The California Indian Bone Game

Primitive and Visual Accumulation

Much of the controversy around Elizabeth Weiss began when she posted a picture of herself on social media holding the skull of an ancestor (likely Ohlone). The expected outcry from California Indian communities and others resulted in Weiss losing her position as curator of the university’s collection of remains and being banned from entering the research facility. Inside Higher Ed made the “brave” choice to republish the image in a story it ran about the situation, causing further outcry about the public display of Indigenous remains. Both instances participate in a legacy of conspicuous power long enacted through collection and exhibition. Weiss’s posting of the image and Inside Higher Ed’s decision to republish it are not anomalous. Such images are tied to a long history of the possession and display of Indigenous remains and body parts. They gesture to genocidal settlers’ proprietary claims to Native land and bodies, and the discourse from both, with their attempts to justify these actions, seeks to turn a vulgar display of power into an intellectual “debate.” Tony Bennett, in The Birth of the Museum, writes, “The institutions comprising ‘the exhibitionary complex’ . . . were involved in the transfer of objects and bodies from the enclosed and private domains in which they had been displayed (but to a restricted public) into progressively more open and public arenas where, through the representations to which they were subjected, they formed vehicles for inscribing and broadcasting the messages of power . . . throughout society.”15

Historically, in the case of Native American burials and other interred objects, grave digging wasn’t just a pastime of the elites but extended to all parts of society. An estimated one million Native American remains were held in private and public institutions by the late twentieth century.16 This number doesn’t include the innumerable personal collections—such as those held by Thomas Jefferson, who employed his slaves to excavate the burial mounds on his property, and Henry David Thoreau, who spent his summers digging for Indian objects and remains—that we are familiar with because of their literary and physical traces and proximity to the settler public sphere. Along with the identificatory project by which U.S. citizens seek to indigenize themselves to the land through their excavation and collection of Native remains and objects, another facet of Weiss’s posing with the skull—asserting an identity—the collecting of such remains acted as a replacement for the Native peoples who were being removed, killed, or forced to assimilate and understood to be on a path of disappearance.

The collecting practices of Ralph Glidden parallel the transition from such individual practices to a distinctly nationalizing project. Born in Lowell, Massachusetts, Glidden moved to Avalon, California, in 1896 at the age of sixteen. In 1915, while working as a carpenter, Glidden began to excavate sites on San Nicolas and San Miguel Islands, part of the homelands of the Gabrieleño-Tongva and the Chumash peoples, amassing a large collection that the Los Angeles Times wrote “would make any curator in this nation envious.”17 In 1918, he sold his collection to the Heye Foundation of the Museum of the American Indian in New York. The following year, the chewing gum magnate William Wrigley Jr. purchased Catalina Island and closed the island’s interior to the many amateur collectors who were raiding grave sites and confiscating human remains. Wrigley’s goal was to ensure that the “archaeological specimens” became the property of museums and the subject of serious research. The Heye Foundation received an exclusive contract to conduct all digs with an agreement to split the objects equally with the Chicago’s Field Museum of Natural History. Ralph Glidden was hired to do the excavations, which included over eight hundred grave sites. Glidden accumulated the largest collection of human remains and artifacts related to the Gabrieleño-Tongva, the Indigenous peoples of Catalina Island and the Los Angeles Basin. In 1924, the Heye Foundation cut their funding, and Glidden’s only other source of income was a small museum that he had established in 1922. He based his idea for a new museum on a mortuary chapel on the island of Malta, which had walls decorated with motifs formed from the bones of monks, and the Capuchin Crypt in Rome, which contains the skeletal remains of over three thousand Capuchin friars buried by their order.

Utilizing Native American skeletal remains as a form of decoration, the interior of his museum was a popular stop for tourists. Shelves displayed rows of human skulls, femur bones were used as supports for shelves, and windows were decorated with an assortment of smaller human bones, including those from fingers and feet. As a sort of remainder of the more “serious” scientific collecting practices with which he was earlier engaged, Glidden’s display of Native American body parts participated in the larger exhibitionary realm of Wild West shows and World’s Fairs. As an excess, it rode the line between archaeological practices protected and supported by the Antiquities Act of 1906, which set aside areas of public land in order to protect significant natural, cultural, or scientific features, and the raiding of grave sites by amateur collectors. As such, it starkly exposes the primitive accumulation of scientific materials and data and personalized and fetishized objects that continue to mark the distinction between Natives and settlers across the divide of such collections.18 The mode of visuality is also telling: it unearths the hidden past for the sake of a power of display that stakes a claim on the land itself as property at the same time that it sets the conditions for the more fine-grained visuality of osteological research outside of public view, defining the relation between settler and Native alike. Weiss’s pose with the skull performs a similar function.

Another high-visibility case is that of the Ancient One (a.k.a. Kennewick Man), which suspended for a moment the power of discursive practices to identify human remains. Washing out of a Columbia River bank in Washington state in 1996, the remains were first collected by a forensic scientist, who was brought in to determine whether there was any foul play. After asserting that the brutalized remains were “caucasoid” and included a stone point lodged in the bones, the scientist sent out samples for radiocarbon dating and was shocked to receive a report that the remains were over ninety-five hundred years old. This dissonance of two different scientific findings, forensic and archaeological, set off a racist and nationalizing media storm over the true narrative of America’s past and the politics of belonging, with some using the opportunity to question whether or not Native Americans were the Indigenous people of the land. At the time, the bones were too mineralized and too old for any DNA testing to settle the issue of race. In 2015, the remains were identified as Native American by a scientist using new DNA testing technology, which in some sense put the controversy to rest but also strengthened the argument for a reliance on scientific technology to settle such disputes.

A Case of Mis/identification

What is a case? Gayatri Chakravorty Spivak answers in a very useful way. “But let me tell you first why I think of these slippery things as cases. Because I do not want them to prove a theory by becoming post-dictions and making the theory pre-dictive metaleptically; but perhaps they do? I do not want them to be illustrations of our arguments. But perhaps they are? At any rate, these case reports inevitably produce a series of failures, working analyses and descriptions, in other words, that seem to lead somewhere.”19 She also responds to the question of how she knows a case is a case with the following:

I cannot say, for I see a shaped outline in a fragment, it begins to make sense, and it fits into a case. And then, what is it a case of? This has not yet been a thing I have worried about in my project of unlearning learning in order to ask: What is it to learn? But, for the moment, since a question generates an answer, let me say cases of subject-ing, cases of agent-ing, thus cases of identifying, cases of the staging of culture as the originary synthesis with the absolute other; everything that we leap over when we start with the object of cultural studies or the politics of culture. But the real answer is you tell me, when you have read these pages.20

Keeping both the clarity and the difficulty of these responses in mind, I turn now to a case of mis-identification. In the wake of the passage of NAGPRA in 1990, the Phoebe Apperson Hearst Museum at UC Berkeley was required to survey its vast collection of human remains, upward of twelve thousand individuals, and over a million artifacts to determine any cultural affiliation to existing tribes and to repatriate any remains and implicated cultural items identified. A series of failures by the museum in this task led to an ambiguous situation and a controversy in 2007 regarding the location and enunciative position of the research team responsible for collecting evidence to make cases for identification and cultural affiliation. The initiatory details of this case are derived from a one-way email correspondence that occurred at that time between Larri Fredericks, an Athabascan Indian and the former interim coordinator for the UC Berkeley NAGPRA research unit, and the chancellor of the university, Robert J. Birgeneau, as well as a subsequent state senate hearing in 2008, from which the chancellor was also absent. The correspondence concerned the location/position of the unit in charge of overseeing and ensuring the Hearst Museum’s compliance with NAGPRA. On the occasion of the first message, Fredericks wrote to the chancellor informing him of a recent decision by vice chancellor of research Beth Burnside, to integrate the formerly semi-autonomous NAGPRA research unit into the overall functions of the museum, a message that Fredericks sent simultaneously to both the Chancellor and the American Indian Graduate Student Association listserv, which is how I received it, as well as to the Native community more broadly. Seemingly a minor and internal matter of administration and museum organization, it is precisely “the minor” and “the internal” that are at stake in this case.

When it was passed, federal NAGPRA required institutions that received federal funding to create a summary and an inventory of their entire “holdings or collections of Native American human remains and associated funerary objects,” sacred objects, and objects of cultural patrimony, and, using “evidence based upon geographical kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion” to identify their “cultural affiliation.”21 The initial deadline was 1995. Once affiliation was determined, request by a lineal descendant, affiliated Native American tribe, or Native Hawaiian organization required the “expeditious return” of the “cultural items.” Berkeley’s research unit was founded in 1999, one year prior to the (already extended) deadline to be in compliance with the federal law and nine years after the law’s enactment, a last-minute and last-ditch effort to summarize, inventory, and gather research for cultural identification of the massive collection. In this exceptional situation, due both to the egregiousness of Berkeley’s procrastination and to the fact that Berkeley’s collection was the largest one subject to NAGPRA, the research unit was created with a certain amount of autonomy, including separate funding. In essence, it was created to fix a mistake, a mistake made through intentional foot-dragging by a number of prominent social scientists. The NAGPRA unit was not responsible for determining which remains were to be deemed culturally affiliated. That decision was and remains the responsibility of UC Berkeley NAGPRA Implementation and UCOP’s systemwide Native American Repatriation Implementation and Oversight committees (nominated by the state’s Native American Heritage Commission), which are made up of UC personnel and tribal consultants. The unit’s job was simply to provide the evidence upon which the committee would base its decision.22 At the time, Fredericks writes, “By disbanding the unit, the University avoids forcing the committees to make these decisions.”

The story from administration was that the unit was never meant to exist in its exceptional position beyond the timeline needed to produce the inventory, but, in 2001, an economic downturn and the need to hire a new museum director delayed the intended reorganization. The story from members of the unit, however, “reads a bit like a murder mystery.”23 At the California Senate Hearing, member of the research unit Lalo Franco (Tachi Yokut) gave the following testimony:

All this for us started, this whole problem, it didn’t start for us at UC Berkeley. It started at UCLA. When we repatriated human remains from UCLA, we got 12 of our ancestors back from UCLA. The case was called the Tulare Nightie Case. Now, the two people that voted no against the repatriation was Philip Walker and Mr. Bettinger. So the vote was 5–7. Now, when we started working with Dr. Fredericks, almost during that same course or period of time, we believe that that is when all of this started happening. That Dr. Bettinger and Philip Walker which were also going to be overseeing the decision on the repatriation for Berkeley did not want to see a floodgate of human remains coming back to the tribes, because what we got from UCLA were remains that were culturally unidentifiable. You know, the culturally unidentifiable rule that is being proposed that’s going to be in addition to NAGPRA and so it’s going to require an entirely new set of regulations for declaring things culturally unidentifiable. Well, U.C. Berkeley’s human remains that are there, I believe are 80 percent of them are classified as culturally unidentifiable. So it’s no mistake to me that within six months of the rules being proposed and the final set of draft regulations hitting the tribes that all of a sudden, UC Berkeley decides to reorganize their museum and put the NAGPRA staff out and the rest of everything back into the museum to make it easier for them to botch those culturally unidentifiable objects.

Walker and Bettinger were brought in as “outside consultants” to assess the research unit and ultimately made the recommendation to “fold” the unit into the museum’s daily functions and to redistribute the NAGPRA funds within the museum’s operations, because they found the unit to be “unacceptably dysfunctional.” This integration of the unit into the museum meant, among other things, that Larri Fredericks was to be demoted from interim coordinator, semi-autonomous supervisor of the unit, to herself being supervised by two of the museum’s staff, and the other members of the unit were to be spread out among a variety of departments across the museum. Consider that, as Franco mentions, due to the time constraint written into the law, the museum had identified 80 percent of its collection of the remains of over twelve thousand individuals and over a million objects as culturally unaffiliated or unidentifiable, which interrupted the process of repatriation.

A result of the ongoing primitive accumulation by the settler state of a Native past it claims as its own, culturally unaffiliated and unidentifiable remains and cultural items at the time were generally defined by one or more of the following: (1) insufficient information existed to make any determination of cultural affiliation; (2) they were associated with Native American tribes that were not federally recognized and therefore lacked standing under NAGPRA; (3) they were associated with tribes historically known but without living descendants; or (4) they were of considerable temporal and cultural distance from contemporary Native American tribes. Fredericks writes, “It is crucial to understand that many inventories fall under the latter category [of culturally unaffiliated or unidentifiable] simply because the Museum would have been out of compliance with the Federal mandate to have the collection inventories for NAGPRA completed by June 2000.” The immense size of the collection, together with procrastination on the part of the museum’s administrators and a limited time frame (one year), made a comprehensive review of the documentation for thousands of archaeological sites impossible and led to such a large percentage of the collection being labeled unaffiliated and/or unidentifiable. This failure shifted the burden onto the tribes to contest the classification. “Folding” the NAGPRA unit into the museum’s daily functions, according to Fredericks, amounted to shifting the burden of proof to the tribes to make claims “on a case-by-case basis,” as opposed to an ongoing active process of collecting evidence for cases by the unit, the mode that it transitioned into after outliving its initial inventory phase. This negated the original shift in power enacted by the law, which placed responsibility in the hands of the scientists to identify “in good faith” the cultural items and remains and gain permission from the tribes to perform research. The inclusion of the research unit into the overall functions of the museum amounted to a shift in “voice.”

It was precisely the failure to identify the remains, and the subsequent foreclosure of the ability to identify with the remains, that troubled recourse to the law. Further, identification, relying as it does on scientific discourse as a form of justice, merely redoubles the assumed crime (for which the law was needed as corrective to begin with). The bones, then, are caught between identification and misidentification, as to be unidentifiable and to be identified both fall into the realm of the continuing disaster began in the encounter with Europe five hundred years ago. Mis/identification and silence are the points of articulation between a shattered speech and the remains of a shattered past in the form of material culture. In such a relation between the fragmented word and the thing as fragment, who or what can speak? And what (kind of) voice could this be?

A Quick and Dirty History

Written into the state constitution at California’s inception, the 1868 founding of the University of California, a settler colonial and western humanist institution, coincided with the genocidal war waged against California Indian people, against our bodies, collectivities, interrelations with all sorts of beings, and fundamentally against our worlds. In the midst of the gold rush, it was four years prior to the beginning of the Modoc War in the lava beds of Northern California, an insurgent resistance movement led by Kintpuash, a.k.a. Captain Jack. It was also parallel to the Ghost Dance, the Indigenous anticolonial movement based on grassroots collective forms of knowledge through dreaming and ceremony and organized around collective feelings and relations to death and colonial violence, discussed in the introduction. The two movements are, of course, not just temporally and spatially contiguous but indicate two parallel meanings of what comes to be called California Indian studies and two different lines of development and thought.

There’s a seedy story about the development of the University of California (UC) that includes investments, deception, land deals, shell educational institutions, and all the usual shenanigans of settler colonial arrogance that people uncritically celebrate as “history” and “pioneering” that I’m not going to get into here.24 What is important is that the UC system was created with Morrill Act or land grant funding.25 From the early to mid-nineteenth century the federal government, through 162 violence-backed cessions, expropriated roughly 10.7 million acres of land from 245 tribal nations and divided it into roughly 80,000 parcels to be sold. This is the material basis for many universities and colleges throughout the United States. It is also part of what Robert Nichols more appropriately calls the production of property (and not just its expropriation) because it attempted a wholesale replacement of Indigenous modes of sociality with western humanist and property-based ones through education, with all the attendant effects of such an ontological reorganization.26 This undoubtedly affected the forms of education, or, in other words, the reproduction of western humanist settler subjects. The Organic Act, which established the University of California, was signed into state law in 1868, and the University of California was formed, which included at the time a College of Mines, a College of Agriculture, a College of Mechanical Arts, and an Academic College (the classics).

These respective colleges fundamentally map the coordinates of the western conception of the human. The College of Mines was, of course, for the institutionalization and development of resource extraction, which, as seen with the gold rush, had direct genocidal effects for California Indian people. The College of Agriculture also had genocidal implications, considering the role that ranching and farming had in developing property systems, which led to starvation through replacement of food sources and so-called punitive raids, the indiscriminate killing of Indigenous people in protection of property. It also turned California into one of the most terraformed landscapes on the planet through the development of its infrastructure, public works projects, and real estate, which directly connected to the massive collection of Native remains. The College of Mechanical Arts focused on development of technology and the sciences of labor, replacing Indigenous conceptions of abundance with an economics based on scarcity, exploitation, and strict social hierarchy. And the academic college sought to humanize in very explicit ways what were understood to be unpredictable settlers whose direct violence, it was beginning to be understood, had largely served its purpose.

This is the context in which then-governor Frederick Low attended the College of California’s commencement exercises, a precursor to the University of California, at which the main speaker, famed chemist and founder of the American oil industry Benjamin Silliman, chastised the state of California for starting a polytechnic school instead of a “real university” with a liberal arts education like those in the East. The demand had little purchase at the time among what Patrick Wolfe calls the settler horde, and this jovial chiding over the need for the humanities between white male elites in the midst of a genocidal campaign must be understood within the discourses of the time. Against those calling for extermination or removal of California Indian people—a popular discourse in both the media and in government documents—other voices were demanding the assimilation of California Indians who were being brutally and forcefully dragged into California’s material and sexual economies through written and unwritten laws that criminalized Indigenous freedom, structurally silenced California Indian voices, and legalized rape, murder, and child abduction. These softer and more enlightened voices were part of an established process humanizing both the Indian savage and the settler savage through educational missions that linked immigration policy to Indian policy through state security and the concurrent development of an aestheticized national/normative culture as white-oriented. The figure of the savage haunted Silliman’s call for a humanist education as a way to tame what in his imagination was a lawless frontier, a wildness that, of course, existed only in the feverish dreams of a white imaginary. California Indian peoples had place-specific governance and social structures that had been the order of the world for millennia.

The humanizing process created the conditions for the “inclusion” into the university of, first, California Indian cultures, knowledges, and bodies—through the extractive practices of anthropologists and archaeologists—and eventually—California Indian academics, through inclusivist and diversity frameworks, what Roderick Ferguson describes as the betrayal of the student and civil rights movements.27 Of this force of inclusion, Vizenor writes, “Now, the tribal survivors are summoned to the universities and museums, roused to be proud, cited to abide by the monologs, the dubious splendors of neocolonial tropes in tribal cultures, invented narratives, and aboriginal remains.”28 Of course, both of these “moments” were conditioned by the humanizing logics invested in the continuation of the colonial relationship to Indigenous land and over Indigenous bodies. California Indian studies began as research done by mostly white academics about California Indians, and the knowledge systems and frameworks continue this general orientation, even when they are supposedly sympathetic to Indigenous people.

Aporias of Recognition

Hiding the Bones: in the California Indian gambling game known alternately as Hand Game, Bone Game, Grass Game, or, in Maidu, Tep We (marked/unmarked), across a fire one of two opposing teams hides two pair of bone playing pieces in their hands (made from the leg bone of Pah-koo-nee, mountain lion). Two of these bones are marked. Two unmarked. They are hiding the pattern from the gaze of the opposing side.

“What other group in America does not have the right to speak for their dead?”29 Because of the mass interpellation of UC Berkeley’s collection as culturally unidentifiable, the remains and cultural items were placed outside of the discursive and recognitive powers of federal authority. Becoming the neutral objects of scientific discourse (thereby naturalizing this notion of object), they were identified and thereby contextualized, recognized, and interpellated but in a different way. To go unrecognized by one code is to slip immediately into another, as one is always preceded by a system or network that sets the terms for recognition and for action. Such a model is familiar to Native peoples, who have been subjected to the oppositional dichotomy of legal rights-bearing citizen and natural object/inhuman being across the divide of sovereignty. It has historically been a model of confinement either way, in this case confinement to the museum’s storage rooms and laboratory. In this sense, mis/identification is a form of misrecognition: inclusion and exclusion from the political sphere is dependent upon being recognized as someone or something to which rights can or cannot attach. Joanne Barker has made this connection: “These relations of power and knowledge are instanced by the transposition of the unrecognized for the culturally unidentifiable—the recasting of ‘unrecognized’ as ‘culturally unidentifiable.’”30

Such a contested space of mis/identification is the site of a split in cultural identity for contemporary Native Americans and our ancestors, effectively making identification a laboratory not just of “neutral” scientific identification of “objects” but a political laboratory of identification. This split is part of a legal discourse that expressly distinguishes between—while at the same time intimately connecting—the ethnographic enunciation Indian, defined primarily as cultural evidence in an anthropological discourse, and the politico-legal enunciation Indian, through which subjects are defined and enacted in the complex space of sovereignty. To be Indian in the politico-legal sense is to be called, addressed, and outlined according to at least thirty-three separate definitions of Indian used in federal legislation, a number that expands exponentially when tribal enrollment statutes are included. This multiple codification produces complex networks of mis/recognition/identification across the same individual and/or collective body. As Native Americans, in this sense, are primarily defined by inclusion in a social scientifically recognizable tribe and through eligibility for various types of governmental aid (codifying dependence). In other words, inclusion in a political system based upon redress and multicultural inclusion through the management of culture creates a heavily layered map of institutionalized recognition that falls on bodies in a variety of ways. The situation of Native remains, as well as cultural items, falls as well into an evidentiary discourse through mis/identification.

As I discuss in the introduction, the term culture is designated by settlers as the passage out of nature for Indigenous people, a thoroughly western concept (see chapter 2). The term in this context indicates politically and legally defined tribal affiliation based upon the very scientific processes that arose from practices of studying sites such as those excavated by Glidden and collections like those held at the Hearst Museum. The rhetoric resides in the designation “unidentifiable” being based on a legal definition of “culture” in conjunction with past and present identification procedures practiced and collected at the same site. This rhetoric has informed policy through the administrative procedures of such places as the Hearst Museum and in the role of scientific consultants in jurisprudence and policymaking. Here that particular mis/identification holds a certain power to cover over in the continuing interests of the scientific. Barker indicates the intimacy of this articulation: “Natives charged empiricism an inherently political ideology, discourse, and research practice aimed at denying its own motivations and cultural influences in the name of objectivity and neutrality even as empirical scientists sought positions within federal policy-making processes as administrators, staff, and consultants on such politically charged matters as native governance and territorial rights and the nation’s cultural heritage.”31 What is done to our ancestors and cultural items seemingly transposes onto us, because scientific forms of identification and legal forms of recognition are intimately interconnected. What’s tricky about this situation is that there are two counter-tendencies: one is to push for equal rights before the law as citizens, and the other is to assert one’s humanity through universal (international) human rights. As Barker notes, “Native peoples rejoin with the inalienability of their human rights, reclaiming their standing as human within the legal terms of their international rights to social justice and equality.”32 These tendencies correspond to two different though not mutually exclusive forces of the inhuman or, perhaps more appropriately, humanizing violence: technical/rational control and inhumane/violent treatment.

The social and political action our ancestors have induced in us by their confinement—through exclusion from the political and inclusion in the natural—risks opening up the powers of control. One avenue is the requirement of federal recognition for repatriation to take place—for the culturally affiliated during the time of the UC Berkeley case and for the unidentifiable and unaffiliated since the rule adoption in 2010. Like NAGPRA’s institutionalization of empirical methods through policy-writing and internalized organization, the Bureau of Indian Affairs (BIA) established the Office of Federal Acknowledgment to administer the regulations for federal recognition cases, stocking their bureaucracy with empirically based disciples and instituting the criterion of a preponderance of anthropologically determined cultural evidence. Culture was thereby naturalized; this is the objective of the power of technique: “The mandatory criteria assume that a tribe petitioning for recognition possesses the qualities that the procedures identify as characterizing an existing Indian tribe. The Indian tribe is not taken to be configured as such within the law or through the processes of petitioning to be recognized.”33 What kind of split is necessary to apply both objective techniques of identification and recognitive forms of subjection in the same instance? In other words, what kind of right is it that requires one to be adopted in both the community of humans or citizens and the inhuman world of “objects” at one and the same time? There was a long moment in theoretical time when thinkers fantasized overcoming the subject-object divide, but Native and Black people in the United States have been living the material horror of the imposition of this grammar and the vacillations of its overcoming for quite a long while.

Absence of Stories

Singing the Songs: in the Bone Game, the side hiding the bones sings songs of power to tease and distract the guessing team. These songs come from animals, trees, rocks, streams, anything that might whisper their song to you, giving you the power to hide.

Simply being in compliance with the law was not enough for Fredericks. Instead, she called for representation of a storytelling epistemology that would speak for the remains, including the culturally unidentified and unaffiliated, in a different way, a way that the external review committee deemed “dysfunctional.” As I mentioned, NAGPRA has provisions for using Native American epistemological and traditional forms of evidence. Again, the evidentiary standard to show cultural affiliation is defined as “a preponderance of evidence based upon geographical kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion.” This inclusion of Native-specific forms of knowledge has caused some legal theorists to point to NAGPRA as an exemplar of legal pluralism. But, in practice, stories haven’t carried the same weight as scientific physical evidence. To paraphrase archaeologist Tim White, a major opponent of NAGPRA and a significant part of the reason that Berkeley remained out of compliance for so long: science is hard work; making up stories is easy.

The lack of stories is no surprise if we consider the narrative that Fredericks herself recounts in 2007. It is a story of leaked correspondence and hushed voices. Take for instance this accidental forward from the vice chancellor at the time, originally intended for the assistant vice chancellor, who was the primary contact for Fredericks regarding the review process that ultimately led to the vice chancellor’s decision. About it Fredericks writes,

What is telling about this email is that she sent it to me by mistake; she thought she was emailing Price to give him guidance. I quote the email in its entirety:

“Bob, In a worst case scenario, you might address her issues by asking for a list of the last several months tribe visits and taking a random sample for the reviewers to interview by phone. That would give them input but not go near the idea they should be on the review committee. That’s an absolute no. Maybe better to stonewall altogether but I see blackmail here that she’s threatening to stir them up if we don’t do what she wants. We should definitely not go there. Beth”

So, should Native Americans be represented on a review committee affecting their ancestral remains and sacred objects? “An absolute no.” What is the “worst case scenario”? Ask Walker and Bettinger to conduct some random “interviews” by phone. But watch out! The uppity blackmailer might “stir up” the Indians (sounds like a bad Western). “Maybe better to stonewall altogether.” Price decided to stonewall.34

This is a message in excess. Fredericks was not meant to read it and certainly not supposed to send it along the channels of communication (just as I was never intended to show it to you). It is revealing through bungling because it concerns an issue of ongoing settler colonial politics. Here is a clear issue of representation. Again, the makeup of the committee created to assess and make recommendations regarding the role and location of the research unit—whether it should be under the management of the museum, who would distribute the funds allocated to it as they saw fit, or housed outside of the museum at the Center for Race and Gender, as Fredericks advocated—is seemingly a minor issue. The committee, as Fredericks notes in her message, was made up of two white anthropologists. This committee and the UCB and UCOP committees that ultimately decide the fate of the remains and cultural items housed by the museum were at the time, according to her, top-heavy with anthropologists and archaeologists. They didn’t include any linguists, historians, or oral history specialists who might have countered the hegemonic process of a scientific identification of the bones. As Barker notes, “In each case, the aim has been to exclude the unrecognized and dismiss the veracity of native oral history and experts as politically biased, invented, and uncorroborated.”35

A question arises, though, as to the effect of including oral tradition in the series of forms of evidence. If the issue remains one of a preponderance of evidence, a quantitative and legal western metric for determining truth, how much has the process really been affected by Native epistemology? Can a story be merely evidence in this sense, or would its inclusion require an overhaul of the entire structure of verification and the relationship between speaking and that of which is spoken? How does one work with story? Salish poet and theorist Lee Maracle has asserted the need for a form of research that would not simply be applied to Native stories or take Native stories as evidence or means of another kind of truth but would rather itself take on the form of story as research. For her, this is a Salish as well as a First Nations perspective, in which “the light must be bent in a direction that is not obvious, that is in the shadow. In shadow land we experience the discomfort of the unknown. Healers are present to ensure that this discomfort is processed and pushed past, and that we don’t make fear-based, discomfort-based decisions about the unknown.”36 This is a practice of training the ear, even when the visual is sought; it is a matter of understanding the visual as that which is conditioned by the avisual and the concomitant heightening of sound. “In its possession of force, it may draw us to look again, to re-search, to play, to fiction ourselves in dreams of transformation or to escape the very force of looking.”37 At the same time, it is respect for both opacity and that which does not get said, in such a way that one does not want immediately to make silence speak or bring what is in the shadows into the full light of day. Even more strongly, it is the night present at midday: “We are listening—our imaginations fully engaged—to what is said, what is not said, and what is connected to what is not said.”38 The known, then, is always conditioned by the unknown, and this demands that we treat the unknown as an authority with all the enigma that this implies.

The absence of stories within the museum is certainly a subjugating of knowledges and of representations, allocating the bones solely as sources of information. In scientific representations, bones are things to be studied, found, sought out, for the sake of a rational knowing that has its roots in the Enlightenment’s distinction between Man (the subject of politics) and Nature (the object of science), a split that organizes what are considered appropriately political subjects as well as the material conditions of knowledge and social reproduction. Fredericks’s message seeks a re-membering of this divide by politicizing the processes of identification in the form of recognition. She imagines a unified Native political body, on behalf of those for whom she works, the tribes (an employment relationship that led to the label dysfunctional), and there is the not-so-spatially-distant past that seeks to speak through her about the colonial silences of identification, the fragments calling for a return to an imagined wholeness. But we must go further. Just adding Native ways of knowing is not enough. To accumulate a list in a preponderance of evidence is antithetical to a storied form of research. To follow Maracle along this detouring path, “We need to draw upon the tangled web of colonial being, thread by thread—watch as each thread unfurls, untangles, shows its soft underbelly, its vulnerability, its strength, its resilience, its defiance, its imposition, its stubbornness.”39 It’s stubbornness. Including the stubbornness of silence.

Native Silences

Calling the Bones: the performance of the side that is hiding, the language of the body, past experiences, a lifetime of developing intuitions, as well as hidden or secret deformed charms all help in calling the pattern of the bones. One does not just look, one experiences, listens for the call of the bones, which speak through the hiding, a different type of seeing.

“Native silences highlight the unsaid and the unspeakable,”40 notes Marianne Constable in her book Just Silences, where she further establishes the connection between positivistic research and positive law by describing contemporary law as being based on sociological and empirical information. In this sense it is only knowable sociologically, an epistemology that privileges efficacious power or control. The most apparent form of control would be discourses that correspond to a sociological worldview.41 The affinity between the research agenda of the scientists and the management policies of the museum—an affinity based on technique—is supported by and supports in turn this notion of law. The alliance of these three levels of discourse—(1) scientific description and method, (2) institutional management of representation, and (3) legal recognition as control—further complicates the narrative that Fredericks recounts.

Constable specifically addresses NAGPRA and the Native American Languages Act (NALA, also passed in 1990) as two moments in legal jurisdiction that exemplify the “sociologically discursive and rule-like character of law.” She states, “language and religion, speech and the sacred, become objects of well-intentioned social studies that articulate the conditions for preserving culture.”42 The mass interpellation of the collection in the museum as “culturally unidentifiable,” then, is based entirely on a sociologically created notion of legal recognition, one that makes possible aporias such as the created category culturally unidentifiable, aporias that become the conditions for further control through their correction. Constable focuses on language preservation and cultural definition of artifacts and remains to show the manner in which the Indigenous subject is encoded in current politico-legal discourse. As a counteraction, she highlights the silences of Native peoples as pointing to a different type of subject and, therefore, a different type of law and voice. She writes, “In the silences that US law does not hear, there lie possibilities of law—as of language and of religion and of justice—that positivist jurisprudence and sociological society do not acknowledge and whose truths they cannot accept.”43 This sociological grounding of Native legal claims manifests in the discourse that subtends the NAGPRA research unit dispute in the form of evidence that is used on both sides. To make claims for the absence of ethnographic and linguistic evidence is to accept the basic ground, what she calls “the pervasive privileging at law of the kind of discourse that corresponds to a sociological worldview . . . In the transformation of the first person, who may not have spoken, into a third person about whom facts are known, and then into a presumed second-person ‘you’ who will have been presumed to be addressed as such, lies the legal positivist and social scientific misrecognition of other ways.”44 Here the complex process of providing evidence, within the frameworks and intersections of legal positivism and social/biological science, as Constable shows, by grammatically normalizing subject positions through subjection to the law, makes the terrain incredibly difficult to navigate, but it also makes the emergence of voice outside of such a grammar, in the form of difference, all that more powerful. As the mediator between the tribes and the museum (collections, researchers, archivists, administrators), the research unit, in its dysfunctional approach, revealed the ambivalence of such a position.

Constable writes, “Whether law is God-made or man-made, text or behavior or something else or both, law tells—gestures (to), indicates, shows, reveals, states, describes, threatens, or commands—its addressee or subject what must be done.”45 Recalling Barker’s discussion of the role of experts in creating Native American policy, the sociological grounding of law means that law takes on social science discourse as its own (mirroring the inverse when a scholarly discourse takes on legal discourse as its own, such as in the historiography of genocide, which I discuss in chapter 3) and thereby becomes indistinguishable from social policy. It is a social policy grounded in a social scientific episteme, which only recognizes speech and actions identifiable according to its terms. This is a clear, performative force of humanization through social control and delimitation, developing the technical concepts and tools that allow the settler human (writ large) to master and mold the world to his own ends. “In starkest terms, is law other than a tool of social self-constitution, a social policy produced by social knowledges that gauge the social options in, and social preferences of, a society governed by social policy? What else could law be?”46

And what is the social policy of the museum, the university, the state, the country? In all cases, it is settler colonization and imperialism at ground and to the core. All laws and policies serve to reproduce this colonial and imperial social order, whether through force, reform, inclusion, exclusion, representation, or erasure. In the context of another settler state and its attempts to redress colonial violence, Dian Million, in her book Therapeutic Nations, describes the shift in Canada from hard power, directed at Indigenous communities in the forms of assimilation and direct social control and governance, to softer forms of control through therapeutic “human development”–oriented economic and social policies and the neoliberal reorganization of “self-government.” The hinge for this shift, according to Million, is the codification of human rights in international law: “The creation of a legal framework for human rights also begat an ‘advocacy revolution’ that in turn recognized humanitarian ‘victims’ and those who would ‘represent victims.’”47 For Million, this legal turn constitutes an ambiguity such that a human rights framework acts as either or both an oppositional framework for contesting the forces and world devastation caused by global capitalism and/or a convenient cover for the extension of these same powers through a more subtle form of hegemonic, imperial control. It is, in Million’s terms, “a field of hegemonic maneuver and its accompanying and constitutive violence and counterstruggles to obtain relief and justice for losers” that also marks the space of a humanitarian struggle over life and death.48

This struggle leads to uneven implementation of this policy of humanization. Humanitarianism also often acts as the justification for immense violence in a logic that Samera Esmeir describes as the “violence of non-violence,” which calls on humanitarian powers to decimate peoples and polities for the sake of global “security,” national and international “self-defense,” “liberation,” and the forced implementation of western-style “republican democracy.” When, for instance, Israel, in its continuing settler colonial and genocidal assault on Palestine and the lives and worlds of Palestinians, not only ignores human rights—or at best seeks the threshold beneath which an act would be considered a “war crime,” definitions that it actively seeks to manipulate—but also has its genocidal actions upheld as war or self-defense against an occupied people for its “self-protection” and is therefore operating within the human rights framework, we must understand what we are relying on when we call something “a human rights issue.” The use of crises in many humanitarian interventions depoliticizes and naturalizes violence through the misnomer “war” or even “reprisal.” Such mechanisms are extensions of and intimately and materially entangled with settler colonial policies toward Indigenous peoples who since the 1970s, and more recently with the passage in 2007 of UNDRIP, call upon this humanitarian regime for our rights.

This rights dilemma impacts the conditions for speaking and the registers in which speech is heard, especially as regards the shifting relations to international law and between domestic law and the international. These relations constitute a complex and often contradictory weave of the techne of rights. Million highlights how the need to appeal to the international human rights regime gives shape to contemporary power dynamics and hierarchies. “As Indigenous peoples, we are now called on to use instruments of truth-telling: international forums, reconciliation, and reparations as part of a formal trauma ethos as it gives shape to relations between the weak and the strong in our age.”49 In settler colonial contexts, the nationalist project of reconciliation and the demand to speak one’s trauma toward this end often become the driving force of the implementation of rights. As an example, Million notes that “funds attached to residential school healing were provisional to the communities while their ‘trauma’ was relegated to a site for the national reconciliation of the nation.”50 Settler interventions and the bestowal of rights amount to a “politics” that is in some ways returned to communities but devoid of social and political content and form. Emptied of sociality by neoliberal state and international corporate interests, “politics” returns “in the form of individual morality, organizational responsibility, and ethical community.”51 The frameworks for recognizable speech are thereby determined by these narrow categories and according to neoliberal conceptions of the wholistic individual.

This erasure of Indigenous voice and relation is in part because both the United Nations and settler states generally recognize no other polities than anthropocentric ones. Consequently, Indigenous political and social worlds eradicated by violence are further destroyed through the means of redress and the demand to speak and be recognized as narrowly political in the western neoliberal sense, both at the national level and internationally. Making determinations about what constitutes “human development,” healing, and life itself, settler management of Indigenous peoples is a vast biopolitical, humanizing, and vitalizing project that is, in the end, without a politics in any real sense, without any acknowledgment of what Joanne Barker calls “a polity of the Indigenous,” the plural and “unique governance, territory, and culture of Indigenous peoples” in “related systems of (non)-human relationships and responsibilities.”52 The neoliberal and imperial form, both national and international, Barker and Million contest with an Indigenous framework that depoliticizes by destroying Indigenous polities, replacing them with a brute mode of exploitation and the illusion of a humanist “politics.” It puts to use Indigenous claims for attending to past atrocities, acknowledging self-determination, healing from intergenerational trauma, and returning our ancestors, toward the renewal of settler domination and the continuing destruction of Indigenous political and social worlds in the figure of a becoming-human. “While we may celebrate the long, hard work that is represented in this landmark declaration [UNDRIP], the site wherein Indigenous peoples officially become subjects of ‘human rights’ must also be seen as a volatile place in a volatile time.”53

At the same time, international human rights has the potential to open the space of a fourth world outside capitalist and socialist economic development, indicating other inhuman forces than developmental ones. In the context of repatriation politics, like the Kennewick Man controversy, what seems like the end result—the return of our ancestors as a form of reconciliation—is only the beginning of a deeper anticolonial, world-making process. In the pause of uncertainty, the question gets asked: what home do our ancestors come back to? (This is a question for both repatriation as well as the Ghost Dance and implicates and moves us differently.) This moment of stasis creates other ways of thinking and doing, as “to enact any actually practiced Indigenous self-determination threatens any nation-state’s imagined homogeneous territorial sovereignty” and mode and imaginary of worlding—as it should.54

In large part, for both Constable and Million, it is the injunction to speak before the law that actually harms the unspeakable or the unspoken, as it cannot be heard. Some silences have yet to be said, and some silences are not unsaid. What kind of law can be inaccessible to articulations of policies grounded in empirical evidence, one that could hear silence as something other than what has yet to be said, that isn’t an injunction to speak and to speak in narrowly recognizable ways? Can a silence speak without becoming recognizable speech and yet still be effective?

The Proposal

While a professor at the University of California Berkeley, Gerald Vizenor developed a proposal to create a federal bone court that would hear the testimonies of Native bones. Vizenor initially delivered the proposal in 1986 as a resident scholar at the School of American Research (SAR, now the School for Advanced Research) in Santa Fe, New Mexico. The paper was later published in his book Crossbloods (dated 1989, though the publication date is January 1, 1990). Of the reaction to the proposal, Vizenor writes, “The response from other resident scholars, archaeologists and anthropologists, was tolerant; the idea invited some humor as critical abatement, but a discourse never matured at the seminars.”64 I’d like to now take up this discourse as, in the wake of NAGPRA’s successes and failures and particularly the failure of human rights as a promise deferred, it has likely had time to mature.

That Vizenor delivered his proposal to a room full of archaeologists and anthropologists, working on such projects as “The Human Ecology of an Amazon People,” “Interzonal Agrarian Economics and the Development of Complex Society in South Central Andes,” and “Ecology of Social Evolution: Woodland Systems in the Prehistoric Midwest,” indicates the trickiness of it. Meant to be a disruption of or intervention into not only the discourse of that year’s resident scholars and their advanced seminars but also the ongoing project of the SAR, it seeks both to (re)politicize the neutral scientific discourses dominating the discussion but also to fail from the start.65 Significantly, the proposal delivered in this context also makes visible the condition of being the Indian in the room, a well-known dilemma for many Native scholars and artists, especially resident ones including throughout the history of SAR; this being a question of minor discourse or what Vizenor calls “shadow survivance,” more than of “representation.”66 Through such “shadow” visibility, Vizenor invokes the voices of ancestors absent from the discussion without directly speaking for them, ventriloquizing, or acting as a medium.

Founded in 1907 as a center for archaeological research in the Americas, SAR’s institutional history tracks with the humanizing projects of anthropology and archaeology’s collaborative, if distinct and uneven, recuperative, self-reflexive critical reformations (see chapter 2). About the impetus for its founding, SAR’s website notes, “The unveiling of the treasures of Troy, Ephesus, and the Valley of the Kings held the world spellbound. But as the United States expanded westward, a new science sprang up in the native soils of the New World. Explorers, cowboys, missionaries, settlers, and entrepreneurs became fascinated with the remains of early Indian civilizations in the American West.”67 Expanding from a strictly archaeological venture, in 1967 SAR began to include anthropology and southwest Native art in its research agenda. Since then, each year the institution has hosted a resident Native scholar, through the Katrin H. Loman fellowship, and sponsored collaborative work with Native artists. Echoing Benjamin Silliman’s call for the inclusion of the humanities in the UC system, this deployment of the arts as a critical humanizing apparatus to reform a colonial, technical science needs greater investigation, but it generally falls within what David Lloyd describes as the anthropologizing regime of aesthetic philosophy through mechanisms of representation: “In the late Enlightenment, a discourse on aesthetic experience emerged that finishes a decisive account of the conditions of possibility for universal human subjecthood.”68 It is an aestheticizing and humanizing apparatus captured in SAR’s current mission statement: “SAR advances understanding of humanity through a unique alchemy of creative practice and scholarly research in Native American arts, anthropology, and related disciplines.”69

Vizenor’s proposal, on the other hand, plays literary and legal theories off each other in an inhumanist manner, in what he calls “a postmodern language game with theories on narration and legal philosophies to direct the discourse.”70 In this game, “narrative theories augment the proposition that bones have the right to be represented and heard in court; moreover, tribal bones would become their own narrators and confront their oppressors in a language game, in a legal forum—the proper person, mode, and perspective in narrative mediation.”71 The proposal itself is simple enough. Congress has the power to create federal courts with its plenary jurisdiction. Congress should use that power to create a federal bone court to hear cases in which “sovereign tribal bones” would “be their own narrators.” According to Vizenor, “this new forum would have federal judicial power to hear and decide disputes over burial sites, research on bones, reburial, and to protect the rights of tribal bones to be represented in court.”72 For him, this is an appropriate path forward as federal judicial power has jurisdiction particularly in cases that arise under constitutional definitions, “such as human and civil rights, treaties, and tribal sovereignties.”73

The rest of the proposal lays out the justifications and conditions for the speculative bone court: narratology to attend to voice and how to hear it; racial science as condition for the current situation in which “white bones are reburied, tribal bones are studied in racist institutions”; a robust conception of legal standing that pushes the limits of the concept of legal personhood; an interpretive theory of law and rights that creates cracks in and flexible understandings of settler law; and “an agonistic discourse on anthropos or humans and their real narrative remains” or a theory of discursive power that intervenes in knowledge production and evidence as presented in a forum with the power to make move.74 Such an approach moves outside of colonial divisions between literary analysis, the performativity of legal edicts, and the constative statements of scientific discourse via a rhetorical reassemblage of voice outside the terms of humanist agency, interiority, and individualism and without a recuperative impulse as often found in institutionalized forms of interdisciplinarity. This eccentric movement, through rearrangement/derangement of the discourses, prepares a forum for the bones to finally speak.

Vizenor made a career poking fun at the humorless seriousness of academia and, particularly, scientists. In this sense, he continues in the grand tradition of Native communities who tease if not outright mock anthropologists. Vine Deloria’s satirical and scathing sketch in his chapter “Anthropologists and Other Friends,” from his seminal work of Native studies, Custer Died for Your Sins, perhaps most famously represents this tradition: “Into each life, it is said, some rain must fall. Some people have bad horoscopes, others take tips on the stock market. McNamara created the TFX and the Edsel. Churches possess the real world. But Indians have been cursed above all other people in history. Indians have anthropologists.”75 Vizenor adds his own contribution to this communal genre in his book Earthdivers, in discussing anthropologists’ overly analytical, self-replicating, and proliferating interpretations of fecal and anal themes in Native American creation stories. “Some anthropologists seem to have little appreciation for sacred games in tribal creations. Their secular seriousness separates the tribes from humor, from untimed metaphors, and the academic intensities of career bound anthropologists approach diarrhetic levels of terminal theoretical creeds. The creation myth that anthropologists never seem to tell is the one where naanabozho, the cultural trickster, made the first anthropologist from fecal matter. Once made, more were cloned in graduate schools from the first fecal creation of the anthropologist.”76 But, as with Deloria, Vizenor’s humor is deadly serious, if not downright dangerous (in the best/worst sense, that is, with best/worst intentions). Despite a cultivated uncertainty about the authenticity and effectiveness of his proposal, Vizenor seems to put at risk the discursive and juridical edifice of settler law, its fictitious plenary power and self-justification, through the law’s reliance upon racialist science and civilizationist logics. In other words, Vizenor teases out and risks the western liberal humanist subject because the power held by the settler state and its institutions and actors to define our ancestors, to possess their bones while we remain an occupied people, to control the narrative of the past, is the assertion of the modern liberal human and its universalization as European Man, supported by the differentiation of race, culture, and temporal designation.

The racist possession and study of ancestors was an attempt both to control the narrative of history and thereby to claim possession over the land, as well as to control death itself, a settler colonial vitalist project in the form of a vacillating necro- and biopolitics, manifested in the scene of Weiss’s handling of an ancestor’s skull as a grisly trophy. The shift from amateur collecting practices (described earlier and coincident with the traffic in body parts that were simultaneously a gory market of colonial trophy hunting and part of a bounty system based on body parts tied to colonial extermination projects) to the “professional” and “scientific” knowledge production predicated on the transport of Indigenous body parts from murdered people to institutions for research makes clear the metonymic function of ancestors’ remains for the settler colonial state. The stories of militias and U.S. cavalry members wearing the body parts of Indigenous people and of skulls displayed on the desks of prominent politicians represent the “victory” over “savages.” The literal beheading of Kintpuash figured a political and cultural triumph; that his stripped skull was shipped to the Smithsonian—later repatriated—made his death scientific. For Indigenous peoples, this practice of collection and research subverted two relations to death for us: one the destruction, as it has come to be called in California (which I discuss in chapter 3), and the other our relationships to our ancestors.

An ancestor, by definition, is someone who has died. An ancestral relation invites death into the conversation. The many ways we have to control this relation to death (genealogy, identity, legal personhood, biological conceptions of life, assertions of agency, a meaningful existence, religion, spirituality, reason, finitude, and being human), to make it safe for our consumption, are here swept away. Letting go of the attempt to control death, Vizenor’s proposal and its intended failure invites an intimacy with death and refuses a closed and bounded and therefore meaningful existence separated and/or protected from contamination with death. Vizenor’s bone game isn’t a willful refusal of the future à la Lee Edelman’s No Future, which is merely another assertion of control.77 Rather, it is a cultivation of the indeterminacy between refusal of and failure to participate in western colonial temporal organization, to embrace this “lack of time,” including the sense that we are out of time, and to find in this expression an impatience that opens onto a more radical patience. Bring them home now! To what home do they return? Such is the void opened onto ancestral time. Yes, the proposal is a tease but one with a dark turn, more sardonic than satirical. Following the ancestral relation outside the narrow frameworks of religion, spirituality, and political identity is an empty pragmatics that challenges “justice” as a type of “truth” (Rawls). It is, rather, an embrace of indeterminacy, of the bones (do they speak? do ancestors? do I?), not as a choice but as an inhuman impossibility that sweeps us outside the political, legal, and other frameworks of the western human. To propose a forum for the bones to speak is to desire death, to be in relation to death, the absolute inhuman, to desire the return of the ancestors by losing the will to die, to give in to continuing to live (by continuing to live), to continue with contempt for the false choices laid out before us. To continue with and because of contempt. It is intimacy with and intimacies created by the dead. Repatriation, rather than a closure to an episode or an end in itself, is an opening onto the interminability of death.

Vizenor’s proposal, paving a path of return by way of bones speaking, is a disorientation of colonial relations. It places within the system of rights an ambiguous figure that puts pressure on weak and inflection points. By insisting that “human rights continue after death,” Vizenor extends the form of the human as constituted before the law into the realm of death itself, daring the colonizer to ask how far does it go? “Human” remains that were not “human” in the sense we know when they died: do they become human through reburial, disposition, categorization? Are they ancestors? Bones? Remains? Fragments? Absences? Presences? Whole in their partiality? Which speaks? What kind of voice? Singular, plural, or something besides? Such an extension rebounds and draws the entire system of rights into this disorienting realm of indeterminate death, taking it on an infinite detour through thoroughly scrambled concepts and language that threaten the very foundations of settler possession. “Tribal bones are sovereign, a moral measure of properties, and an agonistic continuation of Native rights in a postmodern language game.”78 Vizenor plays with their categories, asserting that bones are in a “natural disposition,” in “communion with the earth,” and are to remain undisturbed in their slumber, a suspension both of their use for settler scientific and nationalist narratives and of our demands on them to be part of a political cause that often draws on humanist settler categories and underpinnings. They “cannot be taken for public use without legal consideration and compensation.”79 Bones have the same standing as “corporate bodies, ships at sea, church, state, and municipalities.”80 They are not “salvage,” as in a wrecked ship or “treasure hunting.” Stirrings of the abolition of property, these uses of public and standing anticipate Coulthard’s critique of recognition and Nichols’s analysis of the production of property, drawing the political and legal terminology of the settler state into the deep waters of ancestral time and letting it drown.

The Forum

Eyal Weizman, in the context of war crime investigations into Israel’s genocidal actions in Gaza, writes, “The primacy accorded to the witness and to the subjective and linguistic dimension of testimony, trauma, and memory—a primacy that has had such an enormous cultural, aesthetic, and political influence that it has reframed the end of the twentieth century as ‘the era of the witness,’ is gradually being supplemented (not to say bypassed) by an emergent forensic sensibility, an object-oriented juridical culture immersed in matter and materialities, in code and form, and in the presentation of scientific investigations by experts.”81 The forensic, for Weizman, is threefold. It references the use of scientific methods and techniques in criminal investigations, the courtroom or forum as site of speech, and the rhetorical conditions of speech itself. Hearkening back in some ways to Constable’s notion of technique, the forensic also disrupts technique by opening the door to in- and nonhuman matter and materialities as well as their mediated voices. Moving outside (or supplementing, perhaps prosthetically) the humanist episteme of the witness (testimony, trauma, and memory), Weizman goes forward and backward in time in order to understand the rhetorical assemblage of this seemingly new conception of the forum. Noting that the rhetorical concept of prosopopoeia, a mode of speaking on behalf of inanimate objects, has its roots in ancient Greek and Roman law, Weizman details the conditions of the scientific expert in the courtroom as akin to being a translator, interpreter, or perhaps an organizer of a set of technologies that mediate between the thing and the forum. Together these make up an assemblage that is “an entangled rhetorical technology.”82

Going further, Weizman describes “a class of Athenian judges [who] presided over a special court in charge of cases brought against unknown agents and inanimate objects.”83 He mentions a case brought before this court regarding “a curious incident in which a statue of Theagenes made after the athlete’s death was beaten by one of his rivals by way of revenge, until the statue fell and killed him. The statue was put on trial for murder, judged guilty, and thrown into the sea, only to be reinstated years later.”84 (Perhaps Weiss should have sued the ancestor/skull instead of the university! In a bone court, she could—and the ancestor could have their say about being handled.) The focus of Weizman’s account of the forum is on the “political plastic” of the built environment in relation to social forces; the entangled performances of an ensemble of materialities, including states and some humans; and the forum that emerges from these conditions. The role of prosopopoeia is both to “evoke the dead” or give “voice to things to which nature has not given a voice,” as the rhetorician Quintillian notes, but also to push voice outside of the human through its entanglements in the multiple materialities and positionalities of the forum.85 Indeed, nonhuman objects, in Weizman’s account, could not only be represented in court but could be themselves judged and condemned just as (one would assume) they could themselves judge and condemn. The question of the role of the human voice as the locus of representation in this account, though, still remains up in the air.

As with much new materialist discourse, Weizman’s account of the forum seems to put a too-positive spin on the distributed networks of agency, reason, and vitality in its move away from the “era of the witness.” The focus on the witness, with its emphasis on what Jean-François Lyotard calls the “differend”—an injustice that arises because the discourse in which the wrong might be expressed does not exist—considers the differential power structures of voice in a way that Weizman de-emphasizes, though not fully glosses over. Constable’s discussion of the sociological ground of law falls squarely within the concept of the differend and her turn to silence as what is both harmed by the biopolitical demand to speak—speak or be spoken for, speak to the recording machine of society and the law or be counted as acquiescent, present in such a way that is understandable, or be silenced through the performative command of the law itself—opens other ways of thinking about what a nonperformative law might be, a law without violence that is attentive to hearing and seeing otherwise. Vizenor’s proposal splits the difference between Constable’s latent humanism and Weizman’s posthumanism with attention to the voice of the inhuman.

Voice of the Inhuman

For Vizenor, the forum is a theater in which, he argues, legal pragmatists would act “as if” tribal bones had rights to their own narratives.86 It is akin to living “as if” the dead are returning, living in the dizziness that disorients the certainties of colonial reality: a minor but rigorous way of being. Such a claim haunts the performative force of law with a certain inaction or emptying, a gestural quality. Repatriation, the return of our ancestors, cannot be a legal action—with all the meaning and recuperative energy this entails, humanizing us and them via the western legal tradition—but must be a different kind of movement altogether: illegal or, better yet, a-legal or lawless. What is emptied is the museum (as meaning-making machine), the discourse of capture, and the force of the law.

Beth Piatote, who wrote her play Antíkoni while also a professor at UC Berkeley, has captured this “criminal” aspect of the destruction of the law with her adaptation of Sophocles’s Antigone. Her Antíkoni proclaims:

I will commit this sacred crime, for I am true

To the Order of the world, the eternal laws, set in motion

Long before this time now, this time that will someday end.87

Piatote restages the confrontation between Antigone and her uncle and head of state Creon over the burial of Antigone’s brother, Polyneices, whom Creon left unburied on the battlefield and forbid to mourn as punishment for leading an uprising. Piatote rewrites the confrontation as between a Nez Perce–Cayuse woman, Antíkoni, and her uncle, Kreon, the director of a museum, over Kreon’s refusal to return the remains of two Native brothers who died in battle, one siding with the U.S. military and the other with Native insurgents. Antíkoni ultimately steals the remains to repatriate them but is captured. Both Antigone and Antíkoni end up alone or keeping company with the dead, suspended between life and death, one entombed in a grave, the other in a projected image.

CHORUS Oh, Antíkoni, Poor Little One,

We see you in your tomb, suspended

Between the living and the dead.

ANTÍKONI And here I shall remain, along with the dead

My life as theirs suspended, just as that of my kin

Who find no comfort in grief, whose grief can never begin

And thus will never end.

In this world in-between, my voice and visage live on

To those not-yet-human what human laws may do

to interrupt time, to stop the Earth

From turning and turning around itself, how such laws disturb

The Order of the world.88

Sophocles’s Antigone has come to be representative of the interdiction on mourning for those subjected to state violence and cast as subhuman as well as the possibility of another order of law that would allow such mourning to occur, a dilemma that hinges on the figure of the human. The play is oft-cited and analyzed within the discourse of the witness, the politics of mourning, and in the context of the differend. It is also often referenced in discussions about the differences between positive and natural law, between human and divine law. Piatote’s play addresses the interdiction on mourning through the museum collection, once again connecting settler colonial genocidal actions with the scientific practices of archaeologists and the institution of the museum. The suspension between life and death that holds Antíkoni connects her directly to the status of our ancestors who lie between scientific object and ancestor, “Who find no comfort in grief, whose grief can never begin/And thus will never end.”89 This suspension goes to the heart of the dilemma, the double bind in which Indigenous peoples are positioned as prior to the existence of settler claims in settler narratives and legal recognition only for the sake of relinquishing our own claims and remaining in a state of suspension and nonthreatening half-life, to found perpetually and symbolically the state through obsolescence and assure its continuation. Antíkoni’s actions invoke this dilemma by challenging the state directly and, according to Kreon, thereby threatening tribal survival, and yet tribal persistence for Kreon requires reconciliation with the state, which is another kind of death. Such is the destruction.

The ambiguity of the play’s ending raises the question of the human from the different perspectives of the characters, Antíkoni, the activist, anarchist, and insurrectionist; Ismene (her sister), the traditionalist; Haimon (Antíkoni’s betrothed), the collectivist; Kreon, the tribal leader, nationalist, sovereigntist, and upholder of settler law, to preserve tribal nations; and the Chorus of Aunties, elders, and guides, as they all face the screen that holds Antíkoni and speak.

ANTÍKONI Oh, to confound Justice with Laws!

What is denied the Dead is denied the Living ten times again.

We remain captives with them.

ISMENE Elder Brother set the Earth in motion, turning it to the right

We must care for the body this way

From time immemorial, for eternal time.

HAIMON You remain an Indian.

And an Indian is no one without his Tribe.

KREON This is how we’ve survived,

and how we’ve undermined

The United States of Surveillance.

CHORUS The humans are coming soon

Already they are coming this way.90

What does it mean that “the humans are coming”? Is this a process of humanization through a fuller reflection of Indigenous community? One that combats reductive or stereotypical representations? Or a deferral of humanity through the mechanism of prophecy? What kind of prophecy do the Aunties offer here? And how do we understand it in relation to Antíkoni’s seeming sacrifice? Noting the Chorus’s collective voicing of prophecy’s resonance with the Ghost Dance: Are the dead the humans? When will they arrive? Will they?

Piatote’s adaptation and Vizenor’s proposal can both be understood through Vizenor’s use of the grammatical construction fourth person. Fourth person generally refers to indefinite or generic referents, such as the one in “one would like to think” or the many in “many have tried.” But Vizenor expands this notion to include hearsay in a court of law. Describing a scene from the transcription of a court case addressing the rights of the “Chippewa or Ojibwe” to regulate the manoomin (wild rice) harvest on the Rice Lake National Wild Refuge in Minnesota against the federal agents who had assumed authority, Vizenor focuses on the testimony of Charles Aubid (a.k.a. Zay Zah). Aubid, who was eighty-six years old at the time, claims to have been present as a young man when federal agents told Old John Squirrel that “the Anishinaabe would always have control of the manoomin harvest.”91 Aubid asserted that the Anishinaabe understood their rights by such stories. The judge for the case agreed with the objection by the federal attorney that Aubid’s testimony was hearsay and therefore not admissible. “‘John Squirrel is dead,’ said the judge. ‘And you can’t say what a dead man said.’”

Against this manifestation of the differend, which echoes the question of what counts as evidence and through what form, Aubid, as Vizenor relates, “turned brusquely in the witness chair, bothered by what the judge had said about John Squirrel. Aubid pointed at the legal books on the bench, and then, in English, his second language, he shouted that those books contained the stories of dead white men. ‘Why should I believe what a white man says, when you don’t believe John Squirrel?’”92 Aubid here asserts the fourth person, like Antíkoni’s actions for the sake of the ancestors, to contest the second person of the law’s command, the cycle of first person turned third person through evidentiary discourse become second person through the force of the law, described by Constable. The fourth person equalizes and upends the well-known distinction and power relation between the archive and repertoire (Taylor), neutralizing the force of law through indirect discourse (hearsay) and story. As Vizenor says, “Charles Aubid created indirect linguistic evidence of a fourth person by visual reminiscence. His stories were intuitive, visual memories, a native sense of presence, and sources of evidence and survivance.”93 And, like the other resident scholars at SAR, the judge in this case “was deferential, amused by the analogy of native stories to court testimony, judicial decisions, precedent, and hearsay. ‘You’ve got me there,’ he said, and then considered the testimony of other Anishinaabe witnesses.”94 Colonial humor is critical abatement as opposed to Native humor’s deadly serious play.

Piatote’s cacophony of perspectives, assembled around the bones/ancestors, understood through the grammatical position of the fourth person, does not act as a humanizing force. In relation to the creation stories, seeming non sequiturs woven throughout the play, this collective voicing rather prophesizes the conditions of the arrival of humans who, in most Native creation stories, are the youngest and least wise of all beings and in need of the most help. Told by the Aunties, these stories of violence, betrayal, metamorphoses into animals, ghosts, and cannibals present themselves as preparation for humans, a clearing of the ground, as if for a dance or ceremony.

AUNTIE #3 There’s a story I know.

Not so long ago, there was a woman

And she had powerful medicine. She was the best gambler

Of anyone around. No one could beat her at Stickgame

Though many, many tried. Her power was known all around

And when she died

One of her rivals, a man from her mother’s band

Took two finger bones from her hand

And made a pair of gambling sticks.

This man became the most powerful then, virtually unbeatable.

People came from all around to lose to him.

His luck was fantastic.

He had those gambling bones, you see.

But at night

The ghost of the dead woman would appear

And insist that the man sleep with her.

Night after night, she bothered him. She seduced him.

She would not let him rest.

Finally he gave up. He returned the bones

And the ghost went away.

This is a true story.95

Giving up, unceremoniously returning the bones, relinquishing the accumulation of power. The treacherousness of luck, the impersonal force of nature (see chapter 5). The indirectness of these stories, their impossible closure into meaning, into forms of evidence, informs the position of the fourth person in the multiple perspectives, the impersonal voice, the indirect discourse that does not offend the dead who will now haunt others. Or rest. Or return. To be one or many or both but only in the generic fourth person. They said the bones should return. Who are you to disagree?

This unfurling of the coloniality of being, exposing its soft underbelly, is neither ideology nor critical revelation of its mechanisms but follows in the very material footsteps of Creator, who left the world when bested by Coyote. In Creator’s absence are only footsteps. As detached codes of expression, the voices of the dead do not restore or recover (sense or sociality) but disorganize, relate, and translate with and through interruption, forming an interrelational and therefore infinite space. In Vizenor’s bone court, it is the dead who speak (of the destruction), it is not, it is the bones who speak (of their confinement), it is not. It is an assemblage, a singularity. The one, the many, they said it was so, they said it would be so. They said. An equivocal voice, the voice of the inhuman turns juridical power inside out (like a glove). The exterior. Vizenor’s theater, evidenced by his many literary representations of courtroom scenes, contests the drama of western power. Western legal power’s petty, humanizing, individualizing, interior drama, which has had such devastating effects, is teased, mocked, neutralized. Vizenor invokes absolute (plenary) power, Congress’s absolute jurisdiction over tribes, as a way of grasping toward power’s absolute absence. And if there is any doubt, note Vizenor’s quotation in the proposal from Roland Barthes’s essay “The Death of the Author:”

writing is the neutral, composite, oblique space where our subject slips away, the negative where all identity is lost . . . As soon as a fact is narrated no longer with a view to acting directly on reality but intransitively, that is to say, finally outside of any function other than that of the very practice of the symbol itself . . . the voice loses its origin, the author enters into his own death, writing begins . . . Narrative is first and foremost a prodigious variety of genres, themselves distributed amongst different substances—as though any material would fit to receive man’s stories.96

With all its problems, the “death of the author” discourse indicates, relying as it does on anthropological representations of Indigenous political and social forms, the mitigating power of the collective to forbid power’s accumulation in a monologic voice.

Rights of Control

It seems to be the case that, rather than simply imposing values of stable objectivity, NAGPRA and federal recognition have inaugurated social action along with an imperative to do research. As Robert McLaughlin notes, “In practice, NAGPRA consultations often amplify . . . knowledge or, as anthropologists often regard it, knowledges. Indeed, since 1990, NAGPRA has served to enhance and renew Native American cultures and cultural identities. Native histories, too, have undergone renewal and change both in form and content. Many tribes, for instance, had no cultural provisions for the reburial of ancestors.”97 One should question this idea of progress through adaptation to settler law. This adaptation also describes the fact that Native peoples are given a certain kind of freedom along with our rights, but we must ask what kind of controls come along with it. In what ways are we put in the position to police ourselves through such rights, drawing new lines of inclusion and exclusion? The management of Native forms of culture and life have been outsourced to Native peoples. How we handle this new power will determine what kind of future we are condemned to.

We already know what the effects of Native Americans being put into a system of greater and greater (technical) knowledge is: Natives were always considered to be units within the system. Hence the need for various forms of documentation, from anthropometric photography and its complementary numbering systems for the body to ethnographic surveys of various types and data reporting to government agencies. Native Americans, because of this split identity, between nature and citizen in one sense and between unit and individual in another, are still in large part under an anthropological regime. From object-human to data-human lies the liberal path of progression and governance.

While the government was busy attempting to eradicate Native Americans and then confining them, the social sciences were already at work documenting them. This confluence set up the conditions for the desire for a future. We imagine that the shameful values of anthropology of the past were about authenticity and were imposed on us, but what if this were a ruse? What if all along it was about borrowing our own forms of authority, encoding them, and then offering them back to us through the form of rights, an authorization for us to be Native again? An authorization to which we have been given the code words. Perhaps the new task should be decryption of the codes we live (again) by and then their neutralization. Taking a storied path and being attentive to silence are two forms of such decryption. This is nothing more nor less than a bone game.

Birds were people one time. Two birds went around the world. One bird

Was over here. And [they] talked back and forth with the other bird, over

there.

When they came to a place where they couldn’t just get through (like the white

man has a place you cannot get through, such as a gate—it’s closed), they had

to stay there and gamble and beat their way through. If they won they could go

on . . . Those birds beat all the different animals. They sang like this:

one bird went over the blue

sky it’s blue as far as you can

see

nobody knows what’s behind the

sky [they] went over the sky

just to show the others what [they] could do.98