NAGPRA review article, part 1: When NAGPRA applies.

I've read the following article a couple of times and it has provided some clarity on the recent court rulings on on the application of NAGPRA itself. I'll spread it over a couple of posts.

"Complex legal legacies: the native American graves protection and repatriation act, scientific study, and Kennewick Man.(Native American Grave Protection and Repatriation Act)." Susan B. Bruning. American Antiquity 71.3 (July 2006): p501(21).

Abstract:

Debates over disposition options for an inadvertently discovered set of early Holocene human remains known as Kennewick Man have fueled discussions about the scientific, cultural, and ethical implications of the anthropological study of human remains. A high-profile lawsuit over Kennewick Man has led to the most extensive judicial analysis to date of the Native American Graves Protection and Repatriation Act (NAGPRA), the primary law affecting access to, and the ultimate disposition of ancient human remains found in the United States. However, despite years of litigation, some key questions remain unanswered. The judicial decisions in Kennewick address important questions about determining Native American status and assessing cultural affiliation under the law. However, the court opinions fail to address the role of scientific study within NAGPRA 's confines. This article examines NAGPRA and concludes that two provisions in the law expressly permit the scientific study of human remains if certain conditions are met. Significantly, Kennewick Man might have qualified for study under NAGPRA even if found to be Native American and culturally affiliated with the claimant tribes, which would have enabled study to proceed from the outset while the parties debated the issues of Native American status and potential cultural affiliation.

Three key terms in the satute whose interpretations have been the source of controversy: Native American, Indian Tribe, and cultural affiliation.

Native American: According the NAGPRA, this is defined as "of, or relating to, a tribe, people, or culture that is indigenous to the United States" (Section 2). To be subject to NAGPRA, human remains must qualify under the statute as Native American" (p.507). That is, it must first be demonstrated that the remains have some demonstrable connection to an existing tribe. The Interior Dept. in its interpretation regarding Kennewick insisted that cultural affiliation to an existing tribe only comes into play when a tribe seeks repatriation, and that "Native American" should be broadly construed to mean any remains from the time before the historically documented arrival of Europeans. Nevertheless, the district and Ninth Ciruit courts both interpreted it differently:

The primary issue debated during the oral hearing was whether all human remains predating documented European contact and found within the U.S. borders should be deemed to be Native American under NAGPRA (Bonnichsen et al. v. United States et al. 2003). In its opinion, the circuit court affirmed the district court's ruling that a finding of Native American status requires evidence of a relationship to a present-day group, ruling that the definition requires evidence that remains share "special and significant genetic or cultural features with presently existing indigenous tribes, peoples, or cultures" (Bonnichsen et al. v. United States et al., Ninth Circuit Court of Appeals, No. 02-35996, 2004 U.S. App. LEXIS 1656 [February 4]:1608). . . NAGPRA does not specify with any particularity how Native American status must be determined. The Interior Department and SAA approached the matter by presuming that, for the purposes of NAGPRA, any human remains predating documented European contact that are found within the country's borders would qualify under the law as Native American. From a legal standpoint, such a presumption would place the burden of proof on a party challenging the Native American status of precontact remains, by requiring it to prove that the remains are not Native American. In contrast, the Kennewick courts determined that Congress intended to require proof of Native American status for all remains, regardless of age, in order for NAGPRA to apply. The courts' rulings place the burden of proof squarely on the shoulders of a party claiming that remains are Native American. As a result, both courts required proof of Kennewick Man's status as a Native American before applying NAGPRA to the case, and they both ruled that the government failed to provide sufficient evidence to satisfy its burden. (p. 508)

This is, as we argued earlier, the basis of the "or was" legislation: it would bypass the two court' limitation of only applying NAGPRA after affiliation to an extant tribe had been established.

Cultural Affiliation: NAGPRA defines cultural affiliation as "a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group" (Section 2)" (p. 509) and provides several categories of evidence that may be used to determine such. As Bruning notes, it is notoriously difficult to define (let alone establish) group identity through time:

Group identity is continually shaped and altered in a variety of ways (Cohen 1978). It is multiscalar in nature, historically contingent, and differentially perceived by group members and nonmembers (Dongoske et al. 1997). (p. 509)

Determination of cultural affinity is accomplished by whatever agency holds the remains; thus, no rigid standards apply. Obviously, cultural affinity is far more difficult to assess the more ancient the remains are, and this was the main issue behind Kennewick. In this case, the close geographic proximity of the remains and the claimants' historical ocupancy was not sufficient to establish shared group identity nor was evidence of oral tradition on the part of the claimants. Interestingly, the district court found that

NAGPRA does not mandate that every set of remains be awarded to some tribe, regardless
of how attenuated the relationship may be. On the contrary, the Act expressly contemplates instances in which no claimant can establish the requisite degree of cultural affiliation to be entitled to claim the remains" (p.512)

Thus, as it stands, NAGPRA only applies after cultural affiliation to an extant group can be established.

Except, and this was noted in an earlier post, "NAGPRA grants tribal control over the disposition of newly discovered Native American human remains that are culturally unidentifiable if they are found on the tribe's land (Section 3[a][2][A]) or if they are found on land that has been recognized by final court judgment to be the aboriginal land of the tribe, and the tribe states claim (Section 3[a][2][C])" (p.512)

This second part was the "loophole" that an earlier commenter was noting: If the "or was" clause was added, even if no cultural affiliation to extant groups is established, defining "Native American" as any group here before the arrival of Europeans would mean that 3[a][2][C] wold apply. This may not be the case, IMO. The statute as quoted above seems plainly worded to refer to existing tribes only, and as the courts have already established, simple geographic proximity is not sufficient to establish cultural affiliation. Hence, it may not have been an issue anyway.

Cemetery archaeology AND Egyptomania Mummy-Shaped Coffin Found While Moving Cemetery

Dan Allen, an archaeologist hired by developers, has seen it all over the years while clearing coffins and bodies.

But, a discovery made Tuesday is rare. Allen and other archaeologists found a pre-Civil War cast-iron coffin shaped like an Egyptian mummy while moving a cemetery for developers at a site on Whites Creek Pike in North Nashville.

“I've only seen three of these in my life,” Allen said. The headstone lay near the site. “It says her name was Mildred Casey, which was her maiden name,” Allen said. Casey was 54-years-old when she died in 1851. A more typical box-type casket was found next to Casey's, likely her husband.

Odd though, since they mention the condition of the clothing but later say they won't open it up due to something called "Coffin liquor".

Blogging update

Back from short break. Blogging will resume. . .today sometime.

FYI, I was off, um, studying Native American culture for. . . .uhhhhh. . .important cross-cultural comparative research. . . .stuff. Yeah.

Blogging update

No blogging for approximately 4 days as I wil be. . . ummmm. . . .elsewhere.

Doing something else.

Something important.

Archaeologists find five headless sphinxes in Luxor

Archaeologists in Luxor, central Egypt, have found five headless sphinxes which belonged to a sphinx-lined avenue connecting a temple built by pharaohs in the city with Karnak, antiquity administrators in Cairo said.

Scientists are now trying to discover whether the figures match four broken sphinx heads, found a long time ago, sources said.

Roman art excites archaeologists

They gave us straight roads, sewers and bloodthirsty gladiatorial combat, but it is the Roman eye for beauty which is currently exciting archaeologists in Norfolk.

A spectacular villa dating from the reign of the emperor Commodus is being painstakingly re-excavated in the county after lying untouched for more than 80 years.

First uncovered by locals in 1922, the site in Gayton Thorpe, near King's Lynn, would have been home to generations of wealthy Romano-Britons.

Phoenician tombs found in Sicily

Archaeologists have unearthed 40 sarcophagi in what was once the sacred Phoenician burial grounds of Birgi, near the ancient colony of Motya .

The tombs were discovered by chance by a group of construction workers excavating the foundations of a house close to the westernmost tip of Sicily near Marsala, culture officials said .

Archaeologists said the sarcophagi were made of simple stone slabs and resembled those found on display outside the museum on the neighbouring island of Motya (present-day Mozia), site of a prosperous Phoenician colony .

Summer heatwave unearths historic past

THE summer heatwave has helped more than 100 early settlements buried underground to be identified, archaeologists said.

Historians taking aerial photographs of buried forts and monuments said the dry and warm summer meant they could be seen more clearly through ripening crops and scorched grass.

The Royal Commission on the Ancient and Historical Monuments of Scotland (RCAHMS) in Edinburgh said it was one of the best aerial surveys done since records began 30 years ago.

Ancient plumbing unearthed

Archaeologists in Israel have unearthed an ancient water system. The network of reservoirs, drain pipes and underground tunnels served one of the grandest palaces in the biblical kingdom of Judea.

Archaeologists first discovered the palace in 1954, but recent excavations unearthed nearly 70sq m of a unique water system.

The infrastructure of the palace was remodelled throughout the centuries to fit the needs of the Babylonians, Persians, Romans and Hasmoneans who ruled the Holy Land, said Oded Lipschits, a Tel Aviv University archaeologist.

That's the whole thing.

Archaeologists excited at chance to dig up Queen's back gardenBack to Communities

A team of television archaeologists today told of their excitement at the chance to dig up Britain's most famous back garden.

Experts from Channel 4's Time Team, are preparing to spend the bank holiday weekend wielding shovels in the garden of Buckingham Palace searching for secrets from the past.

On a visit to the site today, host Tony Robinson said that the dig had been given a personal seal of approval from the Queen.

There’s a fort at the bottom of my garden

DIGGING in the back garden became much more than a weekend pastime for Ann and John Hearle when they discovered their lawn was once the site of an Iron Age hill fort.

For the past eight years the Hearle’s garden and surrounding fields, in the village of Mellor near Stockport, has been a huge archaeological site, revealing evidence of human occupation from the Mesolithic Period (around 10,000 years ago) up to the present day with the only gap being the Dark Ages.

“At the moment there are enormous holes between the vegetable patch and the village church,” said Ann Hearle. “I’ve lived here for 22 years, and my husband for 38 years, but we didn’t notice anything until the drought of 1995, when a green line appeared.”

Archaeology work in old tavern site could delay school's plans

The possible remains of Americans Indians in a South Natick parcel could delay Eliot Montessori School's plans to build a new school.

Town officials said the state plans to start digging on the 4.68-acre site of the old Morse Tavern to see if it contains bones or historical artifacts. The Rte. 16 property is owned by the school and is where the school plans to move.

But the parcel also used to be a center for the Praying Indians before settlers founded Natick. The abandoned tavern that sits on it, called Peletiah Morse Tavern, is from 1749.

Archaeologists discover more than 70 ancient settlement areas in Yozgat

Archaeologists working at the ancient settlement of Tavium located in what is today Yozgat have discovered more than 70 previously unknown ancient settlements in the area.

The Central Anatolian province, mostly famous for the Chalcolithic Period discoveries at its Alişar Tumulus and the Hittite era artifacts at Kerkenes, is likely to hold much more archaeological wealth than previously believed, and archaeologists say the new studies will shed more light on history.

Austrian archaeologist Professor Karl Strobel, who is currently heading surveys and excavations at the ancient city of Tavium, said he and his assistant Cristoph Gerber have identified the previously unknown settlements in a very large area that stretches as far as Yozgat's borders with Çorum, Kırıkkale and Kırşehir.

Kennewick Man update Missed this from a couple of weeks ago: Representative Doc Hastings (R-WA) will introduce a bill that seeks to prevent future legislation from applying NAGPRA to older remains. Actual text of the bill is here.

Seems to be adding two specific items to the existing Act, one a definition, the other an ammendment. The added definition:

"Native American" means cultural items that have a significant and substantial genetic or cultural relationship, based on factors other than geography alone, to a presently existing tribe, people, or culture that is now indigenous to the United States.

and the amendment:

Nothing in this Act shall be deemed to restrict excavation, examination, investigation, or scientific study under the ARPA Act of 1979 of any cultural item found on Federal land that has not been determined to be the property of an Indian tribe or a Native Hawaiian organization.

The new definition is directly aimed at recent attempts to broaden the definition of "Native American" to any non-European remains regardless of whether or not they have a direct relation to existing tribes.

There is an extensive article on NAGPRA in the latest American Antiquity which no doubt has much bearing on whether this legislation is needed or not; I read it a couple of weeks ago and was going to post on it, but haven't gotten around to it yet. My first impression (see here) is that the new definition codifies the court rulings that specify that NAGPRA doesn't even come into play (though ARPA does) with remains of a certain age. This is what the famous "or was" bill was all about. That is, NAGPRA needs remains to be "Native American" to even apply, and this bill restricts that definition to remains that can be directly linked to existing tribes through something other than simple geographic proximity.

The second part looks to prevent the rounds of lawsuits regarding these sorts of remains. That is, if it's not under NAGPRA (i.e., not "Native American" in the above definition) it's under ARPA and suits claiming NAGPRA jurisdiction are automatically off the table.

Must go re-read that article. More will no doubt follow.

Aztecs butchered, ate Spanish invaders

Skeletons found at an unearthed site in Mexico show Aztecs captured, ritually sacrificed and partially ate several hundred people traveling with invading Spanish forces in 1520.

Skulls and bones from the Tecuaque archeological site near Mexico City show about 550 victims had their hearts ripped out by Aztec priests in ritual offerings, and were dismembered or had their bones boiled or scraped clean, experts say.

The findings support accounts of Aztecs capturing and killing a caravan of Spanish conquistadors and local men, women and children traveling with them in revenge for the murder of Cacamatzin, king of the Aztec empire's No. 2 city of Texcoco.

Gruesome:

The prisoners were kept in cages for months while Aztec priests from what is now Mexico City selected a few each day at dawn, held them down on a sacrificial slab, cut out their hearts and offered them up to various Aztec gods.

Doesn't say if this all was published elsewhere or not. Actually, there's not much in the article on what sort of work was done at the place. There's a well mentioned where personal items were thrown in that was apparently excavated. Darn irritating it is.

Also see this: A Russian cosmonaut will whack a golf ball from the international space station in a publicity stunt on Thanksgiving Day, NASA officials said Tuesday.

And not quite as off-topic The Manolo posted about a National Geographic feature on shoes, both modern and ancient. The photos are brilliant. There was some news a while back about some shoes found in a well or something. Has anyone ever done an archaeology of footwear?

"You can't go wrong with a nice fitted black leather boot with a four-inch heel."

Errrrrr, no comment.

Update: Here's something on hidden shoes.

And apparently it's a widespread phenomenon.

SHOUT IT OUT, BRUTHA! Death to Caps Lock

"The Caps key is an abomination," Hintjens writes on his blog. "It's a huge key, stuck right there where the Ctrl used to be, and as far as I know, it's only used by 419 scammers and Fortran programmers."

Zealous net newbies have also subjected the Caps Lock key to overuse, composing e-mails and newsgroup posts entirely in capital letters, an ugly and inelegant style of communication akin to screaming. In fact, the Capsoff organization's slogan is "STOP SHOUTING!"

The antagonism toward the Caps Lock key extends beyond its misuse by 13-year-old trolls and naive users. Caps Lock is also responsible for failed entries of passwords and other case-sensitive phrases. Users of word processors are forced to retype any text that was entered with Caps Lock accidentally turned on.

They really ought to put the dumb thing in some other location on the keyboard, as it's too close to the Shift key.

I could go into an extended discussion here of various aspects of keyboard design, evolutionary history, and its relation to archaeology, but I shan't bore you. I'll just toss it out there for your edification.

However, SJ Gould did write an essay on the whole QWERTY issue and concluded that the standard explanation of the key layout -- originally designed to keep users from typing to fast in order to keep mechanical arms from sticking together without the user knowing it -- is only partly true. It stuck because a particular typing instruction company standardized on that layout.

You know, kinda like how we got stuck with this bizarre bit of software kludgework known as "Windows". . . .

VIa Instapundit.

Archaeologist takes stories to Web

After decades of digging in the dirt for traces of history, archaeologist Richard Pettigrew has turned his attention to dust.

Specifically, the dust collecting on the thousands of reports of past archaeological projects. He already knew that the heart of archaeology is stories - tales about those who came before us, where and how they lived, the things they made, the way they adapted to the rhythms of the earth - and now he's dusting off those stories and getting them out to people other than his fellow diggers and researchers.

Pettigrew is the founder of the Eugene-based Archaeological Legacy Institute and The Archaeology Channel, a Web-based resource that offers free streaming video and audio programs on an array of topics that range from the native people of Western Oregon to the Neolithic settlements of Turkey.

We link to The Archaeology Channel often and it's a good resource. Though It probably ought to be in the Links then, eh? WIll be done soon.

What the Web needs is something like this for site reports.

The Homo hobbitus saga continues. . . Indon Hobbit 'was disabled caveman'

Nicknamed the hobbit, the 1m skeleton was by far the smallest ever found, with a brain the size of a grapefruit.

However, a new study contends the remains probably belonged to an early human suffering from microcephaly, a condition that causes an abnormally small head and other deformities, London's Sunday Times reports.

The paper quotes a report in the Proceedings of the National Academy of Sciences, one of America's most respected scientific institutions, as suggesting the initial evaluation of the remains was flawed.

“The skeletal remains do not represent a new species, but some of the ancestors of modern human pygmies who live on the island today,” the report said.

More at Time:

The PNAS team closely examined the one almost complete skull unearthed at Flores and say they found no evidence that it was belonged to anyone but a modern human. The skull was shaped asymmetrically, which the researchers argued was due to the effects of microcephaly. They also say that many of the features of the jaw and teeth cited as evidence that it belonged to a separate species-such as the lack of a chin-could be seen among modern Flores pygmies. It's that last part — the fact that a population of pygmies can still be found living just a stone's throw away from the Liang Bua cave where the original bones were found — that helped clinch the argument for Robert Eckhardt, a developmental geneticist at Penn State and another author of the PNAS paper. "If you look throughout the area, there are plenty of populations where the average male is under a meter and a half [4'11''] and females are shorter," he says. "If the people there are short now, so were the people who lived there 20,000 years ago."

And at Eurekalert.

And Hawks has a lengthy discussion of the actual paper. Some of his conclusions:

I completely accept the argument that LB1 is pathological. A corollary is that the skeleton cannot be a convincing type specimen for a new species.

But this isn't only about LB1: there are the other small specimens. This paper makes clear that none of the features of the LB6/1 mandible are outside the range of local peoples. This is not a case of two specimens that must share some rare pathology; the paper argues that they are two specimens that share a regionally-common suite of characteristics. They aren't, in other words, unusual.

Search for Civil War soldier's grave unearths unknown graveyard

The exhumation of a Civil War veteran's grave in northern Illinois has unearthed a mystery graveyard.

Archeologists from the University of Illinois' Public Service Archaeology Program began the dig in July in an oak grove in North Aurora. They were looking for Clark Smith's grave. But by Wednesday, they had found at least 19 other caskets.

Officials say the only record of a graveyard on the site is in an 1871 atlas. One page of the book shows a tiny cross west of a schoolhouse along the road.

Illinois Historic Preservation Agency officials say archeologists are going to research historical records and examine the remains for identifying traits.

Whole thing.