News from OAC

Heilman and Lepper Receive 2008 OAC Board Awards

Archaeologists J. Heilman and Bradley Lepper received awards for their service to Ohio archaeology at the OAC fall membership meeting in Newark on November 1. 

J. HeilmanJ. (James M.) Heilman received the OAC Board's award for "Significant contributions to the advancement of Archaeology in Ohio."  Heilman served as Curator of Anthropology for the Dayton Museum of Natural History (later the Boonshoft Museum of Discovery) from 1969 until 2000.  In that capacity, he made significant contributions to archaeological research, preservation, public education, and the development of cooperative relationships with Native Americans. He directed archaeological investigations at sites in Darke, Greene, Miami, Montgomery, and Preble counties.  His most notable work focused on the Incinerator Site, later to become famous as SunWatch Village .  Between 1969 and 1992, he directed the investigation of SunWatch, which, due largely to his efforts, was preserved by the City of Dayton and ultimately recognized as a National Historic Landmark in 1990. Heilman was recognized in 1985 with the Public Education and Awareness Award from the Ohio Historic Preservation Office and the Ohio Historical Society.  In 1989, the Ohio Arts Council / Ohio Humanities Council selected his work at SunWatch as their most exemplary project.


Bradley LepperBradley Lepper received the OAC's Public Awareness Award in recognition of significant contributions to the advancement of Archaeology in Ohio.  The OAC Board cited Dr. Lepper's efforts toward the nomination of several Ohio Hopewell sites to the list of World Heritage sites as well as his regular column on Ohio Archaeology in the Columbus Dispatch as significantly increasing the public's awareness of Archaeology and Ohio's prehistoric heritage.  



Find Jobs in Archaeology!

Today the OAC initiates a new "Career Opportunities" section of the website.  Here you will find current advertisements for Archaeology/Anthropology positions in Ohio.  This new feature includes listings for academic positions, as well as CRM job opportunities.   Just click on "Career Opportunities " in the Main Menu.
Academic, Museum, and CRM employers in Ohio are encouraged to send information to be posted.  Position descriptions and information  should be submitted in Word format, and images as jpegs.  E-mail files as attachments to This email address is being protected from spambots. You need JavaScript enabled to view it..  Please indicate the preferred ending date for your post.

Remembering Olaf Prufer (1930-2008)

       Olaf Herbert Prufer died of cancer on July 27, 2008.  Olaf was a well-known and respected professional archaeologist, and a major contributor to the study of Ohio’s prehistoric past for over forty-five years.  He spoke 6 languages and wrote 16 books or monographs and over 140 articles and book reviews, many of them on Ohio archaeology. He loved animals (especially cats), respected competence, and did not suffer fools gladly.
     Olaf Prufer was born in 1930 and lived a privileged, but not necessarily a happy, childhood.  For the curious, there are published pictures of little Olaf on an outing in the Bavarian countryside and also arriving in Rio de Janeiro as his father assumed the role of Hitler’s ambassador to Brazil (McKale 1987).  It is hard to recognize him without his khaki bush jacket.  After the war and an interesting stint in India, which included his first formal work in archaeology, Olaf was singled out by the Old World Paleolithic archaeologist Hallam Movius (remember the Movius Line) for attention and professional development.  Courtesy of Movius, Olaf arrived at the door of Harvard University in Cambridge, Massachusetts with a young Indian wife and no high school degree in 1955.  While at Harvard, he excelled as a Thaw Fellow, and was intellectually influenced by many notable anthropologists, working directly with Clyde Kluckhohn and Stephen Williams after a stormy falling out with Movius, the latter a devote Episcopalian.
     In 1959 and while still a Ph.D. student at Harvard, Olaf came to Ohio to assume a position at the Cleveland Museum of Natural History with an additional lectureship at the former Case Institute of Technology (now Case Western Reserve University).  The social pathways to these positions were informal and would not stand the critical eye of a contemporary Affirmative Action officer.  The Ohio connection to the Cleveland Museum and Case provided the geographic base for Olaf’s two-volume dissertation on Ohio Hopewell which was accepted in 1961.  This work was massively descriptive, and although it served as the basis for several articles and his monograph on Ohio Hopewell ceramics, it always has been difficult to directly access.  It is full of useful information even by today’s standards.
     Based on practical experience in both Bavaria and India, Olaf initiated his first project in Ohio with a major field component in 1959.  The focus was on Palaeo-Indian (note the preferred OHP spelling).  Following the path charted by Ronald Mason to the north in Michigan, Olaf began to assemble distributional, typological, and raw material data from Ohio artifact collectors and the major public repository, the Ohio State Museum.   At the time, Prufer developed strong and real connections to the amateur/collector community that were probably more genuine than the professional connections extending at the time to the Ohio State Museum and its then curator, Raymond S. Baby.  Prufer had established an intellectual beachhead in Cleveland that called into question the traditional archaeological authority of Columbus in a very real way.  His drive, resourcefulness, charisma, and breadth of intellect went way beyond that which was available in Columbus at the time.  Although Baby was a second author on the classic Palaeo-Indians of Ohio (1963), his contributions did not extend much beyond providing access to the collections of the Ohio State Museum—“Baby’s Little Kingdom”—as Jimmy Griffin called it.  This uneasy relationship continued for some time as Olaf built a research base in Cleveland with a number of loyal students and collaborators such as John Blank, C. Owen Lovejoy, Douglas McKenzie, Oriol Pi-Sunyer, Orrin C. Shane, III, and others.  Palaeo-Indians of Ohio represented a work with a data base and scope that was decades ahead of any other work on the subject in eastern North America.  The connections it provided to the local community served as the basis for subsequent Palaeo-Indian workshop and habitation site excavations such as McConnell (1963), Mud Valley (1966), and Welling (1970).   The tone once again was on ample description and minimal theorization, hallmarks, Prufer felt, of what a useful archaeology should be.   Some of the Palaeo-Indian work was funded by research grant money received from the National Science Foundation; in fact, Olaf received six NSF grants, a feat that never has been duplicated by another Ohio archaeologist (and probably never will).
     The most important phase of Olaf Prufer’s career was undertaken in the Scioto Valley of southern Ohio beginning in 1963.  Here he initiated a program of survey and excavation that culminated in the excavation of the McGraw site in Ross County, Ohio.  McGraw was the archetype Hopewell hamlet and the linchpin of the “vacant center” settlement model, both of which are still strongly attached to his name (Prufer 1965).  The settlement system-orientation and focus away from the excavation of mortuary mounds is very notable, as is the multi-disciplinary analyses that characterized the McGraw report.  The corn discovered at McGraw and analyzed by Hugh Cutler and Richard Yarnell caused all sorts of problems.  The McGraw work was presented in a more synthetic context to a popular audience a year earlier, along with Olaf’s interpretation of Hopewell ceremony (Prufer 1964).  Although the direction of this Scioto Valley work seems to strongly reflect the Young Turk values of the of the “new archaeology” as espoused at the time, Olaf’s actual intellectual allegiance was much more with Gordon R. Willey (Viru Valley survey) than with Lewis Binford.  After all, Olaf’s birthright was Harvard and not Chicago.  Alva McGraw, a towering 230 lb. figure of a Scioto valley farmer, entrepreneur, and amateur archaeologist, and more importantly, a good friend to OHP, remarked that during that time “Olaf could drink more for a little man than anyone he had ever seen.”
     After McGraw, Prufer turned his attention to the numerous rockshelters of eastern Ohio.  This class of archaeological site largely had been ignored since the time of W.C. Mills.  Prufer saw them not only as a self-contained, finite, and manageable data source (with poison ivy rather than scorching sun), but as a logical way to pursue the question of what happened to Hopewell and what precipitated a “Dark Age” of apparent Late Woodland cultural stagnation and accompanying intensive rockshelter occupation in the uplands.  Chesser Cave was the major excavation (Prufer 1967).  The results of this work brought him again squarely up against Baby in reference to concepts such as a Peters phase (Prufer) versus a Cole tradition (Baby) (Prufer and McKenzie 1966:250; see also Dancey and Seeman 2005).  At the time, Olaf did not appreciate the depositional complexity of shallow Ohio sandstone shelters, but corrected some of his initial interpretations in his recent review of that work (Spurlock, Prufer and Pigott 2006). 
     Coincident with excavations ongoing at rockshelter sites such as Rais and Wise, largely under the control of graduate students or colleagues, Olaf initiated another large scale excavation at Blain Village, an early Fort Ancient site in Ross County (Prufer and Shane 1970).  It was the first large-scale Fort Ancient excavation since WPA days.  Focusing on the ceramics, Prufer boldly reworked the classic McKern-inspired scheme for the Late Prehistoric period in the Ohio Valley that had been developed by James B. Griffin.   Prufer reformed the taxons according to his impression of localized variability into the tradition/phase classification of Willey (here is Willey again) and Phillips (1956).  This brought a predictable reaction from Griffin and others (e.g., Schambach 1971).  The fact that subsequent to the Blain report, Ohio-area archaeologists continue to refine, debate, and argue about the appropriateness of several alternative models for this period makes clear the difficulties involved in working out these relationships, some of which are certainly the result of trying to compare materials collected in the 1880s to those collected in the 1980s. 
     Olaf Prufer’s last major archaeological field work came in 1970-1972 with the excavation of the Libben site, a huge Late Woodland cemetery in Ottawa County, northwestern Ohio.  After a long hiatus filled with administrative and teaching duties, Olaf had begun to work these materials up for publication approximately two years before his death and  he was well on the way to finishing something he considered his final professional responsibility.  The Libben site data has proven to be a central collection for our understanding of early maize-farming paleodemography and paleopathology in eastern North America (e.g., Lovejoy et al. 1977; Lovejoy et al. 1990).
     Prufer was concerned with the general flow of culture history in Ohio rather than any particular problem, and wrote on matters pertaining to all of the recognized subdivisions.  Most recently, he had turned his attention to developments within the Archaic, which he considered tremendously under-researched.  He kept his hand in this for a long time, with regular surface collections at the Lukens Hill site close to his Kent residence.  Conceptually, he was influenced strongly by William Ritchie’s vision of a Laurentian Archaic or “lake-forest” adaptation.  When efforts by another area archaeologist to pull together a volume of papers on this topic began to flag, Olaf took control, and published his own summary, bringing with him many of the papers intended for the initial treatment (Prufer, Pedde, and Meindl 2001).  Dr. Prufer could be patient only to a point, after which he moved with his typical dispatch and energy.
     Olaf Prufer never attended a meeting of the Ohio Archaeological Council, and he had a notable dislike for some of the founding members of the organization.  He was never a friend of CRM and he was proud to remark that his pet parrot, Horace, had the good taste to give one of the original OAC members a nasty bite.  His influence on the organization, however, and Ohio archaeology in general is undeniable, not just through his research, but also in his teaching and support.  As many in our organization can testify, Olaf could always give a stem-winder of a lecture and he to some extent took refuge in this ability towards the end of his life.  All he needed were three or four words quickly written on a note card before class in his precise, dainty handwriting to launch forth into the stratosphere for an hour or so.  His cutting wit and steel-trap mind will be missed by his friends and students, and I think, even his detractors.  There is no doubt that Olaf’s wrath could fall mightily on the unjust, and a prime example would be his discussion of the ethical shortcomings played out at the South Park site (Prufer 1998).  On the other side of the coin, if you were a loyal friend of Olaf you had a better one in return.                                                                 

References Cited

Dancey, W.S., and M.F. Seeman

2005     Rethinking the Cole Complex: a Post-Hopewellian Archaeological Unit in Central Ohio.  In Woodland Period Systematics in the Middle Ohio Valley, R. Mainfort and D. Applegate, eds., pp. 134-149.  University of Alabama Press, Tuscaloosa.


Lovejoy, C.O., R.S. Meindl, T.R. Pryzbeck, T.S. Barton, D. Kotting, and K.G. Heiple.

1977      The Palaeodemography of the Libben Site, Ottawa County, Ohio.  Science 198:291-293.


Lovejoy, C.O., K.F. Russell, and M.L. Harrison.

            1990 Long Bone Growth Velocity in the Libben Population.  American Journal of Human Biology 2:533-541.


McKale, D.M.

1987 Curt Prüfer: German Diplomat from the Kaiser to Hitler.   Kent State University Press, Kent.


Prufer, O.H.

1963 The McConnell Site:  A Late Palaeo-Indian Workshop in Coshocton County, Ohio.  Cleveland Museum of Natural History, Scientific Publications, n.s. 2(2):1-51.


Prufer, O.H.

1966 The Mud Valley Site: A Late Palaeo-Indian Locality in Holmes County, Ohio.  Ohio Journal of Science 66(1):68-75.


Prufer, O.H.

The Hopewell Cult.  Scientific American 211(6):90-102.


Prufer, O.H.

1965 The McGraw Site: A Study in Hopewellian Dynamics.  Cleveland Museum of Natural History, Scientific Publications, n.s. 4(1):1-144.


Prufer, O.H.

            1967 Chesser Cave: A Late Woodland phase in the Hocking Valley, Ohio.  In  Studies in Ohio Archaeology, O. Prufer and D. McKenzie, eds., pp. 1-63.  The Press of Western Reserve University, Cleveland.


Prufer, O.H.

            1998 Response to David Brose on a Review of his South Park Village Report and Related Matters: Some Suggested Corrections.  North American Archaeologist 19(3):197-199.


Prufer, O.H., and R.S. Baby

Palaeo-Indians of Ohio.  The Ohio Historical Society, Columbus.


Prufer, O.H., and D.H. McKenzie

1966 Peters Cave: Two Woodland Occupations in Ross County, Ohio.  Ohio Journal of Science 66(3):233-253.


Prufer, O.H., and O.C. Shane, III

Blain Village and the Fort Ancient Tradition in Ohio.  Kent State University Press, Kent.


Prufer, O.H., and N.L. Wright

1970 The Welling Site (33Co-2): A Fluted Point Workshop in Coshocton County, Ohio.  Ohio Archaeologist 20(4):259-268.


Prufer, O.H., S.E. Pedde, and R.S. Meindl, eds. 

2001 Archaic Transitions in Ohio & Kentucky Prehistory.  Kent State University Press, Kent.


Schambach, F.F.

1971 Review of Blain Village.  American Anthropologist 73(6):1402-1404.


Spurlock, L.B., O.H. Prufer, and T.R. Pigott, eds.

2006 Caves and Culture: 10000 Years of Ohio History.  Kent State University Press, Kent.


Willey, G. R. and P. Phillips

1958 Method and Theory in American Archaeology.  University of Chicago Press, Chicago.




OAC Comments on Using Archaeological Resources for the Public Benefit

 The following comments were electronically submitted to the Adivsory Council on Historic Preservation. The OAC's Board of Directors, and the Education, Native American Concerns, and Government Affairs Committee's all had the opportunity to provide input.

July 13, 2008

Dr. Tom McCulloch

Office of Federal Agency Programs

Advisory Council on Historic Preservation

1100 Pennsylvania Avenue, N.W., Suite 803

Washington, DC 20004


Dear Dr. McCulloch:

Re. Draft ACHP Policy Statement “Using Archaeological Resources for Public Benefit, including Education and Heritage Tourism”

    The Ohio Archaeological Council is a private, nonprofit, charitable, scientific, and educational membership organization incorporated with the state of Ohio in 1975 to promote the advancement of archaeology in Ohio through research, education, and consultation with government agencies and the public.  We are pleased to have this opportunity to submit comments on the ACHP's draft policy statement on “Using Archaeological Resources for Public Benefit, including Education and Heritage Tourism.”

    Regarding the “use of the policy statement,” we believe that owners of archaeological sites, be they public or private, should be listed among those for whom the statement intends to provide guidance.  Because the vast majority of land in Ohio, as in the United States, is privately owned, and the vast majority of archaeological sites are located on private property, we believe the ACHP should encourage the private sector, as well as public agencies, to adopt this policy when considering opening archaeological sites for education and heritage tourism programs. 

    Regarding "balancing use of archaeological properties in tourism and education with privacy concerns," we believe “balance” should not result in permanently denying public access to archaeological sites on public land.  Completely denying such access is antithetical to the National Park Service's definition of "archaeological properties" used in the ACHP’s draft policy statement:  "the place or places where the remnants of a past culture survive in a physical context that allows for the interpretation of these remains" [italics added].  Native American and other ethnically affiliated archaeological sites that are permanently closed to public access are unavailable for the most meaningful type of interpretation, where direct, first-hand experience is attained.  The exclusivity implied by accommodation of religious interests would appear to be in violation of the constitutionally mandated separation of church and state.  We believe "balance" should be reflected in site interpretation or special and possibly restricted access on particular days of religious significance only when absolutely necessary.

    We believe the policy statement needs a stronger introduction.  The introduction should unequivocally endorse heritage tourism as an important way for people to connect with the living past and as a means of providing an economic context encouraging local communities to support the preservation and interpretation of archaeological properties, and archaeological research on those properties.  Furthermore, the introduction should more fully address the use of archaeological sites and the role of archaeologists in educating the public about science and culture.  In doing so, we suggest adding a separate subheading titled “Education and Archaeology” that complements the one for “Heritage Tourism and Archaeology.”

    In the section on “Heritage Tourism and Archaeology,” “other means of interpreting" archaeological sites should not be mentioned exclusively in the context of cases where access to the physical site is withheld (for reasons of responsible stewardship).  Sites do not interpret themselves, and the ACHP should encourage "electronic 'virtual' tours, exhibits, film, offsite interpretations, and other methods" as essential components for the interpretation of all sites.  Indeed, the ACHP should encourage that such interpretation be made available in multiple languages to facilitate international heritage tourism as exemplified in the UNESCO World Heritage site program.

    We recommend numbering the principles and their guidance.  It is easier to refer to “Principle 1” rather than a phrase or sentence describing it.

    We agree with the principles.  In particular, we believe the fourth principle, “Responsible public interpretation for education or tourism includes current scholarship,” is critically important, though we prefer the phrase “archaeological research” to “scholarship,” the latter of which we believe connotes academia to much of the public.  Much archaeological scholarship takes place outside academia, e.g., in a cultural resource management setting.   

    The guidance for the first principle includes the statement “The science of archaeology can foster a greater understanding of and appreciation for peoples and cultures of the past as well as the traditions, events and places valued by living peoples today.”  This is certainly true.  We suggest following this sentence with “It also fosters a better understanding of and appreciation for the work of scientists, the scientific process, and the role of science and scientists in modern society.”  Adding this sentence would amplify the message of using archaeology as an educational tool.

    Although we strongly agree with the fourth principle, we suggest the term “scholarship” be changed to “research from archaeological investigations.”   As stated above, we make this suggestion because we believe many people associate “scholarship” only with academia, and we want to convey the idea that other forms of current archaeological work or research, e.g., archaeological investigations conducted under the rubric of cultural resources management, often contribute to a better understanding of archaeological sites and should be included in “responsible public interpretation.” 

    The guidance for the fifth and final principle includes the statement “Both the excavation in the first place, as well as future stewardship of the archaeological site and resulting collections, needs to be determined prior to it being excavated as a part of a heritage tourism or public education program.”  This is true.  However, we are concerned that this sentence conveys the unintended message that “excavation equals archaeology, the goal of which is to amass collections of artifacts,” a message we believe the public should not be left with.  Leaving the public with this impression may encourage people to dig archaeological sites, perhaps for the sole purpose of acquiring collections, without proper supervision.  Furthermore, excavation is not the only form of participatory archaeology in which the public can be successfully engaged.  Many activities, including background research, geophysical survey, controlled surface collections, the processing of cultural materials, site monitoring and interpretation, etc., can be successfully undertaken as part of a participatory archaeology program.  Therefore, we suggest that the sentence be rewritten stating “Before the participatory archaeological activity is undertaken as part of a heritage tourism or public education program, it should be determined if the activity is appropriate.  The appropriateness of the activity should be determined by evaluating its impact against a site management plan.”

    Again, thank you for the opportunity to provide our comments. 


On behalf of the Ohio Archaeological Council,

Alan C. Tonetti


Chair, Government Affairs Committee

Ohio Archaeological Council

P.O. Box 82012

Columbus, OH 43202


Results of the 2008 OAC Member Survey Summary

I’d like to thank all the members that participated in this survey and apologize for the initial glitches with the online format. We received many diverse responses—there is a lot of valuable information to digest and discuss. The summary below serves as an overview and was presented at the Spring 2008 Membership Meeting on May 16. A complete set of questions and the compiled answers can be downloaded in PDF format.


Section I. The OAC’s Mission

The overwhelming majority responded that the OAC's mission is still relevant (90%). 


Section II.  Membership Services and Participation

Part A. Activities

This section posed a series of questions on the activities either currently undertaken by the Board or activities that have been discussed within the past year. Major areas covered were Government Affairs, Education/Public Outreach, and Professional Services. The majority (70+%) responded that each activity was somewhat to extremely important. There was no mandate to drop activities—only to add activities.


Part B. Grants, Awards and Scholarships

Part B posed a series of questions regarding the current grant program and future changes to grants as well as the possibility of creating a scholarship program.

The majority responded that the grant program should not be expanded and that a scholarship program should not be developed. Expansion of grants: Respondents=32; Yes 37.5% (n=12), No 62.5% (n=20).  Scholarship program: Respondents=33; Yes 36% (n=12), No 64% (n=21).

Interestingly, people said they would be willing to donate at least $25/year to a scholarship program. Respondents=32; Yes 57.5% (n=19), No 42.5% (n=13).

The majority of respondents supported developing an award for the best student paper presented at an OAC conference or biannual meeting. Respondents=35; Yes 86% (n=30), No 14% (n=5).

Part C. Member Participation

Part C asked a series of questions designed to gather information that could be used to address possible changes in the Code of Regulations and to increase participation.

The respondents were split nearly 50/50 on whether the Code of Regulations should be amended to allow Associate members to serve on committees even though they do not have the right to vote; ultimately the majority said no. Respondents=33; Yes 45.5% (n=15), No 54.5% (n=18).

The majority responded that the Code of Regulations should be amended so that Trustees are elected to serve as chairs of specific committees rather than being elected on an at-large basis. Respondents=30; Yes 73% (n=22), No 27% (n=8).

The respondents did not have a clear preference on when meetings should be held. Respondents=34; Fridays 23.5% (n=8), Saturdays 23.5% (n=8), Alternating Fridays/Saturdays 6% (n=2), Does Not Matter 47% (n=16).

64.5% said they would be willing to pay more in dues (usually no more than an additional $15).


Part D.  Fund Raising

This series of questions focused on gaining membership input on fundraising ideas.

Good ideas on fund raising. 67% of respondents felt the OAC should produce "marketing" tools like t-shirts, mugs, etc., to "enhance visibility" and raise funds.


Part E. Publications

The Board is exploring ways to produce future publications.

Four options were presented. A majority supported a and d:

a) Hold a special conference every two or three years on a theme or time period resulting in the publication of a volume or book similar to the first three published by the OAC.

d) Develop an occasional publication series of monographs presenting the results of important CRM archaeological research, theses, dissertations, etc.

67% said they would serve on a publications committee, but only 31% would be willing to be a technical editor.


Part F. Ohio Archaeology Month (OAM)

50/50 split of respondents in terms of whether or not they had offered their services for an OAM event. The majority of respondents had not attended an event they were not involved in creating. Those who had participated in OAM had overwhelmingly positive experiences whether putting on or just attending an event. Low public attendance and the need for better advertising were, however, noted by the respondents.




OAC Comments on NAGPRA Rule for the Disposition of Culturally Unidentifiable Human Remains


January 6, 2008


Dr. Sherry Hutt

Manager, National NAGPRA Program

National Park Service

Docket No. 1024-AC84

1849 C Street, NW (2253)

Washington, DC 20240


Re:  RIN 1024-AD68, proposed rule regarding procedures for the disposition of culturally unidentifiable human remains in the possession of museums and Federal agencies pursuant to the Native American Graves Protection and Repatriation Act.


Dear Dr. Hutt:

The Ohio Archaeological Council (OAC) is a private, non-profit, charitable, scientific, and educational membership organization whose mission is to promote the advancement of archaeology in Ohio.  The majority of our members are professional archaeologists working in private, for-profit cultural resource management firms and private and public sector, non-profit universities, museums, and government agencies, some of which are defined as museums and Federal agencies in the Native American Graves Protection and Repatriation Act (NAGPRA).  The institutions with which our members are associated contain hundreds of thousands of students, faculty, and members.  The culturally unidentifiable human remains and associated funerary objects that are the subject of the proposed rule are of vital importance to the collective missions of these institutions, including physical anthropologists, physicians, and forensic scientists who teach at associated medical schools, universities, and colleges.  On behalf of the Board of Directors and members of the OAC, I offer the following comments opposing the Secretary of the Interior’s (SOI) proposed rule regarding the disposition of culturally unidentifiable human remains and associated funerary objects.   


The OAC supports the positions taken by the Society for American Archaeology (SAA) and the American Association of Physical Anthropologists (AAPA) opposing the promulgation of the proposed rule.  The OAC is in agreement with our colleagues that promulgation of the rule is likely to severely damage the generally positive yet somewhat tenuous relationships that NAGPRA has fostered between Native Americans and the scientific community, one positive result of Congress’ thoughtful effort to balance scientific and cultural interests when it enacted NAGPRA.  The following comments are intended to supplement those submitted by the SAA and the AAPA.

The SOI does not have the authority to issue the proposed rule.  The SOI cannot promulgate a rule that, by regulatory fiat, amends NAGPRA regarding the disposition of culturally unidentifiable human remains and associated funerary objects.  Only Congress can amend the law.  NAGPRA does not authorize taking culturally unidentifiable human remains and associated funerary objects from museums and Federal agencies and giving them to culturally unaffiliated Indian tribes and Native American groups.  When Congress was crafting NAGPRA, it received divergent opinions concerning such matters from Indian tribes, museums, and the scientific community.  At that time agreement was unattainable, so Congress requested that the Review Committee provide Congress with recommendations regarding this issue.  The only language in NAGPRA that addresses this matter is where the Review Committee is charged with the task of “compiling an inventory of culturally unidentifiable human remains that are in the possession or control of each Federal agency and museum and recommending specific actions for developing a process for disposition of such remains” [25 U.S.C. 3006(c)(5)].  The Review Committee provided recommendations recognizing the legitimacy of traditional cultural and scientific interests, and to this day no consensus has emerged.  Congress did not find the Review Committee’s recommendations compelling enough to amend NAGPRA.  Congress did not authorize the SOI to develop a rule by which the disposition of culturally unidentifiable human remains and associated funerary objects would be required.  Furthermore, our colleagues note that despite the SOI’s assertions to the contrary, the rule may violate the Fifth Amendment takings clause of the United States Constitution.  Promulgation of this rule could result in years of costly legal challenges that could threaten the constitutional basis of NAGPRA itself. 


The proposed rule asserts control over cultural material not covered in NAGPRA.  Contrary to the original intent of NAGPRA, the proposed rule is not restricted to culturally unidentifiable Native American human remains.  It appears to encompass all culturally unidentifiable human remains in museums and Federal agencies, even those where there is no evidence connecting the human remains to Native Americans.  The proposed rule defines culturally unidentifiable human remains as “human remains and associated funerary objects in museum or Federal agency collections for which no lineal descendant or culturally affiliated Indian tribe or Native Hawaiian organization has been identified.”  The rule does not specify that the human remains also must meet the legal definition of Native American to be considered culturally unidentifiable.  As noted by our colleagues, the proposed rule’s broadening of the intent of NAGPRA appears to be an attempt to circumvent the Ninth Circuit Court’s ruling in the Kennewick Man case, which restricted the legal definition of Native American to ancient groups with a clear cultural connection to a modern tribe.  The proposed rule also appears to apply to human anatomical collections of Native American origin and otherwise that medical schools use for training physicians, nurses, forensic scientists, and other medical personnel.  This was not the intent of Congress when it enacted NAGPRA.


The proposed rule does not conform to the principles of agreement proposed by the Review Committee.  The Review Committee's 1999 Draft Principles of Agreement Regarding Disposition of Culturally Identifiable Human Remains acknowledged "...the legitimate public interest in the educational, historical, and scientific information conveyed by those remains and objects (25 U.S.C. 3002 (c); 25 U.S.C.3005 (b))."  By ignoring legitimate educational, historical, and scientific interests, the proposed rule makes a mockery of Congress’ intended balancing of divergent interests.  As the AAPA wrote,

NAGPRA works because it recognizes the legitimate interests of Indian tribes in their ancestral remains and the legitimate interests of science and the broader public in gaining knowledge about our common human heritage from archaeological and physical anthropological studies of human remains. 

Furthermore, the proposed rule is inconsistent with the SOI’s support for the Ninth Circuit Court’s ruling in the Kennewick Man case.  In a 2005 NAGPRA oversight hearing before the Senate Committee on Indian Affairs, Paul Hoffman, the Department of the Interior Deputy Assistant Secretary for Fish and Wildlife and Parks, stated,

As previously stated, in Bonnichsen the Ninth Circuit concluded that congressional intent was 'to give American Indians control over the remains of their genetic and cultural forbearers, not over the remains of people bearing no special and significant genetic or cultural relationship to some presently existing indigenous tribe, people, or culture.'  We believe that NAGPRA should protect the sensibilities of currently existing tribes, cultures, and people while balancing the need to learn about past cultures and customs.  In the situation where remains are not significantly related to any existing tribe, people, or culture they should be available for appropriate scientific analysis.


The proposed rule confers "binding legal force" to the Review Committee's actions that were explicitly withheld under NAGPRA.  Under NAGPRA, the Review Committee was established to "advise Congress and the Secretary on matters relating to these regulations and the Act," but all actions of the Review Committee were "advisory only and not binding on any person" (43 CFR Part 10 §10.16).  In the House Report on NAGPRA, this point was reaffirmed:  "The [House] Committee concurs with the Justice Department comments that section 7 does not accord binding legal force to the Review Committee's actions" (H. R. Report No. 101-877, p. 4375).  Under the proposed new regulations, however, the disposition of unidentifiable human remains must meet guidelines established by the Review Committee and any disposition agreement for unidentifiable human remains first must be reviewed by the Committee.  Thus, the proposed rule attempts to enlarge the role of the Review Committee beyond that which Congress specifically intended.


The proposed rule may lead to results antithetical to the original intent of NAGPRA.  The proposed rule will result in the transfer of culturally unidentifiable human remains and associated funerary objects in museums and Federal agencies to Indian tribes and Native American groups that have only a tenuous, if any, cultural or other connection with them.  In the proposed rule, final disposition of culturally unidentifiable human remains and associated funerary objects is enabled largely through the mechanism of requiring the disposition of these cultural materials to Indian tribes and Native American groups whose claims are based solely on some sort of cultural relationship to a region in which the materials were found, or simply to the region in which a museum is located.  The term "cultural relationship" is not defined in NAGPRA.  Unlike the NAGPRA defined term "cultural affiliation," an Indian tribe or Native American group could claim a cultural relationship with human remains and funerary items without showing a demonstrable cultural connection to these materials.  Thus, the proposed rule facilitates a result expressly unintended by Congress, the final disposition of human remains and associated funerary objects to culturally unaffiliated Indian tribes and Native American groups. 


The proposed rule is impractical because it cannot be comprehensively and fairly implemented without a substantial increase in NAGPRA grant funds to museums and Federal agencies, the funding for which is unlikely to be appropriated by Congress in the foreseeable future.  The proposed rule’s consultation requirements are so broad that they are unreasonable and financially burdensome.  Our colleagues have determined that the unfunded mandate placed on museums and Federal agencies is likely to cost hundreds of millions of dollars.  According to the proposed rule, under penalty of law museums and Federal agencies are required to consult with an unknown and perhaps unknowable number of officials and religious leaders from Indian tribes and Native American groups claiming a cultural relationship to a region.  Additionally, museums are burdened by the requirement that they document the more than 825,000 funerary objects associated with culturally unidentifiable human remains.  Contrary to the provisions of NAGPRA, the proposed rule recommends the repatriation of these objects.  Furthermore, the provision in the proposed rule that allows museums to maintain culturally unidentifiable human remains in their collections is irrational and impossible to meet.  The only basis in the proposed rule for a museum to retain possession of culturally unidentifiable human remains is for the museum to “prove that it has a right of possession, as defined at §10.10(a)(2).”  However, the provision referenced requires showing that consent was obtained from the next of kin or from a culturally affiliated Indian tribe or Native Hawaiian organization, which, of course, is a requirement that cannot be met for human remains that are culturally unaffiliated.  This provision is so illogical that, as our colleagues suggest, it appears to be a conscious effort on behalf of the SOI to end the scientific study of culturally unidentifiable human remains, a result that is unacceptable to the OAC.



Lynn Simonelli