Getting Past Impasse by Refusing to Negotiate

 

Stephen Thom

CRS Mediator, Los Angeles Office


[Full Interview]

Answer:
One of my favorites, without violating confidentiality, I had a university that was willing to consider returning 550 of its Native American remains and artifacts after a person from the Ohlone Indian tribe in Northern California happened to be visiting the university and walked through one of the anthropology department's storage areas and noticed all of these bones sitting on this rack. She said, "What are these bones? Why are you holding them?" They said, "Well, this is the Anthropology Department. We study and let the students work with them, and we use them to practice anthropological applications." She said, "But these are my ancestors. It's very sacred to us that they be in the ground." So this Ohlone Indian went and notified other members of her tribal group, and they began to talk about their ancestral remains needing to be returned. They discussed the issue and it was unanimous among her family the remains should be returned.She contacted CRS, and said, "We're very upset about what's taking place at this institution. Somehow, these remains need to be returned."

We knew this case would be spiritual to Native Americans and that there was a lot of interest in what would happen with the remains. Our goals were to sit down with the institution and figure out under what conditions and circumstances the institution and the Ohlone tribe could agree to return and rebury the Native American remains. We had a list of issues that we anticipated the Native Americans would ask, and a couple of things that had already come up. One, they wanted all of the remains. They wanted them to be buried in a certain location, and they wanted that location to be concealed. Two, they wanted to identify any of the artifacts that were related to what they called funerary objects to be returned with those remains, and to be tracked, and to go through and contact the professors to see whether anybody had, unintentionally or intentionally, borrowed any of the artifacts. So those were some of the types of demands or requests -- that would be brought to the table for discussions.

By the time I get to the meetings with people, the anger is there, but they want to know what their options are. They're interested in that. Their anger needs to get focused on something constructive at some point, and I think they realize that. I think they appreciate it if you can give them that big picture. That's the way I approach a lot of cases. So in the case with the institution, we talked about all of the options. Because the institution had already consented to go to mediation, we knew where we were going, so it wasn't hard to get them to sit down and really work with us. When we actually went to the table, we had an agreement on the full agenda, and as we went through the list of issues, it went fairly smoothly because I think we knew where we were going and we knew the parties common ground and interest and we knew that the institution was willing to concede the remains to the tribe. They had learned about the spiritual need for Native Americans and recognize that they did all the testing and learning they could with these remains. They had no real, viable use for the remains. The pictures they had taken and the pre-measurements and all of the analysis they had was documented in a way that they didn't have to hold these remains to teach students in the future. So they were comfortable.

But we reached an impasse on the issue of the remains that were on loan to another institution for a period of time. The Native Americans, at that point, said, "We want those remains to be buried with the other remains at this time. We've agreed to a time, a date, a location, and we have a ceremony to do. What are we going to do with these remains on loan? They need to be brought back." The institution was caught, because they had made a commitment to another institution. We couldn't get the parties to agree on a delay of the whole process, because the Native Americans were anxious to get the remains into the ground to evolve its natural process. The institution was caught because it couldn't get the remains back without violating its commitment. They had talked about talking to the other institution to see if they could get the remains returned earlier, but that was impossible because the other institution had not finished doing important testing. I think, in all honesty, the representative of the first institution made a viable effort to try to get the remains and expressed that to the Native Americans. So we were stuck in this impasse. We couldn't figure out how we could get the Native Americans to allow the institution to have an extension. It looked like we had to go that way because the institution that had borrowed them had not finished what they needed to do and had begged the institution to allow them to do that. And in good faith, the first institution said, "We cannot violate that commitment." We were there for hours. We looked at all the options we could come up with. We caucused and we came back. We took lunch and came back to the table, but there was no movement. We did everything we could to see whether we could refresh and energize the parties to back and figure out some acceptable option.

It was about the third or fourth caucus when one of the representatives came up to me and said, "I think I have the way." She was the spokesperson of one of the tribes. I asked her what was it? "They have to tell us." "Tell you what?" I asked. 'They have to say, 'That's the way it is, you can't have them. That's the only way. You can't have the remains until we are done in two months.' They have to tell us."

Question:
Who was at that session?

Answer:
It was a caucus. We had taken a break and she had come and asked to caucus with Larry Myers and myself.

Question:
She wanted to talk to you away from the group."

Answer:
Yes.

Question:
Was she representing the group?

Answer:
She was a strong enough leader and we knew she had the confidence of most of the group. There was no doubt about it that whatever she said was going to go. She had that kind of influence. It was kind of interesting because we went to the institution and told them they had to say, "This is a non-negotiable! You have to tell them that those remains are not going to be available, absolutely, and that's the only way this is going to work. And the Dean of the Department said, "What?" He didn't want to take a hard position and feel like the institution was being dogmatic. They had been very open and cooperative and all of a sudden now they are going to say, "No...this is absolute...you can't have them for two months, and until this takes place, they're just not available." They were very reluctant to do that, but Institution representatives finally realized what the message was. The real message behind the option was that the Native Americans did not want to betray their ancestors. If they gave permission for the University to hold the remains any longer then they would have violated the trust of their elders and the spirits of their ancestors. But if they are told by the institution to wait two months, then it wasn't on them. It was the ownership of the betrayal that was important to them, and that was the only way we got through that impasse. It came through a caucus...and nobody really wanted to do it, but it was the only way. So, there was an agreement that there would be an extension. Those are the subtle things that made this case very memorable for me, because after all that impasse, sometimes it's just the little subtle, intimate way you say things, is sometimes more important that the whole issue. That one has always left a lesson for me. It was a special case.