Elizabeth Weiss Claims Protecting Native Graves Violates First Amendment

4/16/2021

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.”

23 Comments

Kent

4/16/2021 12:32:05 pm

"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."

Because of all the Indian birth records in Germany and the U.S.? Gotcha. My family is no one special but the WRITTEN records go back to the 1700s in Germany.

So no, it's "roughly the equivalent" of someone making something up.

Jason is quite right to point out that Congress is not a suitable venue for prayers.

Doc Rock

4/16/2021 03:16:03 pm

Actually, one can sometimes find written birth records in the present-day for Native Americans in the form of baptismal records dating back to the colonial era (1700s or earlier), at least in areas of French and Spanish colonial settlement. The Catholics often kept quite good records. There are instances in the late colonial era when slaves used genealogical records from much earlier to gain their freedom by establishing particular Native American ancestry. Tough digging, but I know professional genealogists have done this type of research.

However, this would be a different issue from oral history claims for areas where colonial records for that period are lacking, or for pre-contact era, or for areas where Catholicism was absent or records were destroyed. As already Jason pointed out, oral history in this regard would only be a potential factor in consideration of claims.

phil

4/17/2021 11:55:02 am

It is well established through archaeological, linguistic, and historical documents that a number of First Nation groups residing on the eastern Great Plains in the 19th century had been pushed out of the Ohio River Valley and upper Mississippi Valley during the pre-historic, protohistoric and early historic eras. This was due to the westward expansion of groups such as the Iroquois Confederacy and the Ojibwe. The archaeological and historical evidence often jibes well with oral traditions of being forced from those areas. Oral tradition is not definitive proof of a particular claim. But neither can it be casually dismissed. Published work on the Osage includes discussion of the issue in general.

Williard Rollings. 1992. The Osage: An Ethnohistorical Study of Hegemony on the Prairie-Plains. University of Missouri Press.

Similar data has been used to illustrate the southward migration of groups such as the Apache and Commanche that relocated from the northern Great Plains into the American Southwest.

4/25/2021 11:21:54 am

Mr. Phil

Napoleon Chagnon made heavy use of genealogical data and oral tradition to document generations of Yanamamo settlement patterns and political history.

A problem that one can encounter here is that you have people like Scott Wolter claiming that anything that an "old Indian" or a "tribal elder" allegedly told them is a detailed and accurate account of events from thousands of years ago.

You end up with people trying to push a false dichotomy where oral tradition is always 100 percent accurate or always 100 percent false.

Dave the fav

4/20/2021 07:51:32 pm

"...1700s in Germany." LOL

Jim Davis

4/16/2021 01:38:04 pm

Any particular reason you didn't put this on SubStack?

Jason Colavito link

4/16/2021 01:47:32 pm

Just busy and haven't gotten to it yet.

T. Franke link

4/16/2021 06:31:52 pm

It is surely a good thing that Indian burial sites are protected, and it is basically a legitimate idea to give back to tribes what is their's (repatriation). But as always, you can spoil even the best idea by exaggerating it.

I never heard of this law, but reading about it now, I find it heavily one-sided. There has to be a trade-off between scientific interests and respect for deceased persons. And as far as I can see, the NAGPRA law takes a one-sided approach on this question. There is no trade-off at all. Bad for science.

It is outraging to read that archaeological findings (e.g. skeletons and burial gifts) regardless of their importance (!) are handed over to be buried and to decay in short time, so what was preserved of a lost culture is now lost for ever. This does not sound like a good solution.

I also read that certain tribes even successully claimed archaeologically highly valuable remains of human beings who had lived 10.000 years ago (!), e.g. the Kennewick-Man. I think this is the background for the accusation of "creationism". Because the Kennwick Man surely was not a member of any Indian tribe of our era. To take his remains away from modern science and to speak Indian prayers over him which never existed at his time is really awkward. It is even disrespectful for the deceased himself who surely never shared the beliefs and rites of these modern-era tribes. This is surely not a "repatriation", but a bad joke. And they really did it!!!

https://en.wikipedia.org/wiki/Kennewick_Man#2017:_Return_and_reburial

I also can imagine that alle the benefits granted to Indians and possible descendants lead to the creation of an "industry" living from these benefits, and make them claim more and more "rights". I have no idea about this particular case, but my experience with other such "industries" tells me that it exists. And this one-sided law sounds much like the product of the lobbyism of such an industry.

It is the duty of every virtuous man (and woman) to speak out against the one-sidedness of the law. And it is a good thing that SAA at least allowed dissent.

(The article seems to claim a connection between Elizabeth Weiss' point of view on the matter, and her husband. But I do not see any such connection. The source "According to social media posts after the event" is not convincing. These posts may have been written by partisan people. What did she really say? Her abstract reads differently.)

Jim

4/17/2021 02:10:23 pm

"Kennwick Man surely was not a member of any Indian tribe of our era. To take his remains away from modern science and to speak Indian prayers over him which never existed at his time is really awkward."

Well you are right about one thing, There should be no Hindu or Islamic prayers said over Kennewick Man. I'm not sure what the Indians have to do with this at all, perhaps you could explain this to me Franke ?

Thankfully he was interred with respect by the Native American tribes hailing from the area his remains were found using a Native American ceremony, which is only right as his descendants if there are or were any would most likely have been from those tribes.

“It’s very clear that Kennewick Man is most closely related to contemporary Native Americans,”

https://www.nytimes.com/2015/06/19/science/new-dna-results-show-kennewick-man-was-native-american.html

Perhaps archaeologists, if they want something to study could ramsack the Vatican and study the various dead Popes they have stored there ?
I am sure we could find some interesting scientific data from Saint Peter, including his DNA.
You wouldn't have a problem with this would you Franke ? In the name of science ?
Would anyone else ?
Perhaps someone would like St. Lucius' skull as a paperweight.

4/17/2021 06:00:40 pm

Jim, why only do you call the Indian tribes "native Americans"? This is so weird. By doing so, you exclude all other Americans from being native! People whose ancestors had been in America for centuries are not native? You are kidding.

In Germany, you only have to stay for 8 (eight!) years, then you can apply for citizenship, and your children born and raised in Germany are native Germans. The idea that you are not considered native even after centuries (!) is ... well ... racist?

It is really strange, only strange, that you call these tribes "native" Americans. They are only as native as all other Americans, or they are not native at all, since all Americans immigrated, sooner or later. Maybe "early Americans" would be more fitting? But "native" NEVER! It's only wrong. They did not grow up "from soil" as in some Greek myth.

The Kennewick Man surely was NOT close to the Indian tribes of our era. The idea that DNA is deciding this, and not culture, is only ... well ... racist? That a man having lived 8,600 years ago is close to any of us, well, this is just the same pseudoscientific BS than any "Atlantologist" telling you that Atlantis existed 9,600 BC and the Atlantis story with all its details was orally handed down over the millenia until Plato wrote it down. Utter nonsense! Impossible! Somebody who says such a thing is simply incompetent.

Every immigrant embracing modern German culture is much closer to me than any Germanic skeleton from 2000 years ago, though the DNA would be closer (I guess). Hey, these Germanics nailed the heads of their enemies to trees! Should we re-vive these customs for a suitable funeral of a 2000 years old Germanic skeleton?! Shall we?!

I don't get it why Americans today are so obsessed with race? Don't you realize that even your language is compromised and makes you speaking untrue things only by using "established" words? You should have more love for truth.

Concerning the skeletons of early Popes: Of course they were analysed with scientific means! What do you think? You are clearly behind the times! The Catholic Church is even closer to science than you and your weird ideas of a 8,600 years old man having any proximity to today's Indian tribes. Only fools believe such nonsense.
https://www.telegraph.co.uk/news/2017/09/11/bones-attributed-st-peter-found-chance-1000-year-old-church/

John

4/17/2021 07:04:20 pm

The genetic testing did indeed show that Kennewick Man was most closely related to native people in that region. He may have not shared the beliefs of the people who prayed over his burial but that’s okay. Funerals are for the living not the dead.

Crash55

4/17/2021 11:44:47 pm

John,
Where did you find that he was most closely related to people from that region? The comments I found just said “modern Native Americans.”

4/18/2021 12:09:56 am

T Franke:

"In Germany, you only have to stay for 8 (eight!) years, then you can apply for citizenship, and your children born and raised in Germany are native Germans."

T Franke also:

"since all Americans immigrated, sooner or later. Maybe "early Americans" would be more fitting? But "native" NEVER! It's only wrong. They did not grow up "from soil" as in some Greek myth."

T Franke yet again:

" Don't you realize that even your language is compromised and makes you speaking untrue things only by using "established" words? You should have more love for truth."

In den griff bekommen. -- Get a grip.

4/18/2021 06:41:01 am

John: "Funerals are for the living not the dead."

This is valid only if you are not religious in any way. But it is safe to say that the Kennewick Man as well as the Indian funeral rituals follow religious beliefs, though for sure very very different ones. Therefore, your argument is illegitimate.

By the way, why do "we" assume that modern Indians are religious? Don't they have the same right as "we" to choose their beliefs freely? What will non-religious Indians say, if they see these religious rituals performed in their name! Isn't it necessary to make the same distinction with Indians than with "us", i.e. that the religion and the tribe have to be separated? We have just detected another aspect of patronising the Indians.

It reminds me of "Western" scholars for the Islamic religion who want to "protect" the "true" Islamic religion by denigrating Muslims who want to reform Islam like Christianity and who want to approach Islam with historical criticism as modern Christians approach the Bible with historical criticism. This patronising has an anti-Enlightenment effect.

Are there scholars in the US approaching the Indian traditions with historical criticism? Does somebody have a careful look that Indian shamans do not commit child abuse like Catholic priests sometimes did? You know, child abuse becomes possible exactly because no one dares to have a look ...

4/18/2021 02:09:01 am

Mr. Franke, you are generally right here though it might be good to eschew words like "surely". I am a native american which is why I refer to the mis-termed "autochthonous" peoples as "Indians". One might ask when the clock on autochthonicity starts running?

As for the popes, we have a pretty good idea of who the popes were, largely due to the superior technology of written records, in this realm largely wielded by dead white males. And why NOT do research on the popes' remains? There are fruitcakes who think they know where Jesus's tomb is in Kashmir. That calls out for an archaeological dig.

In the U.S. this is a complicated issue, "fraught" would be a good word, because of collective guilt over poor treatment and murder of the Indians, again documented in writing by dead white males. NAGPRA is our version of making Holocaust Revisionism illegal.

Normandie Kent

6/8/2021 03:00:54 pm

This is the dumbest comment here. Of course Kennewick man would want to be left in place were his relatives buried him 10,000 years ago.Where the hell do you think the Pacific Northwest tribes got their Burial rites from?! Their ancestors, Kennewick mans relatives passed down to them of course. Why the Hell do you think he would rather be pick at and prodded at by European Invaders who have no blood ties to him, the land, or his modern day descendants? Did you just say that Kennewick Mans wouldn’t want his descendants to rebury him because he wouldn’t understand their burial rites?! I can guarantee that they are the same burial rites that he was originally buried with the first time. It’s not like he was a Jew, Muslim, or Christian, and the different practices by different tribes are natural spirituality that all tribal people practiced for thousands upon thousands of years. He has more ties by geography, Blood and culture to the people who reburied him than to a White European scientist who thinks science trumps blood and lineage and culture. Gtfo!

4/17/2021 09:24:16 pm

The only issue I have with NAGPRA is with the extremely ancient remains such as Kennewick Man. Yes he is clearly associated with Native Americans. However what are the chances that it is the same group that currently lives in that area? There have been lots of theories about the peopling of the Americas and none I know of have the groups staying put in anyone location. The early groups appear to have moved around a lot. These early remains can tell science a lot about how early people moved across the landscape but only if they can be studied. Yes we must be sensitive to indigenous people and their ancestors but I think a line must be drawn before which science takes precedent. Somewhere around 1000 BCE I think would be a good spot to set that line.

Anthony G.

4/19/2021 10:00:22 pm

https://www.academia.edu/44455549/Was_North_America_Illustrated_on_the_c_1025_1050_Cotton_World_Map

For those claiming anything pre-columbian is racist, unprovable, or some flight of fantasy. How long do you have to be in America before you're considered "native"?

4/27/2021 11:37:55 am

Putting something on a site called "academia" doesn't make it any less "seek help".

KPO!

Matt Root

5/3/2021 08:08:24 am

This will continue to be linked to Kennewick pushback, but as the posters here display, most taxpayers, and anths don't fully know the facts of the Kennewick case or its resolution.

The Kennewick Remains were shown to be linked directly to members of the Coville Tribes of Washington State. And that's where he was legally repatriated. Maybe you "experts" would want to make a note of this 20 year old fact.

Its unfortunate that modern conservativism is creeping racist theory into the anth field.

I thank whoever pointed put Weiss is married to the Ancient Aliens weirdo. I don't imagine she'll be teching at SJS next fall. Nor will SAA continue to support these views as "diverse", instead of calling it the open racism that it is.

5/4/2021 04:49:53 pm

Matt,

Please share a link to that connection? When I last looked all I found was linked to Native Americans, not a link to that specific tribe.

I do not question he was Native American. However I have yet to see proof of any one tribe staying in one place for 12k years. Everything I have read about the peopling of the Americas has shown lots of movement in the first few millennia after crossing.

6/8/2021 03:19:47 pm

It was stated in the Willerslev et al study in Nature that Kennewick man was found to be genetically closest to the Colville Tribe by Autosomnal DNA, Ydna , the basal form of X2a, the Colville tribe has the same haplogroups and nuclear DNA. They were the only tribe in US of North America who volunteered their DNA for this particular study. They proved their genetic ties to Kennewick Man, and no other indigenous people throughout the Americas have a problem with it, and wanted him to be reburied by the tribes who were fighting for his reburiel. The only people who would refuse this are foreigners and Non-Natives from Europe.

Johnny B

8/4/2022 02:15:15 pm

You overstate the DNA link, read the paper. He showed a minimal connection to the modern Tribe who submitted samples. He showed stronger affiliation with Indian peoples in Mexico.

That study was published in Nature (which requires full open access to data) but refused to allow David Reich's Lab at Harvard to also review the samples. I suspect because the data would have shown just how tenuous the link with the modern Tribe was/is. I don't think any serious Anthropologist thinks the Colville Tribe are the "descendants" of Kennewick man in the way the general public might imagine.