Facing Down the Representation of An Impossibility: Indigenous Responses to a ‘Universal’ Problem in the Repatriation Context

Abstract

This paper explores the ways Native Americans and Native Hawiians have responded to what Ernesto Laclau has called ‘the representation of an impossibility’—the discursive crisis faced by non-dominant groups who seek to advance rights claims in ways that are culturally rooted but universally audible to ideologically dominant audiences. Taking the NAGPRA law of 1990 as its case study, this paper asserts the need for a re-theorisation of indigenous religious discourse in order to illuminate the ways native peoples build rather than concede agency through self-representations in the current political moment. Pursuing this argument, the paper charts an analytical course specifying the relationship of rights claims to discourse, hegemony, articulation, tradition, and religion. The paper then focuses upon specific examples of religious claims in the context of the Native American Graves Protection and Repatriation Act to demonstrate the ways Native Americans have faced down an ‘impossibility’.

Keywords:

• religion
• law
• tradition
• repatriation
• NAGPRA

Notes

1. The problem as I have framed it by way of Laclau and Vizenor is, of course, redolent of formulations standing in a long tradition, which includes inter alia DuBois' (1969) ‘double consciousness’, aspects of Charles Long's (1986) theory of signification, as well as James C. Scott's (1992) ‘hidden transcripts’. At this juncture I wish to make clear that I do not take ‘universal’ to be synonymous with ‘truth’ (i.e., as something that all cultures have access to in some way, but that is itself independent of culture). Rather, I am seeking to illuminate the constructed character of putative universals as a way to understand the rhetorical power of the category. For those who enjoy ascendant status in any society, the benefits of universal rhetoric are clear enough (these include, but are not limited to, naturalising one's claims to space, place, genealogy, epistemology, and the spiritual realm). I am here concerned to probe why, how, and with what consequences non-ascendant groups engage in universalising rhetoric. On this theme generally, see Hall (1992), Herzfeld (1997), and Spivak (1987)

2. By focusing on the persuasive capacities of religious claims, this essay is inspired by Kenneth Burke's assertion that ‘the subject of religion falls under the head of rhetoric in the sense that rhetoric is the art of persuasion, and religious cosmogonies are designed, in the last analysis, as exceptionally thoroughgoing modes of persuasion’ (1961, v; see also Harding 2000; O'Leary 1994). My aim is to demonstrate the ways Burke's position holds true for religious rhetoric in legal settings

3. NAGPRA pertains to federally recognized Indian tribes, including Alaska Native villages as defined in the Alaska Native Claims Settlement Act, (1971) and Native Haurian individuals and organizations. In this article, the usages Indian, Native American, native representatives, and indigenous representatives are intended to include all of the above

4. Public Law 101–601 (25 U.S.C. 3001, 1990). On NAGPRA, see, for example, Altieri (2000), Fine-Dare (2002), Thomas (2000), and Thorton (1998). Although as yet untested, NAGPRA holds out promise to set a new standard for Federal/Indian relations. Specifically, NAGPRA represents a far more detailed and practicable approach to the protection of Native American human remains and cultural objects than was entailed by earlier legislation, including the American Indian Religious Freedom Act (1978) (AIRFA). With AIRFA, Native American advocates sought widespread protection of sacred lands, graves, and various ritual practices, including the use of peyote. At the time it was passed, some observers feared that the law lacked teeth, in so far as it included little in the way of implementation guidance. The 1988 Lyng case (108 S. Ct. 1319) demonstrated this to be so, as California natives watched the Supreme Court ‘balance’ Federal interests against their religious claims, to the detriment of the latter (see Deloria 1992; Vecsey 1996)

• 5. On the issue of affiliation and evidence, consider this signal portion of Senate Report 101–473:

  • • The types of evidence which may be offered to show cultural affiliation may include, but are not limited to, geographical, kinship, biological, archaeological, anthropological, linguistic, oral tradition, or historical evidence or other relevant information or expert opinion. The requirement of continuity between present day Indian tribes and materials from historic or prehistoric Indian tribes is intended to ensure that the claimant has a reasonable connection with the materials. Where human remains and funerary objects are concerned, the Committee is aware that it may be extremely difficult, unfair or even impossible in many instances for claimants to show an absolute continuity from present day Indian tribes to older, prehistoric remains without some reasonable gaps in the historic or prehistoric record. In such instances, 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 and should not be precluded solely because of gaps in the record. (US Senate 1990a, 9).

6. I am grateful to the editors of this volume for pointing out that the problem of mutually exclusive epistemological regimes is one that is faced by all religion cases—indeed, it defines them—in some measure. Religious claims under NAGPRA, then, face this general predicament, but in an amplified respect in so far as the law describes the boundaries of exclusive regimes that are to be ‘held equal’

7. On Native American political and legal action, see, for example, Cornell (1988) and Nagel (1996)

8. See, for example, Warren (1998) and Warren and Jackson (2002) regarding the Latin American context. While I am in agreement with the claims of these authors and other anthropologists who take ethnicity to be their primary analytical category, my point, as will become clear in the following, is to direct attention to the specifically religious content of politically charged identity representations

9. This position assumes that force and practice are constituted, mediated, and interpreted by way of discourse. The enabling feature of discursive analysis is that it shifts energies away from viewing ‘religion’, ‘culture’, and ‘text’ as discrete and stable objects of study and, instead, insists upon attending to the ways these are constructed, maintained, and contested. On discourse, see, for example, Lincoln (1989) and Eagleton (1983)

10. On hegemony, see inter alia Williams (1977), Comaroff and Comaroff (1992), and Laclau and Mouffe (1985)

• 11. For a crisp account of articulation in relation to indigenous identity claims, see Li (2000). She espoused the following position:

  • • My argument is that a group's self-identification as tribal or indigenous is not natural or inevitable, but neither is it simply invented, adopted or imposed. It is, rather, a positioning which draws upon historically sedimented practices, landscapes, and repertoires of meaning, and emerges through particular patterns of engagement and struggle. The conjunctures at which (some) people come to identify themselves as indigenous, realigning the ways they connect to the nation, the government, and their own, unique tribal place, are the contingent products of agency and the cultural and political work of articulation … (Li 2000, 151)

• As I have argued by way of analysing contemporary Hawaiian appropriations of the war god Kū (Johnson 2003), contexts like NAGPRA confront us with the need to describe identity claims in terms that recognise their profoundly political element without doing damage to their political prospects. Li does a good job of navigating this issue, insisting that ‘every articulation is a creative act, yet it is never creation ex nihilo, but rather a selection and rearticulation of elements structured through previous engagements’ (Li 2000, 169). Focusing on traditional sources of novelty as well as novel sources of tradition allows us to affirm with Li that ‘[c]omplexity, collaboration, and creative cultural engagement in both local and global arenas, rather than simple deceit, imposition, or reactive opportunism, best describe these processes and relationships’ (Li 2000, 173)

12. We should acknowledge that articulation is not synonymous with hegemony. Some articulations have less grandiose aspirations and operate closer to the democratic side of the spectrum we have specified. That said, articulation is a chief instrument in the construction of hegemonic identities in so far as it plays upon the gap inherent between ‘reality’ and representation. According to Laclau and Mouffe, ‘the concept of hegemony supposes a theoretical field dominated by the category of articulation; and hence that the articulated elements can be separately identified’ (1985, 93)

13. On communicative stratification, see Feldman (1991). For a discussion of rhetorical diversification in the context of Native American protest movements, see Lake (1991, 1993). On the ideology of individualism, see, for example, Dumont (1986)

14. For more on ideological analyses applied to Native American contexts, see Sider (1987) and Dombrowski (2001). For a good discussion of related matters from the point of view of rhetorical studies, see Morris and Wanderer (1990)

15. Beyond creating general provisions for ‘oral tradition’ and ‘expert opinion’, the law authorises ‘traditional religious leaders’ as privileged speakers with regard to the identification of ‘sacred objects’. The law reads as follows: ‘Sacred objects shall mean specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents’ (25 U.S.C. 3001 Sec. 2)

16. This discussion combines insights laid forth by Hobsbawm and Ranger (1983), Appadurai (1981) and Handler and Linnekin (1984)

17. My formulation of the relationship of tradition and religion owes a great deal to exchanges with Bruce Lincoln, one of my teachers. For Lincoln's account of ideology and religion, see his Theorizing Myth (1999)

18. On this theme, see Greenhouse (1996). She argues that ‘whenever temporality is given some determinate form, this formalism can be understood as arising from the political need to accommodate multiple formulations of agency within a single regime of legitimacy and accountability’ (1996, 211). Religious discourse, I am arguing, allowed Native American witnesses to transgress time boundaries assumed by the law

19. For more on this dispute, see Johnson (2003)

20. See Paula Pryce's related discussion in her recent book, ‘Keeping the Lakes' Way’: Reburial and Re-creation of a Moral World among an Invisible People. In her formulation, ‘[t]he commemorative act of reburial, of returning ancestral remains to their proper place, seems to be symbolic for setting the world in order. It is an act which resurrects a life lived well, which asserts the proper moral relationships between land, people and ancestors, as well as ethnic and socioeconomic vitality’ (Pryce 1999, 98)