Holly BaldwinUndergraduate Research Thesis

May 2013

Repose and Responsibility: an in-depth look at the process, challenges, and

considerations for the Maryland Commission on Indian Affairs-Maryland Historical

Trust Working Group on Native American Human Remains.

On November 2, 2007, a process for “Consultations Regarding

the Disposition of Culturally Unidentifiable Native American

Human Remains in the Possession, Custody or Control of the

Maryland Historical Trust” was put forth in a joint effort by the

Maryland Historical Trust and the Maryland Commission on Indian

Affairs to fulfill a request from the Maryland Department of

Planning (MHT.org, 2007). This process outlined the challenges

and aspects of the collaborations that would need to be

addressed, such as how the Working Group on Native American Human

Remains would be comprised, the laws and regulations that must be

considered, the specifications for the Appropriate Places of

Repose, and how the consultation process would be developed

(MHT.org, 2007). Out of this, the Maryland Commission on Indian

Affairs-Maryland Historical Trust Working Group on Native

American Human Remains was created.

Through the creation of this group, representatives selected

by the Maryland Historical Trust and the Maryland Commission on

Indian Affairs were able to work together outside of the court

system to make decisions about the collection of 131 pre-contact

Native American remains. Specifically, these decisions were about

the potential for the remains to be put back into the earth in a

place and manner that would satisfy the desires of both the

Maryland Indian communities and the laws of archaeological

preservation. This research will look at how this case does, and

does not pertain to the Native American Graves Protection and

Repatriation Act, why and how this group was developed, and the

unique process of unified decision making employed by the group.

In conclusion, it will be noted how the group’s success reflects

the notion that North American archaeology would be better served

if issues pertaining to control of remains and artifacts were

kept out of the court system whenever possible.

Cultural affiliation and consultation legislation:

To understand how the case in Maryland is significant and

unique, a brief overview of the most prominent legislation

concerning control of Native American archaeology, the Native

American Graves Protection and Repatriation Act, would serve us

well. While the Maryland collection of remains does not fall

directly under this law, it is subject to complexities from this

law that were taken into account before the Working Group on

Native American Human Remains was formed (Consultations…MHT.org,

2007). The Native American Graves Protection and Repatriation

Act (NAGPRA) became law in 1990. Among other purposes, it is

specifically designed to establish policies and procedures for

the repatriation, or return of control, of “…Native American

human remains, funerary objects, sacred objects, and objects of

cultural patrimony” to American Indian, Native Hawaiian, and

Native Alaskan tribes as long as the tribes are federally recognized,

and the artifacts are deemed culturally affiliated to the tribe

(NPS.gov, accessed 2/10/13). Federal recognition and cultural affiliation

are two parts of this legislation intertwined together that keep

the remains of the Maryland Historical Trust collection from

being repatriated.

The United States government currently only recognizes 566

tribes under the Bureau of Indian Affairs as eligible to place

requests for repatriation of artifacts and remains (Federal

Register: 8/10/12). This leaves a significant portion of the

population of people, whom claim to have Native rights, without

the use of the repatriation process. While this may seem like a

large number of tribes, this recognition does not extend to all

peoples or tribes that self-identify as Native American, nor does

it extend to remains whose cultural affiliation is technically

known, but not federally recognized. Cultural affiliation is

defined by NAGPRA as “A relationship of shared group identity

which can be reasonably traced historically or prehistorically

between a present day Indian tribe or Native Hawaiian

organization and an identifiable earlier group.” [25 USC 3001

(2)] (NPS.org, 2013). Currently, the state of Maryland does not

have any federally recognized tribes. Therefore, the remains and

artifacts in the collection in question, all having been found in

Maryland, are considered culturally unidentifiable because they are not

associated with any federally recognized tribes or organizations

(Consultations, 2007). Maryland’s stance on consultation with

local tribes regarding Native American remains has been similar

to the federal opinion, with policies beginning in 1989

(MHT.org). State regulations support transfer of remains that can

be culturally affiliated to tribes that meet the federal

requirements for repatriation, are recognized as tribes by the

state, or, is a group that is considered by the Maryland

Commission on Indian Affairs and the Maryland Historical Trust as

“likely to meet Maryland’s recognition criteria” (Consultations,

2007). It was agreed that there was not enough evidence to

support cultural affiliation between any of the remains and a

group that met the state criteria for transfer (Consultations,

2007). While the remains may lack cultural affiliation from a

federal stand-point, it does not mean that they are all without

cultural connections.

Of the 181 individuals in the MHT collection, 50 of the

remains, all coming from the Accokeek Creek site in Prince

George’s county Maryland, have been considered culturally

associated as Piscataway/Conoy since they have been under the

control of the Maryland Historical Trust (Consultation, 2007).

During the considerations of the Working Group on Native American

Human Remains, it was determined that “All of the remains

currently in the MHT collection are culturally unidentifiable for

the purposes of NAGPRA.”(Consultations, 2007) However, in 2012,

Mayor Martin O’Malley signed into legislation the state

recognition of two Native American tribes that are considered

local to Maryland: the Piscataway Indian Nation and the

Piscataway Conoy (MCIA, accessed 2/10/13). This state recognition

was considered a major step for the Piscataway tribes and helped

to legitimize their tribal standing in Maryland. This state

recognition also opened the door for the Maryland Historical

Trust to use the process set-forth through NAGPRA to begin

possible disposition of the remains (Charlie Hall- State

Terrestrial Archaeologist & Maureen Kavanagh-Chief Archaeologist-

personal correspondence, 2013). Disposition is a precedent that

has been set by previous cases in other regions that have used

the consultation process of NAGPRA with federal and state

recognized tribes to transfer control of the remains to

culturally affiliated tribes that are not federally recognized

(Consultations, 2007). Through this, NAGPRA’s relevance to the

Maryland collection may have changed, but not enough to negate

the need for negotiations made through the working group.

Essentially, while NAGPRA tries to spell out how control of

remains of indigenous groups should be handled, the circumstances

of the Maryland case did not meet the criteria.

On opinions of control:

Differences of opinion vary between archeologists and Native

Americans on control and stewardship of human remains (Thomas,

2000) (Killion, 2007). To an archaeologist, human remains can be

a window not only in the life of an individual, but can also be a

reflection of an entire culture that can provide significant

information about the daily lives of past people. Anthropologist

Clement Meighan shares his philosophy on the study of remains:

“The astounding new methods for medical and genetic research on

ancient populations require a piece of the bone-pictures and

notes won’t do.” (Meighan, 1992:207). In his view, the importance

of research of the remains justifies the need to keep remains out

of the ground and in a lab. Yet, to many Native Americans, the

remains of an individual are an important part of the community,

revered as part of the ancestor that continues to be linked in

harmony with the community while interred in the earth.

Anthropologist and Native American James Riding In expressed his

views in this way: “I sometimes refer to my work in repatriation

as liberation research. Those of us who participate are trying to

liberate the spirits of those ancestors who have been stripped

from Mother Earth, from where our ancestors thought would be the

final resting place of their loved ones, and put in institutions

such as the University of Nebraska where they were treated so

terribly” (Riding In, et al. 2004:173). While these opinions are

just two of many, it is obvious how polarized the subject can

become. Since interest in North American archaeology began, these

differences in meaning have lead to differences of opinion in if

and how data from these remains should be collected, and who

should have the final say in those decisions.

It is sometimes difficult to find conclusions that satisfy

all desires because there is not only a layer of personal

opinions and vested interests from both researchers and Native

Americans, but also policies and laws that have been created

throughout the twentieth century to protect the rights of those

involved and the remains themselves. Not only are there federal

laws regarding appropriate actions with remains that are believed

to be Native American, there are also state policies that vary

based on the Native American representation in that state and the

precedence of cases regarding Native American remains that

influence the policies. While these policies have done much to

bring the archaeological and Native communities to a better place

of understanding, the fact remains that the policies do not

account for every perspective or every instance where questions

of meaning and control are raised. When a situation arises that

cannot be guided by the policies alone, collaborations between

Native Americans and archaeologists is the most thorough and

fruitful way for questions about study and control of the remains

to be addressed. This can be a tedious process that must involve

frank discussion, patience on both sides, and the openness to

compromise (Claude Bowen, President of the Archaeological Society

of Maryland-personal communication, 2013). The MCIA/MHT Working

Group on Native American Human Remains is a good example of how

collaboration efforts can be kept out of the court system, while

at the same making decisions that satisfy differing opinions of

how Native American human remains should be cared for, and the

law.

Since 1994, the Maryland Historical Trust had housed the

“culturally unknown” collection of remains in their control at

the Jefferson Patterson Park and Museum in the Maryland

Archaeological Lab in Calvert County, Maryland. This had been

designated as an “interim” place of repose with the knowledge

that someday a solution considered more acceptable by the

Maryland Indian communities would be found. An Appropriate Place

of Repose was a regulation that was created in order to ensure

the care of Native American remains in control of the Maryland

Historical Trust, and is, in essence, a negotiation between the

preferences of the Maryland Indian community about the treatment

of their ancestors, and the need for the Historical Trust to keep

control of the remains because of federal and state laws. This

place is designated by the Department of Planning and the storage

of the remains has strict requirements that must always be

followed. An Appropriate Place of Repose must be “solely for the

disposition of human remains, not open to public view, and not

accessed except as required by law to ensure against loss,

deterioration, or damage” (consultation 2007). The regulations

also state that the remains must not be “intermixed by ethnicity,

descent, or place of discovery”, and must be “available for

removal for the purpose of transfer” (consultation 2007). When

considering the possibility of placing the remains back into the

ground as a more permanent Appropriate Place of Repose, the

Historical Trust and the Commission on Indian Affairs had to

consider these regulations. While repose in the earth was not out

of question, stipulations would have to be made in order to

ensure that all regulations already in place would be met

(consultations 2007). The likelihood of agreement regarding

placing the remains back in the ground would be the main issue

put forth to the Working Group on Native American Human Remains.

They were given one year to create a group, a process of

meetings, and decide if the process would result in reaching

consensus (consultation 2007).

Before decisions could begin to be made, the Maryland

Historical Trust and Maryland Commission on Indian Affairs had to

appoint designees for the Working Group. The Secretary of

Planning proposed that both the Commission and Trust would assign

no more than 5 members each to the Working Group. For the

Commission, these designees could include “commissioners, persons

of the various regions within the State, and others, as deemed

necessary or desirable by the Commission” (consultations 2007).

For the Trust, designees could include “The Trust’s Chief

Archaeologist, A representative of the Office of Preservation

Planning and Museum Programs, a designee of the Maryland Advisory

Council on Archaeology,…a designee of the Council for Maryland

Archaeology, and a designee from the Archaeological Society of

Maryland” (consultations 2007). Once the parameters for the

designees were assigned, comments from the public were invited to

be put forth to the Trust and the Commission from September to

October 17, 2007. 116 comments were received, and ranged from the

topics of concern for adequate representation of the Maryland

Indian community on the group, to how disagreements would be

handled in the meetings, to how future cases of remains in the

custody of the Trust might be handled (Comments 2007). These

comments showed the Commission and Trust what the concerns of the

public would be regarding this issue, and helped to clarify the

intent and prospects of the Working Group before it began

meeting. On October 2, 2008 the Working Group on Native American

Human Remains held its first meeting.

The first few meetings of the Working Group were some of the

most critical for setting the tone of the meetings. From the

first meeting, heavy emphasis was placed on the individuals of

the Group getting to know one another and understanding one

another’s opinions on control of remains and interment (Oct 2,

2007 minutes). The members achieved this in both a direct and

indirect way. Directly, the second and third meetings involved

presentations given by the members of the Group on their own

thoughts and feelings of the issues. Speakers on Native

spirituality, DNA analysis and physical anthropology were also

brought in to expand the knowledge of the group. The members also

got to know each other indirectly by sharing meals together.

Every meeting involved a meal, which was seen by members of the

Working Group as very important to creating an atmosphere of

understanding (Hall & Kavanagh -personal communication, 2013).

The Working Group was embarking on a unique task of

consultation and collaboration, and for that, they needed a

unique way of making decisions that would achieve results and

keep each individuals voice equal. Influenced by the meetings of

the Quaker Religious Society of Friends, the Working Group

outlined a process of consensus that facilitated both unanimous

decision-making and individual expression of will (What is

Consensus?, 2007). The purpose of consensus is to reach decisions

that everyone in the group agrees upon while also allowing each

person’s reservations and concerns to be considered in an equal

manner. “Under consensus the group takes no action that is not

consented to by all group members” (WIC?, 2007). In this way,

just one individual has the ability to block consensus. Consensus

is based on four principles: responsibility, respect,

cooperation, and creative conflict. It is seen as the

responsibility of each individual to use their rights to object

or block consensus in a manner that is serious and respectful

toward the goal of the group. It is also seen as an individual’s

responsibility to allow the other group members to help satisfy

any objections (WIC? 2007). In the same vein, individuals are

expected to respect the validity of someone’s objection and to

react accordingly through acceptance of the objection, or ways of

satisfying it (WIC? 2007). Cooperation in consensus is about

keeping the group on positive ground and “looking for ingenious

resolutions”, or “next-most-acceptable alternatives” (WIC? 2007).

As the goal is unanimity in decision-making, individuals are

discouraged from arguing for their own will and instead

encouraged to look for common ground (WIC? 2007). The last

principle of creative conflict highlights the importance of

allowing the group to take the time to work through disagreements

to find a resolution rather than letting an individual change or

withdraw their objection to avoid the conflict (WIC? 2007).

“Seemingly irreconcilable differences can be resolved if people

speak their feelings honestly and genuinely try to understand all

positions (including their own) better.”(WIC? 2007). Consensus

placed a deliberate emphasis on understanding the differences

between the individuals in the group, but also emphasis on

creating a group that would work as a cohesive unit to make

decisions. Without the adoption of this process by all parties,

the success of the Working Group was probably highly unlikely

(Hall & Kavanagh, 2013).

Meetings of the Working Group were held from 2008 to 2012.

During that time, many concessions were made on both sides that

led to the final decisions of where and how the remains in

question would be placed back into the earth. The adoption of

consensus was the beginning to many critical decisions of

unanimity by the Group. The first decision highlights made were

that all of the remains in the collection would be put back into

the ground in “conditions that resemble those of the original

interment” on “protected” lands that were preferably owned by the

state (Statements of Consensus, 2012). It was also stipulated

that there would be four designated Appropriate Places of Repose

in each of the four cardinal directions so that the remains could

be put in close proximity to their corresponding geographic

origin, and that a place at Jefferson Patterson Park and Museum

would be designated for the geographically unknown remains (SoC,

2012). The availability of these sites to the Maryland Indian

community for ritual and spiritual purposes would also be ensured

(SoC, 2012). Once these things had been put forth as statements

of consensus, the Working Group could begin to consider other

aspects of finding Appropriate Places of Repose, such as the

specific requirements of designated places that would ensure

availability, security, and preservation. During this time, they

also began to examine possible lands suggested by the Department

of Natural Resources and the Secretary of Planning. Even though

the remains were being put back into the ground, it is important

to note that they were not, in fact, being reburied. Reburial would

imply permanence and release of control by the Maryland

Historical Trust. However, neither of these situations are the

case. In order for federal and state laws to be satisfied, the

Trust is required to maintain control of the remains, and thus,

ensure their preservation as adequately as possible. This meant

that the requirements for specific Appropriate Places of Repose

would satisfy those preservation and control needs, so that the

remains could essentially be curated in the ground (Hall &

Kavanagh, 2012). One of the major requirements involved staffing

of the site where the Place of Repose would be monitored every

day to meet security needs. Other natural requirements of the

land that are conducive to preservation were open areas free of

trees and adequate drainage. Long-term planning for the area

itself was another large requirement, as the remains would most

likely be in the custody of the Maryland Historical Trust for

some time. Through time, effort, and many visits to potential

sites, the Working Group was able to reach a consensus regarding

all Appropriate Places of Repose and was able to suggest those

places to the Secretary of Planning. All of the remains, with the

exception of the Accokeek Creek remains discussed earlier, have

now been placed on those designated lands.

Implications from the Working Group:

In this particular case, finding an Appropriate Place of

Repose seemed to only change the place of storage. No studies

were being done and no one came forward to examine them during

the study period. Yet, the potential for study of the remains

with future advanced research methods has been made highly

unlikely. The allowance of future study by the Indian community

may seem impossible, but there is always the chance that the

future leaders of the community may decide that further

scientific study of some of the remains would be beneficial.

While the present community feels this would be highly unlikely,

their decisions in the present holds more power over the

decisions of the next generations than they may realize. Just

like the relationship between Indians and archaeologists is fluid

and dependent on different levels of trust between individuals in

specific cases, feelings from the Indian community toward

destructive analysis, such as DNA testing, is not contingent upon

a” Pan-Indian” opinion that is shared by all. Collaboration with

archaeologists that includes destructive analysis is not an

unheard of occurrence in all instances (Thomas, 2000). Even

though steps for preservation of the remains were taken, the fact

is that in order for the bones to be moved, they must be dug up.

This is time consuming, costly, and, most significantly,

potentially hazardous for the remains. The older the remains

become, the less integrity there is in their composition and the

more likely they are to be damaged when moved or handled.

There are significant implications for the future of

indigenous consultation that can be seen from the case in

Maryland. The importance of keeping consultation regarding human

remains out of the court system cannot be stressed enough.

Prominent cases have shown that while laws and regulations

regarding Native American human remains are needed to protect all

parties rights involved, the process of judicial decision-making

does little to advance the relationships of archaeologists and

Native American communities. Cultural affiliation has become the

topic of some heated debates, including the prominent case of the

almost 9000 year old “Kennewick Man/Ancient One” in 1996

(Bruning, 2006: 503). After much disagreement between

archaeologists, the U.S. Army Corp of Engineers, and Pacific

Northwest Coast tribes, Kennewick Man/Ancient One was deemed by

the court as culturally unaffiliated to the indigenous communities

asking for his remains to be repatriated. Control of the remains

was turned over to anthropologists for study. In essence, based

on the archaeological, biological, and ethno-historical evidence,

no definite connection could be established between Kennewick

Man/Ancient One and any of the modern federally recognized

communities. While closure was reached, some would say that there

was also a cost in invoking the court system to reach a final

decision. The Native communities involved were left with a

feeling of further distrust toward the scientific community. And,

while the scientists may have won their initial argument, future

strain on native and archaeologist relationships may prove

harmful to the goal of creating a more complete and comprehensive

archaeological record. The Society for American Archaeology

expressed their concern in a statement that was released during

the case: "The recent debate over the remains of Kennewick

Man...has done little to foster a reconciliatory relationship,

rather it has probably done more to polarize the issues" (SAA,

1998). This case helped to facilitate a deeper understanding of

how cultural affiliation should be defined, but, over 15 years

later it is still seen as a hard fought battle between the

government, Native communities, and anthropologists. In contrast,

the parties involved in the Working Group in Maryland were able

to make many decisions that required concessions from all sides,

but in the end, created more harmony and trust between the

archaeologists and the Maryland Indian communities. The Working

Group’s process brought a dynamic approach that will hopefully

become more typical of consultations between archaeologists and

Native Americans. As research from many different voices is

becoming more mainstream, both indigenous and scientific

perspectives are helping to expand the North American

archaeological record. While this type of collaboration may

change the curation of Native American remains, what we will see

through efforts like those in Maryland is not a loss of bones in

museums or labs, but the growth of relationships between Native

communities and archaeologists that will open the door to greater

knowledge and more interest in the care and keeping of the past.

The most positive aspect of the Working Group is that all parties

involved care deeply about the treatment and preservation of the

collection in question, and their ability to harness that care

and concern into a successful collaborative process is

encouraging to the future of Maryland archaeology and national

consultation procedures.

References:

Bruning, Susan B. 2006 Complex Legal Legacies: The Native American Graves Protection and Repatriation Act, Scientific Study, and Kennewick Man. American Antiquity 71: 501-521.

Government of the United States of America 2012 Federal Register 77:155 8/10/12.

Killion, Thomas2007 “Opening Archaeology: Repatriations Impact on Contemporary Research and Practice” School for Advanced Research Press,

Maryland Historical TrustMinutes of Working Group on Native American Human Remains http://mht.maryland.gov/archeology_collections.html (accessed 2/10/13)

Maryland Historical Trust (Consultations)2007 Consultations Regarding the Disposition of Culturally Unidentifiable Native American Human Remains In the Possession, Custody, or Control of the Maryland Historical Trust.

Maryland Historical Trust (WIC?)2007 What is Consensus?

Maryland Historical Trust & Maryland Commission on Indian Affairs2007 Comment Report: Draft Discussion Document Regarding the Disposition of Culturally Unidentifiable Native American Human Remains In the Possession, Custody, or Control of the Maryland Historical Trust.

MCIA-MHT Working Group on Native American Human Remains (SoC)2012 Statements of Consensus Regarding the Appropriate Place of Repose for Native American Human Remains Currently in the Care ofthe Maryland Historical Trust.

Meighan, Clement W.1992 Some Scholars’ Views on Reburial. American Antiquity 57:704-710

National Park Service, USA Archaeology Law and Ethics: http://www.cr.nps.gov/archeology/PUBLIC/publicLaw.htm (accessed 2/10/13)

Personal Correspondence with members of the Working Group on Native American Human Remains: March 2013-April 2013Maureen KavanaghCharlie HallClaude Bowen

Thomas, David Hurst2000 “Skull Wars: Kennewick Man, Archaeology, and The Battle for Native American Identity” Basic Books, New York, NY.

Riding In, James, Cal Seciwa, Suzan Shown Harjo, andWalter Echo-Hawk2004 Protecting Native American Human Remains, Burial Grounds, and Sacred Places: Panel Discussion. Wicazo Sa Review 19:169-183

Society for American Archaeology1998 http://www.burkemuseum.org/kman/anthropologists (accessed 2/10/13)