Table Of ContentAcknowledgments
James Springer would like to acknowledge several individuals with whom
he has discussed issues related to repatriation over the years, and who have
provided advice, information, copies of articles, and otherwise provided
assistance. My thanks to Dr. J. Kenneth Smail, professor emeritus, Depart-
ment of Anthropology, Kenyon College, Gambier, Ohio; Dr. Michael Wi-
ant, director, Dickson Mounds Museum, Lewistown, Illinois; Dr. Robert
Fuller, Department of Religious Studies, Bradley University, Peoria, Illinois;
Dr. Jane Buikstra, professor of anthropology, School of Human Evolution
and Social Change, Arizona State University, Tempe, Arizona; Dr. Eliza-
beth Weiss (my coauthor), Department of Anthropology, San José State
University, San José, California; Dr. Ethne Barnes and the late Dr. Arthur
H. Rohn, Tucson, Arizona; retired attorney Alan Schneider, Portland, Or-
egon; attorney Michael Rusing, Tucson, Arizona; Dr. Michael D. Coe, pro-
fessor emeritus, Department of Anthropology, Yale University, New Haven,
Connecticut; Dr. C. Loring Brace, professor emeritus, Department of An-
thropology, University of Michigan, Ann Arbor, Michigan; Dr. Tim White,
Department of Integrative Biology, University of California, Berkeley, Cali-
fornia; Dr. Clark Spencer Larsen, Department of Anthropology, Ohio State
University, Columbus, Ohio; attorney Ryan Seidemann, assistant attorney
general, state of Louisiana, Baton Rouge, Louisiana; professor Jean Leclair,
Faculty of Law, University of Montreal, Montreal, Quebec, Canada; Justice
Allan Van Gestel, retired, Rockport, Massachusetts; professor Tom Flana-
gan, Department of Political Science, retired, University of Calgary, Cal-
gary, Alberta, Canada; and Ramona Gibbs of Peoria, Illinois.
Most of this writing occurred while I was a partner in the law firm of
Kavanagh, Scully, Sudow, White & Frederick, P.C., Peoria, Illinois, whom I
thank for the facilities and secretarial assistance used in the writing of this
book; I am, of course, solely responsible for the views expressed herein and
for any errors of fact or interpretation.
Elizabeth Weiss would like to thank the many people who made this
work possible. First, to my coauthor, James Springer whose excellent work
has always made a lasting impression on me. I also would like to thank
Meredith Morris-Babb at the University of Florida Press. Meredith gave
me honest and constructive criticisms and yet was always encouraging. I
would like to thank the reviewers; not all reviews go as expected, but every
review I received helped steer me in the right direction and produce a bet-
ter final manuscript. I thank researchers, especially bioarchaeologists, who
try to give past people a voice. Those who have taken legal action to protect
access to remains are to be thanked by all of us who study the past. I would
like to thank my colleagues Dr. Chuck Darrah, Dr. Roberto Gonzalez, and
Dr. Charlotte Sunseri at San José State University for a supportive environ-
ment, which includes enabling me to take a year away to write this manu-
script. I also thank my siblings, Katherine, Alex, and Chris. My parents,
Gisela and David, are always there for me, especially on lasagna Sundays,
which don’t always turn out as planned. Jutta and Jolei, for their intellectual
stimulation that ranges from medical science to the best film noirs. And,
finally, to my husband, Nick, who is always ready to listen to my ideas and
proofread my work. Yet, I am responsible for any mistakes in this work.
xii Acknowledgments
Introduction
This book deals with two distinct but related topics: (1) the value of the
study of human remains, and associated cultural remains, and the contri-
butions that they make to our understanding of human history and prehis-
tory; and (2) an ideology that opposes such study, threatens such study, and
yet has become established in the laws of the United States. Our critique of
the ideology cannot be understood except in the context of describing and
elucidating the value of the study itself.
We begin with the definition of anthropology that was the dominant un-
derstanding in the nineteenth century and twentieth century. Anthropol-
ogy is the comparative study of human biological and cultural differences
and changes through time. Its most important characteristic is its com-
parative perspective, in which biological and cultural information from all
races, ethnic groups, civilizations, and parts of the world is considered,
compared, and explained.1 It was the traditional belief of anthropologists,
with which we agree, that it is possible to do these sorts of studies within a
comparative, objective, and rigorous framework. We recognize the impor-
tant differences among the various branches of anthropology, and we also
realize that no branch of anthropology can hope to achieve the quantifica-
tion and rigor of the experimental sciences. Indeed, some cultural anthro-
pologists insist they are not scientific and have no wish to be. Even within
these limits, however, traditional anthropologists believed that they could
produce an objective and universally valid body of knowledge, which is a
perspective that we share. Physical or biological anthropology is a member
of the biological sciences group of disciplines. It uses a biological meth-
odology to study one particular species, but it also combines the biologi-
cal perspective with studies of cultural phenomena, such as diet, patterns
of exercise, warfare, and industrial pursuits, that leave their traces on the
bones. Archaeology, by contrast, has some of the perspectives of both a so-
cial science and a natural science. Insofar as it is a social science, it attempts
to reconstruct the cultural systems of societies that no longer exist, which
can even include studies of such apparently intractable materials as belief,
ideology, and ritual (Hall 1997). At the same time, archaeology partakes of
the methods of the natural sciences. Archaeology is, from this perspective,
the study of how remains of human beings, both cultural and biological,
are deposited, preserved, and modified on and under the surface of the
ground. It is the study of the processes that produce the physical evidence
of human activities (Binford 1983).
Anthropology appeared as a distinct discipline in the nineteenth cen-
tury and flourished in the twentieth century. As part of that flourishing,
there were established museums of anthropology or, more commonly, of
natural history, that served as repositories for human biological and cul-
tural remains. These museums, often associated with colleges and univer-
sities, dedicated themselves to the collection, conservation, preservation,
study, and display of human biological and cultural remains. Collections
of human remains, whether from Native Americans or others, enabled
anthropologists to study human variation, which set the foundation for
modern bioarchaeology (the study of human remains in archaeological
settings), osteology (the study of bones), and forensic anthropology (the
study of human remains in legal settings).2 In the late nineteenth and be-
ginning of the twentieth century, anthropologists started to examine dis-
ease origins, frequency, and distribution. For instance, Hermann Welcker
published cribra orbitalia (an indicator of anemia) rates and distribution in
1888 (Angel 1981). Then, as early as 1917, studies on skeletal collections en-
abled anthropologists to start understanding the effects of activity patterns
on bones. Early studies have helped create a basis for determining ethnic-
ity, age, and sex from bones in ways that still help forensic anthropologists
(Weiss 2009). These collections were traditionally regarded as an essential
part of anthropology itself and continue to be essential to anthropological
studies today.
Beginning in the late twentieth century there appeared a series of chal-
lenges to the perspectives just summarized. The first was the postmod-
ernist movement, which attacked all supposedly objective knowledge and
objective theorizing as, in fact, a fraud. To the postmodernists, what was
supposed to be objective science and scholarship was, in fact, an expression
of the ideology of the dominant classes or subcultures. Science itself was
2 Repatriation and Erasing the Past
simply an expression of capitalism, imperialism, and racism. For example,
2014 Presidential Medal of Freedom recipient Suzan Harjo, an American
Indian activist who started the Morning Star Institute (which holds an an-
nual prayer day for sacred lands) in 1984, has stated that studying Native
American remains “comes down to racism” (Muska 1998, n.p.). However,
anthropologists study remains from all peoples, which led the late Phil-
lip Walker (2000), who worked collaboratively with Native Americans for
decades, to suggest that to exclude Native American bones from research
could also be viewed as racist. As such, anthropology—according to Native
American activists—had no claim to superior knowledge over the knowl-
edge held or claimed by any group of people. In particular, any group that
could be thought of as marginalized or exploited should have its version
of knowledge given great credence simply because of the source of that
knowledge.
The above led very quickly to the appearance of putative spokespeople for
American Indians who applied the postmodern perspective to anthropol-
ogy. According to them, anthropology, like science generally, was a fraud.
For instance, James Riding In has compared archaeologists to criminals
and Satan worshippers while Devon Mihesuah has equated archaeological
excavations to illegal ransacking of burials (Watkins 2005) and simply a
way in which the dominant culture exploited the subordinate culture. The
subordinate culture was conceived of as victimized, not only in the past but
in the present. Therefore, the perspectives of the oppressed groups should
be given special credence and deference to make up for being suppressed
in the past (Mihesuah 2000; Fine-Dare 2002). Yet Native Americans had
previously assisted in excavations with bioarchaeologists and archaeolo-
gists. Walker (2000) reported on his own experiences in the late 1960s in
which the Inuit were not concerned with excavations or reburial of remains
that were being preserved for study. Other anthropologists have supported
this historical perspective that Native Americans engaged in archaeology
before the activist period began, and they did not seem to be bothered with
the excavation of remains or concerned about the possibility of skeletal re-
mains staying unburied (Ubelaker and Grant 1989). Arguably, this suggests
that the current Native American view that remains should be reburied is
a modern, political construct and not a genuine reflection of historical Na-
tive American cultural beliefs. Chapter 9 discusses prehistoric and historic
evidence for varied treatment of human remains by Native Americans.
This ideology of victimization as a justification for preferring certain
Introduction 3
views over others led to the view that American Indians own their own
culture, including their own past, their own bodies, and their own arti-
facts. Their racial and ethnic identities give them an authority and a right
to pronounce on truth that other groups do not have. As quoted in the
New York Times, Clement Meighan lamented the legal stance that “Indians
have revealed wisdom that is not to be challenged, not to be questioned, or
investigated” (Johnson 1996, n.p.). Other Native American views include
those reported by Suzianne Painter-Thorne (2001) in which she noted that
Native Americans feel that they need to correct the errors that archaeolo-
gists made in their narratives. From many Native American perspectives,
Painter-Thorne (2001) states, their narrative is the only right way to present
the past; it must be in their own voices. Regarding the Native American
narratives, “elders are credited with powers of memory credible far beyond
anything that would be granted to anyone else” (Mason 2000, 256). Incred-
ibly, at the National Museum of the American Indian, which is a part of
the Smithsonian Institution, former director W. Richard West Jr. proposed
that the museum would be run for and by Native Americans. His revised
mission statement included that only Native Americans (or those commit-
ted to the Nativist agenda) could understand Native American culture and
history (Brundin 1996). One can only imagine the righteous indignation
that would arise if any other people—for example, the English—stated that
only they could study or truly understand English culture and history. For-
mer program administrator Rick Hill added that if Native Americans do
not take responsibility for the work, “the white people will win” (Brundin
1996, 36). Fortunately, the National Museum of the American Indian seems
to have backed down from some of these extreme views. Some versions
of this view that the American Indian voice is the only voice of authority
on Native American topics led to an extraordinarily broad definition and
understanding of property as enjoyed by American Indians. It includes not
only physical objects but knowledge of all sorts that related to American
Indians and terminology derived from Indian languages or Indian names
even though they had entered the mainstream culture centuries before
(Newton 2012, 993–1318).
This then led to the conclusion that secular and scientific scholarship
concerning human cultural and biological differences should be replaced
by, or should at least defer to, traditional American Indian animistic re-
ligions in terms of who has authority to speak. This view was often put
forward in its most literal form, in which miraculous events and interven-
4 Repatriation and Erasing the Past
tions of gods, witches, and supernatural phenomena were to be given even
greater weight than the results of secular inquiries in physical anthropol-
ogy, archaeology, linguistics, ethnohistory, or ethnography (Deloria 1997).
As such, the Native American Graves Protection and Repatriation Act
(NAGPRA), a federal law that mandates turning over to federally recog-
nized American Indian tribes human remains and cultural items even if
the remains or items are thousands of years old, can be viewed as a major
victory for the religious interests of Native Americans; it puts oral tradi-
tion on equal footing with scientific evidence. Moreover, oral traditions,
which many Native American leaders take literally, contain religious cre-
ation myths (Bardill 2014; Echo-Hawk 2000; Skibine 2009; Zimmerman
2002). Yet it is our job as scientists to challenge these types of renditions of
the past, which include unbelievable tales, such as talking ravens and Na-
tive Americans arising from holes in the ground in the Black Hills of North
America (Mason 2000).
This ultimately led to a view by Native American activists, repatria-
tionists, and even anthropologists sympathetic to these Native Americans
that it is proper to censor, suppress, or modulate anthropological studies
of American Indians. Researchers who show an interest in Native Ameri-
can religion and the treatment of the dead may no longer be able to study
and publish on these topics (see Ferguson 1996). For example, an Arizona
professor who wrote a book on Native American religion has been pre-
vented from publishing her work due to tribal leaders who hired lawyers
to block publication (Mihesuah 1993). Collaboration and consultation with
Native Americans, which is required under NAGPRA, involves giving Na-
tive Americans the right to determine how to conduct research and how
to share (or hide) the information (Gonzalez 2015; Wylie 2015). Most im-
portant, anthropologists are encouraged to propose research that is in sync
with Native American worldviews and traditional knowledge. Otherwise
their proposals may face rejection by tribal leaders (Atalay 2006; Mihesuah
1993). Some tribes, such as the Hopi in Arizona, have placed a complete
moratorium on access to field notes, photos, recordings, artifacts, and, of
course, bones, to stop all research on their tribe (Weiss 2001). According
to those in support of the Native American agenda, studies should also
be undertaken and published in a way that avoids giving offense to any
individual or group of American Indians. For instance, Roger Echo-Hawk
(2000) suggests that the word “prehistory” be replaced with “ancient his-
tory” to recognize oral tradition as records of history (even though oral
Introduction 5
histories are unreliable and contain religious messages). Even a strongly
supported scientific theory that the American Indians were derived ge-
netically from Northeastern Asia is held to be improper since it contradicts
the traditional origin legends of all North American Indian groups. For
example, Bill Clinton–appointed NAGPRA committee member Armand
Minthorn declared that their religion tells them that “they were created
here” in North America (Van Horn 2008, 228) and that contradiction con-
stitutes an insult and an offense to contemporary American Indians. Inter-
estingly, Native Americans have even adopted the creationist catchphrase
about evolution—“it’s just a theory”—to dismiss research published on mi-
grations into the Americas (Weaver 1997).
That ideology has found support in the law of the U.S. government, par-
ticularly in the form of the NAGPRA, which is discussed at greater length
in this book. This federal law, and in some cases similar state laws, man-
dates turning over to contemporary American Indians the human biologi-
cal and cultural remains, including even ancient remains that are several
thousand years old where no biological continuity can be proven—an issue
we return to later.
Thus, our definition of repatriation is a broad one. We understand re-
patriation to be any ideology, political movement, or law that attempts to
control anthropological research by giving control over that research to
contemporary American Indian communities. We are not limiting it sim-
ply to the repatriation of physical objects.
Several important topics are excluded from this book. We limit our
coverage to North America, primarily the United States. We do not deal
with the issue of modern nation-states that demand possession of works of
art produced in or removed from areas that are now within their borders.
There is large literature on this subject, which we do not deal with. This
movement of nationalistic repatriation has been well analyzed and criti-
cized by Tiffany Jenkins (2016) and James Cuno (2008, 2009, 2011). The
interested reader is referred to those sources.
Notes
1. Throughout this work we have used both the terms “race” and “ethnicity.” We rec-
ognize that the term “race” has become problematic for some, but we believe that its
use to refer to the biological relationships and continuities among the prehistoric and
historic peoples of North America is appropriate. We also believe that the term is ap-
propriate in the forensic context. The various antidiscrimination laws passed by the state
6 Repatriation and Erasing the Past
and federal governments use the term “race” to refer to forbidden forms of discrimina-
tion, and the term has been incorporated by court interpretation into the United States
constitutional provisions concerning “due process” and “equal protection.” The term is
essential to our discussion of how various recognized groups within the human species
have been treated in court decisions.
2. Throughout this book, the terms “Indian,” “Native American,” and “Amerindian”
are used interchangeably. “Indian” is a term found in some of the laws discussed in part
II of this book. “Native American” is also used in legislation. Some have argued that it
should only be applied to federally recognized tribes, but both the Native American
Graves Protection and Repatriation Act (NAGPRA) and the anthropological literature
use the term more liberally. “Amerindian,” a contraction of American Indian, is a term
frequently used in the physical anthropology literature, but one does not find “Indian”
alone used in the current physical anthropological writings.
Introduction 7
