4 LEGISLATION AND ACTIVISM

In the past, our society identified the remains of Native Americans as acceptable subjects of experimentation and research while according others a respect for religious and cultural beliefs in the burial of their loved ones (Echo-Hawk and Echo-Hawk 1994). In addition, anthropologists were quite slow to embrace a concept of cooperation between the scientific and descendant communities. Consequently, the 1980s were characterized by considerable conflict between archaeologists and physical anthropologists on one side and various tribal groups on the other. The net result of the more than 20-year “territorial struggle” over cultural data is that the U.S. Congress in 1990 enacted the Native American Graves Protection and Repatriation Act (NAGPRA) and has amended the National Historic Preservation Act (NHPA) (Roberts and McCarthy 1995).

Native Americans have strong religious concerns about protecting their dead from disturbance (Echo-Hawk and Echo-Hawk 1994). Since cemetery sites frequently are not adequately protected by section 106 of the Preservation Act or by NAGPRA, staunch positions toward the excavation of burials are often adopted by descendant communities. Indeed, the impetus for NAGPRA came as a reaction from the lay community, in this case tribal groups, which forced the government to recognize their concerns for the protection of burial sites. The combination of the Preservation Act, embodied in federal regulations, and concerned activists coalesced to become a vocal conscience for the protection of the sanctity and integrity of burial grounds and the protection of the graves of their ancestors (Inouye 1994).

In 1993, for example, at the Performing Arts Center/Trinity Church site in Newark, New Jersey, there was no adequate voice for preservation. A concerned African-American descendant community, which was independent of the church, was powerless to intervene, and the site was largely destroyed (fig. 4). Skeletal remains were removed by the “coroner's method,” which consists of the excavation of graves by backhoe, and any large bone identified in the soil was retrieved and cremated. Skeletal remains not immediately visible were dumped in the adjacent landfill on Newark Bay.

More than any other cemetery excavation, the African Burial Ground site in lower Manhattan, New York City, highlights the need for broader legislative protection and spiritual sensitivity. Between the fall of 1991 and the summer of 1992, the U. S. General Services Administration funded excavations of more than 400 burials from a historic African-American cemetery that may have dated from the late 17th century. The cemetery was excavated under extreme time constraints.

As with Native American sites, the excavation of the African Burial Ground engendered a passionate and angry reaction from the descendant community. This reaction rested largely on the fact that the human remains of their ancestors were being exhumed. An outraged descendant community, in combination with political and scholarly activists, pushed to have the excavations halted.

According to Roberts and McCarthy (1995), the African-American community is presently the most conspicuous group not represented by NAGPRA, which pertains primarily to Native American groups and functions on the ability of the descendant group to claim direct tribal affiliation. The legislation requires “cultural affiliation,” meaning a “relationship of shared identity which can reasonably be traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group” (Native American Graves Protection and Repatriation Act 1990). NAGPRA is powerless and inapplicable for other groups (McKeowan 1994).

While Native American groups have been successful in demanding sensitive treatment, repatriation, and reburial for their ancestral remains, it is the authors' position that legislation inclusive of all ethnic backgrounds would be more appropriate rather than legislation that specifies protection for one highly vocal and reactive ethnic group. This point is extremely important because the foundation of NAGPRA, which is identification of cultural or tribal affiliation between the descendant group and the historic mortuary population, is an impossibility for most African Americans. Because of the realities of the slave trade, African Americans can rarely know or claim direct cultural affiliation with a particular African country or group. The claim to ancestral remains by African Americans is made despite the fact that no specific cultural affiliation between the African-American descendant community and the remains from the African Burial Ground can be identified or proven. If similar legislation was enacted for African descendant groups, the structure and requirement for specific affiliation to ones' predecessors would necessarily be different.

The Newark and African Burial Ground sites can be contrasted with specific areas of Jamestown, Virginia, where skeletal materials have been preserved undisturbed and where the descendant community has historically retained power and control. According to archaeologist Bill Kelso, “It has been felt that Jamestown has been largely off limits to archaeology because the enshriners there do not want the burials disturbed” (Kelso 1995).