[NPS Arrowhead] U.S. Dept. of Interior National Park Service Archeology Program
Quick Menu Features
* Sitemap * Home
common ground

The Native American Graves Protection and Repatriation Act
Fall/Winter 1995, vol. 7(3)

Online Archive

*  Capital Presence: An Interview with Tribal Judge Carey Vicenti

(photo) Edward Halealoha Ayau, Hawaiian heritage activist.

"Until the 1960s, Indian children grew up playing "Cowboys and Indians," and more than likely, they wanted to be the cowboys. They never wanted to be anthropologists, however, and today there are less than 70 Indians in the profession."

Rosita Worl

"I still can't believe I'm here," Carey Vicenti says as he walks the streets of the nation's capitol. It's a long way from New Mexico for the Jicarilla Apache tribal judge, recently arrived at the Bureau of Indian Affairs to further the development of tribal courts nationwide.

Vicenti is no stranger to the city, having been instrumental in the passage of the Indian Tribal Justice Act. But this time his presence--as exemplified by this interview--promises to provide Washington with a window on how the Native American Graves Protection and Repatriation Act is galvanizing tribes across the country.

Vicenti earned his judicial acumen from long experience on Apache lands, sitting in judgment for over 30,000 cases. As an activist in repatriation, he admonishes Native Americans to grasp this "historic opportunity to assess where you are as a people." Here he speaks philosophically on the legislation's broad impact, sketching its potential to invigorate the system of justice--for American Indians and, ultimately, the entire nation.

Federal Archeology: How did you become a tribal judge?

Vicenti: I came out of law school, went back to the rez, and said, "Well, what do you want me to do?" And they said, "We need a judge." And I said, "No, never. Never be a judge."

Then I spent the summer looking for work. And one by one the tribal leaders came to me and said, "Well, we really do need a judge." Until just after our tribal feast, in September, I counted all the people I'd talked to over the summer and went, "That's the whole council, the president, the vice president. That's everybody. I'm doomed." [Laughter]

So I ended up taking the job.

Federal Archeology: The word "judge" doesn't really encompass everything you do.

Vicenti: Yes, and the history of the tribe has some bearing on it. In the old days, small bands of say 40 or 50 Apaches needed someone who decided issues. Because of the exigencies of aboriginal life. You're wandering around gathering food and hunting and some controversy comes up and you can't coalesce into the larger group, so you resort to that person.

In post-occupation times these "judges" were picked by the Bureau of Indian Affairs, who thought they just decided cases. So the job transformed into a justice-of-the-peace kind of thing where people come in and say, solve this problem. No one thinks about jurisdictional questions or what the law says. It's just sort of--balance the equities.

Federal Archeology: Problem solving.

Vicenti: Yes. And people don't hesitate to come in on their own. They don't stand back and say, "I can't talk to the judge, this is an impermissible communication."

On the other hand, I doubt seriously that they look at me and say "This a wise man." Though I did have a funny conversation with some elders. I was urging that they need to be brave at this time and don't balk at the difficult issues. And one of them said to me, "You know, you're a pretty wise man." And the other guy sat there, his arms folded over his belly, and goes, "Yeah, but nobody knows it." [Laughter]

People come to me because I have a track record. We do about 3,600 cases a year. So over nine years--that's 32,000 cases, approximately.

Federal Archeology: Let's talk a bit about how this bears on the repatriation act. How do you see it helping tribal communities?

Vicenti: I don't know if it's a tribe-based issue. It is more of a social reorganization issue, a social mental health issue. When you repatriate objects and human remains, it's such a monumental event, like bringing back the Lost Ark of the Covenant. It's giving you an historic opportunity to assess where you are as a people.

And this is consistent with that bravery I was talking about. I made that story seem small, but really I was imploring the elders not to be mediocre.

In the western world, if you have the repatriation of, say, a lost portrait of George Washington, you can have celebrations, shoot off fireworks, and say this is wonderful. But it won't quite elevate to the status of, say, recovering some Dead Sea scrolls that explain a lot of the Bible.

Federal Archeology: How does bravery come into play?

Vicenti: Over the course of repatriation, we may make the most hideous of discoveries that our metaphysics are incomplete. That the restoration of our patrimony doesn't answer all the difficult questions. We have to muster the courage to recognize that we are a new generation, with its own issues, and this one is ours.

Federal Archeology: Could you talk about the kinds of discussions that go on inside a tribe, vis-a-vis repatriation?

Vicenti: In my own tribe, there was a very funny phenomenon. Years ago, there was a second language type of funding, and people didn't really jump up and say, well, let's restore the Apache language. Language is not a major assessment of your character. But how you treat the dead is. So with repatriation people just came out of the woodwork.

Not all of the debate has been positive. A lot of it has been like, "I don't want to deal with the dead, you keep them." But when people begin to think that it may not be just a body in a box, but a body and a jaw, or part of a body and a jaw, or a head on a shelf, they say, "Well, that's not right."

That's on one level. You have cultural leaders coming out. And then on a separate level you have the political leaders, their hesitance to become a primary force.

In other words, there's almost a church and state distinction looming in the background--partly a carryover, I think, from western civilization. And it could blow up in the long run if we don't take it into account.

Like, for instance, in a case where a political leader, during an election, doesn't state a predilection towards fundamental Christian notions. So there's potential for obstructing repatriation if this person gets elected.

In the tribes there's a new discussion about the place of tradition. And what appeared to be irreversible changes in, say, the family structure.

Federal Archeology: What role do you play as a tribal judge?

Vicenti: I really don't.

Federal Archeology: What about as a member of the tribe?

Vicenti: Ahh, I just raise difficult questions for everybody. And force people to confront them when there is a skirmish.

Actually, my involvement came about when I went to the traditional leaders and said, "My juvenile court isn't working any more. The juveniles have no respect for me or the tribe. Maybe there's something you guys can do."

And they took me aside and said, "Well, we have this stack of [repatriation] summaries and inventories. You take care of this for us and [Laughter] we'll help you out." And I looked at them suspiciously and said, "Wait a second, is this a tradeoff?" And they didn't even bat an eye. It was like, "No, we don't exactly know how to help you until you get all this other stuff in order."

And then it sort of fell into place that, unless they were able to get the traditional, philosophical, religious, metaphysic framework back together, they weren't going to be very useful in tackling alternatives to juvenile questions.

I was really interested in restoring our traditional system of justice. It just took that meeting to finally push me over the edge and say, well, there's a definite tie between the restoration of traditional justice and the restoration of the heart of our people.

Federal Archeology: Do people in the tribe have a certain way of dealing with repatriated objects and remains?

Vicenti: Sometimes there's a disparity. Some say, "This object may have belonged to the dead, so we shouldn't touch it." I don't know if that isn't a Chicken Little type of attitude.

We have the chance to recover, perhaps, lost artistic conventions--things of that sort. And interestingly enough, some are discussing whether such things should be in a museum.

But people are not sure that's the best way. Maybe these items shouldn't be subject to public scrutiny. Perhaps they should be studied only by our people and then put away.

In the past, of course, people learned these [artistic conventions] by watching craftsmen. People probably studied the object as well. But it wasn't stored in a box. It was used for whatever it was used for and the next craftsman knew that.

Federal Archeology: In terms of repatriation, how do you think museums and agencies should deal with tribal communities?

Vicenti: Well, we go to a museum with a white stone in one hand and a black stone in the other and say, you choose.

Dealing with museums can be easy or tough. One museum would not allow us access at all. It was not just their saying, "Well, to be honest with you guys, this is bad timing for us. Let's arrange to do it on such and such a date, so we can work jointly." Instead the museum said "No, you can't do it at all."

In which case, the traditional leaders called me up and said, "We want you to go on this trip and, because we want to brag and say that you know how NAGPRA works and that you are, that you are an Indian attorney." And as soon as it was mentioned, the museum just said, "Okay okay [Laughter]. You can look at whatever you want."

And that was it. That is sad. That is really sad.

I suspect there are curators out there, anthropologists and archeologists too, who see the loss much as a butterfly keeper would see all his butterflies flying away.

This is going to be a difficult learning period for these professions. Because I don't think they've thought about what NAGPRA means in depth. It is just sort of . . . legitimacy is a given. Why, we have the momentum of the institution behind us. And the whole scientific world.

That's where it's difficult, coming to grips with a more living practice of archeology.

On the other hand, we've seen a couple of archeologists affiliated with tribes who just leap at the opportunity, almost as if it's liberation for them as well to raid the collection and liberate the anthropologists.

Federal Archeology: What do you think the future will bring?

Vicenti: I think in the next 10, 15, 20 years you're going to see these professionals become--at least if they abandon the older notions--really close friends of the tribal people. And the tribal people will be looking to them to advance their own political objectives.

Federal Archeology: Could you talk a bit about how NAGPRA's western legal approach fits with tribal values?

Vicenti: I don't think it does. NAGPRA is an odd little beast. It's like a bat. It's furry, but also has wings. A lot of the language was developed to protect the legal relationship between Indian tribes and the federal government. In other words, it wanted to fit neatly into the normal type of legislation that benefits Indians.

But it also wanted to be a character we call remedial legislation, which tries to take care of a past wrong. For instance, like the federal government obliterated a tribe and allowed its cultural patrimony to be scattered across the nation. And maybe there isn't a tribe left. All we have are the descendants, who can no longer coalesce into an entity.

But they're entitled to protection under the law. And when you start protecting individuals and their rights--in this case their right to patrimony--you have to characterize that as a civil right, or a property right, or a right based upon some kind of vague liberty interest. And you're trying to remediate it with this legislation.

So the problem is the winged part is dealing with Indians as a group and the furry part is dealing with them as individuals. The collective and individual stuff seem to be competing. And making it really hell to develop standards for who the beneficiaries are.

So as a law it doesn't even fit the normal western categories. It dovetails with tribal interests only insofar as the tribes really need to have their patrimony restored. And that's it.

Federal Archeology: You remarked recently that now's a good time to be an Indian. Could you elaborate on that?

Vicenti: There was a time when I was sad I'd been born after all the major Indian legal issues had been settled. More sadly, they were settled in the Supreme Court, primarily by non-Indian lawyers. And if my experience is any sampling, then all that was left for us, especially as Indian lawyers, was this sort of janitorial sweeping up.

Beyond that was just the feeling that I'd missed out on a lot. Missed out on the old ways and the good company and the good advice.

But this is a good time because I think we're seeing a lot of American jurisprudence run into dead ends. For instance, [the controversy over] computer software and intellectual property, which is a reaction to a dead end in copyright law.

And then you have the breakdown in criminal justice as totally retributional, as adversarial, with this migration towards dispute resolution processes--remediation, arbitration.

And at least from a judicial perspective, it suggests to me that our traditional practices have a great deal of value as an alternative. Our notions of contrition and harmony and restoration. And the tribal approach to social organization, for the most part, has been untried in the western world.

So then I came to realize that, well, geez, it's like the front end of the red carpet to the 21st century.

Federal Archeology: Final comments?

Vicenti: Congress kind of screwed up with the repatriation law. Not enough foresight. I think they just wanted to get the issue behind them. But it is by no means a small issue with Indian people.

Even tribal governments--the leaders--play down its importance to their constituents. Because the act has the strange effect of mobilizing people at the grassroots. Either along with their leaders or in spite of them. And that is actually a good phenomenon for the community mobilization perspective. One would just hope that tribal leaders and government officials will recognize the importance of this and take advantage of the momentum it creates.