Negotiating Ethical and Legal Mazes in the Federal Workplace
by Muriel Crespi and Carla Mattix
The mandates that control actions in the federal workplace often challenge academic principles of conduct. Particularly vulnerable is the anthropologists' image of themselves as champions of powerless and voiceless groups in an arena perceived as dominated by a hostile government. This is coupled with convictions that socially responsible anthropology respects individual privacy while disseminating data to encourage culturally informed public and federal decisions. Using examples involving federal cultural and natural resources, we show conflicts within this suite of perspectives and with the demands of the federal workplace. The need for legally defensible decisions, responses to publics with diverse agendas, and requirements for confidentiality and public access to government records test our anthropological convictions as well as available legal protections of individual privacy and the public's right to know. Perhaps the anthropological community will strategize about more effective remedies for the problems of meeting the concerns of the individuals and the publics it cares about.
- Federal workplace, ethical issues in;
- Federal resource management; National parks;
- Cultural patrimony;
- Freedom of Information Act;
- Native American Graves Protection and Repatriation Act;
- National Historic Preservation Act
The mandates that drive and control the actions of cultural anthropologists in the federal workplace often challenge the principles of conduct learned, as well as applied, in the academic milieu. We address these inconsistencies from the perspectives of the government workplace. One of us, a cultural anthropologist, is with the National Park Service (NPS) and the other is an attorney-advisor with the Department of the Interior (DOI), which includes the NPS as a constituent agency. Our intent is not to imply ethical weaknesses in the federal bureaucracy and its incumbents, although these allegations might be found amusing in some quarters. In a serious vein, we use data and insights derived from experiences as participants in the federal culture as vehicles for demonstrating the complex and often publicly unknown, but not unknowable, issues and choices confronting federal staff.
We consider both the collection of anthropological data to promote culturally informed decisions about resources under federal stewardship and issues in the confidentiality of peoples' identity and information. These concerns reflect long-held anthropological convictions that socially responsible science respects individual privacy and other rights while helping to ground institutional policies and practices in empirical research. These are among the imperatives that drive, what Rappaport (1993) has called the anthropology of trouble, that is, anthropology engaged in planning, policymaking, and advocacy as well as theory-building, activities that propel anthropology beyond the confines of the academy. Work in a federal venue highlights another set of imperatives, little appreciated, but addressed here, namely, that public interests and the use of public funds create a suite of compelling actions that cannot be ignored. We review certain professional ethical concerns and certain legislated information needs that confront federal resource management agencies, particularly the National Park Service. Then we review legal strategies that either prevent or encourage the dissemination of sensitive data and, concomitantly, either protect individual rights to privacy or support public rights to knowledge. The legal tension over restricting or disseminating information is illustrated by a Freedom of Information Act case involving data on ceremonial catlinite pipes held at Pipestone National Monument, Minnesota, source of the catlinite quarries. A study of the ownership of the pipes had been undertaken to satisfy the Native American Graves Protection and Repatriation Act. When a copy was later requested, it highlighted one of many dilemmas in negotiating the ethical and legal mazes.
Finally, we suggest, the federal workplace tests the profession's commitment to certain anthropological ethics as well as reveals the nation's conflict or ambiguity over the line between individual privacy and public information. This brief review also suggests that training for anthropologists is needed in the legislative issues affecting ethical choices in the federal arena. Whether anthropology wishes to "piggy-back" on historic preservation laws to protect information it deems important, or to fill the gap by tailoring legislative devices to its special interests, is a decision the field must answer for itself.
Ethical Considerations in Cultural Anthropology
Painting ethical concerns with broad strokes serves to highlight several recurrent themes in the behaviors anthropologists expect of themselves (for a detailed review see Ackeroyd ). By the late 1940s, when world events raised dilemmas of morality and science, the associations began codifying these expectations. Chambers (1985:224) notes the warning the Society for Applied Anthropology (SfAA) issued to its members to scrutinize the groups or agencies for whom they conduct research, or develop policies and programs, for the possibility of inadvertent involvement in actions that are antithetical to the "greater good." About the same time, the American Anthropological Association (AAA) developed a publication policy that directed anthropologists to safeguard the interests of the people and communities they studied as they interpret and publish their findings. More complex codes followed. Compelled by the bitter experiences of the Second World War, the Society for Applied Anthropology had been formulating positions on the profession's responsibilities towards people and the discipline. The membership approved the code in 1962, after numerous iterations and debates (Mead 1978), and revised them in 1982. The American Anthropological Association approved its first codes in 1967, and revised them in 1998. The Association's applied arm, the National Association for the Practice of Anthropology, formulated a code in 1988.
Although the details differ, the codes cover similar ground, reflecting a loose consensus among academic and applied cultural anthropologists about certain general ideologies. These can be summed up as:
- humanistic concern for the dignity and welfare of people and groups with whom anthropologists live, work, and study;
- suspicion of potentially hidden government research agendas with negative implications for people;
- openness about research goals;
- dedication to an intellectually and institutionally viable profession that includes an applied arm; and
- and sharing information with the public.
The most recently revised code, that of the American Anthropological Association (1998), groups these concerns under three categories: research, teaching, and application. The latter relates the general principles discussed in research and teaching to venues and cohorts relevant to practitioners and their clients. With varying degrees of coverage, each code recognizes the complex political and social nature of situations affecting applied cultural anthropologists, and the potentially competing interests they must negotiate whether working for government agencies, the private sector, or other sponsors. Appropriately, of the several ethical codes, that of the National Association for the Practice of Anthropology, pays the greatest attention to the legal and contractual relationships that particularly affect practitioners.
Protecting the well-being of people with whom anthropologists are engaged receives the highest ethical priority. Academic publications, popular writings, advocacy, and, in some cases, active intervention by anthropologists reflect the tendency to champion the interests of diverse groups, particularly those whose poverty and powerlessness render them voiceless in complex political arenas (Liebow 1967, Fitchen 1981, Wright 1988). Concern may be less universal, or at least ambivalent, Ackeroyd notes (1984:138), about protecting elites, accountable public officials, and other power-holders. Recent years have been bringing new players to an evolving tradition of public engagement as indigenous and other groups become increasingly vocal proponents and researchers on their own behalf (DeLoria 1994, Gundaker 1998 ). Increasingly, too, in an updated iteration of action anthropology (Tax 1958), anthropologists have been developing productive partnerships with community or tribal activists who cooperate to meet compatible but not necessarily identical goals concerning research or the redress of some injustice (Fowler 1995; Stoffle, Halmo, Olmstead, and Evans 1990).
Anthropologists have also typically wedded concern for community well-being to concern for maintaining the confidentiality of sensitive and potentially damaging information gleaned in the course of research or project-specific consultations. The integrity of the research process rests on establishing and maintaining relationships of trust with community members. Indeed, trust that researchers will shield their interviewees from embarrassing or legally compromising situations by withholding their identities and the information that makes them vulnerable has been a linchpin of both effective and ethical research. As researchers become privy to the private "backstage" world (Goffman 1959) of their community consultants and acquire increasingly intimate knowledge of personal, individual, family and community events and concerns, their responsibilities for protecting information concomitantly increases, or should increase. Guarding data, and the identity of community consultants, as Chambers (1985: 218) and others have pointed out, became even more imperative as anthropological studies increasingly reached literate audiences, including the communities of study and their neighbors and other parties with interests in the communities. If anthropologists could not improve peoples' living conditions, at least they could protect consultants from the further deprivation or discomfort that might follow the release of sensitive information. A special case might be made for the ethical complexities confronting applied anthropologists. They become privy to information that can immediately and directly affect communities, via the research sponsors' programs or policies, and, as a result, bear a responsibility for anticipating the consequences of their work on peoples' lives (1985:220; Gilbert, Tashima and Fishman 1991:202; Ervin 2000: 35). They might be more inclined to use protective devices such as pseudonyms for people and places to disguise identities, if research sponsors concur. Yet, as Ackeroyd notes (1984:147), and we will discuss, laws concerning privacy, confidentiality, and freedom of information make meeting ethical concerns about protecting people and data increasingly problematic.
Suspicion about government-sponsored and potentially clandestine research for the United States government, the United Kingdom, and others has been a conspicuous theme for several decades. As early as 1919 Boas launched charges of duplicitous behavior against government anthropologists who conducted research and undercover intelligence-gathering in foreign countries, Fluehr-Lobban (1998:174-175) notes. Although most of his professional colleagues might have rejected covert research, they viewed Boas as a "whistleblower" for putting fellow anthropologists at risk by exposing their activities. His peers in the Anthropology Society of Washington censured him for publicizing the researchers' identities and clandestine activities. Vindication of sorts came after his death, in the 1967 ethics statement of the AAA which instructs anthropologists to "scrupulously avoid both involvement in clandestine…" research and use of the name of anthropology as a cover for intelligence activities. Complicity was overt elsewhere, in Germany, for example, where, Schafft (1999) demonstrates, Nazi anthropologists used racial ideologies between 1933-45 to help the Third Reich sort people into categories of individuals considered worthy of living or not. Debate over government-sponsored research erupted decades after into bitter and divisive arguments over U.S. covert research in Southeast Asia and Latin America, including the U.S. Army's Camelot Project on revolution and counterinsurgency. Faulting the government for clandestine attempts to undermine vulnerable peoples, and arguing against anthropological involvement in such secret research, the 1960s and early 1970s spawned heated self-criticism and protests against big government, big bureaucracy, and the corruption potential of big bucks (Berreman 1973).
A generation later finds the pendulum swinging towards a more moderate position on non-academic work and government employment in particular. Concern with reducing, if not eliminating, inequities and injustices remains as forceful as a few decades ago, but the strategies for achieving those goals have been changing in response to different circumstances. Partly, the shift responds to the shrinking academic job market. Additionally, Chambers suggests (1987:312), novice anthropologists were "as disenchanted with the presumption of neutrality on the part of academic institutions as they were suspicious of their political leaders," leading incoming anthropologists to reconsider their earlier rejection of public-sector anthropology. In grasping challenging opportunities and developing new occupational niches in, or for, government agencies, among private voluntary organizations, and in corporate America, applied anthropology and its practitioners have become a "growth industry," according to the 1997 Survey of Anthropology PhDs conducted by the American Anthropological Association. The approximately 30 %of the anthropology PhDs who report working outside of the academy provide the evidence. Despite the optimism, doubt lingers among many academic anthropologists, at least, about government intentions, the anthropologists who implement them, and the professionalism of nonacademic anthropology. Applied anthropologists, for their part, confront emergent ethical dilemmas reflecting employment by "the taxpayer" and the agencies they represent or support (Fetterman 1983:216), or employment for voluntary organizations and the donor population that funds them.
The practice of "informed consent" helps to guard against clandestine research and unanticipated uses of findings that might put community members at risk. It requires disclosing the research sponsor and research agenda, and the potential uses of research data to the people involved in the study. Obtaining community approval to initiate a study after making the research conditions and the legal constraints on confidentiality as transparent as possible opens, Fluehr-Lobban (1998:185) remarks, two-way communication about the research. In this sense, "informed consent" can become a technique for making level the relationships between researchers and community members. Unfortunately, the effort to obtain written consent can sometimes create greater suspicion and challenges.
Sharing research results about the human condition with the general public as well as the people studied, and fostering the broad understanding of contemporary social and cultural issues, is greatly valued. "Going public" by publishing accounts in general interest magazines as well as policy and public opinion journals, and communicating in interdisciplinary settings, is appreciated as a means of demonstrating the value of anthropology and its perspectives, methods and ethics (Gilbert, Tashima, and Fishman 1991). Writing op-ed pieces and testifying before congressional and other deliberative and legislative bodies likewise publicizes anthropological findings about strategic issues and helps inform community advocates (Ervin 2000). An underlying expectation is that outreach activities will promote an informed body politic that brings new insights and social-cultural comprehension to debates on relevant public issues. This should encourage the public to reach more socially and culturally appropriate choices and become a more appreciative constituency for anthropology. These goals assume the public is a voluntary potential ally waiting in the wings to learn about previously unknown complexities of contemporary life, and to become more sensitive decision-makers. But the public is not a homogeneous unit with multiple shared interests and views. On the contrary, members of the public are actors whose interests often diverge markedly, not only from anthropology, but also from each other. As taxpayers, they also can exercise certain rights to information collected with public funds that might be more legally compelling than professional ethical positions. Working in the public sector makes it impossible to be aloof to public demands.
Federal Resource Management Agencies
Vast natural resources and innumerable sites, structures, objects and landscapes- collectively called cultural resources-are defined and managed as the national heritage under federal stewardship. Direct management responsibility falls to several agencies, principally the U.S. Forest Service, in the Department of Agriculture, which manages approximately 191 million acres, and several agencies in the Department of the Interior. The Department of the Interior's Bureau of Land Management holds 264 million acres, for example, and the National Park Service has some 82 million acres along with the responsibility for numerous nationwide historic preservation programs. All land-managing agencies are concerned about conserving and preserving resources and with meeting the recreational needs of visitors. The Bureau of Land Management, like the Forest Service, also permits consumptive uses such as grazing, timbering, and mineral mining. In contrast, the National Park Service permits these uses only under exceptional circumstances, such as sports fishing in certain parks, and legally permitted subsistence activities by native Alaskans and quarrying at Pipestone by American Indian peoples. What is not exceptional is the peppering of public lands with places of cultural importance to native peoples and others, and the increasing legislative and local pressure on agencies to face the human dimensions of their resources.
By "human dimensions," we refer to the cultural contexts of resources, that is, to the meanings and uses people assign to resources with traditional associations to their cultural history and identity. These are storied and often named objects, places, and landscapes that have shaped, or somehow figured in, a peoples' past. In diverse ways, they may remain defining elements of present life and ethnicity. The National Park Service calls these resources "ethnographic resources." Although they might be categorized as archeological or historic sites, natural areas or some biotic feature, their religious importance, legendary meanings, subsistence, or ceremonial or other dimension vests them with an added ethnographic quality. These resources often were incorporated into the public domain in the 19th century when the federal government extended control over extensive, seemingly unused lands, especially in the West, and then later apportioned the resources among land management agencies. For example, the natural resource base, with its rainforests and waterways, of northwest tribes such as the Makah, Klallam, and Skokomish on the Olympic Peninsula (Wray 1997) found its way into Olympic National Forest and, subsequently, into Olympic National Park. Elsewhere, for example, in Wyoming, lands valued by Plains tribes for subsistence and, in the case of Medicine Wheel, still important as spiritually powerful places, became part of the Bighorn National Forest. In the Pipestone case, the monetary settlement paid to the Yankton Sioux in 1928 for the red catlinite quarry, revered as sacred by many tribes, preceded establishment of the park in 1937 (Rothman and Holder 1992). Using traditional labor-intensive methods, American Indians still quarry the site that once produced the legendary peace pipe. More recently, local interest in tourism-generated incomes and federal interest in protecting resources led to a joint National Park Service and the Bureau of Land Management venture in New Mexico, the establishment of El Malpais National Monument and National Conservation Area. It incorporated public lands with indigenous religious places. Alaskan public lands still undergird group life and membership despite the federal stewardship, since the 1980s, over certain traditional subsistence grounds. Although resources associated with indigenous peoples would dominate any agency inventory of ethnographic resources, more than a few represent African Americans and the diverse array of other American peoples. Resources in the Virgin Islands National Park, for example, are associated with the few African-American farmers/fishermen who remain there. Sunday Mass accompanied by Mariachi musicians at San Antonio Missions might find numerous visitors crowding into this National Historic Park along with Hispanic congregation members. Orthodox Jewish people now meet strangers in areas of New York 's Gateway Park where they take their Sabbath walk. As new conservation areas come under federal jurisdiction, they bring new ethnographically meaningful places and traditionally associated groups into the system.
Once the resources that Native American and other peoples had considered their cultural patrimony were incorporated into the federal system, they, accordingly, were redefined and treated as part of the national heritage and made the exclusive responsibility of land-managing agencies. From the agency perspectives, most outsiders were considered invisible, in that their input into decision-making processes was neither sought nor especially welcome. Topdown planning and decision-making that involved trusted insiders had been a long-standing and widely accepted rule. One consequence had been to perceive and treat resources as devoid of human dimensions, as disengaged from the people who had customarily valued, used, and, for some cultural resources, manufactured them.
Legislation enacted over recent decades has directed federal attention to relationships between resources and the peoples long associated with them. One attempt to consider local concerns came with the 1966 National Historic Preservation Act (NHPA), as amended, which requires agencies to consult people about actions that might affect places, or properties, with potential or actual listing as a National Register property. Perhaps the major breakthrough that affected both cultural and natural resources was the 1970 National Environmental Policy Act (NEPA). One of several laws driving the agency planning process, NEPA directs verifiable attention to the concerns of people whose interests might be affected by federally funded projects. Consulting affected peoples, it was argued, and assessing the potential effects of projects on them, is an essential feature of good government.
Several mandates focus exclusively on American Indians and other indigenous peoples. The 1978 American Indian Religious Freedom Act, for example, highlighted Native American spiritual ties to resources found on federal lands. The law directed agencies to consult American Indians and other Native Americans about their needs for access to and treatment of those places, and to solicit views on policies to better address concerns about spiritually powerful places. The 1970s also saw Alaskan natives mobilizing on their own behalf in response to threats from burgeoning oil interests that accompanied discoveries of the Prudhoe Bay oil fields, and the later establishment of new federal conservation units. Native peoples influenced the 1980 Alaska National Interest Lands Conservation Act (ANILCA), which took the then-unprecedented step of making Alaskan natives part of a complex and, many would say, burdensome, new decision-making apparatus. Twenty years following passage of the American Indian Religious Freedom Act, a Presidential Executive Order, 13007, told agencies to move beyond consultation and take steps to facilitate access to and the use of sacred places in federal hands. More recently, the trend towards legitimizing indigenous groups as formal players in federal decision-making became evident in the 1990 mandates of the Native American Graves Protection and Repatriation Act (NAGPRA). It directs agencies and museums with federal funding (except the Smithsonian) to consult federally recognized tribes, Alaskan Natives and Native Hawaiians about items in their collections. Materials will be repatriated, at the groups' request, after showing cultural affiliation with the items, including funerary items, items of cultural patrimony, sacred items presently needed for religious ceremonies, and human remains. Individuals who demonstrate direct lineal descent from interred individuals or from the former owners of cultural items likewise can legally claim the remains or objects. Additionally, consultation must be conducted with potentially affected tribes or individuals, and permission obtained, prior to any planned excavation on public lands and Indian lands, or removal of materials found inadvertently, say, during construction or as a result of natural forces such as erosion. At first, federal agencies and the larger preservation community viewed this degree of native involvement unsettling. Initially, museum and scientific experts perceived decisions about the care and ownership of archeological materials, human remains and other historic and prehistoric material as theirs, rightfully and exclusively. Preservationists now are accommodating to the tribal presence and to active Native American roles in decisions about what they perceive as their own rightful patrimony.
A common thread linking these laws is the requirement to consult and otherwise work with stakeholders, particularly peoples with traditional associations to cultural and natural resources, to draw them into decision-making processes. Among the several challenges this generated for all land-managing agencies was the need to identify categories of contemporary stakeholders, to consult the stakeholders about the storied places, objects and the cultural and natural landscapes they valued, and to document as well as spatially locate the resources. While these laws drew federal attention to contemporary community and tribal concerns with resources in the federal domain, the efforts to reach culturally informed decisions and to protect the data leading to them provoked new dilemmas.
National Park Service
In late 1981, the National Park Service established an applied ethnography program to satisfy legal consultation requirements and in the process meet park planning, management, and interpretive needs for data about various classes of culturally meaningful resources and the peoples associated with them. The Park Service, like other agencies with limited funds and staff, necessarily justifies program-building and data-gathering on the basis of legislative, judicial and policy imperatives. The "Court said," "Congress said," "the President said," "the Director said," and "policy says" can usually compel more rapid responses within the agency than many elegantly reasoned or scientifically documented arguments about protection for resources or attention to communities. Justification for the program from several of the previously noted laws is reinforced continuously by legislation to establish parks associated with local communities, such as Kalaupapa in Hawaii, Jean LaFitte in New Orleans, and Cane River Creole in northwest Louisiana. Congressional decisions about establishing new units might entail early ethnographic attention to people and resources. One prelude now under way considers sites associated with the Low Country Gullah culture in coastal South Carolina, Georgia and northern Florida.
In general, the program's charge is to help humanize and democratize decision making by addressing the concerns of contemporary peoples with traditional associations to park cultural and natural resources. We generally call the Service's 379 units "parks," but technically they are variously categorized as battlefields, historic sites, preserves, parks, or some other category. Most people know of the so-called "crown jewels" such as Yellowstone, Grand Canyon and archeological Native American homelands like Mesa Verde- once seen as America's answer to the sumptuary art created by the extravagant wealth of European nobility that have attracted throngs of visitors (Runte 1987). In recent years, effective public lobbying leading to congressional action has been making the system more thematically inclusive with new units such as Nicodemus, a 19th century free Black community in Kansas, and the Selma to Montgomery Trail, commemorating the civil rights struggle, in Alabama.
People with trans-generational or traditional associations to park resources are particularly important. One not surprising result is that ethnography began with an almost exclusive focus on American Indians and other Native Americans whose ancestral lands throughout much of the nation had been incorporated into parks. Adding cultural anthropologists to the regional offices in the early 1990s made it possible to turn attention to other stakeholders, including African-American associated with plantations as well as urban parks, and the rural Euro-Americans of the Ozarks (Gibson 2000). This "park-centric" program extends its interest to activity groups as well, such as the gardeners who grow foods and, in the process, meet deep social and cultural needs by cultivating small community plots in national parks in Washington, D.C. and New York City (Williams 1998, Parish 1998). These uses fit the program view that structural ties to the resources rather than the fleeting ephemeral ones of casual visitors define the communities of major interest. Stakeholders of more recent vintage, such as newly arrived immigrants to urban centers, are considered, too, although not under the rubric of traditionally associated peoples.
Conducting even limited studies would satisfy the intellectual needs of National Park Service anthropologists, who, trained as research professionals, share the research interests of their academic colleagues. Unfortunately, the time of the few NPS cultural anthropologists-about 12, compared to hundreds of historians and archeologists-is committed to meeting pressing park and regional office needs for assistance in tribal NAGPRA consultations, planning assistance, developing training on diverse cultures, and myriad other activities. Because extended field investigations are prohibitive, most ethnographic research is contracted out, while park service anthropologists design and manage contracts, mediate between researchers and management, and facilitate the application of research findings.
Park service anthropologists confront several challenges from without as well as within the agency. They must, for example, negotiate an understanding of park service data needs with contractors so that overall government requirements as well as park-specific concerns are met, including the need for contractors to explain their roles to communities, seek informed consent, and meet generally accepted ethical standards. Facing inward, the anthropologists must also continually promote their discipline, or socialize agency colleagues to the field by explaining and justifying anthropological tenets, methodologies, and output. As a newcomer to the agency, ethnography is still proving its worth. In an agency known for experience with natural resource issues and management of tangible historic and prehistoric resources, the anthropological undertaking, with its emphasis on contemporary people and concerns, can be disconcerting even to culturally sensitive staff. Agencies can be somewhat wary of a discipline that reaches out to communities and conveys information across boundaries, from the agency to the community and the reverse. Management might feel vulnerable to a relatively new program, particularly one that customarily champions politically disenfranchised or relatively weaker groups. Some might see anthropology as advocating the rights of "special interest" groups, that is, as being the standard bearer for tribes, various ethnic communities, and so on, more than, in their view, representing the interests of the Park Service or government. Some, recognizing the humanistic pull of the profession, caution anthropologists that "their employers may have uses for the information that differ from what they envisioned. If they want to continue to be employed, they must accommodate such uses, to the extent that they do not conflict with their personal and professional standards" (McManamon 1999). Not far below the surface are substantive management concerns such as whether ethnographic research data can be trusted not to unwittingly embarrass the agency or make it vulnerable to public criticism by, perhaps, revealing some past controversial judgements? Can anthropologists present data and analyses free of bias from deep humanistic concerns? Will agency critics use even innocuous anthropological information against it? Will the research data attract negative congressional attention ? Is the agency subject to bad press or court action because of information the contract ethnographer provides or fails to provide? Ethnography is not the only field to draw suspicion, although its skills in working across cultural borders, coupled with its recency, are problematic. The magnitude of the internal education task, however, is suggested by the suspicion directed at even the venerable biological disciplines. As a recent article in Science (Kaiser 2000) about the park service noted, "critics charge agency officials have tended to view science with anything from benign neglect to downright hostility."
The approximately 144 studies conducted in the 1990s varied somewhat in design and goals with their anticipated use to inform NAGPRA decisions, comply with NEPA and park planning policies, or satisfy some special management need for information. NAGPRA became a major impetus for research and consultation with American Indian tribes, Alaskan Natives, and Native Hawaiians. The Act creates the need to identify consulting parties and "cultural affiliation" or the "relationship of shared group identity which can be reasonably traced historically or prehistorically between a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group." (25 U.S.C.§ 3001 ). This has made establishing likely links between culturally affiliated groups and NAGPRA objects a principal undertaking. Data are also sought on direct lineal relationships between present-day individuals and the remains of deceased people, or between present-day people and the former owners of various classes of objects. One such study undertaken for Pipestone National Monument demonstrated lineal relationships among owners of the historic catlinite pipes housed in the park museum collection.
Rapid Ethnographic Assessment studies provide planning with site-specific information for developing culturally aware alternatives on, for example, park boundaries, identifying sites for transportation and other facilities, and public interpretive programs, including those for ethnographically meaningful places and customary uses people wish to have interpreted to visitors, or held confidential (Evans, Stoffle, and Pinel 1993, Low 1995, Williams 1998, Crespi 1999). The longer, more detailed, Ethnographic Overview and Assessment combines a literature review with "walk throughs" or park site visits and interviews with associated people. The goal is to identify culturally important places that might have escaped the cultural outsiders' attention, including storied landscape features valued for subsistence, religious, residential, and other purposes (White 2000). Alaska studies of traditional resource management strategies (Ellanna and Balluta 1992) provide insight into culturally relevant plants, family harvest areas, and other factors that drive indigenous subsistence systems. Some studies focus exclusively on one group, and others cover several groups associated with the same park. Inevitably, anthropologists become privy to the backstage views, activities, and information that expose sensitive issues. Petroglyphs, springs, and other places with deep sacred meaning to American Indian tribes, the location of sacred plants and private or family collecting areas, uncomplimentary views about other community members or other communities, and family details about children born outof wedlock and their parentage are shared. Some information might have been sought because it identified community dynamics and likely consulting partners, or identified culturally inappropriate places to construct facilities. Often, people volunteered information in the process of contextualizing some other issue. In any case, like NAGPRA information, it enters the contractors' or staff anthropologists' field notes and reports, and might influence decisions about national regulations, policies or park planning. Indeed, the justification for funding the collection of any data is its potential contribution to Park Service decisions and programs. This objective, and the limitations on confidentiality, is explained to communities as part of the informed consent process whether studies are contracted or conducted in-house.
Consultation meetings also almost invariably produce sensitive information, for example, about the religious function of figurines, pipes, and other objects, locations of shrines and other sacred places, and about sacred narratives and clan stories. Some people might find it essential to provide genealogical information with intimate details of familial relationships in order to meet NAGPRA-generated concerns about lineal relationships. Tribes and Native Hawaiians might customarily perceive this information as private-individual, family, or group information, and share it only inadvertently and reluctantly because the repatriation of cultural materials or human remains, and the continuity of ceremonials that require the use of cultural items, are at stake. From the indigenous perspective, it would seem, one of the unwanted and initially hidden prices of repatriation is to reveal sensitive data. If it becomes part of an administrative record that supports agency repatriation decisions, it could also become available to the court in the event of legal challenges, or intertribal and intra-tribal disputes to which the Park Service is a party.
Informal techniques are available to shield the speakers' identity, increase their comfort levels about protecting information, and safeguard them from the recrimination of community or tribal members. Attributing information to anonymous speakers, say, at a public hearing on a planned park or a NAGPRA meeting is one approach, and speaking "off the record" is another. On the other hand, the argument to treat a resource as a sacred NAGPRA item might be legally untenable without the testimony of an identifiable, trusted tribal member or religious leader. A similar fate occurs with "off the record" comments. They can inform Park Service listeners, but policymakers, planners and other decision-makers cannot comfortably rely on them in reaching legally defensible decisions because they cannot be tracked and substantiated. The potentially litigious character of Park Service NAGPRA decisions, and some planning choices, makes reliance on unidentified speakers and comments unacceptable to some officials, and controversial at best. In the case of rule-making, or writing of regulations, the Department of the Interior prohibits its agencies from using anonymous comments.
Park Service policy encourages staff to make public the reports prepared under its auspices, but also to protect, as far as feasible, any information that might put people, resources, and practices at risk. A decentralized agency, it encourages staff to reach these decisions locally, exploring their discretionary authority within the bounds of law and policy and in terms of the unique features of each case. Flexibility is achieved, but sometimes inconsistencies also appear among different but equivalent parts of the system as cases and players in the process change. Although the ultimate choice might be left to one individual, formal teams of groups whose members acknowledge intersecting interests are important. Anthropologists working in a federal venue, unlike their more autonomous academic colleagues, perform within a team setting, and are often the only anthropologists involved. Their recommendations and decisions necessarily are offered, and treated, in terms of the agendas and relative bureaucratic positions of other players, in addition to policy and statutory considerations. Although consulted about releasing information on the park ethnographies they shepherded, for example, or about recording information during the NAGPRA meetings they organized, the affected park superintendents are usually responsible for reaching the final decision, and dealing with its consequences. In some cases, decisions involved reports that used sensitive data already in the public domain, such as information in historic archives and publications about traditional user groups. Tribes and other communities, however, have sometimes severely criticized earlier published anthropological works for including data the community had previously volunteered, but present-day tribal members now find objectionable and prefer to keep confidential. In other cases, Park Service studies covered several neighboring groups, each one wanting its section of the final report kept from the others. To avoid jeopardizing relationships with tribes, or provoking intertribal disputes, the Service safeguarded the ethnographic report that had incorporated controversial data. In the other case, it agreed with the tribes' requests to allow each tribe to review only its own draft section.
Other techniques for protecting information includes having contract researchers use pseudonyms for community consultants and limiting sensitive information to non-circulating appendices. Agency anthropologists delete sensitive sections from the final reports sent to the Service's distribution center, and distributions of draft reports can be controlled. Parks meet public inquiries about sacred American Indian places and practices that might be seen in parks by encouraging visitors to contact tribes directly. Less innocent requests might come from potential looters. To the extent possible, innocuous information is shared with the requestor, whether it is another agency, or researchers, newspaper reporters, and other segments of the public. Keeping responses to public requests local and informal has its limits.
Information-seeking by the public, and agency decisions, become both formalized and escalated to higher bureaucratic levels when members of the public invoke the Freedom of Information Act (FOIA). People have used the Act to seek data as varied as the locations of submerged shipwrecks, records of consultation for use in monitoring agency compliance with NEPA and NAGPRA, addresses of individual commentors on proposed plans in order to develop mailing lists, or copies of research such as the Pipestone study. These requests invariably bring the solicitors' office into play.
The Legal Maze
In the Pipestone case, the genealogical analysis of former owners of ceremonial pipes was commissioned by the Park Service to comply with its responsibilities under the Native American Graves Protection and Repatriation Act. The request to the National Park Service from a member of the public for a copy of the study was made under the Freedom of Information Act. Despite any reservations the Park Service may have had about releasing the information based on ethical concerns, the FOIA request triggered certain compulsory legal obligations regarding the release of this material. Although NAGPRA does not have a specific provision which permits the shielding of sensitive information, in this case, certain exemptions under FOIA did provide the Park Service with justification for withholding release of the study. Thus, presumably in this instance, ethical and legal concerns meshed and led to the desired result of the Park Service anthropologists involved. Conclusions that are reached based on ethical considerations are frequently affected and altered by the legal framework that governs the federal workplace. The government has the responsibility to conduct its business in a manner that is accountable to the public. As the Pipestone case illustrates, when the business conducted involves the necessary collection of sensitive cultural information, the duty to be accountable and cognizant of ethical concerns becomes difficult, although not impossible.
The federal government must work within a framework of laws which mandates public access. The law that ensures the greatest degree of public access is the Freedom of Information Act. Enacted in 1966, the FOIA set precedent by establishing an effective statutory right of access to government information. This law generally provides that any person has a right, enforceable in court, of access to federal agency records, except to the extent that such records are protected from disclosure by one of nine exemptions or by one of three special law enforcement record exclusions.
In 1978, the U.S. Supreme Court enunciated a fundamental principle underlying the FOIA: "The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed" (see NLRB v. Robbins Tire & Rubber Co.). The well-intentioned goals of the FOIA often run counter to other vital societal aims, such as the preservation of the confidentiality of sensitive personal, commercial, and governmental information. The FOIA seeks to accommodate such concerns while maintaining disclosure as the predominant objective.
The FOIA applies to "records" that are maintained by "agencies" within the Executive Branch of the federal government. State governments, municipal corporations, the courts, Congress, the Office of the President, or private citizens are not agencies within the scope of FOIA. Agency records are documents which are
- either created or obtained by an agency, and
- under agency control at the time of the FOIA request.
The term "document" has been interpreted to mean practically any form of storing and documenting agency information including information maintained in an electronic format. Documents do not generally encompass objects, such as collections or artifacts, held by an agency.
Records created by contractors are agency records because government contracts establish agency intent to retain control over the records and use this material for government purposes. Certain documents created by agency employees or contractors may qualify as personal records. Handwritten employee notebooks, telephone logs, calendar markings, and meeting notes have, in their specific factual settings, been held to constitute personal records, not agency records.
Each request for records is considered on a case-by-case basis. In some instances, documents created by agency anthropologists in the field, such as notes taken in the course of NAGPRA consultations or other field notes, may be considered agency records instead of personal records. In other instances, these documents might be considered personal records. The agency considers the factor listed below to make the appropriate determination. No single factor is controlling; the decision could be based on one or a totality of the factors:
- Creation: Was the document created by an agency employee on agency time, with agency materials, at agency expense?
- Content: Does the document contain substantive information? Does it contain personal as well as business information?
- Purpose: Was the document created solely for an individual employee's personal convenience or to facilitate agency business?
- Distribution: Was the document distributed to others, such as for business purposes?
- Use: To what extent did the document's author actually use it to conduct agency business? Did others use it?
- Maintenance: Was the document kept in the author's possession, or was it placed in an official agency file?
- Control: Has the agency attempted to exercise institutional control over the document?
- Segregation: Is there a practical way to separate personal information in the document from official business information?
- Revision: Was the document revised or updated after the fact for record-keeping purposes?
(U.S. Department of Justice Guidelines)
Recently, the reach of FOIA was legislatively extended to subject institutions of higher education and nonprofit organizations to requests for information under the act if they receive grants or have cooperative agreements to conduct research for the agency. Grantees are entities that receive a form of assistance from a federal agency for a purpose or activity that the government has chosen to assist, but unlike a procurement contract, is to be carried out without substantial involvement on the part of the federal government. Cooperators are entities that receive a form of assistance and engage in a cooperative arrangement with the federal government to carry out a public purpose.
The Office of Management and Budget (OMB) Circular A110 governs the administration of federal grants. In response to a FOIA request, Circular A110 requires the recipient to provide background research data related to published research findings produced under a grant and used by the federal government in developing an agency action that has the force and effect of law, such as a regulation. "Research data" include recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This "recorded" information excludes physical objects such as laboratory samples.
To balance the access provisions of the FOIA with pragmatic concerns of efficient and effective government operations and sensitive information, the statute provides a number of exemptions and exclusions. These provisions protect from disclosure records involving matters such as national security, law enforcement, internal personnel practices, trade secrets, and confidential commercial or financial information, and personnel and medical files. An exemption is also provided if another statute specifically prohibits disclosure. A number of cultural resource-oriented statutes have such provisions, as will be discussed below.
In the Pipestone case, a museum catalogue record and summary of a descendancy list were not released to the FOIA requester based on the FOIA exemption which protects personal/personnel-related information. The material requested contained tribal affiliation, degree of Indian blood, and lineal heritage and history information. The National Park Service recognized a significant privacy interest in this data and withheld the material. Portions of the study that were not considered sensitive, such as the table of contents, abstract, and introduction, were released.
Another legislative mandate that instills concepts of public access and accountability on the federal government is the Administrative Procedures Act (APA). Enacted in 1946, the APA established the basic framework of administrative law governing federal agency action. This statute was the product of a struggle between interests that supported the programs of the New Deal agencies and those that were wary of the power given those agencies. One of the APA's major features is the establishment of public participation in and scrutiny over agency actions.
Public and judicial review of agency actions is often based on the administrative record kept by the agency. The administrative record on review is the collection of documents which provides the paper trail and justification for an agency decision. When review of agency decisions is sought either administratively or in court by interested parties, the record is made public. A potential dilemma for agency anthropologists and decision-makers may arise if the basis for decisions involves confidential or sensitive ethnographic data.
While certain privileges are well defined, such as the attorney-client and doctor-patient privileges, and can be asserted to shield portions of the record, such privileges are limited and usually used sparingly. There is no well-established, "bright line" privilege to shield the type of sensitive cultural information that anthropologists may like to see withheld for ethical reasons. This can be attributed to the goal of the APA to require reasonable, justifiable agency decisions. This goal can only be met if the general public can independently assess the decision having the same information as the agency before them. Trusting the government to make a good decision is not generally sufficient for most interested parties.
If a privilege for sensitive anthropological information cannot be established, in camera review may be one approach to shield such data. In camera review is a mechanism that allows a judge to hear a case or review certain information in private, without public scrutiny.
Although there are no general protections for culturally sensitive information, several cultural resource-protection statutes have been enacted to provide some balance with the access provisions. The National Historic Preservation Act and the Archeological Resources Protection Act both have specific provisions that prohibit disclosure of certain types of sensitive information. As mentioned above, these statutory provisions qualify as exemptions under the FOIA.
The Archeological Resources Protection Act (ARPA) creates protection for archeological resources (defined as "any material remains of past human life or activities which are of archeological interest" and which are at least 100 years old, on public or Indian lands). This statute requires anyone wishing to excavate or remove any archeological resources to obtain a permit from the federal land manager with responsibility for such lands. All collections, records, data, photographs, and other documents derived from work on federal lands pursuant to an ARPA permit are considered property of the United States, regardless of where that material is curated. (Uniform ARPA Regulations, 43 CFR 1312.6(b)(5)).
Because of the sensitivity of information concerning the location of these resources, Congress provided special protections in ARPA. Information regarding these resources may not be made available to the public unless the federal land manager determines that disclosure would further the purposes of ARPA and not create a risk of harm to the resources or to the site at which the resources are located. For example, if a site sacred to Native Americans is an archeological site under ARPA, all information about the spiritual use and value of the site may be withheld.
The National Historic Preservation Act (NHPA) provides that, "the Secretary of the Interior is authorized to expand and maintain a National Register of Historic Places composed of prehistoric or historic districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering and culture." Such properties include places of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization. Historic resources include artifacts, records, and remains that are related to and located within such properties. Eligibility of any property for inclusion in the National Register is based on criteria established by the National Park Service. The term "eligible" for inclusion in the National Register includes both properties formally determined as such and all other properties that meet National Register listing criteria. These criteria are located at 36 CFR 60.4. Among other matters, properties that have yielded, or may be likely to yield, information important in history or prehistory, meet National Register listing criteria. The list includes, for example, national battlefields, forts, and presidential homes in addition to archeological sites such as Chaco and Mesa Verde. On the other hand, extensive natural areas, such as many Alaskan parks, the Grand Canyon and Olympic National Park, are not included, and therefore information about their resources is not afforded the protection of the NHPA.
The NHPA imposes strict requirements relating to disclosure of information about properties eligible for National Register listing. It provides that the head of any federal agency shall withhold from disclosure to the public, information relating to the location or character of historic resources whenever that official determines that disclosure may create a substantial risk of harm, theft, or destruction to such resources or to the place where the resources are located.
The ARPA and NHPA can provide significant protections for sensitive cultural information that anthropologists would frequently want to avoid disclosing for ethical reasons. In addition to using the FOIA exemption for personal private information in the Pipestone case, the genealogical study was also withheld on the basis of the protective provisions in the NHPA and ARPA. The park is listed on the National Register and age made the pipes an "archeological resource" under ARPA. However, it is important to note that this protection is limited to the specific categories of resources covered by the statute. Another limiting factor is that protection from disclosure is guaranteed only if the agency decision maker is well informed by staff aware of the harm that may result from release of sensitive information. Tribes and other groups are frequently reluctant to go through the NHPA eligibility process since there is no guarantee that an agency will apply NHPA disclosure protections correctly or consistently. Additionally, tribes and others do not necessarily wish to expose relevant places to the scrutiny required to document their importance and existence.
While the NHPA and ARPA confidentiality provisions apply to all federal agencies with qualifying resources, recent legislation has specifically provided the National Park Service with additional tools to prevent the disclosure of sensitive information. The National Parks Omnibus Management Act of 1998 included a "confidentiality of information" section. This provision, Section 207, was also invoked in the Pipestone case to withhold National Park Service museum records and photographs of the pipes.
Section 207 states that information concerning the nature and specific location of a national park system resource which is endangered, threatened, rare, or commercially valuable, and of mineral or paleontological objects and objects of cultural patrimony within national park system units may be withheld from the public unless disclosure would further the purposes of the national park system unit in which the resource is located and would not create an unreasonable risk of harm, theft, or destruction of the resource. Conceivably, the act could be interpreted to facilitate the protection of sacred narratives and sensitive contextual information associated with museum objects and certain ethnographically important places.
In the absence of specific cultural resource statutes authorizing withholding, other legal constructs involving privacy concepts may be explored to protect sensitive anthropological data. The Privacy Act of 1974 can generally be characterized as a code of fair information practices which attempts to regulate the collection, maintenance, use, and dissemination of personal information by federal government agencies. The purpose of this legislation is to balance the government's need to maintain information about individuals with the rights of individuals to be protected against unwarranted invasions of their privacy stemming from agencies' activities associated with such information.
The basic provisions of the Privacy Act restrict disclosure of personally identifiable records maintained by federal agencies, and grant individuals increased rights of access to and the ability to amend agency records maintained on themselves. In practice, the Act has been difficult to decipher and apply because of imprecise language in the statute and limited legislative history. Using this statute to withhold sensitive anthropological information, such as genealogical data, may also be difficult for two additional reasons. First, the Privacy Act never prohibits a disclosure that the FOIA actually requires, and, second, deceased individuals do not have any Privacy Act protections, nor do executors or next-to-kin. However, personal information of this nature is frequently exempted under FOIA's own specific exemptions.
The common law right of privacy may also be explored to protect certain types of information from disclosure. The right to privacy has become established case law in most states and has received statutory recognition in some. The basic categories that form the right of privacy are:
- protection from intrusion into one's private affairs;
- avoidance of disclosure of one's embarrassing private facts;
- protection against publicity placing one in a false light in the public eye; and
- remedies for commercial use of one's name or likeness.
Generally, only persons who are injured may assert a claim and the right does not survive the injured party's death. Pursuit of a privacy claim against the federal government may also be limited due to intervening concepts of federalism and sovereignty. However, privacy actions are a continually evolving area of the law and are currently receiving greater public attention and support.
Finally, some legal theorists and scholars have also considered whether intellectual property law can be used to protect the cultural knowledge of native peoples (Brown 1998: 195-197; Puri 1995:338-339). The current framework of such laws primarily includes patent, copyright, trademark, and trade secret laws. Copyright and trademark laws may afford some protection to works and designs created by those that are the subject of anthropological study; however, the current intellectual property regime in the U.S. does not lend itself to shield dissemination of information that is already in the public domain. As a result, although Native American tribes and other groups might object to the incorporation of previously published text into a current study and subsequent distribution of the study, no intellectual property basis will prevent the use of this material.
Putting anthropology into practice in the somewhat choppy federal waters does not reduce ethical concerns for the fair treatment of human communities, transparent research agendas, commitment to the profession, and sharing information with the public. These very concerns prompted the Park Service to introduce the ethnography program. What we hoped to demonstrate is the complexity of implementing these concerns in a context that constantly tests, and sometimes contests, them. The sometimes discordant demands of professional standards, and the law, create constraints that federal practitioners cannot discount, but academic professionals might more reasonably treat with detachment. The need for data that support legally defensible decisions, requirements to respond to diverse publics with conflicting agendas-some wanting confidentiality and others, public access to government information -places the federal workplace apart.
We have reviewed both informal and formal approaches to resolving conflicts or issues of confidentiality and public access to data. If tribal or community requests for protecting data are localized and informal, and do not raise potential problems in reaching legally defensible decisions, some latitude exists in the choices recommended to and selected by the responsible decision makers. When a Freedom of Information Act request is made, and the goal of the anthropologist is to protect sensitive cultural data, a variety of legal methods should be considered in consultation with attorneys. One law alone may not be sufficient to outweigh the public policy objective to facilitate public access. Used in combination, these laws can sometimes provide the justification necessary to accomplish the ultimate goal and allay some of the ethical concerns of anthropologists. However, the existing legal framework does not consistently or clearly protect all forms of anthropological data from disclosure.
We considered some ethical challenges confronted by practitioners, but others should be noted. For example, how can federal agencies attract competent anthropologists if they are discouraged from publishing certain findings? If withholding data is antithetical to professional ideals as well as university demands for publications as a measure of one's worth in tenure de-cisions, can alternative measures of an individual's professional value be identified and accepted by the profession as a whole? Can confidentiality become such a "good" that the profession accepts non-publication as desirable? Can we, without betraying the trust of our community consultants, develop reliable information for use in reaching legally defensible decisions on behalf of tribes, communities, and the resources that represent the nation's diverse heritages and undergird the nation's environment? How can cultural anthropologists' image of themselves as champions of powerless and voiceless groups in hostile arenas be moderated so that non-anthropologists better appreciate the ethnographic contributions to informed decision-making?
Perhaps we need an overarching ethical paradigm that addresses the politically complex contexts beyond the academy and the presence of equally compelling but different principles. Perhaps the next iterations of professional ethics will acknowledge the contest between individual and public needs. These are not just anthropological concerns, of course. Professional concerns for individuals and our notion of responsibility to the public reflect cherished democratic principles and national ideals. Perhaps they are part of anthropological ethics because they are American ideals, intrinsic to American culture, and formalized in the national charter, the Constitution. Perhaps the profession will seek legislation that unambiguously parallels these dual but competing national values and remedies the anthropological concern about both protecting and sharing anthropological information. Meanwhile, the profession will have to rely on the panoply of informal strategies, well-intended federal officials, and creative attorneys who make the best use of available legislative fixes.
We appreciate the comments of Alexandra Kenney, graduate anthropology student and intern in the Archeology and Ethnography Program, and of Jason Roberts, Esq., NAGPRA specialist in the Archeology and Ethnography Program.
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Address for Correspondence
Attorney-Advisor, Office of the Solicitor,
Department of the Interior, Washington, D.C. 20240
The views expressed in this article are those of the authors and do not reflect the views of the Archeology and Ethnography Program, the National Park Service, the Office of the Solicitor, and the Department of the Interior.