Constructing Native American Identity within the Context of the Native American Graves Protection and Repatriation Act

Darren John Modzelewski
Anthropology, University of California, Berkeley
June, 2016


The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) established a mechanism for repatriating ancestral Native American human remains and three other categories of special objects already curated by federally funded institutions. NAGPRA is undoubtedly an important piece of human rights legislation recognizing the historical mistreatment of Native American dead. Yet, the process of repatriation, arguably the most salient piece of NAGPRA, highlights larger questions about the construction of tribes, as an analytic category through archaeological and ethnographic evidence. Indeed, this federal law changed the nature of the archaeo-legal landscape. Before NAGPRA, archaeological expertise was used in the context of the National Historic Preservation Act or Archaeological Resources Protection Act, for example. Post NAGPRA the political involvement of archaeology has expanded and archaeological and anthropological methods and theories now occupy a unique place in the archaeo-legal landscape. In particular, the corner stone methods and theories by which archaeologists and anthropologists link contemporary social and cultural groups to their ancestors, together commonly known as cultural affiliation, have become particularly important. The most salient example this is Bonnichsen v. U.S. , 367 F.3d 864 (9th Cir. 2004). In 2004, after almost a decade of litigation, the 9th Circuit in decided the final disposition of approximately 9,000 year old human remains. Popularly known as "Kennewick Man" or "The Ancient One" the remains were inadvertently discovered by four students watching a boat race from the banks of the Columbia River in Kennewick, Washington. The county coroner initially identified the remains as Caucasoid. However, the discovery of an a Clovis spear point in Kennewick Man's hip suggested this identification might not be correct. After further testing, the age of the remains were found to be approximately 9,000 years old. The Army Corps of Engineers, on whose property the remains were found, decided, based on the age of the remains, that Kennewick Man should be repatriated to area tribes. Subsequently, a group of archaeologists and anthropologists sued claiming that the remains were so old and because the original characterization of Kennewick Man was Caucasoid, cultural affiliation to a modern tribe could not be established within the meaning of NAGPRA and thus the statute did not apply. The central question for the court to consider was whether or not Kennewick man was a Native American. Relying heavily on archaeological and anthropological evidence, the Court decided that Kennewick Man was not Native American. It is not surprising that the Court would draw heavily upon these disciplines. Indeed, much of the justification for their existence and importance has been their ability to tell us about ancestral pasts and cultural lineages. While archaeology has long played a key role in contributing to national narratives, in both positive and negative ways, NAGPRA paced a new emphasis on political involvement of these disciplines in defining who is Native American. As a result, their taken for granted's are called into question. The starting point for my broader inquiry into the traditional models and methods of cultural affiliation, is a single site, CA-SJo-42. The objects excavated from CA-SJo-42 are curated at the Phoebe A. Hearst Museum of Anthropology at the University of California, Berkeley (PAHMA) and date from roughly the Late to the Historic Period (A.D. 1500-1830). CA-SJo-42 is located in a border area separating the Sacramento and the San Joaquin Valleys (The Delta) - a border that coincides with the anthropologically, linguistically, and archaeologically defined "cultural" border separating the Plains Miwok and Northern Valley Yokuts peoples. CA-SJo-42 is the ideal starting point for exploring the empirical foundations of cultural affiliation because it is a collection that the Tachi Yokuts Tribe, a federally recognized tribe, has requested be repatriated but is tenuously labeled culturally unidentifiable by the Hearst Museum. The reason for this designation points to the heart of my analysis. Despite the best efforts of PAHMA, traditional culture area maps and archaeological typologies provide few answers to the complex interplay of people and objects their data suggest. The goal of this dissertation is to better understand the empirical footings for cultural affiliation within American archaeology. Specifically, I ask two related questions: can we discover cultural differences in the archaeological record and how might dynamic cultural interaction and between-group differences be remodeled to better understand border interactions and group identity? To do this, I address two sets of interrelated issues. First, I examine the theoretical underpinnings for cultural affiliation and examine how data were used to construct and reify a certain notion of cultural boundaries. Second, I reflect on the ways in which cultural interaction and between-group differences might best be represented. I ask how complex social relationships, especially in border areas, can be remodeled so they better incorporate and interpret the variation that often exists among archaeological, linguistic, and ethnohistoric evidence. This, I hypothesize, could provide the foundations for more nuanced archaeological and legal understandings of identity.