Elizabeth Weiss Claims Protecting Native Graves Violates First Amendment

Controversy erupted at the annual meeting of the Society for American Archaeology yesterday when Prof. Elizabeth Weiss of San Jose State University delivered a presentation based on her recent book in which she attacked the federal law mandating the return of Native American objects and remains for repatriation and protecting Native graves. According to social media posts after the event, Weiss also attacked Native people as lacking the objectivity to perform archaeology and said they should not participate the scientific study of the past. Weiss is also the wife of Ancient Aliens star Nick Pope, whose show similarly takes a dim view of Native peoples, arguing that they are not-fully-human alien hybrids who only clawed their way up from the dirt with the help of powerful, superior outsiders.

Weiss presented her belief that the repatriation law, NAGPRA, is an unconstitutional violation of the First Amendment because it “establishes” Native American religions and endorses creationism, a position that is obviously untrue. Her abstract lays out the case:

Weiss, Elizabeth (San Jose State University) and James Springer
Has Creationism Crept Back into Archaeology?
Archaeologists and anthropologists have been at the forefront of supporting the spread of science over creationism religion. For instance, the Society for American Archaeology posts teaching guidelines that includes statements that dinosaurs went extinct 65 million years ago, the Americas were inhabited about 12,000 years ago, and that archaeology follows the scientific process. The American Anthropological Association, on their policy page, states that “Evolution is a basic component of many aspects of anthropology (including physical anthropology, archeology…).” And, the American Association of Physical Anthropologists has an anti-creationist statement in which it “condemns any effort by the state to dictate specific religious instruction to the people.” However, archaeologists and anthropologists have nearly unanimously supported the Native American Graves Protection and Repatriation Act (NAGPRA). NAGPRA violates the First Amendment in multiple ways; for instance, “traditional” religious leaders are required for the review committee, “traditional” prayers open and close NAGPRA meetings, and decisions to repatriate remains are made on the basis of creation stories. With NAGPRA, archaeology has become entangled with religion in a way that would never be accepted if the religion was Western-based. We propose a different perspective on human remains and artifacts based on objective knowledge rather than creationism.

While prayers might be offered at meetings—just as they are before sessions of Congress—they are not required by the 1990 NAGPRA law, 25 USC Ch. 32. If Weiss disagrees, she is welcome to complain, but it is not a legal requirement. Similarly, creationism is not required by law. Instead, it requires that Native groups seeking the return of artifacts or remains must provide a “preponderance” of evidence that the objects or remains are affiliated with their tribe. They are required to demonstrate “cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion.” Creation stories, as oral tradition, are only one factor and would need to provide directly relevant evidence. More often used for ceremonial objects, such stories might be used to establish that remains from one geographic area are ancestral to living descendants now living elsewhere. This is not a supernatural connection, but roughly the equivalent of a white person talking about how his or her ancestors came from Germany before immigrating to America.
 
After archaeologists in attendance expressed their outrage on social media, the SAA put out a milquetoast statement reiterating its support for NAGPRA and adding that “SAA recognizes some will find some certain positions in presentations objectionable or even offensive, and we do not want to minimize these feelings.” They then reiterated their support for “diverse views.”