Session 5: RESPONSES IN THE ARCHAEOLOGICAL COMMUNITY TO LAW
Moderator: Thomas L. Jackson, Pacific Legacy Incorporated

Some Problems with Collective Representation in Claims to Cultural Property
Tressa Berman, Social and Behavioral Sciences, Arizona State University

Cultural property claims have focused attention on questions such as:
Whose past is represented by whom?
Who has the rights?

There is a need to rethink conceptual framework of aims and laws of museums.

Berman presents three categories of rights:

1. Rights to production
1. - U.S. Property Law- applicability of intellectual property rights
2. - Intellectual property rights question the reliance of western law
3. - Can't do anything about copyrights of cultural knowledge. This is linked to rites of passage and through kinships.
2. Use Rights
1. - This relates to context and circulation.
2. - The use rights are sometimes in conflict with other use rights.
3. Property Rights
1. - Issue of cultural patrimony.
2. - Kinship regulates claims to cultural property.

A fundamental point made is that "ownership" has different meanings in different cultural contexts. With regard to NAGPRA inventories, for example, it is not always culturally appropriate to assume that determining "ownership" of cultural materials is appropriate. European or American legal concepts of ownership imposed on Native American groups through statutes and regulations may only exacerbate the cultural schism that already exists when demands are made to ascertain "ownership" of objects and other types of property.

Who is Responsible for Archeological Collections from Indian Lands?
Don Sutherland, Archeologist, BIA

Two questions to answer:
Who is responsible for archeological collections from Indian Lands?
When are the objects collected?

Sutherland defines Indian lands:

Indian reservations- boundaries of land developed by Congress. Not all the land within exterior boundaries of reservations is Indian land. Reservation land was broken up into sections and was taken out of some Indian holdings and put into non-Indian holdings.

Therefore, the Indian land is the Indian held land within the reservation. Indian trust land is land held in beneficial trust for Indian land owners.

Finding owners of the collections starts with tracking down the landowner.

Bulk of the material from Indian lands is collected by BIA as a result of section 106 compliance, triggered by tribal requests.

Other material is collected by other federal agencies in connection with river basin studies, as well as private entities doing research.

Who is responsible for what?

Since 1906 all archeological collections work should have been done by permit. Permits covered Indian trust lands. Its possible that some archeology has been done without permits. These are covered by NAGPRA if they are in museums. Archeological materials from Indian lands belong to private land owners unless it is relinquished.

Prior to 1979- BIA collections could only be kept in a public museum. BIA remains responsible for these collections.

If no permit exists, then it would still go into a museum, unless other arrangements are made on the permit.

NAGPRA items don't have to be kept in perpetuity.

Technically, BIA is responsible for the collection of NAGPRA items from non-Indian land within the boundaries.

Museums are responsible for the post 1979 items where the materials were relinquished to the museum.

Discussion:
What about recently acquired lands taken into trust?

BIA can issue permits of removal but collections are owned by the Indian landowner.

Orphans of the Storm: Neglect of Archeological Collections and the Archeology of Archeology
Thomas L. Jackson

After 1966 an enormous number of archeological excavations were a regular part of the environmental impact statement.

Did three things:

1. Inventoried cultural objects/collections
2. Evaluated them
3. Decided the adverse affects, if any.

Parallel to this was the educational aspect and research. But there was no guarantee of curation in perpetuity. Because of this:

1. The archeological community is in a data overload. - So much raw data; not recorded or synthesized
   
2. Rationale for collections is unclear; an inconsistent paradigm
   
3. Collections are ignored by those who rely on published reports.
   - Researchers did not go to the collections to study
   them; with the exception of NAGPRA
   
4. Universities are re-excavating their collections because there is no space, no documentation, and a conservation loss.
   
5. Collection policies are a source of bad feeling among Native Americans, archeologists and museums.
   

There are two aspects of the problem:

1. How can we reduce the collections?
2. How can we address the Native American concerns?

If sites from which collections are made are not significant for the National Register, then why maintain the collections?

There are costs involved with deaccessioning.
NAGPRA has set precedent.

Possible solutions:

1. Determine significant collections
   
2. Establish consistent regulations for making and maintaining collections.
   
3. There should be some limit for researchers of 10 years.
   If a collection has not been used or consulted then have it removed according to a published process
   
4. Make sure a site is important, useful and meaningful.
   -Have carefully reasoned research designs
   -Provide truly adequate documentation of collected materials
   

Solutions to the Native American concerns:

1. We have enough information regarding sites in many geographic areas not to do subsurface testing.
   
2. Other situations should require consultation.
   From a 1995 survey, limited subsurface testing and no collection was adequate for NEHP evaluation.
   
3. Educate Native Americans on statutory and regulatory laws.

Conclusion:

• If you can't maintain the collections, then something must change.
• Funding is the problem.
• CRM needs to partner with academia and use the data.
• There needs to be Native American participation.

An Application of Optical Disc CD-ROM Technology to Museum Records
Russ Kaldenberg, Archeologist, U.S. Bureau of Land Management District Office, Sacramento, California

• Discussion of the history of BLM collections to explain why the origin of the collections is hard to find.
• There is little memory of what and where collections were collected and where they are currently located.

To do the inventory, two things must be dealt with:

1. Identify archeological collections removed from BLM lands
   
2. NAGPRA

Of the 40+ repositories that hold BLM collections:

• 95% of material has a known origin
  
• 5% of material has an unknown origin
  

Curation facilities don't know where it came from.

Discusses how they organized the purchase collections data.

There were 30 linear feet of data in paper files, the options were to duplicate, summarize, or go with cd-rom. The collection was too large to duplicate or summarize so they chose CD-ROM because it cuts down the bulk; all the information is contained on three CD-ROM optical discs.

The program is called Paper Tiger and is set in a windows environment.

Positive points of the program:

1. Provides a thumbnail view of collection photographs
   
2. Cross references collections
   
3. 600 Megabytes of information
   
4. Not Word Processing
   
5. Performs overlays without changing the document
   
6. 50 year life
   
7. Inexpensive- $10,000 for license and software
   
8. Not in a TIF format
   

Database is separate

Important note of discussion was the actual life span of CD-ROM, does it really last 50 years?
A representative from EBS-Micrographics said that she was quoting information the manufacturer had given her and was unaware of any other information about the lifespan of the CD-ROM. Diane Vogt O'Connor provided recent information that the life expectancy is actually between 25-30 years and less if the CD has not been properly stored.