June 8, 2005
| The Honorable Senators on the Indian Affairs Committee and Ohio Senators DeWine and Voinovich |
United States Senate
Washington, D.C. 20510
We write to you as the presiding officers and for the Board of Trustees of the Ohio Archaeological Council, representing the interests of professional and amateur archaeologists in Ohio, concerning a bill (its number was unavailable as this was written) that is scheduled for a hearing before the Senate Committee on Indian Affairs in early June. The new bill had its origin as Section 108 of Senate Bill 536, but was subsequently removed from that bill. Section 108 effectively altered the definition of "Native American" so as to violate the spirit of "Native American" as defined by the Native American Graves Protection and Repatriation Act (NAGPRA).
This bill seeks to change the definition of "Native American" from "...of or relating to, a tribe, people, or culture that is indigenous to the United States" to "...of or relating to, a tribe, people, or culture that is or was indigenous to the United States." The importance of the exclusive use of the present tense in the original definition was determinative in the Kennewick Man case. Magistrate Judge Jelderks concluded, based on this definition, that Kennewick Man must have a demonstrable relationship to an existing cultural group in order to be subject to NAGPRA. To suggest that Kennewick Man has no such relationship to any particular existing group is not to claim that he is unrelated to any extant Indian tribes, or that he is not "Native American" in a common, or anthropological sense of that term. But the legal definition of "Native American" for the purposes of NAGPRA was intended by Congress to restrict its application to protecting the human rights of existing Native Americans. The proposed addition of the words "or was" reflects an attempt to expand NAGPRA beyond its human rights objective in a way that will interfere with scientific efforts to learn from ancient human remains that are either unrelated to any living person or group, or are related to all living Native Americans and so should not be subject to potential repatriation to any particular group.
Moreover, the revised definition of "Native American" would encompass any possible pre-1492 Asian, Norse, or Polynesian human remains that might someday be found in the United States as well as (and even more likely to occur) human remains from previous migrations to the Americas that were unsuccessful, and were therefore not ancestral to modern Native Americans. Considering any of these cases as "Native American" for the purposes of NAGPRA would constitute an absurd result and would clearly go beyond Congress's intention to protect the human rights of living Native Americans. Certainly any effort to so drastically alter Congress's original intent in this matter should be undertaken with more deliberation than this proposed legislation is being accorded. The hearings for this proposed legislation have been scheduled with too little notice and with insufficient regard to a full consideration of the views of all interested parties.
If enacted, this alteration, which appears subtle and even benign in nature, will have a dramatic and deleterious effect upon the ability of scientists to conduct scientific studies of ancient human remains. We assert that the current definition of "Native American" contained within the NAGPRA legislation already serves to adequately identify the human and cultural remains of those peoples whom it was designed to protect, those with a demonstrable link to modern descendant groups. We urge that you not support this bill.
Finally, we request that this statement be included in the record of testimony related to this bill and that we be provided with confirmation that it has been so included.
Robert V. Riordan, Ph.D.
President, Ohio Archaeological Council
Professor of Anthropology
Wright State University
Elliot M. Abrams, Ph.D.
President-Elect, Ohio Archaeological Council
Professor of Anthropology
On behalf of the Board of Directors, I want to thank all of you who wrote to U.S. Reps. Nunes (Chairman), Christensen (Ranking Minority member), and other members of the U.S. House Subcommittee on National Parks, Recreation and Public Lands, the U.S. House Committee on Resources, Chaired by Rep. Pombo, or your U.S. Representative concerning the draft bill pertaining to the National Historic Preservation Act (NHPA) Amendments of 2005, a hearing for which was held on April 21, 2005. A bill has yet to be introduced concerning these amendments, but soon it is expected that one will be because the NHPA is up for reauthorization this year, thus providing an opportunity for legislators who want to change the Act.
On behalf of the OAC I faxed a letter to Reps. Nunes and Christensen informing them of problems with Section 4 of the draft bill, asking them to reject it. The letter is on our website in the news section.
Thanks to ASC Group, Inc. President Shaune Skinner, I am working on an American Cultural Resources Association (ACRA) committee, of which ASC Group is a member firm, educating U.S. Reps. on the Subcommittee about the NHPA and the effects of the draft amendments. I will endeavor to keep the OAC's Board of Directors, the Govt. Affairs Committee, and the membership current with accurate information concerning this matter. Expect to hear from me in the not too distant future. Although Ohio does not have any Reps. on either the Subcommittee or the full Committee (on Resources), and ACRA is focusing its attention on the states that do, there will again come a time for all of us to act.
For those of you who aren't familiar with what our friends on the right from the left coast are trying to do, they are proposing, under the guise of preserving private property rights, to have Section 106 of the NHPA apply only to historic properties listed in on formally determined eligible for listing in the National Register of Historic Places (NRHP) by the Secretary of the Interior, through the Keeper of the NRHP who, not coincidentally, was recently removed from her position by the Bush Admn. Not considering such properties on federally funded, licensed, and permitted projects pursuant to Section 106 of the NHPA will result in no more Phase I or Phase II archaeological investigations and the destruction, without consideration by federal agencies, of hundreds of thousands of significant archaeological sites, not to mention other types of historic properties such as buildings, battlefields, TCPS, etc. Conversations between ACRA's leadership and the Subcommittee staff make it clear that it is the desire of our friends on the right to limit the number of historic properties that must be considered by Section 106.
Please stay informed about this matter. You can do so by reading the hot topics section on the opening page of ACRA's website, www.acra-crm.org, where you can also read a copy of the draft bill.
A note about the difference between lobbying vs. educating. As a 501c(3) nonprofit organization, the OAC is prohibited by law from lobbying (e.g., contributing $ to campaigns, endorsing or advocating for candidates). We educate (inform legislators, express our views, etc.).
Here's a summary of the draft NHPA Amendments of 2005
The NHPA is up for reauthorization this year and parts of a draft bill reauthorizing it was the focus of a hearing by the U.S. House Subcommittee on National Parks, Recreation, and Public Lands on April 21. The OAC supports reauthorization of the NHPA but there are sections of the draft bill that we do not feel are constructive and we are working to see that they are not part of an eventual bill. The parts of the draft bill that we do not support are:
Section 2. Owner Participation in NRHP Nomination Process. This section would change the current process allowing an owner to object to the actual listing of his or her property to a system that aborts the entire process. Presently, if an owner objects to their property being nominated, which can be done by anyone, the property will not be formally listed but will be considered as to whether it meets the NRHP criteria as determined by the Keeper of the NRHP. Under the proposed change a property could not even be evaluated/considered if an owner objected to its being nominated. Though, in fact, very few properties are proposed for nomination in which the owner objects, this change would undermine the concept of the NRHP as a list of properties significant in our history at the local, state, and national levels. The current system is a reasonable compromise between honoring the desires of the property owner and allowing for the consideration of whether a property meets the NRHP criteria.
Section 3. Additional Criteria for Certification of Local Governments to Carry out the NHPA. This section addresses a supposed link between NRHP listing and local historic zoning. Local historic zoning, like all land use regulation, is a local matter. While there may be some jurisdictions in which NRHP listing is used as a "trigger" for local zoning, this is unusual. There are ample provisions to protect the due process rights of property owners in all jurisdictions that administer historic zoning ordinances. Adding this legislative provision to the NHPA would be an unwarranted federal intrusion in a prerogative of state and local government.
Section 4. Consideration of Effect of Federal Undertakings. This provision, the one that the OAC commented to Reps. Nunes and Christensen on, would undermine the process for considering the effects to historic properties from federal undertakings. The provision would limit the process to properties that have been formally listed or determined eligible for listing by the Secretary of Interior, through the Keeper of the NRHP. This would alter the present system in which federal agencies, in consultation with each State Historic Preservation Office (SHPO), evaluate properties to be affected by a federal undertaking to determine whether an affected property meets the NRHP criteria, called a consensus determination. In every state only a minority of properties that meet the NRHP criteria have actually been listed or formally determined eligible for listing by the Secretary of Interior. The determination of eligibility by consensus enables unlisted historic properties to be considered in federal undertakings while allowing agencies to proceed with project planning on a timely basis. The proposed change would result in either historic properties being disregarded by federal agencies or in costly delays while evaluated properties are submitted to the Secretary of Interior for a formal determination. This process would at best add months to the planning required for approving federal undertakings and it most likely would be impossible for the Department of Interior to perform this function for the entire country.
April 19, 2005
| The Hon. Devin Nunes, Chairman |
House Committee on Resources
Subcommittee on National Parks
186 Ford House Office Building
Washington, DC 20515
| || The Hon. Donna Christensen, Ranking Member|
House Committee on Resources
Subcommittee on National Parks
187 Ford House Office Building
Washington, DC 20515
Dear Chairman Nunes and Ranking Member Christensen:
Re: Proposed National Historic Preservation Act Amendments of 2005.
On behalf of the Ohio Archaeological Council, I write to inform you about some of the problems with Section 4 of the Amendments, "consideration of effect of federal undertaking," and strongly urge you and the Subcommittee to reject it.
The Ohio Archaeological Council is a private, non-profit corporation registered with the State of Ohio in 1975 as a charitable, scientific and educational organization of over 125 individual archaeologists and museums promoting the advancement of archaeology in Ohio.
In enacting the National Historic Preservation Act (NHPA) of 1966, as amended, Congress found and declared that
"the increased knowledge of our historic resources, the establishment of better means of identifying and administering them, and the encouragement of their preservation will improve the planning and executing of Federal and federally assisted projects and will assist economic growth and development."
Section 4 of the proposed Amendments is antithetical to the "…establishment of better means of identifying…" the nation's historic resources and to "improv[ing] the planning and execution of Federal and federally assisted projects [that] will assist economic growth and development."
Section 4 of the proposed Amendments would limit Federal agencies to only considering historic properties that are listed in or formally determined eligible for listing in the National Register of Historic Places (NRHP) at the time the Federal agency determines that it has an undertaking pursuant to Section 106 of the NHPA. An undertaking is an activity with the potential to affect historic properties. This limitation would prohibit Federal agencies from considering hundreds of thousands if not millions of historic properties that are neither listed in the NRHP nor formally determined eligible for listing in the NRHP by the Secretary of the Interior because the Federal agency would not be permitted to examine the project area to identify historic properties that are not currently listed in or formally determined eligible for listing in the NRHP. In addition, the hundreds of thousands of historic properties already informally determined eligible for listing in the NRHP by Federal agencies through the process known as consensus would be prohibited from being considered on Federal undertakings.
Most of the properties determined eligible through Section 106 of the NHPA are determined eligible through an identification process that results in the Federal agency consulting with State and/or Tribal Historic Preservation Officers (HPOs) to determine if a property meets the NRHP criteria for evaluation, the criteria used to determine if a site, building, structure, district or object is eligible for listing in the NRHP. If the Federal agency and the appropriate State and/or Tribal HPO agree that the property meets the NRHP criteria for evaluation, the property becomes eligible by what is known as a consensus determination of eligibility. Then the Federal agency continues to consult with the appropriate State and/or Tribal HPO, and possibly other consulting parties such as local governments, the sponsor of the project, and local concerned citizens to resolve any adverse effects on the historic property that will be caused by the Federal undertaking. This process of determining NRHP eligibility by consensus is a different, and often less time consuming and less costly process than nominating such properties to the NRHP, a process outside of Section 106, or seeking an opinion from the Secretary of the Interior on eligibility.
The heart and soul of the Section 106 process is 1) the process of identifying previously unidentified historic properties that are eligible for listing in the NRHP and that will be affected by a Federal undertaking, and 2) the process of consulting with state, local, and tribal authorities in this identification process. Section 4 of the proposed NHPA Amendments of 2005 would end these processes resulting in the needless destruction hundreds of thousands if not millions of historic properties important to local communities, states, and the nation, and needless delays in the approval of Federal undertakings, further delaying economic growth and development.
Please reject Section 4 of the proposed Amendments, "consideration of effect of federal undertaking."
Alan C. Tonetti
Chair, Government Affairs Committee
The OAC membership met at the end of October in Dayton, at the Boonshoft Museum of Discovery. During the business meeting the revisions to the OAC’s Code of Regulations, which constitute our organization’s bylaws, were approved. The morning was highlighted by three papers, and the afternoon’s program was something of an experiment. Earlier in the year, OAC Trustee Al Tonetti had suggested a format in which three presentations that would expectably have a wide public appeal would be invited and locally advertised. He then wrote a grant request to the Ohio Humanities Council, which in turn partially funded the session. Presenters Frank Cowan, Lynn Simonelli and Bill Kennedy, and Bob Genheimer all provided accessible and very interesting talks, and after each there was interaction with the nice-sized public contingent who were in attendance. The dialogue was then moved to the SunWatch site, where more than a dozen people were given a focused guided tour. The next membership meeting of the OAC will be on May 13, 2005 in Columbus.
This winter is turning out to be an exciting time for those interested in publications on Ohio and Ohio-related archaeology. The papers from the OAC’s Historical Archaeology conference in 1998 were given a final edit by Don Ball and have just been published jointly with the Ohio Valley Urban and Historical Archaeology conference as vol. 18 of Ohio Valley Historical Archaeology. Copies of the volume, which are being shipped to OHS for our distribution, are priced at $25. The OAC is reprinting the 1996 Hopewell conference A View from the Core volume, edited by Paul Pacheco, and will include an errata sheet compiled by Brian Redmond. This will be an edition of 400 copies, and should be available in late winter 2005. Then there is Brad Lepper’s new book entitled Ohio Archaeology, lavishly illustrated and priced at $39.95 from Orange Frazer Press and available in January 2005. This represents the print portion of Tom Law’s/Voyageur Media Group’s multimedia project of the same title; I understand that Tom’s three videos on Ohio archaeology will begin to be shown in January. Another quite sumptuous and noteworthy volume is Hero, Hawk and Open Hand: American Indian Art of the Ancient Midwest and South ed. by Richard Townsend, in paperback and hardcover from Yale and the Art Institute of Chicago. It includes essays by OAC members Lepper and Mark Seeman, and it is a must-have particularly for those interested in Woodland and Mississippian cultures. Ohio Hopewell is also the subject of a new book now available from the University of Akron Press that is sure to raise a great deal of discussion: A. Martin Byers’ The Ohio Hopewell Episode. Finally, there is the forthcoming volume in January 2005 from the Ohio Historical Society on recent archaeological work at the Fort Ancient site, edited by R. Connolly and B. Lepper. All of this exposure of our subject and our work, especially in books designed to appeal to the informed public, is surely good for both the future health of our discipline and also the archaeological resources that we seek to interpret and preserve.
12 October 2004
Board of Directors
Society for American Archaeology
900 Second Street, N.E.
Washington, D.C. 20002-3557
As President and President-Elect of the Ohio Archaeological Council (OAC), representing the interests of both professional and amateur archaeologists in Ohio, we wish to express our concern with the SAA Board of Director's recent opinion with reference to S. 2843, the Native American Technical Corrections Act sponsored by Senator Ben Nighthorse Campbell. This amendment is intended to redefine "Native Americans" such that all Pre-Columbian skeletal materials will de facto be classified as ancestral to historical and contemporary Native Americans.
In the opinion of the Board of Directors of the OAC, some of the earliest skeletal data from this continent may not be directly related to contemporary Native Americans. The U.S. government's finding that the Kennewick skeleton may be most closely related to the ancient Ainu of Japan is a stark reminder of the need to study skeletal remains with the most open of minds, a founding principle in science. Although we appreciate that the SAA opposes the amendment on technical grounds, we are concerned that the "SAA is not opposed to the substance of this proposed amendment" (SAA webpage). Please note that the OAC is opposed to the substance of this proposed amendment.
The SAA, representing over 7,000 archaeologists, has an obligation to protect the archaeological record with all of its power and influence. Objecting to this proposal solely on technical grounds sends a very weak message. Even if the proposed amendment is delayed or returned to committee, we cannot be so naive as to think this will be the last effort of those determined to suppress scientific inquiry. That is why this is exactly the moment when the SAA should be making its most passionate defense of the study of unaffiliated skeletons, bearing in mind that the letter and spirit of NAGPRA does not encourage the return of unaffiliated skeletons. Although the OAC is a strong proponent of NAGPRA as it exists, we do not support the proposed amendment which would clearly alter NAGPRA as we know it.
We hope that the SAA Board of Directors considers our opinion and reformulates its own opinion as to the substance of S. 2843, now or in the future.
Robert V. Riordan
President, Ohio Archaeological Council
Elliot M. Abrams
President-Elect, Ohio Archaeological Council
The program, Interpreting Our Past: A Conversation Between Archaeologists and the Public, is designed for you to engage Ohio Archaeological Council member archaeologists in a conversation about how they develop interpretations about the people and cultures of Ohio's past. Examples from recent and current archaeological research at important archaeological and historical sites in southwestern Ohio will be used in the discussion.
The program features three 10-minute presentations with accompanying handouts, each followed by 20 minutes of questions, answers, and comments between the audience and the archaeologists focusing on how they interpret what they find.
This special program will occur the afternoon of October 30, 2004, from 1:15 to 3:00 PM in the Tait Auditorium of the Boonshoft Museum of Discovery, 2600 DeWeese Parkway, Dayton, Ohio. Following this program, you may go on a one-hour tour of the nearby reconstructed SunWatch Indian Village and Archaeological Park to further your understanding of interpreting archaeological sites, concluding the afternoon's activities.
This program is made possible in part by the Ohio Humanities Council, a state affiliate of the National Endowment for the Humanities.