Hominid Remains in North America

Harry Leferts

Suave Shadow Cabal Kaiju
Okay, this is something from a legal perspective.

One day, a discovery is made in a cave by someone exploring. Said discovery is a human skeleton. Closer examination reveals though that it is old, much, much older and there are primitive features. In fact, it seems to be a previously unknown species of hominid that lived in North America. The closest to the modern day that the dating shows is 40,000 years ago and the furthest back it had to have lived was 70,000 years ago.

But then the problem happens in that the local native band demands the remains be handed over to them for a secret burial. Because due to their beliefs of having been there since time began, said remains must be one of their ancestors.

What happens, especially as even cursory examination shows it is not modern human?
 
Well, apart from anything else, the presence of Neanderthal and Denisovan genes in Eurasian populations means that the bones in question being from a hominid that interbred with humans is plausible, and finding the bones would be a shot in the arm to the idea that there were pre-Clovis humans in the Americas, so from a strictly logical standpoint their claims wouldn't even be necessarily wrong.
 
As a general rule -- at least in Europe, so consider this perspective highly limited -- tribal or any other groups cannot demand to have exclusive access to remains of archaeological significance, since the examination of archaeological discoveries and the integration of knowledge gained from it being integrated into the public historical record and body of knowledge is considered to be in the public interest.

Any scientists and researchers examining this newfound discovery would likely try to respect the wishes of any tribal or native group affected by this new discovery and seek to open a dialogue with them, but from the legal knowledge I'm aware of, I don't see how they would be able to be stopped from examining this discovery.
The closest to the modern day that the dating shows is 40,000 years ago and the furthest back it had to have lived was 70,000 years ago.

But then the problem happens in that the local native band demands the remains be handed over to them for a secret burial. Because due to their beliefs of having been there since time began, said remains must be one of their ancestors.
Also, from my own reading into population movements in Eurasia over the last few tens of thousands of years, the idea that this newly discovered hominid would have to be their ancestor and that they held the same beliefs as the modern group would be unclear and would necessitate the newly discovered body to be examined in order for it to be substantiated.

HOWEVER, I'm fully aware that I'm tackling this from a white boy European perspective, meaning that I probably don't exactly have the most woke attitude on this, and I'd like to avoid trampling the cultures of native groups because I consider scientific discovery "in the public interest". You know, like imperialism and other heinous shit used to be.

I did find an interesting article that tried to tackle this question in more detail, however, and I would encourage all of you to read it. It details the history and some of the legal details surrounding archaeology of native remains and cultures in North America.
Article:
Confronting Cultural Imperialism in Native American Archaeology

The ethical, legal, and research-oriented tools of archaeology can encourage Native American self-determination rather than undermine it.

Back in 2003, not long after I started teaching anthropology and archaeology at Fort Lewis College in Durango, Colorado, a young Lakota student asked me a question: "Why do archaeologists think they have the right to tell me about my own history?" I don't recall the answer I gave, nor do I suspect that it was at all adequate, but in the intervening years, I have held on to this question.

Anyone familiar with the history of American archaeology knows that the relationship between archaeologists and Native Americans has been an uneasy one. Against a backdrop of government-sanctioned genocide, the schism was reinforced in the late 19th and early 20th centuries by dramatically different views of human remains. In places like Egypt, Mesopotamia, and Greece, by contrast, the dominant colonial powers shared a similar view of burials and the afterlife as the descendants of the ancient ones who had created what existed in the archaeological record. In the Americas, the situation was quite different. Not only did descendant communities have dramatically different worldviews than the colonial authorities, but the dominant culture largely viewed Native Americans as subhuman, to be objectified and eradicated. Western beliefs about burials, the afterlife, and the scientific imperative were uncritically applied to archaeological fieldwork.

In 1990, there was a major shift in how archaeology was conducted in the United States with the passage of the Native American Graves Protection and Repatriation Act, or NAGPRA. This critical human rights law forced some archaeologists into direct consultation with Indian tribes, Native American lineal descendants, and Native Hawaiian organizations regarding the proper disposition of Native American human remains and cultural items curated in federally funded museums throughout the United States. It also created a process requiring tribal consultation for archaeological projects done in advance of construction and development on federal or tribal lands.

Also, tagging the experts in archaeology and cultural anthropology/cultural studies I know, @EricD and @Gargulec, in the hope that they can contribute something interesting!
 
The most relevant case to this sort of thing would be the Kennewick Man one, I'd think, but the vastly greater timespan would likely lead to the natives having a harder time proving the required legal connection.
There's also the details of the NAGPRA as to exactly where and how the remains were found affecting matters.
 
This really should be in His-Mil War and Peace. (Edit, god damnit Cetash.)

What happens, especially as even cursory examination shows it is not modern human?
A giant fucking legal battle.

Like there's time under NAGPRA to do work on the discovery (or at least get DNA which will be necessary for a legal battle and refusal to allow could possibly loose the case for the tribe because how can you be related if you won't allow for testing to confirm it,) and it depends on where it's found. NAGPRA doesn't readily apply to private or state land, only federal lands, so there's that, and the law wasn't written around the idea that non-AMH Humans ever existed in the Americas, so that will be subject to legal wrangling, especially if multiple other tribes get involved in the dispute.

Needless to say, by the time it's done, everyone is going to be absolutely furious.
 
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First of all, I want to light the @Teocraso signal, because he is an anthropologist and an indigenous person and so his perspective will be valuable to this topic.

This is a fascinating topic, and although it is a theoretical it is intimately connected with current issues in Canadian archaeology.

Now a few months back, I attended the Canadian Archaeological Association's annual conference, in Winnipeg, Manitoba. One of the main focuses of the event was on the interactions between the archaeological field and living indigenous communities. These relationships have, traditionally, not been very good. Archaeology in Canada has always been highly informed by colonialism, and by colonial-influenced mindsets and perspectives. The history of archaeology in Canada is full of examples of archaeologists acting in patronizing, offensive, or otherwise imperialistic ways towards the indigenous. Canadian museums are still full of the remains and artifacts of indigenous ancestors, in many cases outright stolen from indigenous burial sites. Understandably then, many indigenous people still have a low level of trust for archaeologists. Archaeology today in Canada is very invested in trying to repair that relationship, because our research can no longer ethically proceed without the consent and participation of indigenous peoples.

Now, at the CAA conference I heard from many indigenous archaeologists, community leaders, museum administrators, and other individuals and their perspectives on this problem today. What indigenous peoples want from archaeology varies from person to person and community to community. Some of the general standouts were: Most of them want archaeological research on their ancestors to be done with respect for indigenous rituals and beliefs. Some of them want archaeologists to participate in and affirm indigenous spiritual traditions and rituals as part of their research. Most wanted archaeology to support indigenous sovereignty and the process of decolonization in Canada. Many also felt that indigenous ownership of remains and artifacts must be restored.

Speaking personally, these are fraught grounds and offers many potential conflicts for the Canadian archaeologist. What do you do when you feel you cannot affirm indigenous spirituality for reasons of scientific neutrality or personal belief? (I have a similar problem with so-called "biblical" archaeology in the Levant). What do you do when an indigenous group claims ownership of remains or artifacts that you as an archaeologist are pretty sure pre-dates their presence in a given region? How do you balance the archaeological desire for data with the legitimate indigenous desire for ownership of remains and artifacts? There are many circles to square in this problem, and the archaeologist can be pulled in many directions by politics, their institutions, financial and academic career interests, and above all indigenous communities whose ancestors these are.

Now I am not enough of an expert on heritage laws in Canada to comment precisely on what legally would ensue in this scenario. However speaking as if I were the archaeologist in this situation: I can tell you what I wouldn't do. I would strive to not act like an arrogant white jackass, to not be dismissive of the indigenous community or their beliefs or concerns. I would try to carry out my research in cooperation with them. The key idea here is a negotiated process. Research, on an ethical and moral level, must be done in partnership with the indigenous community that lives on this land and who claim this individual as their ancestor. I would try my best to stop and listen to what they have to say about all this, and try my utmost to do my research in a respectful way which includes them and acknowledges their rights, their ownership, and most importantly their dignity.

I suspect, however, that indigenous communities would be quite delighted with the finding of a pre-modern hominin of that age in North America, and with the potential that anatomically modern humans interbred with North American hominids as they did with the Neanderthals and Denisovans. There has long been controversy between archaeologists and the indigenous in regards to the peopling of the Americans. Many indigenous are uncomfortable or wary of the idea that they originated elsewhere, seeing in it a patronizing settler attempt to delegitimize their ownership of and connection to the land. They generally say rather that their peoples have always dwelt upon Turtle Island. Pre-AMH hominids in the Americas would strengthen that traditional claim, I think.

A critical question archaeologists often ponder is: Who owns the past? Who has the right to claim the past and its archaeological remains as their symbol of legitimacy, authority, or status? Who gets decide who gets access and who doesn't? Which claim shall take precedence? Now there are valid claims and invalid claims, stronger claims and weaker claims, but I think in general we all own the past in some sense, and this means that it must be shared. This means that research into the past must always be a negotiation. It must always be about listening to others with genuine and earnest intent to hear them. We as archaeologists try to hear the voices of those long dead, and we must not forget to listen to the voices of those living today.
 
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