Heritage and the endowment of an archaeological problem: edicts, ethics and the ‘external mandate’

"Even in the hearings on the reburial laws, the archaeological community was rumored to have been warned by a senator that if archaeologists couldn’t come to grips with the issue, Congress would solve the problem for them" (Zimmerman 2000:293).

A survey of the major articles and ‘readers’ on the issue of multivocal, or post-colonial, participation in heritage reveals an expected trend: archaeologists consider the negotiation with, and incorporation of, voices external to the discipline and academic purview only on an ‘after the fact’ basis (e.g. Biolsi 1993, Bray 2001, Hodder 2002, Layton 1989a, McGuire 1992, 1997, Mihesuah 2000, Nicholas 1997, Schmidt 1995, Swidler 1997, Trigger 1980, Watkins 2000, Zimmerman 2003). As the recent furor over the Native American Graves and Repatriation Act (NAGPRA, Public Law 101-601) repatriation illumines, archaeologists have generally conducted their research without direct consideration of other interested parties, and have only recently been forced to re-examine this assumed axiom of insular scholarly endeavor. There are prominent exceptions to this trend by scholars operating in contexts where legal mandates did not require such collaboration, but who nonetheless reflected upon the role of interested parties and incorporated input in archaeological projects (e.g. Bender 1998, Hodder 2000, Logan 1997). Initiated out of ‘Critical’ or ‘Reflexive’ research programs, these cases prove the exception and already underscore a divergence from a more mainstream archaeological research tradition. As well, the fairly cooperative relations between Canadian First Nations and archaeologists (Nicholas 1997, Watkins 2000:ch.10) and between Australian aborigines and archaeologists (Hemming 2000, Moser 1995, Mulvaney 1991, Smith 2003) could also be cited. Here consultation in archaeological projects, and even, with the case of Australia, a reformulation of research principles, was undertaken without the injunction of national law. Unlike North America, these nations currently do not prescribe consultation through a nationally mandated legal framework as encompassing and binding as NAGPRA, but maintain relationships with local communities on a more local, case-by-case basis (Nicholas 1997, Smith 2003). However, these fairly recent collaborative efforts have been motivated and guided by professional society codes of ethics developed subsequent both to NAGPRA legislation in North America and the World Archaeological Congress (WAC) ratification of its code of ethics in 1991 following the Vermillion Accord of 1989. In Australia, the Burra Charter of the International Council on Monuments and Sites (ICOMOS) established collaborative precedent as early as 1981 for the definition of ‘sites’, yet prominent cases of cooperation and indigenous intervention postdate the WAC and North American examples. It was direct Aboriginal political activity that resulted in the repatriation of the Kow Swamp Collection and the Murray Black Aboriginal material in 1990 (Mulvaney 1991, Smith 2003). Following these public cases, the Australian Association of Consulting Archaeologists Inc. (AACAI) and the Australian Anthropological Association (AAA) entered into discussions, establishing and ratifying by 1994 a body of ethics for members to abide by (Smith 2003:187-90). As Claire Smith relates of the AAA’s ethical code: ‘in this sense, then, this code of ethics was an outcome of the reburial debate, rather than a guide used during the debate’ (ibid.:187). Likewise, Canadian archaeology and the First Nations’ relationship has been generally described as more amicable than the North American counterpart (Nicholas 1997). Archaeologists routinely consult with local tribal organizations regarding relevant projects. A primary reason for this might actually have been the previous lack of a national, professional charter administering consultation and collaboration on a more standardized, national level, allowing policies to develop on a province by province basis (Trigger 1997). Yet with increasing First Nation advocacy of rights over archaeological ‘cultural resources’, the Canadian Archaeological Association (CAA) Committee on Archaeology and Aboriginal Heritage ratified its Principles for Ethical Conduct Pertaining to Aboriginal Peoples in 1996 (Watkins 2000:156-7).

Finally, several prescient North American examples could be cited as ‘exceptions to the rule’ of archaeological collaboration with non-disciplinarian heritage stakeholders prior to any imposition of binding legislation or ethical codes. These include the earliest founding of a Tribal heritage protection agency by the Navajo Nation in 1977. Described by Joe Watkins as a ‘watershed event in the history of American Indian archaeology’ (2000:94), the Navajo Nation Cultural Resource Management Program prefigured the formal recognition of tribal sovereignty over cultural property on tribal land by the 1979 Archaeological Resource Protection Act (ARPA) and, even later, the 1980 amendments to the National Historic Preservation Act (NHPA) which gave equal standing to tribal governments as local and federal governmental agencies (ordinarily entrusted with overseeing heritage protection). The Navajo Nation and its treatment of its heritage was, and continues to serve as, an exemplary model in the re-formulation of archaeological/indigenous policy and interaction (e.g. Begay 1997). Similarly to other examples from heritage management conducted on the Zuni (Anyon 1995) and Hopi (Dongoske 2000) reservations, the Navajo preservation program offers a probable example of the direction ‘multivocal archaeology’ will proceed, by indeed blurring the very distinction in these tribal programs between ‘native’/archaeologist. However, as will be discussed below, these tribal programs should be best considered within the context of pertinent U.S. legislation and underlying, intransigent power differentials, as they might just as equally embody the fear of co-optation of ‘other voices’ by the dominant disciplinarian research tradition of archaeology. Moreover, set within this larger history, the Navajo example in fact serves to bolster the idea of ‘external mandates’ forcing archaeological re-formulation of practices. Lacking a history of federal legislation legally binding archaeologists to account for non-disciplinarian interests and valorizations of cultural heritage, the majority of nation-states within a global context may be considered secondarily to the forerunning example of the United States and its legal mandates to incorporate Native American interests. The Antiquities Act of 1906 (Public Law 59-209) represents the first national-level legal framework directed specifically to the preservation of and policy-making for cultural ‘resources’. As interpreted by contemporary American Indians (e.g. Riding In 2000:114, Trope 2000:127-8, Watkins 2000:38-9), this very precedent for special attention and preservation of the United States’ ‘past’ is troubling. This is due to the manner in which the terms ‘resource’ and ‘past’ are deployed in the legislation, and the assumed jurisdiction of the U.S. government in respect to these concepts. The stature was enacted over concerns raised by a nascent archaeology profession over looting of archaeological sites on federal lands (cf. Trope 2000:127). Equating ‘past’ with ‘American Indians’, and so by extension, American Indians with ‘archaeological resources’, the statute, in establishing federal government ‘ownership’ over national resources (or at least those on federal property) subsumed American Indians’ material culture and bodies (in burials) discovered on federal lands under government ‘property’(Moore 1994, Trope 2000). With respect to contemporary archaeological theory, the statute’s formulation is problematic, particularly the historically prevalent conflation of American Indians with the ‘past’ of the nation (Deloria 1969,1992,1997; McGuire 1992; Layton 1989). The benefit of retrospection facilitates a critique of this legal precedent, describing it as ‘deplorable’ (Trope 2000:127) or an instance of ‘co-optation’ (Watkins 2000:38). Yet within the historical context of the time, with the burgeoning nationalism of the early 20th-century seemingly corroborated by the closing of the Western frontier and fulfillment of ideas of Manifest Destiny, the government’s position on archaeological resources is rendered predictable.

What is, perhaps, more disconcerting is the continuity of assumptions regarding American Indians and resource protection reified in the statute of 1906 and pervading the controversy of repatriation and multivocal involvement nearly a hundred years later. These contemporary debates will be discussed below (and see Bergman 2003, King 1998, 2000 for overview of national legislation), but historically the Antiquities Act established some ‘first principles’ (cf. Adorno 1982:7) which need to be worked-through. First, the establishment of a ‘universal heritage ethos’ placing a scientific knowledge-value upon material culture that supercedes competing/alternate value claims. Second, the investment of authority to enforce this knowledge regime (cf. Foucault 1984) through legal statutes which resign material culture within the boundaries of the nation, including that of living indigenous groups, to the category of ‘property’ with the attendant liberalist ‘rights’ of ownership and control. The U.S. government, through the ‘right of property’, then entrusts the archaeological community with vicarious ‘ownership’ or ‘stewardship’ of the resources (see McGuire 1997, Moore 1994, Trope 2000, Zimmerman 1994a for discussion of property and burial). Finally, the dis-clusion of Native representatives in the legal proceedings for the Antiquities Act represents a gross oversight (Trope 2000:127). Perhaps this is ‘simply’ due to the fact that American Indians were not yet citizens of the United States (not until 1924), and so were not considered interested parties with rights of representation and participation (Trope 2000:130). Or, given the historical context of an assertion of nationalism and the professional establishment of archaeology, maybe it is best interpreted as an already operating assertion of the very principles which the proceedings were to establish and codify – i.e., the investment of the archaeological community with the exclusive rights over all archaeological resources on federal land. Irrespective, for the discussion of heritage, these legislative ‘first principles of heritage’ in the U.S. effectively appropriated Native American cultural property, including recent burials, for archaeological study, while simultaneously foreclosing the possibility of indigenous control or even input. This dis-participation was established on a legal basis, which sets the historical stage for subsequent ‘unlawful’ mandates placed upon the discipline to address the concerns of Native Americans.

The passage of NAGPRA, as the most current capstone resting on the overturning of nearly one hundred years of heritage legislation in the United States dominated by archaeological strictures, has understandably raised an immense amount of attention in archaeology, both within the States and in a global context. If not irrefutably proving the centrality of NAGPRA’s repercussions, it could be correlated that since 1990 (ratified November 16th) a prodigious amount of literature has been produced concerning the issue of incorporating ‘the local’ in archaeological practice (e.g. Bender 1998, Bray 2001, Carmichael 1994, Gosden 1999, Hodder 2000, King 2000, Lynnot 1995, Meskell 1998, Nelson 1990, Nicholas 1997, Schmidt 1995, Stoffle 2001, Swidler 1997, Vitelli 1996, Woodall 1990, Zimmerman 2003) – just mentioning the larger compendiums, not including the flurry (sometimes acrimonious) exchanges in scholarly journals (Anyon 1995, Dowdall 2003, Echo-Hawk 2000, Fotiadis 1993, Goldstein 1991, Green 2003, Hale 2002, Hemming 2000, Hodder 2002, Marshall 2002, Mason 2000, McGuire 1992, Meighan 1992, Meskell 2002b, Mulvaney 1991, Oyuela-Caycedo 1997, Patterson 1994, Politis 2001, Powell 1993, Shepherd 2003) and conferences proceedings (particularly symposia organized at the World Archaeology Congress and the Society for American Archaeology). The majority of this literature, particularly that of North American archaeology, references the NAGPRA legislation as either illustrative of the imperative to incorporate non-disciplinarian stakeholders in practice, or (a minority as represented in published material) disparage the legislation and the ensuing attempts at inclusion as threatening intellectual freedom, scientific verifiability and objectivity, and posing a violation of the Constitutional guarantee to the ‘freedoms of religion and speech’ (e.g. Gough 1996, Mason 2000, Meighan 1992, Mulvaney 1991), or thread the more neutral ‘middle-of-the-line’ (e.g. Goldstein 1991, Stanish 2003).

Assessing the literature reacting to the external mandate to open archaeology to others vested in heritage, I distinguish another definite pattern of rhetoric that emerges in addition to those mentioned above. This has been the overwhelming preponderance of ‘ethics’ as a rallying cry. As alluded to previously in relation to Canada and Australia, the majority of these discussions as represented in the literature ensued following the passage of NAGPRA in 1990 (Jameson 2003, Kintigh 1996, Lynnot 1995, Lynott 2003, Smith 2003, Vitelli 1996, Watkins 2003, Woodall 1990, Wylie 1996a, 2003, Zimmerman 1996, 1994b, 2003). Insofar as the North American example of legislation best illustrates, mot of this concern for ethics comes from the acknowledgement of the discipline’s gross oversight and insensitivity towards non-Western values and knowledge frameworks (some have aptly said, constitutive of an ‘Intellectual Imperialism’ (Riding In 2000), resonant with some Postcolonial ‘deconstructions’ (e.g. Chakrabarty 1992, Spivak 1999). There were, however, earlier precedents for ‘ethics in archaeology’, as typified by loosely binding ‘ethical codes’ developed by professional organizations .

Perhaps the earliest formalization of a code of organizational ethics, was, however, put forward by the American Anthropological Association (AAA), which, beginning with debates in 1971, adopted a number of Principles of Professional Responsibility, later solidifying with a Code of Ethics that asserted the primary responsibility of practitioners was to the peoples and cultures studied as a part of research (AAA 1998, cf. Smith 2003:181-2). Comparing such an advocacy for, and sensitivity to, living stakeholders in research with the ensuing debates of archaeology ten years later, the AAA was prescient in its concerns. In contradistinction, later archaeological organizations’ formulations emphasized verity to the archaeological record and professionalism, in an effort to establish integrity that would reduce risk to the archaeological record (in the form of looting activities), and uphold the validity of archaeological research. These associations were to include the Society of Professional Archaeologists (SOPA), the Register of Professional Archaeologists (RPA) and the Archaeological Institute of America (AIA). The later two not only establishing codes of ethics, but, uniquely, provisioning tribunal organizations for punitive enforcement of its agreed-to statues (AIA 2004, RPA 2002, cf. Smith 2003: 192). With ‘the record’ upheld as the equivalent of ‘informants’, this emphasis on verity of the archaeological record may be seen as the discipline’s analogous solution to anthropology’s concern for responsiveness to research subjects. More generally, members were to avoid and discourage illegal and unethical activity (Wylie 2003:5-6).

The most progressive of the ethical movements in archaeology could be considered that of the World Archaeology Congress (WAC). Following shortly after the first WAC meeting in 1986, WAC became involved in the formulation of ethical principles. In 1989, after tense debate, the WAC Inter-Congress on Archaeological Ethics and the Treatment of the Dead concluded with the passage of the Vermillion Accord (Smith 2003:184, Zimmerman 2000:296).

Significantly, this agreement placed scientific investigation of skeletal material as only fourth on a list of governing principles (Zimmerman 2000). And two years later, the Congress issued its First Code of Ethics, which included eight ‘Principles to Abide By’ and seven ‘Rules to Adhere To’ (Smith 2003, WAC 1991, Zimmerman 2000:299-301). These principles and rules underscore the primacy of respecting and consulting indigenous communities involved in archaeological projects, and, more strongly, to utilize and incorporate indigenous methodologies and interpretation (Article 6 of ‘Principles to Abide By’). Roughly coterminous (evolving out of discussions at the September 1990 meetings in Venezuela), the WAC code, while not binding legislation (or ‘soft law’), concurs with the questioning of the primacy of scientific evidence in the statues of NAGPRA (viz. 25 U.S.C.A.§7(a)4).

A more egregious counter-example to the AAA and WAC’s code of ethics, may be that of the Society of American Archaeology’s (SAA) history of ethical concern. Or, the lack thereof until quite recently (Lynott 2003, Smith 2003, Wylie 1996a). As Claire Smith (2003:182) relates, ‘although formed in the early 1930’s, the SAA only had a simple ethics code until the 1990’s (and see Lynott 2003:19-26). The early formulations, akin to those of SOPA, AIA and RPA, were oriented almost exclusively to the protection of the archaeological record by insuring professional conduct (Lynott 2003: 21; Smith 2003). These were SAA’s ‘Four Statements on Archaeology’ issued in 1960 which defined the field, emphasized systematic study, established minimum accreditation, and (number 3) provides an ‘ethics’ demanding publication and dissemination of information, and disavows the ‘willful destruction’ of sites (Lynott 2003:20). These archaeological ethics conformed to the developing ‘conservation ethic’ which William Lipe (1974) early on prescribed during the burgeoning of Cultural Resource Management in the States.

In tandem with the other major professional organizations, the SAA’s standards were only slightly modified throughout the 1960’s and 1970’s, and were in keeping with more binding (yet equally general) international enjoinders, such as the 1970 UNESCO prohibition of illicit trading in cultural property (ibid.:21). Throughout this period, the SAA demonstrated, which Mark Lynott (2003) traces, a general aloofness and unwillingness to become involved with official formulations. With mounting pressure from the ‘repatriation controversy’ and increased indigenous demand for inclusion in ‘the past’, the society convened a special Ethics Task Force in November 1993 to draft a set of ethical principles which would address these growing concerns (Lynnot 1995, Wylie 1996a). At the heart of the drafted principles was a commitment to conservation and stewardship (Lynott 2003:24). Meeting in March 1996, the Executive Board accepted the eight ‘Principles of Archaeological Ethics’ (Kintigh 1996) and appointed a standing ethics committee to promote discussion and continue evaluation (Lynott 2003: 25). However, as bemoaned by those directly invested with NAGPRA, these new principles weighed in favour of ‘science’ as the universal means to intellectually investigating and ethically treating the archaeological record (e.g. Garza 2001:40, Mihesuah 2000, Riding In 2000). And it is easy to detect the undisclosed animosity between the proponents of repatriation and the SAA – or occasionally, the blatant ill will (Zimmerman 1994a, 2000:294-7). It should be borne in mind that the primary Congressional witnesses opposing the passage of NAGPRA and forerunning bills proposed during the 99th and 100th Congressional sessions were members of the SAA (Trope 2000:136) .

So, what is at issue with the flurry of recent formulations of ethical codes by national and international organizations and discussions replete in the literature of the past decade? Broadly, the increasing militancy and organization by indigenous groups the world over certainly has irrevocably transfigured the soci-political context for undertaking archaeological projects and disseminating archaeological interpretations (Layton 1989a, b, Meskell 2002b, Ucko 1995). Increasingly, there are constituencies interested in control and access to ‘past’. This relates directly to issues surrounding the ambiguity of heritage: nationalism (and even global universalism) versus localism, identity and self-constitution versus ‘accepted view’ promulgated by specialists. Furthermore, through policy formulation in international organizations and agencies, as in World Heritage management plans, implications of these ethical discussions are not restricted to only indigenous groups. The past is present politics. But while intersecting with the more recent legislative politics and associated ethical conundrums adumbrated above, none of these issues is new to archaeology (e.g. Diaz-Andreu 1996, Gathercole 1989, Lowenthal 1985, Meskell 1998, 2001, Miller 1989, Pinsky 1989, Rowlands 1994, Shanks 2001, Trigger 1984). Yet, upon a closer examination of the recent ethics literature, I want to suggest that there is a fundamental impasse which has ‘stalled’ the engagement beyond the level of ‘dialogue’ (which permeates such discussions) - or, for Joe Watkins (2003:281), permits only ‘lateral moves rather than forward advances’. This concerns the abutment of ‘legiethics’ (cf. Watkins 2000; such as NAGPRA or the Resource Management Act of New Zealand) with more immutable, fundamental assumptions about what archaeology is - what it does, how it does it, and why.

Initially, the reaction to the external mandate to incorporate disparate frameworks for understanding the materiality of the past resulted in an emphasis on the need for dialogue. The (re)cognition of alternate manners of valorizing and engaging with archaeological material lead understandably to first a familiarization with such frameworks (e.g. Anyon 1995, Carmichael 1994, Fotiadis 1993, Goldstein 1991, Layton 1989a, b, McGuire 1992, Powell 1993, Zimmerman 1994a). This generally took the form of archaeologists or ‘liaison’ indigenous representatives presenting non-archaeological manners of interacting with and understanding human burials, ‘sacred landscapes’ or ‘sacred objects’ to an archaeological community. In many of these discussions, the adjective-modifier ‘sacred’ was tagged to mundane archaeological concepts to underscore, at a non-specified level, the alterity of encompassing worldviews. Accordingly, Zimmerman (1989,1994), Richardson (1989), Moore (1989), McGuire (1989) and (Goldstein 1991) discussed the incommensurability between Euro-American treatment of the dead, ensconced within larger values concerning notions of indivisible property and ownership and Judeo-Christian beliefs regarding life/death, with various indigenous attitudes toward burial associated with beliefs of ‘sacredness’, inter-connectedness, and communal property. Or Condori (1989; and Watkins 2001) contrasts indigenous Bolivian concepts of ‘circular time’ and future⇒past configurations as distinct from progressive, linear ideas of time. And Carmichael (1994) and the many selections of ‘sacred landscapes’ emphasize alternate engagements with landscape that stress reciprocity, holism and embeddedness in distinction from a resource-exploitation and adaptation framework. The examples could easily be aggrandized, and many of these themes of (re)cognition of alternate assumptions about the world continue to be repeated in more recent discussions (e.g. Deloria 1997, Dowdall 2003, Mihesuah 2000, Swidler 1997, Watkins 2000).

Suffice it to say, the majority of these discussions took the form exposes, marshalling, as it were, the potential alternate treatments of ‘the past’ and presenting them to the archaeological audience, now that an ethics of inclusion was legally mandated. Very few, however, attempted in practice to syncretize such frameworks (which were often, unfortunately, presented as exclusionary dichotomies). More recently, the more thoroughgoing implications of a dialogue with alterity in the practice of archaeology have begun to be addressed. Beginning with McGuire (1992:828), calling for dialogue between archaeologists and Native Americans that would ‘fundamentally alter the practice of archaeology in the United States’, and Vine Deloria, Jr. (1992), considering the ramifications of utilizing ‘sacredness’ as a quality to be integrated into the identification of Traditional Cultural Properties (TCP's, cf. Parker 1990 N.P.S. Bulletin 38 and N.H.P.A. 1992 amendments) by archaeologists, a movement has begun to integrate indigenous conceptions into the craft of archaeology (e.g. 1995, Anyon 1996, 1997, Dongoske 2000, Dowdall 2003, Echo-Hawk 1997, 2000). Roger Anyon and Roger Echo-Hawk’s attempts have been the most criticized (see Mason 2000 - below), as attempting to utilize specific Native American groups’ traditions of oral history as evidence alongside more normative archaeological sources of data. Ironically, it is this specific source of information which is legally sanctioned as part of NAGPRA’s criteria for ‘evidence’ in establishing ‘culturally affinity’ (see 25 U.S.C.A. §7(a)4). I want to turn to this criticism of ‘oral history as evidence’ and multivocality in general, as I believe these anti-repatriation scholars, while I am in disagreement with their overall argument, do in fact elucidate the fundamental problem with the discipline’s ethical move to involve the public in cultural heritage. It is this fundamental problem which continues to hamper a more realized integration of the external mandate in archaeology.

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