Grave Issues divide state -- BURIAL GROUND DESECRATIONS,ETC.

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Date Posted: 09:21:44 04/09/01 Mon
Author: Adv Reporter
Subject: Grave Issues divide state

The Billings Outpost
April 6, 2001
Grave issues divide state: Researchers fight remains repatriation
By: RON SELDEN, For The Billings Outpost
HELENA - Despite opposition from a coalition of scientific researchers,
including the lead plaintiff in the so-called "Kennewick Man" case, the
Montana Senate has approved a major human-remains repatriation bill.
After hours of rewriting and days of debate, the Senate Judiciary Committee
passed an amended version of House Bill 165 last week by an 8-1 margin.
The full Senate voted 47-1 last Saturday to pass the measure, which expands
Montana's 1991 Human Skeletal Remains and Burial Site Protection Act. HB165
is sponsored by Rep. Gail Gutsche, a Missoula Democrat.
Current state law says that remains and burial objects found on state or
private land since July 1, 1991, must be reviewed by the Montana Burial
Preservation Board if the items are deemed to be "archaeologically
significant." The 13-member board, largely made up of tribal
representatives, helps determine if the material is tied to present-day
descendants, tribal or otherwise.
Ms. Gutsche's proposal, which passed the Montana House by a 95-4 margin in
January, includes remains and burial objects discovered at nonfederal sites
in the state prior to 1991.
The bill covers publicly held collections, as well as those claimed by
private landowners. It also sets up a detailed process for returning the
materials to parties that can show they're directly related or "culturally
affiliated" with the discoveries.
The bill specifically states that human remains and the objects left with
them are not considered to be abandoned property that can be "owned" by a
discoverer. In addition, returning the items can not be considered an
unlawful "takings" without compensation.
In the Senate, HB165 drew protests from archeologists and others concerned
that it will prompt a wave of potentially frivolous claims on bones and
artifacts. The fracas has drawn in the governor's office, museum owners,
property-rights activists, ranchers and tribal leaders, who want to ensure
their ancestors are treated with respect and dignity - and not studied like
a school project.
"This bill honors the sanctity of graves," Ms. Gutsche told the Judiciary
Committee at a March 20 hearing. "This is about preserving. This is about
protecting. There's no guarantee in this bill that anyone will ever claim
anything."

Bones for the ages
One of HB 165's main opponents is Robson Bonnichsen, an Oregon State
University anthropologist and director of the school's Center for the Study
of the First Americans in Corvallis, Ore. Mr. Bonnichsen and seven other
scientists filed suit in 1996 against the U.S. Corps of Engineers over
skeletal remains found earlier that year in a Columbia River reservoir in
Kennewick, Wash.
The corps laid claim to the 9,000-year-old bones, and federal officials
planned to turn the skeleton over to a coalition of five area tribes under
the federal 1990 Native American Graves Protection and Repatriation Act, or
NAGPRA, upon which Montana's burial law is based.
That move prompted the scientists' court action. Trial in the case is
tentatively set for June in Portland. A prime question the plaintiffs want
answered is: Exactly who is a Native American?
Sen. Lorents Grosfield, R-Big Timber, a bill co-sponsor and chairman of the
Judiciary Committee, received dozens of letters and e-mails lobbying against
HB165. Copies were sent to Republican Gov. Judy Martz, who publicly supports
the measure.
The "Friends of America's Past" website, dedicated to the Kennewick Man case
and similar battles around the country, in January posted a sample letter to
Mr. Grosfield and Gov. Martz that spelled out researchers' opposition to
HB165. The letter, signed by Mr. Bonnichsen, and an accompanying "Action
Alert" said the Montana bill should be killed because it would affect the
study of ancient remains.
"I have grave concerns for the future of archeological research and the
preservation of significant early human remains in the state of Montana if
HB165 is passed," Mr. Bonnichsen wrote, adding that one of the state's
premier discoveries of artifacts - the Anzick Collection - may be threatened
by the bill. "The majority of human remains that have been and are likely to
be found in the state of Montana constitute what are known as unidentified
and unaffiliated human remains."
The Anzick Collection was discovered in 1968 by landowners in Park County
and initially included the skeletal remains of two children and more than
100 objects carbon-dated to be 11,000 to 13,000 years old. These Clovis-era
artifacts are one of the oldest finds in the country and must be kept
available for scientific review, Mr. Bonnichsen wrote.
The site is also in Mr. Grosfield's Senate district.
"The national and international significance of this unique discovery can
not be overestimated," Mr. Bonnichsen told Mr. Grosfield and Gov. Martz.
"Will school children have an opportunity to learn of the achievements of
the Clovis people, or will the Anzick remains be placed in the ground in
deference to the wishes of a modern group that may have no connection to the
Anzick people?"
According to state officials, no tribal groups have filed claims against the
collection, which was displayed at the Montana Historical Society's museum
in Helena from 1988 until controversy over Ms. Gutsche's bill flared this
winter. Since then, says Director Arnie Olsen, two of the three landowners
have removed their share of the artifacts - minus the bones - which are
reportedly stored in another locale.
The amended bill was approved by all Judiciary Committee members except Sen.
Ric Holden, R-Glendive, who also cast the only vote against the bill on the
Senate floor on Saturday. The bill exempts the Anzick Collection artifacts
from repatriation, but not the bones. It also provides protections for
scientists by allowing at least temporary study of some remains.
Academic rights or cultural propriety?
In an interview, Mr. Olsen acknowledged the historical society has been in
an uncomfortable position with Ms. Gutsche's bill. While he testified as a
proponent at a Jan. 12 House hearing, it was also revealed that he was
pushing the Anzick Collection exemption, asking that relinquishment of
artifacts from private parties be voluntary, and trying to diminish the
burial board's authority.
After the society's amendments surfaced, House Judiciary Committee Chairman
Jim Shockley, R-Victor, told Mr. Olsen he had to be listed as an opponent of
the bill. Despite that determination, Mr. Olsen filed lobbying documents
with the state Commissioner of Political Practices on Feb. 5 that still say
he was a proponent. Asked about the discrepancy, Mr. Olsen said he's "not an
expert on legislative procedure."
"I offered the testimony as a proponent because we in the past have acted on
behalf of repatriation," he said. "The bill goes beyond what any other state
has, as far as we know. We had some concerns and we expressed those. This
bill clearly sets precedents. It's clear other people are watching it."
Mr. Olsen also acknowledges he prepared a January briefing report for Gov.
Martz that tears into the bill. The report warns that it will be "front-page
news" if the Anzick Collection is removed.
"Much of the good of the bill for human remains may be overshadowed by these
private collection concerns," he wrote. "Others will be alarmed by this
press notification and could take similar actions. The loss to primary
exhibits at the historical society will be evident to all visitors since
there is nothing like it to put in its place." He added that the collection
could be sold or exhibited in another state if HB165 is approved.
"It's part of our job," he said, to highlight concerns about the bill, as
well as outlining its potential benefits. "It's our job to lay out how it
impacts not only us, but the museums and private parties."
Mr. Olsen said he understands tribal concerns about burial sites, and he's
not against releasing bones where cultural affiliation can be determined.
Artifacts are another story, he said, especially with older sites where it's
difficult to know who or what came from where.
"We're here to do what we think is right, whether it's popular or not," he
explained. "We don't do things based on popularity but based on scientific
and technical information. We work hard to work with the tribes in many,
many areas, and we want to maintain those relationships."
If HB165's amendments are approved by the House and the bill is signed by
Gov. Martz, about 200 museums will be required to inventory their bones and
related objects and give lists to the burial board, the state's historical
preservation office and to all tribal governments in the state.
Parties that believe they have a claim to any of the material could file a
formal request for repatriation and a hearing process would be triggered.
Any appeals of the board's decision would be handled in state district
court.

Lobbying with the dead
In a telephone interview, Mr. Bonnichsen said he had been in contact with
historical society employees about HB165, but had not talked to Mr. Olsen
directly. Nonetheless, activism against the bill stirred up correspondence
to Mr. Grosfield and Gov. Martz from as far away as Europe and South
America, as well as across the United States.
"Personally, I have very little heart left for saying anything polite about
either the Native American Graves and Repatriation Act or any state
complements or supplements thereto," wrote Gene Galloway of Council Bluffs,
Iowa. "Native American claims to old or ancient remains under these
authorities have been largely indiscriminate, inflexible and complete. The
usual native position is that these are all 'ancestors' and generational
distance makes no difference. Their claims are emotional, religious,
politically correct and insane."
Steve Kohntopp of Filer, Idaho, adds, "I have a great respect for the dead,
but also view that it is of utmost importance that we allow scientific
examination prior to burial to help interpret our cultural past, which may
or may not include our Indian friends. They should also be interested, but I
somehow think that their decisions to seek protection under this bill helps
maintain a continuing monetary gain for their culture. How sad for all
Americans."
Other writers take a property-rights angle and question Indians' abilities
to distinguish time within their own culture.
"The threat of this unlawful taking of private property will have
devastating effect on landowners and collectors who have lawfully assembled
a collection over the years," wrote David Bobb of Ashland, Ore. "At any time
a disgruntled Native American can allege that a private citizen has illegal
objects in his possession and could have their entire collection confiscated
without due process and it would be incumbent upon them to prove these items
are not 'funerary objects.'"
"Many Native Americans do not comprehend the temporal boundaries of modern
ethnic groups," concludes Laura Miotti, an anthropology professor at the
National University of La Plata in Argentina. "As scientists, we support
Native American human rights issues. Yet, our support will not come in the
form of agreeing to destroy the record from the remote past."
Mr. Bonnichsen maintains state officials are being misled and HB165 will
stir up more problems than it solves. The Senate amendments clearly don't
address all of his concerns.
"Everyone in Montana seems to have their heads in a snowbank over this," he
said. "I think it's a dysfunctional piece of legislation that's already on
the books, and this bill would tie into that. I think it really behooves
Montana to see what's going on in the Kennewick Man case. It's going to have
a lot of impact with what happens with that legislation. I think the Montana
Legislature should wait on this bill."

Drawing the line
Despite the fact that many tribal leaders say their cultures are essentially
ageless, Mr. Bonnichsen said timelines should be put inserted in the bill so
frivolous claims can't proceed. A suitable span, he contends, would be about
1,500 years, because bones and objects older than that can't be
scientifically tied to modern tribal groups. The Senate Judiciary Committee,
however, didn't add in any historical timelines.
"There's no human culture that's lasted 12,000 years," Mr. Bonnichsen
explained. "It's really quite arbitrary, but it's tough to connect with
anything more than 1,500 years old. If there's a clear connection, I have no
problem with them being returned to tribes. But there's no way to trace
these remains to present-day people.
"I think it's a case of very well meaning people who don't know the issues,"
he added. "It's a very complicated situation. The question is how on the one
hand to be fair to Native Americans and on the other hand, how to be fair to
society. Unfortunately, we're involved with a lot of identity politics."
Tribal cultural leaders, however, take issue with white-man time clocks.
"We never asked science to make a determination as to our origins," Cheyenne
River Sioux repatriation officer Sebastian LeBeau said in a New York Times
account about the Kennewick Man conflict. "We know where we came from. We
are the descendants of the Buffalo people. They came from inside the earth
after supernatural spirits prepared this world for humankind to live here.
If non-Indians choose to believe they evolved from an ape, so be it."
"It is not for us to keep as personal property," Tony Incashola, director of
the Flathead Reservation's Salish-Pend d'Oreilles Culture Committee, says of
human remains and ceremonial artifacts. "It is not for us to study. They
need to be respected. They need to be handled properly. They need to come
home."
But according to Mr. Bonnichsen, Montanans are being led into a bad
situation.
"All it takes is one group of people to make a claim," he said, adding that
tribes here could form coalitions, as they did in Washington state. "There's
every reason to believe that same kind of behavior would happen in Montana.
The law leaves it open as to who can make claims. This thing could cost the
state of Montana a whole lot of money if the lawyers jump in. I sincerely
hope Mr. Olsen will step up to the plate on this."
But Rep. Norma Bixby, D-Lame Deer, testifying in favor of the bill at a
recent hearing, said it's time for the state to take another step toward
protecting native rights.
"To me it is a sad time when the bones and objects of our ancestors are
considered to be property," she said. "Montana needs to follow in the
footsteps of the federal government."
Shawn White Wolf, a member of the Northern Cheyenne Tribe, told lawmakers
that the main issue is respect.
"If I ever see (my mother) in a museum, if I ever see her studied on a
table, I would be devastated," he said. "I hope you won't allow that to
happen to my mother or my father."
After the Judiciary Committee pounded out the changes, Ms. Gutsche and
tribal leaders said they were still generally happy with the bill.
"I think the amendments were a good compromise," Ms. Gutsche said. "I would
have liked the Anzick Collection kept in, but the human remains still are.
HB165 fills in the gaps the current law has. Now we have ongoing protection.
In some ways, that's an example of how the legislative process works best,
with all parties getting into a room and working it out."
"This is just a difficult process, but we now have a bill I think everyone
can live with," Mr. Olsen said last week. "I've never seen a bill yet that
at the start everyone loves and holds hands with."

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