Native American consultation is a regular aspect of my work, and is a fact of life for anyone on my career path. I have had a wide range of experiences, everything from being told that I am a grave robber (ironically at a time when I was trying to persuade my client not to force a site to be dug into) to having the privilege of sitting in on elder's council meetings to hear what they have to say. On the whole, my experiences have been positive - CRM archaeologists such as myself prefer preservation over excavation, which means that we are usually, if not on the same frequency, at least in the same part of the radio spectrum as the Native Americans with whom we work. I know many people who can tell horror stories, and I even have a few myself, but most of my interactions have been professional and clearly oriented towards trying to make sure that everyone gets what they need.
And then, in 2006, there was Riverside County.
Riverside County, in southeastern California, had hired a new county planner. This planner either decided to do outreach to the Native American community, or was receptive when they came to him - I have never been able to get a definitive answer either way. Regardless, it was decided that archaeologists working in Riverside County or planning to work in the county would be required to attend a training/sensitivity workshop at a reservation within the county.
Many of my colleagues were displeased with this. To give a bit of background, there have been a number of federal and state laws passed that have required interaction between archaeologists and Native Americans. the best known is the Native American Graves Protection and Repatriation Act, better known as NAGPRA, which requires both that Native Americans be consulted when graves, burial goods, or certain religious items associated with federal properties or projects might disturbed, and that federal facilities inventory their collections and work at repatriating human remains and funerary and religious items*. Federal and (at least in California) state agencies are also required to communicate with Native American groups regarding activities that might disturb archaeological sites or the vaguely-name (and even more vaguely-defined) Traditional Cultural Properties (TCP).
In the wake of these laws, it has become more common for municipal and county governments to make an effort to interact with the Native American community. In fact, California's Senate Bill 18 requires that such be done when General Plans and Specific Plans are being created and/or revised.
So, in the wake of all of this, the government of Riverside County decided that they wanted to increase their cooperation with Native Americans within the County. To this end, they made a requirement that archaeologists working within Riverside County would be required to attend a training session with the Native Americans. Okay, so far, so good. This seemed like a pretty good idea to me, and like something that was, frankly, long overdue.
The problem is that the execution was rather poor.
For starters, in the days leading up to the meeting, the county sent out multiple contradictory statements saying that A) only project managers would be required to attend, B)Oh, sorry, scratch that, all field supervisors are required to attend, C)yeah, 'bout that, actually, everyone who might possibly ever be in the field in any position is required to attend, D) You know, actually, just the field supervisors after all, and finally E) only one archaeologist per company is required to attend**.
The meeting was held in a conference room at a reservation casino hotel. The hotel was a gorgeous place, and I had no complaints about the accommodations - both larger and more comfortable than my apartment, which was actually quite large and comfortable. And the evening before the session was quite pleasant, one of my co-workers enjoying the casino (and doing quite well at the blackjack tables) and me in my room reading.
The trouble started the next morning.
At the entrance to the conference room we obtained our name tags and spiral-bound books (common items at any sort of workshop or seminar). Upon entering the room, we found that all of the archaeologists were to sit on folding chairs behind long tables, while the county and Native American representatives all occupied a raised platform at one end of the room.
Now the raised platform may not sound like too big of a deal, but I have been to many seminars and workshops, and I can tell you that it is unusual in my line of work. In rooms such as the one into which we had been herded, there is nothing preventing someone even int he back of the room from seeing the speakers at the front if they are on the floor like the rest of us. The use of the raised platform sends a message, whether intentional or not, that we were not there to talk or interact, but to be scolded. We were all put on-guard from the get-go.
The first part of the day, leading up to lunch, was, despite the poor choice in room set-up, actually quite useful and productive. It essentially consisted of archaeologist (and cultural resource policy wonk) Tom King lecturing, and then interacting with the audience, on the areas of cultural resources law that pertain to Native American consultation. It was interesting and extremely valuable to those of us who were participating.
Then we broke for lunch. And then the second half occurred.
The second half consisted of a representative from Riverside County laying out the new guidelines and regulations for work in Riverside County, the Native American representatives scolding the archaeologists, and the archaeologists responding to the scolding. All of it was bad. Let's break it down:
New Regulations and Guidelines: According to the county planner explaining these guidelines, all artifacts found during work would be turned over to the tribes, regardless of whether they were on public or private lands, and all entities performing work on county lands, including federal agencies, would be bound by this requirement. Moreover, no research would be allowed without express consent of the tribes, and representatives from some of the tribes, though it must be stressed not all of the tribes, stated that they would not give consent for research under any circumstances.
Now, a lot of people will argue that it is ethical to side with the tribes and to turn all of the artifacts over to the tribes. I don't entirely agree, but I will concede that it is a fair position to take. The problem, however, is that it doesn't work within the law.
If materials are found on private land, they are considered the property of the landowner (there are some exceptions, but as a general rule, this holds). It can be argued that from a moral standpoint prehistoric materials should be considered the property of the tribes, and there is a valid argument to be made for that position. But from a legal standpoint, this doesn't work. For the government to claim otherwise may constitute a violation of the Fourth Amendment of the U.S. Constitution. So, the county was begging for a lawsuit on this one.
Moreover, while private citizens may be cowed by the County's rules, it is unlikely that the federal government is going to care. I would love to be in the room when this county planner decides to dictate to a federal representative what the Department of Defense is going to do.
Then there's the issue of research. Good arguments can be made on either side for the importance of research vs. the rights of the tribes to prohibit research. However, the problem here comes from the fact that sites are only protected if they are eligible for the National Register of Historic Places or the California Register of Historic Resources. In order to be eligible, they have to meet one of the four eligibility criteria, and the only criterion that applies to the vast majority of archaeological sites is federal Criterion D and state Criterion 4 - that the site has yielded or is likely to yield information important to the study of history or prehistory. In other words, it is eligible if it has potential to be important to research.
When research isn't allowed, this puts everything into a grey area. The site still has the characteristics that would make it valuable for research, but research will not be allowed, which practically negates research potential. In other words, it can be effectively answered that the site has lost research potential and therefore is no longer eligible for the registers, and is therefore no longer protected. I don't know how such an argument would go over in court or with an agency, but in attempting to protect sites from archaeologists, they may very well have created the conditions under which the sites can be destroyed by development.
so, there is a significant chance of a lawsuit, and a good chance that any archaeologist working in the area would get caught up in one. So, this was a problem.
The Scolding: Nobody likes being scolded. In fact, it is one of the fastest ways to make your audience tune you out. It doesn't matter how legitimate your claim or how just your cause, this is simply a bad way to try to persuade someone. So, as you can imagine, having a group of people on a raised platform lecture us about our alleged sins didn't exactly lead to us feeling either contrite or inclined to be helpful.
In addition to the basic communication problems that this created, there was a further content problem. Most of the scolding was over things that had been done by research archaeologists. Not just that, but research archaeologists of the past, for the most part.
A little background information may be in order here. People in my line of work act as consultants to help our clients keep in line with the historic preservation laws. We identify sites, and the agencies with which we work have policies that advocate for avoiding sites, so there is regulatory support for preservation of sites rather than excavation. When we do have to excavate, we know that we will be at a time and funding disadvantage, so we prefer not to excavate when it can be avoided. We are, by both our professional ethics and our training (and many of us by our natures) conservationists, and we would rather not have to excavate a site, and by excavating it damage or destroy it.
Research archaeologists, by contrast, are driven by research questions rather than policy goals. They will, therefore, excavate a site if necessary to answer a research question, and are not necessarily going to be conservationists. However, over the last several decades, an increasingly larger number of research archaeologists have come to the realization that excavation is eliminating sites, and therefore we may be better off using existing excavated collections for research and excavating only as often and only as much as is strictly necessary for a research project.
So, when we were scolded for our "grave robbing" and our "unfettered excavation for no reason than our own personal curiosity", we were being scolded for things that most of the people in that are in fact innocent of. Again, we were conservationists, so we are the natural allies of people who want to preserve sites***. Hell, I know that at least one person in that room had even thrown himself in front of a bulldozer to prevent a site from being destroyed. So, we were being scolded for something that we don't even do, and being accused of destroying sites when it was the new rules from the county that were likely to actually result in the loss of sites.
I should state that most of this scolding came from a few members of the tribal groups represented. The representatives of the other groups showed a better handle on how to talk with and work with archaeologists, as well as the nature of the law (whether or not they agreed with it). However, they were not as vocal nor as forceful as the ones who were throwing accusations, and as such the more negative members set the tone.
One representative even said "you archaeologists have been working for years, and if you've actually learned anything, I haven't heard of it!" It took a good deal of effort to bite my tongue and not yell "yeah, we sneaky bastards cleverly hide our results in published books!" There was a legitimate point here - archaeologists aren't as good as we should be about communicating what we do, especially not to the descendants of the people who we study. We are at fault for a lot of that. At the same time, to say that we haven't learned anything is an astoundingly ignorant statement. She seemed to think that she was putting us in our place when, in fact, she was convincing us that she was someone who wasn't worth listening to.
The Archaeologists Strike Back: So, as you can imagine, the archaeologists were pretty riled up. Some of us tried to point out legitimate issues - that we are preservationists, that we don't dig up sites for our own curiosity but only as a last-ditch effort to protect something from destruction, and that the proposed new rules were likely to endanger sites rather than protect them - but others decided to scold back, achieving nothing but exacerbating an already bad situation.
There was one fellow who began shouting that the Native American representatives in the room weren't even from the groups they claimed to be from. I can not confirm or refute his claim, but I can say that, from a legal standpoint, it's irrelevant, these groups have been legally recognized and we have to work with them. All that his comments did was piss off people with whom we needed to find some sort of common ground.
Other people made statements that sounded good, but seemed to irritate the Native Americans present. For example, one fellow stood up and announced that the archaeological sites were part of our common human heritage, and were shared by everyone. this is a strictly philosophical point of view, and one that I agree with, but after a couple of hours of an "Us vs. You" routine, this did nothing but piss off the other side.
So, while we archaeologists were led into a bad situation, we didn't necessarily acquit ourselves well once we were in the mess.
When the day was done, my coworker and I left Riverside County with the conviction that working there would be a recipe for disaster. The Society for California Archaeology decided to issue a response, but it is no longer easily found. I have not heard of any lawsuits out of the county, so I would assume that matters simmered down.
In the end, though, this was a perfect example of what not to do. The county planner was clearly ignorant of the law, being motivated, as far as could be told, by ideology without regards to reality. The Native Americans were by no means a monolithic group - many of the tribal Representatives made good observations and showed a solid understanding of the situation - but there was no clear leadership amongst them, and as such those who were the most passionate (which were often the ones who knew the least about what archaeologists actually do, based on their statements) were allowed to set the tone, preventing cooperation and creating needless conflict. the archaeologists, rather than being calm and trying to sort out the valid criticisms, and there were valid criticisms voiced, became defensive and went on the counter-attack.
Nobody came out smelling of roses, and it was a truly bas situation all the way around.
*Failure to accomplish this task on the part of many facilities doesn't change the fact that there is a legal obligation to do so.
**Meaning that a company like my employer at the time - a large multi-national engineering and environmental compliance firm - could get away with sending one of many archaeologists, while a smaller company would have to send one of very few archaeologists. Yay for disparity!
***Though, admittedly, the fact that the regulations do protect sites for research potential does introduce a tension into any potential relationship. Nonetheless, we can, and try to, help in preservation.