Cultural Heritage Sites - Who owns the past and who should?
Within the confines of the territory presently claimed by the United States of America a great variety of cultural heritage sites of prehistoric provenience exist, well known examples of which are large earthen mounds, pyramids, and geometric and representational earthworks. Native American, scientific and public interest in resources representing the cultural and historical heritage of the aboriginal inhabitants can conflict with rights traditionally allowed individual landowners under European law. In the case of landscape features or constructs, such as shrines, earthworks and rock inscriptions, United States law does not distinguish a public or a priori proprietary interest superseding legally sanctioned private ownership rights, providing no broad protection for cultural properties on lands sanctioned as private property. Consequently, within the United States, sites continue to be destroyed and conflicts continue, particularly where aboriginal populations survive and traditional use sites are not within areas defined as reservations by the United States.
The present situation is the product of a long history and distinct cultures and is best understood and discussed within that context. Five hundred years ago, more than 10,000 years after human settlement of the Americas began via land from Asia, Europeans discovered and eventually laid claim to all of the Americas. Initially Spain and Portugal were granted sovereignty by the Vatican pontiff. In the first areas discovered, the Caribbean islands, Spanish enslavement and destruction of the Native populations was complete. Bartolome de las Casas, a defender of Native rights and the first Bishop of Chiapas, penned the following history:
Within fifty years of contact the Spanish had explored and conquered or claimed half the Americas. In turn other European monarchies established American land holding and political dominion claims in conflict with the Native populations. The history of relations between Indians and non-Indians in the United States has been a long saga of outsiders seizing Indian lands.
When European settlers established independent political states they also laid claim to American territory and pursued territorial expansion by military imposition. The fledgling United States established the capital of the Northwest Territory on the Ohio River at Marietta, where they superimposed a grid of streets and private lots on a prehistoric earthwork complex. Where a 680 feet graded way lined with parallel, twenty foot high earthen walls 150 feet apart connects the tributary Muskingum River to the Ohio's third terrace and the earthwork complex the first Anglo settlers constructed a stockade. They established the cemetery where the greatest number of officers of the revolutionary war are said to be buried around a 30 feet high truncated conical mound and an encircling moat and embankment. At Marietta very little remains of the immense rectangular earthen enclosures and pyramidal platform mounds, and nothing remains of the aboriginal population.
In the expansionist United States, military conflicts and territorial conquest continued unabated until the twentieth century. Again Garrett Holm writes, "...native population of North America was reduced from about 20 million to 300,000 by 1890." Estimates of the population of California Indians fell from about a quarter million or more at the time of United States conquest in 1848 to 15,000 a half century later. Throughout the Americas entire tribes and languages were extincted and the Native American land base is now reduced to nearly nothing. During four centuries of conquest cultures of high civilizations were extinguished, the monuments of two continents fell into ruin, and the history of a thousand nations and ten millennia fell into obscurity.
During the twentieth century paternalism and policies of assimilation and tribal termination replaced conquest. The United States went so far as to outlaw cultural practices and to disallow use of native languages in forced education institutions. Native population began to expand. In 1924 Indians become citizens of the United States and received full voting rights in 1970. Self-governing and sovereign political status of Indian tribes is the premise upon which Indian treaties were made. United States courts have interpreted treaties and executive orders in reserving lands for Indian tribes as "tribal homelands." Ratified Indian treaties are considered valid today and Indian tribal rights of self-government have been upheld by the Supreme Court.
Conflicts continue where lands are dually claimed by surviving Indian nations and the United States government, where traditional cultural practices occur on lands claimed by the United States or held as private property, and where exploitative, tourist, recreational or public use interferes with traditional Native use. Present day conflicts are both territorial and cultural in nature. Native cultural views regarding specific monuments and mountains as sacred, inviolable natural places have recently conflicted with interests as diverse as increased non-Native site interest and visitation, scientific plans to construct an astrophysical facility, expansion plans for park facilities and recreational development plans like ski resorts. Traditional Native practices that are associated with specific places, particularly with high mountain areas and specific shrines and include meditative isolation in undisturbed nature can conflict with use by non-Natives.
The present cultural and legal landscape has been recently described by several authors. David Mayberry-Lewis writes:
"The identification of shrines and other sacred sites for purposes of historic preservation ...puts information into the public domain, and this adversely affects the confidentiality of these sites. It is a difficult choice between releasing information to protect sacred sites from development and keeping their locations a secret to protect them from exposure to non-Indians."
"...Members of the American judiciary, the federal government and even the leaders of historic religions will just have to develop more tolerance and expand their definitions of what constitutes a proper sacred place. In the end, how free are we, really, if the first religions of America cannot be protected..."
Under the Archaeological Resources Protection Act tribes must consent to excavations on their lands and if a site on federal land is of cultural importance tribes must receive notice. The Native American Graves Protection and Repatriation Act provides that burials found on public lands may be excavated only after notice and consultation with the appropriate tribe and that tribes or descendants shall have ownership of remains and cultural items from their aboriginal territory. The 1993 Religious Freedom Restoration Act provides that government activity may substantially burden a person's free exercise of religion only in furtherance of a compelling governmental interest and then only by the least restrictive means, reversing previous case law rejection of the compelling interest test. Laws can be changed and the few protections provided today depend on the political whims of the United States government.
In southeastern Arizona the San Carlos Apache people regard Dzil Nchaa Si An (Mt. Graham) as their most sacred mountain. In the 1860's Western Apaches from several bands were relocated on the San Carlos Apache reservation with orders not to leave. In 1873 Dzil Nchaa Si An was removed from the San Carlos Apache reservation by Federal executive order. By 1903 other executive orders had reduced the reservation by one million acres. When the Forest Service issued a permit to an astronomical consortium to build a testing station on Dzil Nchaa Si An they did not contact the Apaches. A native American shrine was bulldozed during the placement of this temporary station, part of a plan by an international consortium of astronomers led by the University of Arizona to build telescopes in the old-growth spruce-fir forest atop the mountain. Following a decade of conflict and debate two telescopes have been built and five more are authorized. Contrary to Apache wishes Congress simply legislated construction approval.
A variety of outcomes have resulted from similar conflicts in recent years. The White Mountain Apache have succeeded in protecting Dzil Ligayi (Mt. Baldy) from hikers and developers because they own the last mile of trail. The Navajo and Hopi nations working together were unable to block development of a ski resort on the San Francisco Peaks where ancestral shrines are situated. Forest Service plans for a tourist center at the Big Horn Medicine Wheel in Wyoming deeply offended a dozen Plains tribes. Because Big Horn Medicine Wheel is a federally recognized historic site the Forest Service was required to hold public meetings and consult with Native Americans. A compromise solution overturned initial plans for a road and visitation center with a viewing platform.
Ownership of the Black Hills of South Dakota, the ancestral sacred land to which the Lakota and Tsistsistas claim aboriginal title, remains in dispute. The Lakota and Tsistsistas possessed religious liens to Devil's Tower, Harney Peak, Bear Butte and other sites. At Bear Butte vision quests continue to be conducted despite the distraction of tourist visitation. The State of South Dakota acquired the property from private owners in 1962 and constructed roads, trails, buildings and campgrounds; resulting in much increased non-Native visitation. Indian traditional use seems more a tourist draw than a development impediment. Traditional users seeking injunctive relief from interference in free exercise of their religion were rejected by United States courts.
Sites have almost no protection when located on private property. In 1990 when the Hopi tribe learned of a threat to two shrines on Woodruff Butte near Holbrook due to gravel extraction they contacted the landowner, who promptly bulldozed the sites to eliminate their threat to his business. Disposition of cultural objects and constructs on private property is the right of possessor. Unlike in England or Mexico, present United States law provides no ancestral rights to present day Native Americans for aboriginal property on private lands. Today disputes center on public lands where some recourse or redress is possible, and then only in areas where Native Americans survive and have an active stake in the sites.
In the areas without surviving Indian populations prehistoric sites are often without defense if they survive at all. The situation in the United States is not always in conformity with present international norms for recognition of the human rights of Indigenous Peoples. The United Nations Declaration on the Rights of Indigenous Peoples articles states:
"Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs."
"Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons."
"Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts..."
Federal or state legislation protecting all archaeological resources whether on public or private lands is needed to preserve historical and cultural property for posterity and global human heritage as well as for the sake of indigenous rights. Issues of historic and cultural preservation transcend tribes, nations and borders and enactment of legislation and funding of actions that promote the preservation and protection of archeological resources throughout the world are needed, especially so considering the present day, often illicit, traffic in antiquities. All too often today the archaeological resources that can reconstruct the lost history of the Americas are sold to the highest bidder for private collection. Hopefully, in our emerging global culture, the transcendence of tribal, ethnic and national boundaries will result in an ethic that values all human heritage and the widest diversity of culture, that recognizes the interrelationship of all cultures and peoples and that views humanity as a family and the historical resources of all peoples as a priceless and irreplaceable resource and cultural asset enriching everyone and capable of enriching the future of all humanity.
Apache Survival Coalition, PO Box 11814, Tucson,