Erasure of Existence is Just "Incidental"

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By Professor Victoria Sutton

June 23, 2024

Guest Opinion. The governmental practice of making Native Americans disappear, or to be invisible ensures there is no land to claim or fraudulent land transfers to be revealed. If you can erase the evidence of their existence, then you can say they were “never here” and colonial hedonism can prevail.

This past week, in North Carolina, known for its fragile coastline and continual erosion causing houses to slip into the ocean, one scarely two weeks earlier,¹ a bill (HB 385) backed by campaign-funding developers was making its way through the state legislature. This bill would give the green light to developers to skip over any incidental damage to the archaeological site that had just been uncovered. This bill provided with new language that

For purposes of this subdivision, incidental disturbance of archaeological resources during development is not considered major and irreversible damage.

Broadly any disturbance is incidental to development, sweeping away long established processes of investigating before destroying archaeological sites. This legislation was specifically being pushed by developers of Bridge View in Cedar Point, N.C. where an extraordinary archaeological site had been discovered.

This was not just any site, but the discovery of an entire village of coastal Native Americans, identified as the likely Chowanoc Tribe village recorded in early histories of North Carolina, as well as human remains of five people, plus eleven burial sites.² In fact, I take this rather personally, since my ancestors could very well have lived in or nearby this village. The N.C. Office of Natural Resources said in an intergovernmental fact sheet on HB 385 on June 10, 2024 that

“The Cedar Point development is exceptional and anomalous because the property contains one of the most significant archaeological sites identified in North Carolina since the 1990s.”

Erasing the existence of Native America — an example

The incident involving the Ancient One, or Kennewick Man, in 1996 is a modern example of how this precisely can be done. An entire skeleton was discovered and analyzed by anthropologists. Native Americans are told it is a Caucasian skeleton so “nothing to see here”, and do not make any claims that you want a peaceful burial for your ancestor under federal law. However Native American Tribes in the region knew they had occupied this land for time immemorial and so it was highly likely it was an ancestor. This led to the fever theory that Native Americans were not the first people here because this skeleton dated back 8,500 years and was clearly Caucasian, according to some anthropologists.³ Thus, none of the land you claim is yours, after all. This is exactly what some anthropologists told the Colville Tribe and others in the region.

However, the U.S. Department of the Interior had found that the Kennewick Man, the Ancient One, had to be returned to the Nez Perce Tribe of Idaho; Confederated Tribes of the Umatilla Indian Reservation; Confederated Tribes & Bands of the Yakama Indian Nation; and Confederated Tribes of the Colville Reservation, under federal law. Anthropologists, Chatters and Bonnichsen, filed for judicial review of the final action of the DOI to the U.S. Dist Ct of Oregon. (June 27, 1997, appeal after remand.) The United States Magistrate Judge, of Oregon, held for the scientists (affirmed and remanded, Aug 30, 2002). The Department of Interior and the Tribes appealed to the US Court of Appeals, 9^th Circuit (Opinion amended and superseded on denial of rehearing, 2004). The 9^th Cir.,Court of Appeals affirmed for the scientists (argued Sept 2004; opinion 2005).

So the oral histories of the Tribes were not accepted as evidence that outweighed that of anthropologists with a conflict of interest in desperately want to claim this new discovery that Native Americans were not the first on the continent. The court opined, “We cannot give credence to an interpretation of NAGPRA advanced by the government and the Tribal Claimants that would apply its provisions to remains that have at most a tenuous, unknown, and unproven connection, asserted solely because of the geographical location of the find.” [emphasis added]

This conflict raged on for more than two decades, then in 2009 when ancient DNA analysis had become a reality, testing was done on the remains of Kennewick Man, and DNA sampling was done from volunteers from the region’s Tribes. It was found that the remains were indisputably Native American and that they were also related to the regional Tribes.⁴

The Ancient One was quietly returned to the region’s Tribes for a traditional burial of his remains.

Erasure of North Carolina Indians

The state has long worked to make Indians invisible in North Carolina by making them subject to the state’s “people of color” statutes, thereby avoiding naming them for their Indianness or their tribes. Judges and state officials were there to buy up land that was taken for various punishments for Native Americans or when they were forced off of their land through legislatively-forced “lease” deals, that always ended up with forfeiting the land.

The Kennewick Man case that took decades to resolve over the disputed human remains likely was not lost on the developers of a fragile coastline full of historic records. Forewarned by this conflict, North Carolina developers sought to avoid this altogether by bulldozing away the evidence as long as it was “incidental”. They argue the dire need for housing makes it necessary to destroy this history — never mind it is expensive ocean front property, that will not be affordability for the majority of people in need of housing.⁵

Apparently, multiple human remains and an entire village could be deemed “incidental”. If they could erase the existence of a people through destroying their past, then they never really existed, did they?

Shining light on shady campaign donations

A couple of days after this bill’s rapid movement through the state legislature came to light, opposition was loudly voiced. These voices were heard from the Native American Tribes in North Carolina, the state N.C. Commission on Indian Affairs, the N.C. State Office of Natural and Cultural Resources, countless citizens, and an investigative report by the local news media WRAL about which sponsors of the bill received campaign donations from the developers. By the end of the week, the language favoring the developer’s ability to skip the inconvenient preservation of ancient historical remains — was removed.⁶

Fortunately, enough opposition to this destruction of human remains and an ancient village that would corroborate the time immemorial existence of a Tribe showed that the destruction was much more than “incidental."

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.