a technique called “artifact patterning,” study the special relationships of objects found at a site to explain how they were used. Once a site is disturbed, the sense of its historical development is disrupted. As Winston Hurst, Utah archaeologist explained it, ”The soil matrix that contains vast amounts of information – how [they] lived, the kinds of foods they ate, the environment – becomes mixed and randomized. The [materials] from 850 A.D. is mixed with [materials] from 850 B.C. and no one will ever be able to unscramble it.”
Native Nations and national Native organizations equally deplore the destruction of ancient grave sites for reasons that have nothing to do with science. Their protests are based on religious and moral grounds. To Native Peoples, disturbing the bones and spirits of Ancestors and stealing their grave goods strike a painful nerve. Like cultures throughout the world, Native Peoples have deeply ingrained attitudes about the dead. Although there is a great diversity in the religious traditions of Native Nations, there is a generally held belief among Native Peoples that when an individual dies and the remains of that individual are given the proper ceremonial treatment, the remains and any sacred objects that are placed with them are not to be disturbed or displaced, except by natural occurrences. This belief is not unique to Native Peoples. Those who practice Judeo-Christian religions hold these beliefs as well and their views are reflected in state laws that impose criminal penalties on persons who desecrate cemeteries. Many Natives argue it is important to tell others how they feel about grave desecration. They point out that Native Peoples and their Nations would never go to non-Native cemeteries and dig up remains that are meant to be undisturbed.
Thousands of Native burial sites are located on federal lands, managed by the Bureau of Land Management (BLM), the U.S. Forest Service (USFS), and the National Park Service (NPS). Vandals and thieves have wreaked havoc on these Native grave sites. The BLM and USFS simply do not have large enough budgets or staffs to monitor millions of acres. Since the NPS has more law enforcement per acre than the other two agencies, it is better equipped to patrol national parks and cut down on grave desecrations.
Contemporary federal law and policy treat Native grave sites as “archaeological resources.” Furthermore, federal law treats Native [Ancestors] on public land as the property of the United States. The government has protected its “archaeological resources” since 1906 when Congress enacted the Antiquities Act. This Act provides that qualified institutions may be issued permits for the excavation of archaeological sites, which includes Native burial grounds.
The Act also provided criminal penalties for unauthorized excavations. Congress showed no concern, however, for the traditional Native point of view. Indeed, Monsignor O'Connell, Rector of the Catholic University of America set the tone of the congressional proceedings when he said: “...these articles of archaeology, etc. are not simply the property of the United States Government, but in a certain sense the property of the scientific world.” [The Antiquities Act was passed to protect scientific interests. It was not initially developed to protect the rights of Native Nations or their citizens to access their Sacred Places, Ancestors’ burial sites, and other important relationships with their homelands. However, since its passage and after 1990, more collaborative relationships have been built between Native Nations and the federal land management agencies. One example of how the Antiquities Act of 1906 has been used today to protect Native cultural heritage is the co-management agreement between 5 Native Nations and the federal government to protect the Bears Ears National Monument (learn more at BearsEarsCoalition.org/coalition-to-co-manage-bears-ears).]
In 1979, the Archaeological Resources Protection Act (ARPA) was passed. It toughened the laws protecting “archaeological resources” on an estimated 700 million acres of federal lands by stipulating that pothunting on federal lands was a felony. It imposes severe criminal penalties for unauthorized excavation, damage, destruction, or removal of “resources.” ARPA provided fines up to $100,000 and five years in jail for criminal violations. ARPA, however, also treated Native graves and [Ancestors] on public and Tribal lands as “archaeological property” belonging to the United States. The law provided, however, that Native Nations or individuals must consent to the issuance of ARPA permits for the excavation or removal of “archaeological resources” on Tribal lands owned or controlled by said Native Nation. And ARPA also requires Native Nations to be notified before religious sites can be harmed by activities on public lands. Ultimately, though, land managers can reject a Native Nation’s view for any number of reasons.
In 1978, Congress passed the American Indian Religious Freedom Act (AIRFA) which expressly protects Native Peoples’ right of access to sacred sites, including burial sites. The AIRFA report points out that the prevailing view in society is that Native [Ancestors] are public property, a view repugnant to Native Peoples whose Ancestors and near relatives are considered the property at issue. Native Peoples hope that federal archaeological and cultural resource laws change to reflect the intent of AIRFA on Native religious rights. Indeed, bills are before Congress to toughen ARPA penalties and improve the protection and management of archaeological resources on federal lands, but the attitudes regarding Native [Ancestors] stay the same.
Countless Native burial sites are also located on state and privately-owned lands. Throughout the twentieth century, development and looting have destroyed many of these sites. A few stories with satisfactory endings, however, suggest it is possible to protect Native gravesites.
Delaware: Members of Delaware's Nanticoke Tribe protested a museum exhibit at South Bowers Beach showing the partly exposed burial sites of 125 men, women, and children who lived along the shore of the Delaware Bay 1000 years ago. The Nanticokes, represented by Chief Kenneth S. Clark, expressed the Nation's opposition to the disrespectful display of bones which had become a popular spot for school field trips. Compromise legislation passed in 1987 gives researchers one year to complete their studies of the remains and reinter them in the original site.
Kentucky: In the fall of 1987, ten men leased forty acres of farmland to dig up relics. They disturbed over 200 Native grave sites searching for goods before the Kentucky State Police obtained a court order halting the digging. The state responded to the public outcry by passing legislation that now makes Native grave desecration a felony carrying a one-to-five year sentence. Native leaders throughout the nation planned a reburial ceremony over the Memorial Day weekend. Many non-Native people in Uniontown, Kentucky and Evansville, Indiana offered to help reinter the [Ancestors].
North Dakota: In North Dakota in I986, after consulting with Native Nations and archaeologists on the Southwest Pipeline Project, the State Water Commission decided to reroute a pipeline around the Boeckel-Renner Site, a large Native ceremonial complex. The burial grounds, which constitute one of the most important sites in North Dakota, thereby will be preserved.
West Virginia: A tiny Native graveyard dating from 1791, discovered at Seneca Rocks, and located on a new U.S. Forest Service campground, will be preserved in place. The policy to leave the graveyard intact was developed in conjunction with Native and archaeological groups.
Burial sites on private lands are at far greater risk than sites located on federal or state-protected lands. These sites, unprotected by state or federal law, are subject to the whims of the owners. They are within their legal rights to dig up and sell grave goods or level mounds, if they choose. [Considering that this article was written in 1988, there may be more state laws regulating excavation of Native sites. Moreover, ARPA allows the incorporation of state law to make improper excavation or trafficking illegal under federal law.]
In 1980, a group of preservationists, conservationists, and archaeologists created the Archaeological Conservancy, an organization dedicated to preserving archaeological sites. The group targets sites on private property that are not protected by federal or state laws and tries to buy them. Presently, it owns at least thirty-eight sites in eleven states. [Today, the Conservancy owns 600 sites in 43 states.] Mark Michel, Conservancy president says: “The only sure way of guaranteeing preservation is to acquire title to the land by donation or purchase.” Other people suggest that landowners be talked into banning pothunting on their property.
Despite the work of federal and state agencies and archaeologists and preservationists committed to protecting Native burial sites, Native Nations are still offended that Native graves and associated goods are treated as the property of the federal government, or as relics, or as objects of antiquity. They argue that the religious and cultural values of Native burial sites are paramount and far outweigh their scientific and educational content.
Nationwide, Native Peoples and archaeologists are speaking out against this destruction. Much of their alarm turns on the fact that grave looters and bulldozers damage valuable clues that they use to piece together interpretations of history. Archaeologists, who use a technique called “artifact patterning,” study the special relationships of objects found at a site to explain how they were used. Once a site is disturbed, the sense of its historical development is disrupted. As Winston Hurst, Utah archaeologist explained it, ”The soil matrix that contains vast amounts of information – how [they] lived, the kinds of foods they ate, the environment – becomes mixed and randomized. The [materials] from 850 A.D. is mixed with [materials] from 850 B.C. and no one will ever be able to unscramble it.”
Native Nations and national Native organizations equally deplore the destruction of ancient grave sites for reasons that have nothing to do with science. Their protests are based on religious and moral grounds. To Native Peoples, disturbing the bones and spirits of Ancestors and stealing their grave goods strike a painful nerve. Like cultures throughout the world, Native Peoples have deeply ingrained attitudes about the dead. Although there is a great diversity in the religious traditions of Native Nations, there is a generally held belief among Native Peoples that when an individual dies and the remains of that individual are given the proper ceremonial treatment, the remains and any sacred objects that are placed with them are not to be disturbed or displaced, except by natural occurrences. This belief is not unique to Native Peoples. Those who practice Judeo-Christian religions hold these beliefs as well and their views are reflected in state laws that impose criminal penalties on persons who desecrate cemeteries. Many Natives argue it is important to tell others how they feel about grave desecration. They point out that Native Peoples and their Nations would never go to non-Native cemeteries and dig up remains that are meant to be undisturbed.
Thousands of Native burial sites are located on federal lands, managed by the Bureau of Land Management (BLM), the U.S. Forest Service (USFS), and the National Park Service (NPS). Vandals and thieves have wreaked havoc on these Native grave sites. The BLM and USFS simply do not have large enough budgets or staffs to monitor millions of acres. Since the NPS has more law enforcement per acre than the other two agencies, it is better equipped to patrol national parks and cut down on grave desecrations.
Contemporary federal law and policy treat Native grave sites as “archaeological resources.” Furthermore, federal law treats Native [Ancestors] on public land as the property of the United States. The government has protected its “archaeological resources” since 1906 when Congress enacted the Antiquities Act. This Act provides that qualified institutions may be issued permits for the excavation of archaeological sites, which includes Native burial grounds.
The Act also provided criminal penalties for unauthorized excavations. Congress showed no concern, however, for the traditional Native point of view. Indeed, Monsignor O'Connell, Rector of the Catholic University of America set the tone of the congressional proceedings when he said: “...these articles of archaeology, etc. are not simply the property of the United States Government, but in a certain sense the property of the scientific world.” [The Antiquities Act was passed to protect scientific interests. It was not initially developed to protect the rights of Native Nations or their citizens to access their Sacred Places, Ancestors’ burial sites, and other important relationships with their homelands. However, since its passage and after 1990, more collaborative relationships have been built between Native Nations and the federal land management agencies. One example of how the Antiquities Act of 1906 has been used today to protect Native cultural heritage is the co-management agreement between 5 Native Nations and the federal government to protect the Bears Ears National Monument (learn more at BearsEarsCoalition.org/coalition-to-co-manage-bears-ears).]
In 1979, the Archaeological Resources Protection Act (ARPA) was passed. It toughened the laws protecting “archaeological resources” on an estimated 700 million acres of federal lands by stipulating that pothunting on federal lands was a felony. It imposes severe criminal penalties for unauthorized excavation, damage, destruction, or removal of “resources.” ARPA provided fines up to $100,000 and five years in jail for criminal violations. ARPA, however, also treated Native graves and [Ancestors] on public and Tribal lands as “archaeological property” belonging to the United States. The law provided, however, that Native Nations or individuals must consent to the issuance of ARPA permits for the excavation or removal of “archaeological resources” on Tribal lands owned or controlled by said Native Nation. And ARPA also requires Native Nations to be notified before religious sites can be harmed by activities on public lands. Ultimately, though, land managers can reject a Native Nation’s view for any number of reasons.
In 1978, Congress passed the American Indian Religious Freedom Act (AIRFA) which expressly protects Native Peoples’ right of access to sacred sites, including burial sites. The AIRFA report points out that the prevailing view in society is that Native [Ancestors] are public property, a view repugnant to Native Peoples whose Ancestors and near relatives are considered the property at issue. Native Peoples hope that federal archaeological and cultural resource laws change to reflect the intent of AIRFA on Native religious rights. Indeed, bills are before Congress to toughen ARPA penalties and improve the protection and management of archaeological resources on federal lands, but the attitudes regarding Native [Ancestors] stay the same.
Countless Native burial sites are also located on state and privately-owned lands. Throughout the twentieth century, development and looting have destroyed many of these sites. A few stories with satisfactory endings, however, suggest it is possible to protect Native gravesites.
Delaware: Members of Delaware's Nanticoke Tribe protested a museum exhibit at South Bowers Beach showing the partly exposed burial sites of 125 men, women, and children who lived along the shore of the Delaware Bay 1000 years ago. The Nanticokes, represented by Chief Kenneth S. Clark, expressed the Nation's opposition to the disrespectful display of bones which had become a popular spot for school field trips. Compromise legislation passed in 1987 gives researchers one year to complete their studies of the remains and reinter them in the original site.
Kentucky: In the fall of 1987, ten men leased forty acres of farmland to dig up relics. They disturbed over 200 Native grave sites searching for goods before the Kentucky State Police obtained a court order halting the digging. The state responded to the public outcry by passing legislation that now makes Native grave desecration a felony carrying a one-to-five year sentence. Native leaders throughout the nation planned a reburial ceremony over the Memorial Day weekend. Many non-Native people in Uniontown, Kentucky and Evansville, Indiana offered to help reinter the [Ancestors].
North Dakota: In North Dakota in I986, after consulting with Native Nations and archaeologists on the Southwest Pipeline Project, the State Water Commission decided to reroute a pipeline around the Boeckel-Renner Site, a large Native ceremonial complex. The burial grounds, which constitute one of the most important sites in North Dakota, thereby will be preserved.
West Virginia: A tiny Native graveyard dating from 1791, discovered at Seneca Rocks, and located on a new U.S. Forest Service campground, will be preserved in place. The policy to leave the graveyard intact was developed in conjunction with Native and archaeological groups.
Burial sites on private lands are at far greater risk than sites located on federal or state-protected lands. These sites, unprotected by state or federal law, are subject to the whims of the owners. They are within their legal rights to dig up and sell grave goods or level mounds, if they choose. [Considering that this article was written in 1988, there may be more state laws regulating excavation of Native sites. Moreover, ARPA allows the incorporation of state law to make improper excavation or trafficking illegal under federal law.]
In 1980, a group of preservationists, conservationists, and archaeologists created the Archaeological Conservancy, an organization dedicated to preserving archaeological sites. The group targets sites on private property that are not protected by federal or state laws and tries to buy them. Presently, it owns at least thirty-eight sites in eleven states. [Today, the Conservancy owns 600 sites in 43 states.] Mark Michel, Conservancy president says: “The only sure way of guaranteeing preservation is to acquire title to the land by donation or purchase.” Other people suggest that landowners be talked into banning pothunting on their property.
Despite the work of federal and state agencies and archaeologists and preservationists committed to protecting Native burial sites, Native Nations are still offended that Native graves and associated goods are treated as the property of the federal government, or as relics, or as objects of antiquity. They argue that the religious and cultural values of Native burial sites are paramount and far outweigh their scientific and educational content.
