When I left my job as an attorney to study archaeology, I assumed I was leaving the law behind. But one of the things that has surprised me most in my new life is just how much work archaeologists do in teaching the law. Time and again, in undergraduate seminars, at excavation sites, at museums, in field schools, at national parks, or online, I’ve watched archaeologists and anthropologists educating people about Section 106, NAGPRA, historic preservation law, the Antiquities Act, the legal history of Native American dispossession and public lands, or the finer points of Native American sovereignty.
Many archaeologists seem uncomfortable with this role, though. If I’m around and they know my background they’ll sometimes look to me as if I might be able to chime in and clarify everything. The truth is that many professional archaeologists know much more about these areas of law than most lawyers do. My law practice mostly involved product liability and insurance law. When I started my PhD program, I could have told you all about the laws regulating dangerous products but almost nothing about any of the laws that surround archaeology. Only once in my legal career did I even have a minor brush with a case involving Indian law. (I am sorry to say that it took a whole bunch of very smart legal minds about six months too long to figure out that an employment dispute at a tribal casino belonged in tribal court rather than in federal court.)
Uncomfortable as it might be, archaeologists take on the work of legal education because it is critical to our work and to protecting the cultural resources we care about. The preservation of archaeological sites and artifacts depends upon a public understanding of their value to archaeology, to descendant communities, and to a shared sense of heritage. Teaching people about the law surrounding archaeology, along with the ethical and scientific concerns, is an important part of our public archaeology toolkit. That has only become more important in a time when our federal government seems poised to weaken legal protections for archaeological resources.
Many archaeologists who work in North America are also deeply committed to supporting indigenous people’s struggles to reclaim their heritage and retrieve their ancestors’ remains and cultural property through NAGPRA and other repatriation avenues. Teaching about the law and how it reflects and redresses a history of colonialist dispossession is an important part of changing public attitudes to repatriation.
But archaeologists and anthropologists also play a crucial role in giving people the tools to question the law. I want to give a very concrete example of the work that archaeologists do on this front, from my own experience. I left the law because I was bored with the work, eager to get outside, tired of a profession that revolves around the dollar. But nothing in my ten years of legal practice really undermined my fundamental confidence that our legal system is based in just principles and that, over time, the law and our courts would make things better..
And then I started studying archaeology. In one of my first classes, I learned for the first time about the doctrine of discovery. This is familiar territory for Native Americans and for a lot of anthropologists. Our undergraduates at Binghamton today certainly learn about it. But I suspect that the vast majority of Americans don’t know a thing about it. As for me, with a JD from one of the finest law schools in the country, I do find it hard to imagine I never learned about it at all– let’s just say that if this law was taught in my first-year property law class, it was not taught in a way that stuck with me or that elicited outrage.
The doctrine of discovery starts with a papal bull (yes, really!) issued in 1493 by Pope Alexander IV to divvy up the New World between Spain and Portugal. Because the “savages” of the New World, with their pagan ways, violated God’s law (and natural law), the papal bull declared that the monarchs of Europe, as servants of the Pope, had the right—the duty!—to conquer them, bring them to Christ, and, oh yeah, seize their land.
So that was the religious law that underlay colonialist expansion. But here is the part that shook me. The doctrine was later incorporated into U.S. law, becoming the fundamental basis for Indian policy in this country. Racist papal doctrine was incorporated into our law. In the 1800s. By the Supreme Court. Specifically, by Chief Justice John Marshall, a hero in law schools everywhere for his opinions solidifying the principle of judicial review (which established the power of courts to nullify unconstitutional law).
In an 1823 case called Johnson v. M’Intosh, 21 U.S. 543 (1823), Justice Marshall wrote that European countries obtained ownership of lands that they “discovered.” Any people already living on that land were automatically stripped of ownership, he coolly explained: “the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency” (p. 573). The rights of indigenous people were not “disregarded; but were necessarily, to a considerable extent, impaired” (p. 574). Indigenous residents retained a right of possession—a right to live on the land, but they did not own it and could not pass title on to others. But, he explained, “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war” and “[t]o leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible…” (p. 590). And so settlers pushed them out (i.e. caused them to relinquish their right of possession) “by the sword” (p. 588) and by clearing the forests they relied on for subsistence. When Native Americans “sold” their land to settlers, Marshall explained, they were selling only the right they had—a right to be on the land but not ownership of it.
Where I live in Connecticut, the town’s official seal commemorates how “[a] tract of land . . . reaching six miles easterly and westerly from the [Connecticut River], was purchased from four Indian kings, in 1662, for 30 coats, of a value not exceeding $100.” That story obviously has made generations of Haddam residents feel better about living on this land. It sure is sad that those Indian kings didn’t appreciate the monetary value of this little piece of New England heaven, but they did sell it fair and square before moving on to wilder places! And at least they had some coats to take with them! But, in Marshall’s interpretation, those 30 coats could only buy “Indian title”—the Wangunk people who lived here had only a right of possession, not ownership. It was the English crown that actually passed title to the land, and the coats just cleared a problem of possession.
When people talk about dispossession in terms of land being bought from Native Americans at low prices, it seems as if it consisted of thousands of unfortunate little sales transactions that added up, over time, to tragedy. But the doctrine of discovery makes it crystal clear that the dispossession was international strategy from the very beginning. Moreover, we are still enacting it today by enforcing laws that are based on it. Johnson v. M’Intosh is still, as lawyers say, “good law”—still enforceable, valid precedent. Its holding, with a series of other cases that Marshall’s Supreme Court decided, is at the base of Indian law and policy. These cases are still cited as precedent in court opinions all the time. By extension, this law also underlies the history of archaeology in this country.
Indian law is a terribly complicated subject, and I’m not suggesting archaeologists need to become experts. But there are some wonderful books that archaeologists can turn to for a basic understanding. I can recommend two. One book that really opened my eyes was Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity by archaeologist David Hurst Thomas; it covers a lot of legal ground, focusing on NAGPRA issues but also discussing a lot of other legal history. A shorter book, and one that more specifically focuses on the development of the doctrine of discovery, is Savage Anxieties: The Invention of Western Civilization by legal scholar Robert A. Williams, Jr., a member of the Lumbee Indian Tribe. A remarkable recent resource is the Standing Rock syllabus project at https://nycstandswithstandingrock.wordpress.com/standingrocksyllabus/, which collects many articles, websites and other resources.
To many Native Americans, and to many others, it is evident that certain portions of U.S. law and policy are deeply rooted in racist, colonialist, religiously discriminatory, and completely antiquated reasoning. Many people, including a number of religious groups, have called for repudiation of the doctrine of discovery. But in the age of Standing Rock, simply exposing the truth and the details of how American law has impacted Native Americans is an important political act that archaeologists can contribute to in the course of their everyday work. Academic archaeologists regularly teach about the legal issues surrounding Native American dispossession in their undergraduate courses, and I don’t think we can overstate the importance of exposing young people to the injustice that is written into our laws. Public archaeologists in other contexts also have a role in introducing people young and old to this complex but crucial piece of American history and how it continues to shape both our legal system and our archaeology today.
About the Author: Michelle Turner is a PhD candidate at Binghamton University. She works on southwestern archaeology and is currently writing her dissertation about recent fieldwork at Aztec Ruins National Monument. She has a BA in International Studies from American University and a JD from the Vanderbilt University School of Law. Prior to starting her PhD, Michelle practiced law for about ten years, first at two large law firms and then as a clerk for a federal magistrate judge. In addition to her work in southwestern archaeology, Michelle also does research on cultural property law and repatriation efforts. She is the author of a law review note titled The Innocent Buyer of Art Looted During World War II. Please note that nothing in this post is intended as legal advice.
 History of Middlesex County, Connecticut, with Biographical Sketches of its Prominent Men. J.B. Beers & Co., New York 1884: 283.