I do not know how most of them conceived of the soul or of what happened when they buried their dead. And yet I would be troubled by knowing that researchers could dig up their bones. I would not necessarily forbid it (if I had the power), but I would be troubled. And I think that I would be close to infuriated if researchers claimed that they were pursuing such disinterring for my benefit. So must many native peoples feel. How Does One Define Affiliation?

Key to the legal strength of NAGPRA as well as the broader implications that is has for the practice of the different sub-disciplines of anthropology, including archaeology, is the concept of affiliation. The law spells out how affiliation can be established. As cited in Ousley, Billeck, & Hollinger (2005) NAGPRA specifies that "a finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed."

NAGPRA also stresses that the record for affiliation can contain gaps. This was an essential part of the background of the law because the history of the native peoples in the United States almost guarantees that there will be gaps in the affiliation record. This does not mean that there will be gaps in the lived sense of affiliation. The law also contains the following language (again, as cited in Ousley, Billeck, & Hollinger (2005):

Evidence of a kin or cultural affiliation between a present-day individual, Indian tribe, or Native Hawaiian organization and human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by using the following types of evidence: geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion. (p. 9).

The above comes down to the following: Often a person may feel a connection to a tribe or band that exists because of family stories, or because of the angle of cheek bones, or because a family have lived in a particular part of the world for time out of mind. All of these are valid possible signs of affiliation. But to determine for the law whether any of these things is a valid sign of affiliation requires that they be considered as part of the whole.

Kennewick Man

One of the most storied cases that has arisen after the passage of NAGPRA was that of a skeleton found accidentally in Washington. This skeleton, which was nearly complete, became known as the Kennewick Man and was estimated by the scholars who initially (and briefly) studied it dated it to dated between 5600 and 9650 years ago.

Native peoples in the area claimed that they could have the skeleton because it was affiliated with them. Scientists claimed that the bones were sufficiently different that there was no clear biological link and that there were simply no other types of evidence in terms of cultural artifacts. There was no collection of evidence, no totality to consider. There were only the bones: An argument about who could claim this particular past had to arise from the skeleton alone.

The legal case that ensued from this skeleton (which ended with the skeleton being given to experts to study on the grounds that affiliation has to be proved, not simply assumed) is usually held up as an example of how NAGPRA can cause precisely the kind of acrimony that it was meant to...

The following suggests some of the questions that this discovery raised and how they expanded to the corners of the profession:
…archaeology has always been dominated by those who waved 'science' in front of us like an inexhaustible credit card." According to Thomas, "[A]lthough limited parallels do exist between the fight over the Kennewick bones and the evolutionist-creationist struggle, the pivotal issue at Kennewick is not about religion or science. It is about politics. The dispute is about control and power, not philosophy. Who gets to control ancient American history -- governmental agencies, the academic community, or modern Indian people?" (Weaver, 2000, p. 207)

NAGPRA was indeed (is indeed) about power. And not simply power over the remains of people or their burial goods, but about who gets to tell the story of what has happened since humans turned their backs to the Old World and worked their way across the land bridge.

The Kennewick discovery threatened to disrupt the stories of local Native peoples because it called into dispute some of their most important religious stories, and it is arguably the case that this is the major reason that they fought to gain control over the skeleton.

Debate over the fate of the remains often has taken a vitriolic and subtly racist turn as Natives have sought reburial of their ancestor, and scientists and their supporters have charged Indians with religious fundamentalism, accusing them of seeking to prevent study of the remains because they might "disprove" tribal creation accounts. (Weaver, 2000, p. 207)

It could be argued that the native peoples who claimed the skeleton lost this round (as American Indians have lost so much in legal entanglements with U.S. courts). But it seems to me that the adjudication of the case was actually a significant victory for Native peoples.

NAGPRA helped to prove that there is no single way in which to interpret the past. Scientists and other researchers have their claims to certain narratives and certain forms of narratives, and sometimes these take precedence, especially when the remains are representative of a group about which very little is known. In such a case, research may substantially benefit a range of groups, including living people who are at some distance related to the remains.

But in other cases, other forms of narrative take precedence. Sometimes Native religions or the tales of great-grandparents are more important then DNA. By bringing these other forms of narratives to the form in a way that had never been done as comprehensively before, NAGPRA has indeed helped to protect the indigenous past, other in ways that would have been hard to predict a generation ago.