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Science, as the handmaiden or stalking horse for other endeavors such as economics, politics or religion, can inspire personal belief and valuation and subsequent legal consequence. In the evolving process of intellectual inquiry and the not-infrequent placing of thumbs on the scientific scale, we can observe that American Indian tribes seek scientific verification of their distinctiveness and the appropriateness of separate treatment. We can also see that proponents of the obsessively colorblind Constitution and the neutral orderings of free market competition desire scientific corroboration that the tribes were not fundamentally different from modern mainstream Americans in economy, social organization, philosophy or physiology. The law that would emanate from such a posture could have ominous portent for the tribes. The science of the prehistory of the indigenous people of the North American continent has played a pivotal role in Indian law. Early anthropology concluded that the Indian tribes would, as a matter of natural selection, inevitably vanish before the inexorable advance of white society. The 19th century policies of tribal deconstruction, cultural assimilation and land acquisition were formed and employed in light of this premise. Early 20th century anthropology confirmed a nondeterministic vision of cultural diversity and helped point the way toward a revision of Indian policy, featuring the self-determination of tribal societies on protected land bases. The American public has, since then, nurtured a vision of the ecological Indian. The policy of self-determination embraced in the Indian Reorganization Act rested in part on author John Collier’s belief in the distinctive and enduring community between Indian tribes and the land. The paradigm of a tribal balance with nature has, however, come under recent scientific assault, with assertions that tribalists used, manipulated and even abused their environment as unrepentantly as Europeans. The hypothesis of Indians as nascent capitalists was posed — or seized — as both a launching point for a revisitation of federal Indian policy and as a counter to economically constraining environmentalism. Conservative economists portrayed the Indians as enthusiastic, if undertooled, consumers of natural capital and sought to divest the environmental movement of its most compelling symbol of balanced, sustainable economy. The scientific questioning of the Indians’ cultural distinctiveness also undercuts the tribes’ claim to what has been called the jurisdictional law of “measured separatism.” The premise of the Indian as environmentalist has been matched by the vision of the traditional tribes as internally harmonious, altruistic aggregations. The great Anasazi cities of the Southwest, such as those in Chaco Canyon, N.M., were seen as vivid testaments to the potential efficacy of a reciprocating, egalitarian, spiritually directed society. Christy Turner has advanced the theory that the monuments of Chaco and San Juan Basin, with their multiple stories, precise architecture, water diversion projects, interconnecting roadways and astrological orientation, were the products of coercion, torture and even cannibalism, rather than mutual beliefs. The suggestion that the Anasazi were terrorists — or terrified victims — undercuts the consensus belief in the distinctive serenity of their present-day successors, the Pueblo. It also undercuts support for laws sustaining the separate jurisdictions — and jurisdictional prerogatives such as gambling — of the Pueblo. ‘KENNEWICK MAN’ The bones of “Kennewick Man,” discovered along the shore of the Columbia River and dated at more than 9,000 years of age, have sparked a battle for control of the skeleton between scientists and local Indian tribes. The skull is not characteristic of Indians in the area and was, in fact, described by forensic anthropologists as “Caucasoid” or perhaps Southeast Asian in structure and appearance. The controversy centers on the operative provisions of the Native American Grave Protection and Repatriation Act and the question of whether the tribes have an immediate, exclusive right to possession of the bones and preclusion of extensive scientific study. The broader implications of the controversy involve theories on the origin of North American inhabitation, the legitimacy and longevity of the land and sovereignty claims by the contemporary tribalists and, somewhat more prosaically, the availability of grist for university anthropological study programs. The Grave Protection Act is a possessory and civil rights law flowing in substantial part from scientific premises about the origins of North American inhabitation. It then seems likely that the interpretations of the act and the preemptive rights of tribal possession may be affected as well. Science has long been a battleground for those with other vested interests. Behind the first breeze of a scientific conclusion of basic similarity between native culture and mainstream America might come the renewed storms of assimilation and termination. The tribes, once described by Felix Cohen as miners’ canaries in the shifting gases of American politics, are bracing for the onslaught. One can hope that the scientific revisionism, and the new portrayals of the Indians as late-arriving manipulators of land and flesh, will be viewed holistically rather than anecdotally. Seen whole and against the sweep of observable history, the American Indian tribes, it must be acknowledged, maintained their communities and relation with the land in a balanced fashion that could have endured indefinitely. Can we, the non-Indians, say the same about ourselves? John W. Ragsdale Jr. is a professor at the University of Missouri-Kansas City School of Law.

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