Repatriation and Erasing the Past

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Acknowledgments

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, Department of Anthropology, Kenyon College, Gambier, Ohio; Dr. Michael Wiant, 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. Elizabeth 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, Oregon; attorney Michael Rusing, Tucson, Arizona; Dr. Michael D. Coe, professor emeritus, Department of Anthropology, Yale University, New Haven, Connecticut; Dr. C. Loring Brace, professor emeritus, Department of Anthropology, University of Michigan, Ann Arbor, Michigan; Dr. Tim White, Department of Integrative Biology, University of California, Berkeley, California; 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 Flanagan, Department of Political Science, retired, University of Calgary, Calgary, 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 better 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 environment, which includes enabling me to take a year away to write this manuscript. 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.

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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 contributions that they make to our understanding of human history and prehistory; 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 understanding in the nineteenth century and twentieth century. Anthropology is the comparative study of human biological and cultural differences and changes through time. Its most important characteristic is its comparative 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 important differences among the various branches of anthropology, and we also realize that no branch of anthropology can hope to achieve the quantification and rigor of the experimental sciences. Indeed, some cultural anthropologists 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 methodology to study one particular species, but it also combines the biological 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 social 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 century 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 cultural remains. These museums, often associated with colleges and universities, 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 beginning of the twentieth century, anthropologists started to examine disease 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 enabled anthropologists to start understanding the effects of activity patterns on bones. Early studies have helped create a basis for determining ethnicity, 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 challenges to the perspectives just summarized. The first was the postmodernist 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 annual 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 Phillip 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 knowledge 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 anthropology. 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 archaeologists. 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 remains 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 Native 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 artifacts. 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 archaeologists 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). Incredibly, 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 committed 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. Former 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 religions in terms of who has authority to speak. This view was often put forward in its most literal form, in which miraculous events and interven4

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 anthropology, 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 recognized 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 tradition on equal footing with scientific evidence. Moreover, oral traditions, which many Native American leaders take literally, contain religious creation 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 Native 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, repatriationists, 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 American 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 prevented 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 Native Americans the right to determine how to conduct research and how to share (or hide) the information (Gonzalez 2015; Wylie 2015). Most important, 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 history” 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 genetically 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 constitutes an insult and an offense to contemporary American Indians. Interestingly, Native Americans have even adopted the creationist catchphrase about evolution—“it’s just a theory”—to dismiss research published on migrations into the Americas (Weaver 1997). That ideology has found support in the law of the U.S. government, particularly 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, mandates turning over to contemporary American Indians the human biological 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 repatriation 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 simply 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 criticized 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 recognize 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 appropriate 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 discrimination, 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

PART I The Science of Human Remains

Part I covers research conducted on human remains. The chapters explore Paleoindians (individuals dating to over 7,500 years old), the research on North American mummified remains, biological relationships between past and present peoples, and the correction of false impressions of the past through research. Each chapter also examines how research and repatriation are intertwined.

1 Paleoindians THE UNDERSTUDIED INDIVIDUALS

Paleoindians are perhaps the reason the NAGPRA controversy became known to the public. This chapter introduces Paleoindians by reviewing the literature on Paleoindians coupled with a close look at the cases of repatriated remains to highlight the loss of data and the importance of preserving the remaining Paleoindians. Paleoindian remains are hard to link to living tribes. Although DNA studies are providing some biological evidence of links that have not been visible in the skulls, Paleoindian morphology has been documented to be distinct from later Native Americans and from one Paleoindian to the next (e.g., Owsley and Jantz 2014). These topics are discussed in chapter 3 due to their connection to the peopling of the Americas and biological relatedness. Paleoindians became a focal point for the reburial issue because these remains are few in number (there are about two dozen individuals) and they are represented by single individuals, who in cases like Washington State’s Kennewick Man and Nevada’s Spirit Cave Man, have become famous.

Paleoindian Antiquity Paleoindians are American skeletal remains (and sometimes mummified remains, such as Spirit Cave Man, discussed in chapter 2) from individuals dating over 7,500 years old (see table 1.1). However, some anthropologists place the Paleoindian period as ending around 9,000 to 10,000 years ago and suggest that the Early Archaic period begins, especially regarding the Eastern Woodlands, as early as 8,000 or 9,000 years ago (e.g., Morrow 1996). For our purposes, we use the term “Paleoindian” for the remains dating 7,500 years old or older.

Accidental

Salvage

Salvage

Unknown

Browns Valley 1933/ 1934

1989

Gordon Creek 1963

1970

1988

Buhl Burial

Horn Shelter Skeletons (2)

Hourglass Cave

Accidental

Planned Excavation

Discovery Date Site Type

1959

Arlington Springs

Paleoindian

7,700–8,200

10,360–11,160

9,700

10,000–12,000

Colorado

Texas

Colorado

Idaho

Minnesota

California

10,000–12,900

8,700

Location

Antiquity (years BP)

Table 1.1. Paleoindians in North America

Male

Male; Unknown

Female

Female

Male

Unknown

Sex

36–52

30s–40s; 10–12

26–30

17–21

Adult

Adult

Age

Reburied in 1991

Available

Repatriation notification in 2012

Reburied in 1991

Reburied in 1999

Available

Status

Crothers, Willey, and Watson 2007; Hildebolt et al. 1994; Mosch and Watson 1996, 1997; Pitblado and Brunswig 2007; Stone and Stoneking 1996; Stout and Paine 1994

Jodry and Owsley 2014; Redder 1985; Young, Patrick, and Steele 1987

Anderson 1966; Breternitz, Swedlund, and Anderson 1971; Jantz and Owsley 2001; Steele and Powell 1993; Swedlund and Anderson 1999

Fenton and Nelson 1998; Goebel et al. 2011; Green et al. 1998; Jantz and Owsley 2005; Lovvorn et al. 1999; Neves and Blum 2000; Wendorf 1999

Jantz and Owsley 2001; Jenks 1935; Jenks and Thiel 1936; Myster and O’Connell 1997

Agenbroad et al. 2005; Fiedel and Morrow 2012; Johnson et al. 2002, 2008; Orr 1962; Reeder, Rick, and Erlandson 2008

Key References

Salvage

Accidental

Unknown

Pelican Rapids 1931

2005

Tuqan

Wizards Beach 1968

10,600

9,500

7,840

9,600

Planned excavation

Lobo Canyon

1968

9,500–11,000

10,000

Leanne Burial 1982/1983 Salvage

1976

La Jolla Skeletons (2)

Planned excavation

8,340–9,200

8,900–9,600

1914

La Brea

Accidental

Salvage

1996

Kennewick

Nevada

California

Minnesota

California

Texas

California

California

Male

Male

Female

Unknown

Female

Male; Female

Female

Washington Male

30–40

Adult

15–17

Unknown

mid-20s to late 30s

early 20s; late 30 to early 40s

17–18

35–50

In jeopardy

Reburied in 2018

Reburied in 1999

Unexcavated

Available

Reburied in 2016

Available

Reburied in 2017

Dansie 1997; Edgar 1997; Jackson 2012; Jantz and Owsley 2001

Braje, Rick, and Erlandson 2008; Lambert, Sholts, and Erlandson 2015; Owsley and Jantz 2014

Chatters 2016; Hrdlička 1937; Jenks 1935, 1937; Jenks and Thiel 1936; Owsley and Jantz 2001; Strong 1972

Morris and Erlandson 1993

Bousman et al. 2002; Phelps et al. 1994; Steele and Powell 1993; Weir 1985

Killgrove 2016; Mayes 2010; MacNeish 1978; Jantz and Owsley 2005; Schoeninger et al. 2009, 2011

Berger 1975; Bromage and Shermis 1981; Cooper 2010; Fuller et al. 2016; Hrdlička 1918; Jantz and Owsley 2005; Kennedy 1989; Kroeber 1962; Merriam 1914

Chatters 2000, 2002, 2016, 2017; Klinkhammer 2017; McManamon 2004; Owsley and Jantz 2001, 2014; Powell and Rose 1999; Rasmussen et al. 2015

Perhaps the youngest of the Paleoindians is the Pelican Rapids Woman from Minnesota with an estimated date of 7,840 cal BP (years before present) (Myster and O’Connell 1997), and the oldest might be Idaho’s Buhl Burial. Ted Goebel and colleagues (2011) report that the Buhl Burial is between 12,400 and 12,700 cal BP, but the burial was in a layer of sand that was both directly above and partially covered by a gravel deposit attributed to the Bonneville flood, which occurred between 16,770 ±200 BP and 13,900 ±400 BP. Thus, it is possible that the Buhl Burial remains could be as old as 17,000 cal BP, which would make her the oldest Paleoindian in the world (Goebel et al. 2011; Green et al. 1998). Some remains have been suggested to be Paleoindians, such as Wet Gravel male and female (both of which were curated at the Nebraska State Museum), but no scientifically replicable dates were determined (Hawkinson and Walton 2001). These remains have already been repatriated to Native American tribes and are no longer available for study. Out of the better-known Paleoindians from 20 sites, at least 11 of the remains have been repatriated, reburied, or are unavailable for study (some due in part to awaiting repatriation). Most Paleoindian remains have been dated using radiocarbon techniques run on artifacts (e.g., Young, Patrick, and Steele, 1987), soil (e.g., Weir 1985), or faunal remains (e.g., Johnson et al. 2002), or the Paleoindian bones themselves are used (e.g., Breternitz, Swedlund and Anderson 1971; Hildebolt et al. 1994; Jackson 2012; Stafford 2014). For example, at Horn Shelter, Texas, radiocarbon dating of charcoal and shell taken from the burial revealed a date of 9,500 ±200 years BP to 10,310 ±150 years BP (Young, Patrick, and Steele 1987), and these dates were corroborated with radiocarbon tests using the Paleoindian bones (Jodry and Owsley 2014). Another example where multiple dates using a variety of sources provided for an accurate antiquity assessment comes from California’s Tuqan Man. Seven radiocarbon dates that used materials ranging from Olivella beads to the large California mussel species Mytilus californianus provide a range of dates from 9,720 to 9,425 cal BP for the occupation of the Tuqan Man’s site (CA-SMI-608) (Braje, Rick and Erlandson 2008). Although everything from soil to mouse mandibles to artifacts have been used to date Paleoindians, testing the remains themselves would seem to be the preference since the other materials could have entered the site earlier or later than the Paleoindian. For example, California’s La Brea Woman’s antiquity was recently determined using radiocarbon dating of 14

Part I. The Science of Human Remains

the femur and results place her at 10,220 to 10,250 cal BP (Fuller et al. 2016). Benjamin Fuller and colleagues’ efforts were in part to determine whether a domestic dog found at the site was associated with the human remains. The dog remains are around 7,000 years younger than La Brea Woman. Other Paleoindian remains that were radiocarbon tested include Colorado’s Gordon Creek Woman’s, whose left ilium was sent in for radiocarbon testing in 1965, with results coming back as 9,700 ±250 years BP (Breternitz, Swedlund and Anderson 1971). Yet, even when testing the actual bones of the Paleoindian in question, difficulties can arise that create inaccurate dates. For instance, although the multiple radiocarbon tests confirmed Kennewick Man’s antiquity, some tests on the tibiae provided much younger dates, and the labs reporting these dates also stated that the collagen preservation in the tibiae was poor (Stafford 2014). The Hourglass Cave Man antiquity determination ran into a similar issue (Hildebolt et al. 1994; Mosch and Watson 1996). Antiquity discrepancies may result from slightly different techniques used in the different labs. These examples emphasize the need to test and retest dates for Paleoindians and other bioarchaeology samples. However, sometimes using multiple bones becomes too destructive. For instance, there were two individuals at the Wizards Beach site in Nevada: Wizards Beach Man and AHUR 2022 (Edgar 1997). AMS radiocarbon tests were conducted on both individuals; using the Wizards Beach phalanx (or finger bone), the AMS dates returned results of 10,664 ±66 cal years BP (Jackson 2012). The other skeleton belonged to an individual over 3,000 years younger (Edgar 1997). Not all the bones were dated, as this would have destroyed an excessive amount of the skeletons and thereby hindered studying them. Thus, it could be that some of the Wizards Beach Man’s bones actually belong to AHUR 2022. However, Heather Edgar (1997) and, later, Verla Jackson (2012) note that the remains were curated in separate boxes and in neither case were there more of a certain bone than expected. Jackson stated that the Wizards Beach Man’s bones comprised 13% of the skeleton and contained 16 bones. The original reporting of the discovery stated that there were 20 bones, but one bone—a phalanx—had been used to date the remains and another bone Jackson considered as fragmentary. Thus, two bones are unaccounted for; these were likely ribs that were sent for testing but not returned. Some anthropologists question the accuracy of calibrated dates for Paleoindian remains (see Bamforth and Grund 2012), but dating techniques Paleoindians: The Understudied Individuals

15

will inevitably improve as further refinements to the technology are made and as new methodologies are discovered. This will count for nothing if remains are buried, and we will forever lose the opportunity to resolve such crucial issues as dating.

Paleoindian Discoveries The majority of Paleoindian discoveries were unexpected. Only two sites of Paleoindians reviewed here involved planned excavation—the La Brea Tar Pits (Merriam 1914) and the Channel Islands, which included the discovery of 10,000–12,900-year-old Arlington Springs Woman (Orr 1962). Excavations are often done to protect the remains from being destroyed; in other words, salvage archaeology has resulted in the preservation of many Paleoindians. As America became a car nation, the building and improving of roads, especially highways during the Eisenhower administration, led to the discovery of many archaeological sites and to the development of modern cultural resource management practices (Rose, Green, and Green 1996). The Federal-Aid Highway Act of 1956 included key lines (in section 120) that authorized state highway departments to expend funds on archaeological salvage, which helped to create a new type of archaeology—highway archaeology (see Emerson and McElrath, 2017). The Buhl Burial is an example of a discovery as a result of highway improvement. In 1989 Twins Falls (Idaho) Highway Department was excavating a gravel pit for improving the highway and discovered a well-preserved (but partially destroyed by the quarry operator) skeleton now known as the Buhl Burial (Green et al. 1998). Not all salvage archaeology relates to road improvements. For example, flood control projects in the United States after World War II uncovered thousands of human remains (Rose, Green, and Green 1996). During a watershed improvement project in the Roosevelt National Forest in 1963, a partial skeleton covered in red ocher and associated with stone tools and altered animal remains was found eroding out of a stream bank (Department of the Interior 2012). University of Colorado archaeologists conducted a salvage excavation to remove what is now known as the 9,700-year-old Gordon Creek Woman (Breternitz, Swedlund and Anderson 1971). Salvage sites may also arise from construction, such as in 1976 when two nearly 9,000-year-old skeletons were discovered on the University 16

Part I. The Science of Human Remains

of California, San Diego (UCSD) campus during the construction of the president’s house (Mayes 2010; Killgrove 2016). Some discoveries are ambiguous; they may be considered salvage archaeology or accidental discoveries, but when an avocational archaeologist is thrown in the mix, questions arise over how accidental the discovery actually was. For instance, Browns Valley Man, whose 8,700-year-old skeleton was 40% complete but very badly damaged, was discovered in Minnesota in 1933 or 1934 by William H. Jensen in a gravel pit while he was paving his driveway (Jenks 1935). Jensen was an amateur archaeologist and, although he lent the remains to the University of Minnesota for cataloging and to enable Albert Jenks to study the remains, Jensen wanted to keep the remains himself (UPI 1989). And in Horn Shelter, Texas, a double burial with the remains covered under 19 limestone slabs was discovered in 1970 by experienced but avocational archaeologists Frank Watt and Albert Redder (Redder 1985; Young, Patrick, and Steele 1987). In Nevada, Wizards Beach Man, who has a date of 10,600 years, was found in 1968 by avocational archaeologist Peter Ting, who notified the faculty at the University of Nevada, Reno. Robert Stevenson of the Nevada Archaeological Survey actually excavated, recorded, and collected the exposed human remains (Dansie 1997). When remains are found by passersby, the accidental nature of the discovery is easier to ascertain. Hourglass Cave Man, a nearly 8,000-year-old Colorado skeleton, was discovered in 1988 by three National Speleological Society members, Cynthia Mosch, Tom Shirrell, and Richard Wolfers; these cave explorers had found the small, 3,460-meter-high (11,000-foot) cave and decided to map it out (Crothers, Willey, and Watson 2007; Mosch and Watson 1996). Hourglass Cave Man is the highest occurrence of early man in North America (Pitblado and Brunswig 2007). The most famous of the accidental discoveries is Kennewick Man; he was found eroding out of a riverbed (Chatters 2002; Owsley and Jantz 2014).

Paleoindian Demographics: Age and Sex Although the number of Paleoindians is small, which makes it difficult to determine trends in these earliest inhabitants of the Americas, basic demographic information on human remains is a key part of any osteological report. Thus, the main gist of Paleoindian research has revolved around answering these basic questions, which are surprisingly difficult to resolve at times. Paleoindians: The Understudied Individuals

17

Age Estimating There are numerous ways to estimate age, but aging a subadult precisely is usually easier than determining an adult’s age precisely. This is because epiphyseal fusion and dental formation are useful indicators of age up until around 25 years old. Then the growth plates are fused and the indicators are fewer—auricular surface morphology, pubic surface morphology, sternal rib ends, and osteon size. Constant reexamination is necessary to determine the most accurate and precise age regardless of the skeletal remains. For example, La Brea Woman was originally thought to have lived beyond her teen years. A. L. Kroeber estimated her to be around 25 years of age, which T. G. Bromage and S. Shermis (1981) confirmed through the examination of dental eruption, dental wear, and the fusion of the medial epicondyle of the humerus. Nevertheless, they noted that the iliac crest was not fused and attributed this lack of fusion to nutritional deficiencies (Bromage and Shermis 1981). In 1989 Gail Kennedy conducted a thorough investigation of La Brea Woman’s age through the use of X-rays and macroscopic examination of fusion patterns throughout the partial skeleton. Kennedy states that the medial epicondyle fuses at around age 16. Furthermore, Kennedy points out that many of the teeth of La Brea Woman were missing, some postmortem but others antemortem. Kennedy concludes through the lack of complete fusion of the iliac crest, which begins to fuse in teen years, coupled with a unfused basilar suture of the skull (which is fused between 19 and 21 years of age) that La Brea Woman was likely between 17 and 18 years of age, which puts her in the same age bracket as Pelican Rapids Woman and the Buhl Burial. Other Paleoindians lived longer, but due to their older ages it is more difficult to determine a precise age for them. One method to determine age after all the epiphyses have fused and all the teeth have erupted is through examining the pelvic auricular surface. In 1985 Owen Lovejoy and colleagues created a method to assess age using the auricular surface that included eight age phases (e.g., 20–24, 25–29, 30–34, 35–39) with no overlapping years. This method was revised in 2002 by Joanne Buckberry and Andrew Chamberlain, who included seven age phases but some overlapping years. Yet anthropologists have found that five-year age phases are wrong about a third of the time when employing auricular surface methods to aging (Osborne, Simmons, and Nawrocki 2004; Hens and Belcastro 18

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2012). Most researchers accept that subtle changes on the auricular area of the pelvis can only narrow down age by a decade or two (see Buikstra and Ubelaker 1994; Mays 2010, 2015b; Ubelaker 1989; White and Folkens 2005). For example, Burial One of Horn Shelter, Texas (which is only one of two sites with multiple individuals), was found to be an adult through epiphyseal fusion, molar eruption and dental attrition, but to narrow down his age at death, researchers turned to his auricular surface and saw it displayed some stria and microporosity but not apical rim changes, which led them to conclude he was between his 30s to early 40s, (Jodry and Owsley 2014; Young, Patrick, and Steele 1987). Other techniques for aging adults include examining cranial sutures. Using cranial sutures, Wizards Beach Man’s age was estimated to be between 30 and 40 years old (Edgar 1997), whereas Gordon Creek Woman was likely between 26 and 30 years old (Breternitz, Swedlund and Anderson 1971). Unfortunately, ectocranial sutures have been found to be poor indicators of age, with some very old individuals having open sutures and some relatively young individuals having obliterated sutures (e.g., Hershkovitz et al. 1997; Perizonius 1984; Ruengdit et al. 2018; also see discussion in Ubelaker and Khosrowshai 2019). In addressing this issue of imprecision, David Breternitz, Alan Swedlund, and Duane Anderson (1971), discussing Gordon Creek Woman, acknowledge that cranial sutures are not useful in determining age, but without the sutures they could only conclude that she was older than 18 to 20 years old. The newest method to estimate adult age is to examine bone’s histology. Hourglass Cave Man was age-assessed using multiple methods. His auricular surface morphology places him in the mid-30s to mid-40s (Hildebolt et al. 1994), but in an interesting sidebar of C. F. Hildebolt and colleagues’ article, Stout provides an age estimate of 44 ±8 years using a histological examination of femoral cortical bone. The method involves measuring osteon population density (Stout and Paine 1994). However, recent research has provided evidence that dietary health can cause the estimates to be inaccurate (Paine and Brenton 2006). Some individuals were estimated to be nearly three decades younger than they actually were. The most thoroughly examined and, therefore, most thoroughly aged Paleoindian is Kennewick Man. Even though his age was determined using all the methods available, his precise age eluded researchers. The skeleton was aged using epiphyseal fusion, ectocranial suture closure, pubic surfaces, auricular surfaces, fourth or fifth sternal rib end, and dental attriPaleoindians: The Understudied Individuals

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Figure 1.1. Kennewick Man’s femoral CT scans (at 80%, 65%, and 50% of bone length where 100% is the top of the femur), which show his robust, thick cortical bone. Scans courtesy of Jerome Rose of University of Arkansas, Fayetteville.

tion (see Chatters 2000; Powell and Rose 1999; Turner 2014). Each of these methods has its weaknesses, but the use of multiple methods and a number of independent researchers is the best way to ensure the most accurate age as possible. Kennewick Man was determined to be between 35 and 50 years of age. Additional factors, such as osteoarthritis presence, ligament ossification, and the onset of osteoporotic bone in the vertebrae, support the older age estimate of Kennewick Man. Yet his robust femoral cross-sections belie his age (see figure 1.1). Subadults, such as Burial Two at Horn Shelter in Texas, can be precisely aged, but determining their sex is difficult. Horn Shelter’s subadult maxilla and mandible were well preserved, and enough of the postcrania was present to estimate age as well. Diane Young, Suzanne Patrick, and D. Gentry Steele (1987) note that the third molars and left fourth premolars had not erupted. One deciduous (milk) tooth had evidence of wear. All the second molars had erupted, and the third molar calcification all point to an age of around 12 years old. Margaret Jodry and Douglas Owsley (2014) conclude that the subadult remains were between 10 and 11 years of age and belonged to a female; if Burial Two is actually a male, then 12 years of age is probably more accurate since females develop slightly earlier.

Sex Determination Determining sex in a subadult is difficult, so it is not surprising that there are disagreements with Burial Two at Horn Shelter. Jodry and Owsley 20

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(2014) conclude that the subadult remains belonged to a female, based partially on artifacts, including shell beads and eye-bone needles, found in the grave. On the other hand, Young, Patrick, and Steele (1987) suggest that Burial Two at Horn Shelter was a male, based in part on the narrow sciatic notch of the skeleton’s pelvic bones. Using the sciatic notch to determine sex in adults is highly accurate, which was why it was used to sex Hourglass Cave Man (Mosch and Watson 1996). Research on expanding the age range for the use of this trait has been fruitful. Holger Schutkowski (1993) found that 82% of subadult individuals he examined from the Christ Church Spitalfields historic cemetery site were correctly sexed with the sciatic notch, and Javier Irurita Olivares and Inmaculada Alemán Aguilera (2016), using forensic samples, found that the sciatic notch was the best indicator of sex in subadults. However, Dejana Vlak, Mirjana Roksandic, and Michael Schillaci (2008) had far poorer success rates; in a Portuguese sample, the success rate was only 59%, not much better than chance. Even though sex determination in adults is far more accurate than in subadults, disagreements still occur. For example, Idaho’s Buhl Burial skeleton, who was found with both a stemmed obsidian biface for hunting and a bone needle for sewing, was said to be likely a female, based mainly on the gracility of the skull, which was used since the pelvis was absent (Green et al. 1998). However, using the skull, sex determination may be incorrect as often as 30% of the time (e.g., Đurić, Rakočević, and Đonić 2005). Another Paleoindian with a disputed sex determination is the Arlington Springs skeleton. Due to the lack of a skull and pelvis, sex determination of the remains has been difficult. Phillip Walker, of the University of California in Santa Barbara, conducted the sex determination of the remains. He thought that the bones probably came from a female because the linea aspera, which is the long crest on the back of the thighbone where muscles attach, was not very robust (Johnson et al. 2002; Reeder, Rick, and Erlandson 2008). Furthermore, metric measurements of the subtrochanteric region of the femur provided a mediolateral measurement of 27.88 cm and an anteroposterior measurement of 24.19 cm; these numbers fit within the range of female values for other Amerindians found in the region (Johnson et al. 2002). On the other hand, Patricia Lambert thought there were some issues with these measurements and thought the remains “looked more male than female” (Patricia Lambert, email message to author E. W., May 16, 2019). Paleoindians: The Understudied Individuals

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She took femoral measurements and compared them with individuals of known sex from Tecolote Point, which is a 7,000–7,500-year-old site on Santa Rosa Island. Lambert acknowledges that the results were not definitive, but the measurements suggest the Arlington Springs individual was more likely to be male than female. Although the femoral head was not present in the remains at the museum, as noticed by John Johnson, the maximum femoral head diameter was measured by Phil Orr and published in his 1968 volume. The maximum femur head diameter was reported as 47 mm, which “falls at the ‘very male’ end of the spectrum in this region— including in comparison to the Tecolote remains” (Patricia Lambert, email message to author E. W., May 16, 2019). Lambert decided not to pursue publication of this sex determination because Orr (1968) had already identified the remains as male. All available evidence points to Kennewick Man being a male (Powell and Rose 1999), which has led some anthropologists to argue that he received more attention than the female Paleoindians. Swedlund and Anderson (1999) argue that Gordon Creek Woman has been less well received because she was a female. They note that early anthropologists, such Earnest A. Hooton, argued that racial traits were less prominent in females. Thus, the remains are less useful in determining ancestry. Further, they suggest that archaeologists focus on male artifacts. However, their argument does not withstand critical review since: (1) many of the artifacts found with the Gordon Creek individual could have been male artifacts, such as bifaces; (2) in his initial report Anderson (1966) identified the Gordon Creek individual as a male; and (3) other Paleoindians were largely ignored by anthropologists due to the narrative that they were just like other Native Americans. It was only when it became apparent that they were distinct from later Native Americans that the Paleoindians garnered more attention (see Owsley and Jantz 2001; chapter 3). Furthermore, Kennewick Man and the NAGPRA issues brought attention to the plight of all Paleoindians. NAGPRA requires only the most basic information on remains, such as minimum number of individuals, but even osteological reports may not venture further than antiquity, demographics, and minimum number of individuals. Yet much more can be discovered about human remains, even when the samples are small. In the following sections, Paleoindian research will be reviewed followed by a summary of which remains have been repatriated. These sections highlight that many questions remain unanswered and will stay that way due to the loss of this precious data. 22

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Paleoindian Diet and Health Paleoindians have been stereotyped as big-game hunters, and there is evidence that large prey animals were consumed by Paleoindians. Some sites, such as the Arlington Springs site on the Channel Islands of California, may support this reconstruction. The antiquity of the Arlington Springs site coupled with nearby (150 feet or 46 meters on either side) pygmy mammoth bones led Larry Agenbroad and colleagues (2005) to suggest that humans drove the mammoths to extinction. Pygmy mammoths had been on the islands at least 47,000 years ago, but they went extinct shortly after the appearance of the earliest human remains and artifacts (see figure 1.2). In an examination of 60 Paleoindian sites (most of which did not contain any skeletal remains) with animal remains that had been processed, Matthew Hill (2007) found that in low-diversity grasslands, Paleoindians killed and likely consumed mainly bison, but in more diverse alluvial valleys and

Figure 1.2. Pygmy mammoth excavation in 1994 at Santa Rosa Island, California, the same island of Arlington Springs Woman. Photo by Bill Faulkner, National Park Service. Paleoindians: The Understudied Individuals

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foothills, Paleoindians diversified their diet and included smaller animals such as rabbits, deer, turtles, and ground birds. The Wilson-Leonard site in Texas, the home of the 9,500- to 11,000-year-old Leanne Burial, has evidence of human occupation that spans 13,000 years; during the early years of occupation, large fauna such as bison were found, but later sites feature smaller animal bones, such as hares, raccoons, and turtles. The Leanne Burial has dentition that shows light wear and striations (with an absence of caries or calculus), which is an indicator of a varied diet (Bousman et al. 2002). Coastal California remains have revealed the importance of fish in the diet. Looking at the La Jolla Remains, the male and female found in 1976 during a salvage excavation at UCSD, the stable carbon and nitrogen analyses done of the bone collagen revealed year-round dependence on marine mammals and high-trophic-level fish such as tuna and salmon (Schoeninger et al. 2009; Schoeninger et al. 2011). This is a possible indicator of open-ocean fishing. Even inland, fish was an important component of Paleoindian diet. The Buhl Burial carbon-to-nitrogen ratios reveal a diet that was also supplemented by marine foods such as anadromous (migrating) fish (e.g., Green et al. 1998). Kennewick Man’s dietary reconstruction from nitrogen isotopes also suggest that his diet was mainly composed of marine foods (Taylor et al. 1998). The Buhl Burial dietary reconstruction would suggest a high-quality diet of at least 15% fish and meat providing protein, but her canine tooth displays enamel hypoplasia that occurred around four to five years of age, and her femoral X-rays display lines of stunting called Harris lines (Green et al. 1998). Thomas Green and colleagues (1998, 448) state that “Harris lines occur most frequently in reasonably well-nourished people who experience periodic growth-arresting stress.” Yet clinical research has found that Harris lines correlate with illness, poor nutrition, and high parasite loads (see Weiss 2015). If these stress indicators are related to the Buhl Burial’s periodic food shortages, then she may be an example of the feast-and-famine lifestyle considered responsible for the selection of genes that store fat (and consequently results in high modern-day rates of obesity and diabetes). In a medical journal article, the Buhl Burial was used as an example of an early Native American having this “thrifty genotype” that is now presumed to be in modern populations who are particularly susceptible to type 2 diabetes, such as modern Native Americans, Samoans, and Eskimos (Wendorf 1999). The Buhl Burial’s teeth showed extreme occlusal wear; the cheek side of some of her teeth enamel was completely worn away (Green et al. 1998). The 24

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type of wear seen in the Buhl Burial was likely due to grit in food occurring naturally or from food processing with stone mortars and pestles. Prehistoric populations experienced far greater dental wear than recent populations (see Weiss 2015). Even young individuals such as La Brea Woman had severe dental attrition (Merriam 1914). Gordon Creek’s teeth were also said to be too worn down to record traits (Breternitz, Swedlund, and Anderson 1971), but Swedlund and Anderson (1999) and Steele and Joseph F. Powell (1993) remarked that Gordon Creek Woman’s teeth show the least wear of all the Paleoindians that they examined. Heavy tooth wear in Tuqan Man from the Channel Islands was coupled with root exposure and abscesses, which were only visible using CT scans (Lambert, Sholts, and Erlandson 2015). Dental health issues can spread through one’s body. For instance, Nevada’s Wizards Beach Man’s teeth were worn down to root stubs and visibly open pulp chambers were present on the molars, which likely caused his dental abscesses (Edgar 1997; Jackson 2012). Edgar (1997) notes that Wizards Beach Man’s right tibia and fibula had coarse woven bone that was evidence of periostitis or perhaps more severe osteomyelitis, which likely resulted from dental disease. The dental abscesses exposed Wizards Beach Man to pathogens that that flowed from his dental pulp, through his roots, and into to his bloodstream, causing osteomyelitis. Yet, although tooth infections can cause severe illness or even death, Horn Shelter Burial One’s teeth had a layer of secondary or tertiary dentin (Young, Patrick, and Steele 1987). Secondary and tertiary dentin formation are ways in which the tooth protects the body from microbial invasions (which can result in an opening from a cavity or an abscess). Secondary dentin forms slowly throughout life, but tertiary dentin is a reaction to trauma or a microbial invasion (Weiss 2015). Although the sample sizes are small—just a handful of individuals—one can see that the diets of Paleoindians varied from individual to individual and changed through time, but the health seemed unchanged as a result of high dental attrition and the ill effects it can cause. Thus, any advantages by virtue of a better diet were likely undone by poor dental health and its associated problems.

Activity and Culture of Paleoindians One of the main study areas in bioarchaeology is activity reconstruction (see Weiss 2017), so it is not surprising that many researchers have decided Paleoindians: The Understudied Individuals

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to attempt to reconstruct the activities of Paleoindians. However, reconstructing activities is not as straightforward as the osteological reports and brief articles describing the remains would lead you to believe. For example, Arion Mayes (2010), discussing the La Jolla Remains, suggests that the male also had auditory exostosis, which she links to activity patterns, but auditory exostosis is sometimes used as an indicator of biological relatedness (Hauser and De Stefano, 1989). Nonetheless, Mayes and others suggest that it is caused by chronic ear infections related to being in cold water (Mayes 2010; Okumura, Boyadjian, and Eggers 2007), but G. E. Mann (1984) suggests that only deep auditory exostosis are related to cold-water exposure. Whether the auditory exostosis in the La Jolla skeleton is deep or not is unknown. Reconstructions are reviewed below, and complications to those scenarios are addressed.

Robusticity: Entheseal Changes, Cross-Sections, and Osteoarthritis In general, Paleoindians are more robust than later Native Americans (e.g., Wescott 2014a, 2014b). This robusticity may be related to activity patterns, which may result in bone remodeling that strengthens the bones, genes, or the environment. For example, Horn Shelter Burial One had tibiae and femora shafts that were flattened and had prominent linea aspera, which was likely a result of high mobility, according to Young, Patrick, and Steele (1987). However, flattened shafts can also be an indicator of poor nutrition during growth years; Burial One had Harris lines that could have been caused by nutritional stress. Assistant state archaeologist Barbara O’Connell mentions that Browns Valley Man had tibiae “of a shape that fits with strenuous walking on uneven ground, or a hunting and gathering lifestyle,” even though it is hard to comprehend how these conclusions were drawn since the remains were not available for study for decades, and the research on mobility as indicated by long-bone shape did not arise until around the 1970s (UPI 1989). Hourglass Cave Man also is said to have robust tibiae and cervical (neck) osteoarthritis, which led to suggestions that Hourglass Cave Man carried objects on his head and shoulders (Mosch and Watson 1996). But there is conflicting evidence as to whether vertebral osteoarthritis is useful in reconstructing activity patterns (see Weiss 2017 for discussion). It appears that osteoarthritis on the apophyseal joint surfaces of the vertebrae are more likely to be activity-dependent than are changes in the vertebral bodies (Woo and Pak 2014). Due to the lack of detail in the published sources 26

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(Mosch and Watson 1996, 1997; Hildebolt et al. 1994), it is not possible to determine where the osteoarthritic changes on the vertebrae occurred.

Kennewick Man: Detailed Reconstructions Kennewick Man’s entheseal changes, cross-sections, and osteoarthritis have been thoroughly examined, but some of the conclusions drawn are too exact for the data available. In an examination of his entheses, James Chatters (2014) using Diane Hawkey and Charles Merbs’s (1995) method, notes that Kennewick Man’s right upper limb has greater entheseal development than the left side. And, in the lower limbs, the gluteus minimus is more developed on the right, while other muscle sites, such as gluteus maximus, are more developed on the left. Chatters (2014, 304) states that “these patterns are closely consistent with the forceful overhand motion of a javelin thrower or baseball pitcher.” According to Chatters (2017), Kennewick Man likely consumed a marine diet that included salmon, which could have been caught through the use of javelin or harpoons. Furthermore, Daniel Wescott (2014a) suggests that asymmetry in the cross-sectional analyses of Kennewick Man’s limb bones relates to spear-throwing and harpooning. And, Troy Case (2014) argues that the asymmetry implies that Kennewick Man was right-handed. However, use of entheseal development and cross-sectional robusticity to determine specific activities is not supported by the data on confounds, such as age, sex, and body size (see Weiss 2017). Asymmetry measures, such as those mentioned by both Chatters (2017) and Wescott (2014a), are less affected by biological confounds such as age. Asymmetry measures do not need corrections for body, but injuries can cause asymmetry in entheses, cross-sectional properties, and even osteoarthritis (see Weiss 2017; Weiss and Jurmain 2007). Asymmetry, contrary to the suggestion, is also not evidence of handedness. Beyond Kennewick Man, Brown’s Valley Man was also said to be right-handed (UPI 1989). Plus, Hourglass Cave Man’s lingual-buccal angle of the wear on the incisors, coupled with the difference in wear between left and right teeth, led Hildebolt and colleagues (1994) to suggest that the wear was nonmasticatory, such as using teeth as tools to prepare leather or fibers, and led Cynthia Mosch and Patty Jo Watson (1996) to suggest that Hourglass Cave Man may have been right-handed. For the La Jolla male, Mayes stated that he was right-handed, and she surmised that his robust muscle attachments were from repetitive use of atlatl spear-throwers. Not Paleoindians: The Understudied Individuals

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only is it not possible to reconstruct specific activities through the use of muscle attachment sites, Douglas Ubelaker and Kristina Zarenko’s (2012) review of the literature on skeletal indicators of handedness reveals that it is not possible to determine handedness from skeletal morphology. For instance, right-side arm bones, according to Marie Elaine Danforth and Andrew Thompson (2008) in their study of 137 individuals of known handedness, tended to be larger regardless of whether the individuals were leftor right-handed.

Past Lives: Everyone’s a Shaman Although the skeleton can aid in understanding the past, Paleoindians are often also found with artifacts that have been used to tell their stories too. For example, Pelican Rapids Woman was found with an antler that had been perforated and a conch-shell pendant with two perforations at the small upper end (Strong 1972). Albert Jenks, who was a professor of anthropology at University of Minnesota, believed that the artifacts may have been related to a medicine kit, but more recent research has found no support for this conclusion (see Jenks and Thiel 1936; Strong 1972). Even without artifacts, Hourglass Cave Man’s story varies from the mundane to the fantastic. Mosch and Watson (1996, 1997) suggest that Hourglass Cave Man may have wandered into the cave to explore and had a mishap and died there. He may have been venturing up to procure resources or hunt animals, such as big horn sheep. Kenny Frost, the cultural heritage manager for the Ute tribe, has suggested that Hourglass Cave Man was not a simple hunter-gatherer. Rather, according to Frost, he was likely an elder and wise man who had chosen the cave for ceremonial purposes and chose it as his final resting place (see Mosch and Watson 1997). Both Young, Patrick, and Steele (1987) and Jodry and Owsley (2014) note the well-developed entheses of the upper limbs of Horn Shelter Burial One. For instance, they note that the interosseous crest of the radii, the pectoralis entheses, and the deltoid crests are strongly developed. Jodry and Owsley (2014) use the pronounced entheses to suggest that Burial One was a shaman or medicine man who engaged in tattooing. To support their conclusion, they also note that he had elbow and wrist osteoarthritis. They suggest that these upper limb traits, well-developed entheses and osteoarthritis, resulted from precision gripping tools to paint or tattoo members of his tribe. Artifacts found in a bundle under the skull, including turtle bowls, antler pestles, and a bone spatula (some of which have red ocher residue), 28

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also support Jodry and Owsley’s (2014) conclusion, especially since similar tool kits have been found in sites that have evidence of a tattoo culture (e.g., Middle Stone Age South Africa, Upper Paleolithic France, Mesolithic Germany, and Early Holocene Texas). These activities are linked to the medicine man or shaman’s social status in various ethnographic accounts, and the location of the burial in the middle of the shelter (rather than against the wall of the shelter) suggests a high-status position for the deceased (Jodry and Owsley 2014). On the other hand, both entheseal changes and osteoarthritis are difficult to link to specific activities. These traits increase with age, and robust individuals tend to have pronounced entheses throughout the skeleton (see Weiss 2017).

Injuries: Evidence of Violence among Paleoindians Although violence has often been related to overpopulation that came with agriculture, Paleoindians have evidence of trauma that cannot be explained by high population density and scarce resources. For example, Horn Shelter Burial One has a fifth metatarsal with a healed fracture, which was noticeable only in X-ray. Chatters (2016) suggests that these fractures may have resulted from violence. According to Chatters (2016, 79), who was the first to examine Kennewick Man, Pelican Rapids Woman “had at least one broken rib, expressed as a thickened callus in the eighth rib, near its angle.” He states that this injury could have been caused by a strike to the shoulder since it lies near the angle of the rib. His suggestion is that she was “facing away from her attacker, perhaps to minimize injury to the abdomen or face” (Chatters 2016, 79). Most dramatically, Kennewick Man had been injured in multiple ways. The severity of each of these injuries is debated (see Cook 2014). Chatters (2000) reports that CT scans reveal a projectile point in the ilium. He concludes that this projectile point injury caused a cloaca and an active sinus that would have caused pus to drain into the leg and caused pain throughout life. However, a later publication by Della Cook (2014) notes that she, like others, saw no evidence of reactive bone and, thus, thought that the injury likely healed well and quickly. Kennewick Man’s chest was crushed at one point, as seen by broken ribs that healed (Chatters 2000; Powell and Rose 1999; Cook 2014). Some of the rib fractures formed pseudarthroses. And he had broken his elbow, which resulted in an infection (Chatters 2000; Cook 2014; Powell and Rose 1999). Paleoindians: The Understudied Individuals

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At some point in his life, Kennewick Man was struck by a club on the head, but this injury healed too (Chatters 2016; Powell and Rose 1999). Chatters (2000) has painted a grim picture of Kennewick Man’s injuries that involve crippling pain and long-term infections. However, Cook (2014) suggests that these injuries were minor and had little effect on his long-term quality of life. Douglas Owsley and Richard Jantz’s edited book on Kennewick Man, Kennewick Man: The Scientific Investigation of an Ancient American Skeleton (2014), details the many clues Kennewick Man gave us to understanding his life. The research on his biology, diet, lifestyle, and trauma is revealed and debated. The book also provides extensive bibliographic information on the research of Kennewick Man. Even with this thorough tome, not all the issues are resolved.

Repatriation and Reburial of Paleoindians Many Paleoindians have been repatriated, reburied, or are in danger of being lost to science (see Hunt 1999; Callaway 2016; table 1.2), and they have not been as thoroughly studied as Kennewick Man. It took the determination of anthropologists, such as Robson Bonnichsen and Douglas Owsley, to demand that Kennewick Man get a thorough examination (see Bonnichsen and Schneider 2000). The argument against immediate repatriation allowed them to get a close look at who Kennewick Man was. Paleoindians are being buried because some Native Americans believe that they, the modern tribes, have always been here in the Americas and that the Paleoindians are ancestral to them.

Minnesota: Pelican Rapids Woman and Browns Valley Man Both Pelican Rapids Woman and Browns Valley Man, over 7,500-year-old Minnesota remains, have been reburied. Hamline University handed over these individuals to the Sioux Indians in 1999, although there is no recent evidence to suggest that the remains are biologically related to the tribe (Hawkinson 1999). The Sioux Indians buried the remains in an undisclosed South Dakota location. Although there is no modern evidence of affiliation to the tribe, Hamline University is a private religious institute, and perhaps the Sioux origin stories carried as much weight as scientific facts to the university’s administration. The Sioux’s origin myth is that there was a great flood with one survivor who happened to be a beautiful woman who was rescued by an eagle (Bonnichsen and Schneider 2000). The Sioux, according 30

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Table 1.2. Reburial and Repatriation Status of Paleoindians in North America Paleoindian

Antiquity (years BP)

Location

Status

Anzick Child

12,600

Montana

Reburied

Arlington Springs

10,000–12,900

California

Available

Browns Valley

8,700

Minnesota

Reburied

Buhl Burial

10,000–12,000

Idaho

Reburied

Gordon Creek

9,700

Colorado

Repatriated

Grimes Point

9,700

Nevada

Unavailable

Horn Shelter

10,360–11,160

Texas

Available

Hourglass Cave

7,700–8,200

Colorado

Reburied

Kennewick

8,340–9,200

Washington

Reburied

La Brea

10,000

California

Available

La Jolla Skeletons

8,900–9,600

California

Reburied

Leanne Burial

9,500–11,000

Texas

Available

Lobo Canyon

9,600

California

Unexcavated

Pelican Rapids

7,840

Minnesota

Reburied

Prince of Wales

10,300

Alaska

Reburied

Spirit Cave

9,200–9,600

Nevada

Repatriated

Tuqan

9,500

California

Reburied

Wizards Beach

10,600

Nevada

In jeopardy

to the myth, are the offspring of the eagle and the woman. Sebastian Le Beau of the Cheyenne River Sioux has been quoted as saying, “We never asked science to make a determination as to our origins” (Johnson 1996, n.p.).

Idaho: The Buhl Burial The Buhl Burial, possibly the world’s oldest Paleoindian, was reburied by the Shoshone-Bannock 1991, even though debates regarding her cranial Paleoindians: The Understudied Individuals

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dimensions and affiliation were not resolved (see Fenton and Nelson 1998; Green et al. 1998; Jantz and Ousley 2005; Lovvorn et al. 1999; Neves and Blum 2000). Postcranially, the Buhl Burial’s femoral subtrochanteric region had a platymeric index of 92.6%, which indicates a round proximal femoral shaft (Lovvorn et al. 1999). Platymeric indexes of Native American populations tend to be lower, which indicates a flatter (in the anteroposterior direction) subtrochanteric region. Marjorie Brooks Lovvorn and colleagues (1999) state that this rounder subtrochanteric region of the Buhl Burial femora suggests a link to non-Amerindians, such as the Ainu (figure 1.3). Forensic anthropologists such as George Gill (2001) used the platymeric index successfully to distinguish between Native Americans and whites. However, population variation in the platymeric index is large (Wescott 2005). For instance, in Wescott’s article, the female Native American sample of 808 females has a range of 58%–123%. Interestingly, the platymeric

Figure 1.3. Japanese Ainu group of four men and two women (standing) with seated young boy and man holding a baby (rear) in the Department of Anthropology exhibit at the 1904 World’s Fair in St. Louis, Missouri. Photograph from Missouri History Museum. 32

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index for Polynesian females is even lower than that of Native Americans. Platymeric indexes, thus, may not be useful in determining the Buhl Burial origins. The Shoshone-Bannock were able to repatriate and rebury the Buhl Burial within three years of her discovery. Jantz and Stephen Ousley (2005, 268) lamented that “the loss to science brought about by its reburial is compounded because no comprehensive morphological assessment of the skeleton was performed while it was available. No images other than black-and-white photographs were made.” Furthermore, no DNA was collected, and sources, such as ethnographies and artifact analyses, support that the Shoshone-Bannock arrived in the region only 2,000 years ago (Bonnichsen and Schneider 2000; Hawkinson and Walton 2001; Hunt 1999; Slayman 1998).

California: Tuqan Man Tuqan Man, who was discovered on San Miguel in the Channel Islands, was excavated in 2006 by Todd Braje, Jon Erlandson, and Phillip Walker. Although excavated and studied, few published academic sources appear for Tuqan Man. Tuqan Man was compared to Kennewick Man in Owsley and Jantz’s (2014) book. Both Tuqan Man and Kennewick Man share craniometric similarities with Polynesians according to a bivariate principle component analysis. In a revealing side-by-side image, the similarities between Kennewick Man and Tuqan Man are obvious (Owsley and Jantz 2014, 633). Accordingly, Owsley and Jantz (2014, 633) point out that “similar features include the nasal aperture shape with vertical lateral margins, brow ridge configurations, the absence of flaring malars, and overall size and shape.” These features align with Polynesian skulls, such as those belonging to New Zealand’s Moriori. DNA tests were not successful on Tuqan Man, and further information will not be forthcoming due to his reburial in 2018 by the Chumash Indians, although it is unclear whether Tuqan Man was related to them.

California: La Jolla Skeletons The La Jolla Skeletons, which consisted of a male and female and date to 8977–9603 cal BP, have been reburied even though the research done on the remains consists mainly of an isotope study done shortly after excavation as part of a larger study (Schoeninger et al. 2009) and a NAGPRA report by San Diego State anthropologist Arion Mayes. Regarding the NAGPRA report, Mayes summarized her findings of the late-30 to earlyPaleoindians: The Understudied Individuals

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40-year-old female and the 20-something-year-old male in a 2010 article titled “These Bones Are Read: The Science and Politics of Ancient Native America” (2010). Unfortunately, due to the rudimentary reporting of the skeletal condition, Mayes’s (2010) conclusions cannot be adequately assessed or used for comparative purposes. Now the remains are no longer available for study due to reburial. Chapter 5 provides a detailed review of the repatriation case from a legal perspective. In 2008 anthropologists Tim White of UC Berkeley, Margaret Schoeninger of UCSD, and Robert Bettinger of UC Davis requested access to the burials to conduct research. Schoeninger received a rejection notice while the other two, Bettinger and White, never received a response (Schoeninger et al. 2011). These actions, coupled with the imminent repatriation of the remains, caused Brian Kemp to file an amicus brief on behalf of the other anthropologists to halt the repatriation, claiming that the university failed to follow proper repatriation regulations (Zimmer 2016). Following the brief, White, Schoeninger, and Bettinger sued University of California to gain access to the remains for study, but in the end both skeletons were repatriated in 2016 (Callaway 2016). Thus, Schoeninger’s plea to adhere to the policies of President Barack Obama “for science-based decisions, not belief-based ones,” was suppressed for Native American preferences, such as those expressed by Steven Banegas, the Kumeyaay Cultural Repatriation Committee spokesperson who stated that “we want to be the ones who tell our story” (Callaway 2016, n.p.).

California: Lobo Canyon Burial Although not usually covered in Paleoindian reviews, Santa Rosa Island is home to the Lobo Canyon burial. This skeleton was not buried, but the outcome of the Native American intervention was the same. In 1968 Orr came across a burial, which he did not excavate. The burial, cataloged as CA-SRI-116, contains a single human who was likely ritually buried based on the flexed position of the skeleton, the presence of ocher, and associated shell beads (Morris and Erlandson 1993). When the remains were brought to the attention of the National Park Service in 1982 due to their increased erosion out of the sand, plans were made to excavate the burial. The remains, which date to 9,600 cal BP, were never excavated since “during the consultation process, members of the local Chumash Indian community objected to the salvage plans”; thus, “according to their wishes, 34

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it was decided to leave the Lobo Canyon burial in place” (Morris and Erlandson 1993, 129).

Colorado: Hourglass Cave and Gordon Creek Both Colorado Paleoindians are lost to science through repatriation and reburial. DNA analyses conducted on Hourglass Cave Man, the Paleoindian found in the highest location, showed that he had a deletion in his mtDNA that has been found in contemporary Native American populations such as the Yakima of Washington State and the Nuu-chah-nulth of the Northwest Pacific Coast, but it is also found in Asian populations such as the Chinese and in South American populations such as the Yanomami (Stone and Stoneking 1996). Hourglass Cave Man was repatriated to the Southern Ute in June 1993 (Mosch and Watson 1997). Gordon Creek Woman, also in Colorado, has been highlighted as one of the successful studies of a Paleoindian in which Native Americans and anthropologists collaborated. Swedlund and Anderson (1999, 573) argue that “no matter what the morphology,” the skeleton is Native American. The collaboration ended with Gordon Creek Woman being repatriated to the Northern Cheyenne Tribe of Montana without DNA testing to confirm or deny the link (Department of the Interior 2012).

Washington: Kennewick Man Kennewick Man, who was discovered by two college students in 1996, eroding out of a riverbed in Washington, raised awareness of the reburial issue (Chatters 2002; Owsley and Jantz 2014). The site was buried by the government with 600 tons of rock and fill to prevent further excavation and discovery (Hawkinson 2014; Morrell 1998). A series of court battles to keep Kennewick Man from being repatriated also catapulted Kennewick Man to fame. Kennewick Man’s court case is thoroughly reviewed in chapter 5. Kennewick Man has been extensively studied, and in 2014 Owsley and Jantz’s edited tome on Kennewick Man was published. Not surprisingly, disagreements have arisen regarding the extent of injuries, morphology of the projectile point embedded in the hip, the severity of his external auditory exostoses, and the ability to discern relatedness (see Owsley and Jantz 2014; Chatters 2017). Kennewick Man’s DNA results, which are discussed in detail in chapter 3, were published after Owsley and Jantz’s book was put together. Kennewick Man was reburied by an act of Congress in 2017 in a secret location by the coalition mentioned above (see chapter 5; Klinkhammer 2017). Paleoindians: The Understudied Individuals

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A series of articles comparing other Paleoindians’ fate to Kennewick Man were published; for instance, there was a “Gordon Creek Woman meets Kennewick Man” article in which Swedlund and Anderson (1999) argue that, if the scientists had been more cooperative and looked for collaboration, Kennewick Man could have been studied and repatriated in a less acrimonious manner. Yet we know so much more about Kennewick Man than Gordon Creek Woman. And, as Owsley and Jantz (2001) point out, to merge Paleoamericans with Native Americans denies the early people their unique identities.

The Case for Preservation Many human remains in the United States are now subject to reburial even if they were discovered decades ago, saved in salvage archaeology, or uncovered by accident. These reburied remains are often lost to science before adequate study is complete. Jane Buikstra and Douglas Ubelaker shared these concerns in their 1994 book Standards for Data Collection from Human Skeletal Remains, which was written as a response to NAGPRA. They wrote that “administrators responsible for collections, who wish to act responsibly, are uncertain about who is qualified to study remains and what standards they should employ. To be avoided are situations in which undertrained students or marginal scholars ‘study’ collections but actually produce little usable data” (Buikstra and Ubelaker 1994, 4; italics original). Undertrained students and marginal scholars are used in field schools, in inventory creation, and in writing up osteological reports. These initial works are often the only data available after bones have been reburied. More senior and experienced anthropologists oversee the less experienced workers, but they may also be busy conducting research, applying for grants, and publishing in peer-reviewed venues. It is difficult to ascertain whether this occurred with some of the Paleoindian literature, but the discussion of Browns Valley Man by Barbara O’Connell (the assistant state archaeologist of Minnesota) seems overly simplistic. Some may contend that once the remains have been studied, they should be reburied, but new methods of investigation yield greater information. Chapter 10 addresses the importance of maintaining collections for research that uses new technologies, such as DNA testing. Another reason for preserving remains is to compare the older discovery 36

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with new discoveries; some claim that this is possible when data are saved and made available to researchers. Yet the data published on many remains are insufficient for comparative research, and reports provided to authorities are not easily obtained. The available information—for example, for the La Jolla skeletons (Mayes 2010) and Edgar’s (1997) report on the Wizards Beach burials—falls short of the academic information needed to compare the results with other published data. Having reached out to several researchers and institutions for the detailed reports on the Paleoindians, I (E. W.) received no replies. Furthermore, making data comparable is difficult, especially as new technology arises and methods are refined. For instance, the Buhl Burial from Idaho was studied by Green and colleagues (1998), but Walter Neves and Max Blum (2000) lament that the remains were reburied since the craniometrics Green and colleagues chose to gather could not be fully compared to the William W. Howells commonly used global database of crania. Buikstra and Ubelaker (1994) tackled the issue of comparability in their Standards book, which is a useful guide to collecting data on skeletal remains in a manner to make data comparable for when the bones are no longer available, and yet even the authors acknowledge the difficulty of this task. Research has revealed that only about a third of anthropological studies on skeletal remains use Buikstra and Ubelaker’s Standards (Weiss 2006). A common argument for the reburial of single skeletons is that single individuals do not reveal much about the past. Single individuals cannot inform on trends, and testing scientific hypotheses requires larger samples. Ubelaker (1989, 2) puts it this way: “A single skeleton, or a few individuals, cannot be assumed to be typical and consequently cannot be used to evaluate the frequency of disease, to reconstruct mortality curves, or to make other kinds of demographic analyses.” Physical anthropology, however, has a history of case studies. Some anthropologists came out of the medical field, and, thus, journals like the International Journal of Osteoarchaeology and the International Journal of Paleopathology have an abundance of studies on single individuals. These studies highlight unique individuals. Individuals may be unique due to a specific ailment, and in these cases the articles are similar to medical case studies that revolve around description of a unique patient. Since its inception in 2011, the International Journal of Paleopathology has published case studies that included a pre-Columbian case of Treponema in TennesPaleoindians: The Understudied Individuals

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see (Betsinger and Smith 2019), the identification of meningitis through new DNA techniques on the dental calculus of a prehistoric San Francisco Bay female (Eerkens et al. 2018), a case of bilateral talipes equinovarus (i.e., bilateral clubfeet) in a Mayan individual (Wright 2011), congenital aural atresia (which would lead to deafness) in a Bulgarian female (Keenleyside 2011), and many others. Other times an individual is singled out due to antiquity, such as with Luzia, who may be the earliest known South American skeleton, with a date of 11,243–11,710 cal BP (Fontugne 2013). Luzia, found in Brazil in 1975, was named after Lucy. She appears to have had African features according to a craniometric comparison with samples from around the world, which helps to suggest that some travels into the New World were not through Beringia (Neves, Blum, and Kozameh 1999). Paradigm-shifting discoveries, in other words, can come from single individuals. Most important, single individuals of a specific time, when saved from reburial, will join others from the time and eventually create a sample that can be studied. Craniometric studies on Paleoindians, such as those conducted by Owsley and Jantz (2001), are a prime example of building a collection through time.

Conclusions Every individual is precious, but the Paleoindians are rarer and have not had their stories told sufficiently. With each reburial, the pieces of the puzzle are lost and the story becomes more difficult to tell. Reburial of individuals usually revolves around a desire to prevent the study of some of our earliest Americans. Perhaps Native Americans are concerned that their position as the first on this continent will be removed; perhaps they are concerned that it will come to light that they replaced earlier peoples. Or maybe they just do not wish their origin myths to be challenged. The repatriation and reburial of Paleoindians has led to allegations that the “Left” are hiding the true identity of the First Americans, who were Europeans; this conspiracy theory has been bouncing around since Kennewick Man made the news and has continued on Far Right racist websites ever since. In order to fight ignorance—whether it be from religious dogma or racism—only the scientific study of human remains will do.

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Part I. The Science of Human Remains

2 North American Mummies LO S T O P P O R T U N I T I E S

Mummies are remains in which more than only bones and teeth are preserved. Mummified remains, thus, can reveal information about past peoples’ health and culture that is not obtainable through the study of remains in which only the bones are preserved. For instance, researchers examining mummies may be able to ascertain which specific parasites infected past populations. Tattoos and their cultural significance may also be investigated on mummies. For example, the oldest Alaskan mummy, who was discovered in 1972 by hunters, comes from a heavily tattooed Eskimo (who are sometimes referred to as Siberian Yupik) female from St. Lawrence Island, which lies between Russia and mainland Alaska (Zimmerman and Smith 1975). Through the use of infrared photography, blue heart-shaped and line tattoos were seen on her right hand and left forearm and hand. These types of tattoos were no longer part of the Eskimo culture by the nineteenth century, which enabled Michael Zimmerman and George Smith (1975) to determine that she belonged to a precontact population. Later radiocarbon dating of tissue corroborated this conclusion and returned dates of AD 370–390 ±90 (Masters and Zimmerman 1978). Mummies from the United States are usually found in four places: in the arid Southwest, especially the Four Corners region (New Mexico, Colorado, Utah, and Arizona), Southeast rock shelters, in Alaska, and on the Aleutian Islands (Cockburn, Cockburn, and Reyman 1998). There are also mummies in the Great Basin, such as those from Wyoming, and there are poorly preserved bog remains from Florida that date to nearly 10,000 years (Cockburn, Cockburn, and Reyman 1998). For most of the mummies in the contiguous United States, the mummies

are spontaneous (i.e., the mummification was unintentional and occurred naturally), desiccated (i.e., dried out), and found in caves and overhangs (Cockburn, Cockburn, and Reyman 1998). The only intentional mummification practices in North America can be found off the southern coast of Alaska on the Aleutian Islands. The method involved placing eviscerated and cleansed bodies over volcanic vents in burial caves (O’Leary and Bland 2013). Even as early as 1875, ethnographers discussed the Aleutian mummies (Dall 1875). The first scientific exploration of the Aleutian mummies was produced by Aleš Hrdlička in 1941. According to Hrdlička (1941), social class determined the type of mummification that was practiced on the deceased; the more elaborate the process, such as evisceration, cleansing of the body cavity, and stuffing the torso with grasses, the higher status the individual. In the Southwest, spontaneous mummification has enabled bodies to be preserved over millennia. These desiccated individuals range in date from the nearly 10,000-year-old Spirit Cave Man Paleoindian (Edgar 1997) to an 800-year-old Arizonan mummified child (El-Najjar et al. 1976). Frozen desiccated bodies have also survived, with the oldest Alaskan mummy belonging to the St. Lawrence Island female mentioned above. Fortunately, whether desiccated by heat or cold, soft tissues can be rehydrated using the Ruffer solution and, thus, examined. The Ruffer solution, which was originally formulated by Sir Marc Armand Ruffer (1859–1917), consists of three parts 95% ethyl alcohol, five parts 2% aqueous formalin, and two parts 5% aqueous sodium carbonate (e.g., Zimmerman and Smith 1975). This solution has been used on nearly all organs, such as brains (e.g., Gerszten and Martífinez 1995), lungs (e.g., Zimmerman 1979), spleens (e.g., Banning et al. 2016), intestines (e.g., Allison et al. 1974), and hearts (e.g., Zimmerman 1978). Even with the success of the Ruffer solution and the use of imaging techniques, the mummies of the United States have been for the most part ignored. The lack of attention to these mummies is only in part because of repatriation; the lack of good excavation and recording techniques for early discoveries may also play a role. Research on contiguous U.S. mummies is woefully short. For example, Solveig Turpin, Maciej Henneberg, and David Riskind (1986) reviewed some of these shortcomings for Texas mummies; they found that 53 mummies discovered in the 1930s were poorly described and the reports were sketchy, 30 mummies from a 1968 salvage site were never described even in the unpublished site report, and 57 mum40

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mies were from private collections that lacked even the most basic information about provenance. Furthermore, the only research conducted on the tightly flexed bundled cave mummies from the Lower Pecos culture was published in obscure sources, methodologies were haphazardly used, and the mummies’ ages were often attributed subjectively (Turpin, Henneberg, and Riskind, 1986). Most of the U.S. mummies have now been repatriated or reburied, including the largest sample of mummies in the United States, found in Ventana Cave in Arizona, and single individuals like Spirit Cave Man, the world’s oldest mummy, from Nevada. Thus, rectifying the lack of research on mummies is unlikely, and the anthropological research literature on North American mummies reviewed in this chapter may be all that can be gleaned from these fascinating remains. Due to the lack of publications on many of the mummies, this chapter focuses on dietary reconstructions using paleofecal matter (also called coprolites) from intestines, parasites found in rehydrated organs, and soft tissue diseases discovered recorded in mummies from Nevada, Arizona, Texas, Kentucky, Alaska, and the Aleutian Islands.

Dietary Reconstructions: Coprolites and Parasites Although coprolites from latrine areas are used in dietary reconstructions, removing paleofecal matter from a mummy’s intestines provides clear evidence of the individual’s diet. In addition to food material, intestinal investigations can lead to identification of parasites that enable us to understand the health of past peoples better.

Southwestern Dietary Reconstruction Southwestern prehistoric diet consisted of both hunter-gatherers and agriculturalists. For instance, in northeastern Arizona, the Early Anasazi culture consisted of the seminomadic, hunter-gatherer Basketmakers, who were also referred to as the Pit House People (Haury 1936). Later the Pueblo Anasazi in the same region practiced more agriculture and even later domesticated animals, but they still continued to gather and hunt food as well (Haury 1936; Reinhard 1992). One might find the variety of food these desert landscapes provided surprising. Although Paleoindians are sometimes imagined to be big-game hunters (see chapter 1), the dietary reconstruction of the Spirit Cave Man paints North American Mummies: Lost Opportunities

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a very different picture. Spirit Cave Man was a 40- to 50-year-old adult male discovered with rabbit skins, reed mats, and moccasins (Edgar 1997). Heather Edgar (1997) describes his dental wear as light (which would contradict the old-age estimation), but others who examined Spirit Cave Man disagreed with her assessment of occlusal wear (Barker, Ellis, and Damadio 2000). He was excavated on August 11, 1940, by Sydney and Georgia Wheeler, a married couple both of whom were archaeologists engaged in salvage archaeology in northwestern Nevada (Edgar et al. 2007). In 1994 archaeologist Donald Tuohy expressed an interest in reexamining the remains, and it was then that Spirit Cave Man’s hair, bones, and textiles were radiocarbon dated and discovered to be 9,414 ± 25years BP (uncalibrated), which makes it the oldest human mummy discovered in the world (Edgar 1997). Paleofecal matter, which was removed from Spirit Cave Man’s abdominal cavity, has been analyzed to reconstruct his diet. Using the paleofecal matter, Sunday Eiselt (1997) was able to identify fish remains, such as bone matter and otoliths (or fish-eye lens). She discovered that the fish he consumed was small, only 3 to 7 cm in length, and most of it belonged to the Cypranidae genus. Minnows and carp belong to this genus. In order to catch enough of these fish to make meals, Spirit Cave Man likely caught them en masse using woven baskets. Edgar (1997) also suggests that some anterior tooth grooves were the result of sinew processing. Although pollen had been reported as dietary evidence of pine consumption, Peter Wigand (1997) states that the small quantity of pollen in his paleofecal matter suggests that this ingestion was accidental and a result of it getting into or onto his food. Interestingly, the pollen in his paleofecal matter suggests that Spirit Cave Man may have died in spring or early summer (Wigand 1997). Another example of a dietary reconstruction comes from southern Arizona, where mummies that are culturally affiliated with the Hohokam that date from AD 200 to AD 1450 were discovered in 1941 to 1942 (Reinhard and Hevly 1991). One five- to six-year-old child’s colon contents were examined for parasites and diet. Karl Reinhard and Richard Hevly (1991) found no parasites. In the analyses of two coprolites from the colon, Reinhard and Hevly were able to conduct a dietary reconstruction. This child had evidence of saguaro cactus seed, mesquite pods, and Opuntia (i.e., prickly pear). These nondomesticated foods are high in calcium, iron, and vitamin C. Furthermore, the vitamin C promotes iron absorption. Thus, although the Hohokam created complex irrigation systems and engaged in farming, 42

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they continued to use native plants and were more horticulturalists than agriculturalists. The southwestern diet of the past was varied and full of nutrition, but sometimes the foods led to health problems anyway. The Skiles Mummy (also known as SMM) from Texas was examined with X-rays, and a full osteological report was completed (Turpin, Henneberg, and Riskind 1986). This 35- to 45-year old adult male was long headed and broad nosed with hair about 13 cm long, but it is his extensive antemortem tooth loss, abscesses, and tooth decay that reveal much about his diet, along with the examination of his colon (Turpin, Henneberg, and Riskind 1986). From an examination of coprolites removed from his colon, it appears that he ate prickly pear, agave, and Seteria (i.e., foxtail millet). The extreme dental wear, which is found in other prehistoric Texas remains, can be explained by their diet. Dennis Danielson and Reinhard (1998) examined dental wear of mummies combined with examinations of their diet. Sifting through the coprolites and then peering through microscopic food remains, Danielson and Reinhard concluded that the extensive tooth wear was a result of the high phytolith content of prickly pear and agave. The phytoliths have Mohs scale hardness sufficient to ruin enamel. Additional health issues, ranging from bladder stones to parasitic infections from past diet, have also been discovered in mummies in ways that would not be possible with only skeletonized remains to examine. For example, in northeast Arizona, the Vandal mummies include an adult male, tightly flexed and wrapped in a cloth garment that was adorned with fur and feather, who was afflicted with a bladder stone (Haury 1936; Streitz et al. 1981). He, like all the mummies from Arizona, was naturally desiccated. It is estimated (through tree-ring dates of the associated dwelling) that this individual lived sometime between AD 500 and AD 750, which means he likely belonged to the seminomadic, hunter-gatherer Basketmakers (Haury 1936). A reexamination of the mummy led John Streitz and colleagues (1981) to discover a bladder stone. The stone was 3 × 2.7 × 2.5 cm large and weighed 17.5 grams. The light brown ball had many protrusions of around 2 to 3 mm in length. A chemical analysis of the stone allowed them to conclude that the major component was two forms of calcium, two forms of magnesium, and ammonium hydrogen urate. Bladder stones such as these can cause pain, obstruct urination, and be fatal (Moran 2016). Although there are many causes of bladder stones, Streitz and colleagues point out that in hot climates such as the Southwest, vegetarians are more North American Mummies: Lost Opportunities

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likely to have bladder stones, which may be due to deficiencies in magnesium; Vitamins A, B1, and B; and protein. This individual’s low meat consumption may have contributed to the formation of the bladder stone that was discovered. Further evidence of nutritional deficiencies in the Southwest comes from a 1971 discovery called Antelope House at Canyon de Chelly, which is another northeast Arizona site. The remains of a well-preserved child mummy with spongy bone on the skull was examined by El-Najjar and colleagues (1976). They concluded that the child, who was dated to about AD 1200, had severe anemia as evidenced by active porotic hyperostosis of the skull. The child’s growth seemed to be severely retarded; X-rays of carpal ossification indicated an age between 12 and 18 months, but the dental eruption of the deciduous teeth and the formation of the crown of the permanent premolars indicated an age of five to six years old. Dental formation and eruption are less likely to be altered by environmental stresses than bone development and growth (as noted in the previous chapter). ElNajjar and colleagues (1976) conclude that the child’s anemia and growth retardation were the result of a diet that was too reliant on maize, which can hinder iron absorption and is a low-iron food. Increasing iron absorption in a maize diet may involve preparing the maize with lime or increasing ascorbic acid (i.e., vitamin C) intake (see Moretti et al. 2014). Anemia can also be caused by parasitic infections, but surprisingly few parasites have been found in the Arizona mummies. El-Najjar and colleagues (1980) conducted an autopsy on an adult male mummy (whose organs were intact) from Canyon del Muerto, which was excavated by Earl Morris in the 1920s and radiocarbon dated to 600 ±95 AD, identifying pinworms in the adult male’s intestine. Pinworms (Enterobius vermicularis), which are found in several Southwest mummies and coprolites (see Reinhard 1990; Reinhard and Araujo 2012), are usually passed through the fecal-oral route and most often result in discomfort due to anal itching, along with abdominal pain and weight loss. Pinworms are not linked to iron loss. Beyond the one case of whipworm noted from an 800-year-old Arizona site, the only other parasite (beyond pinworm) found in the Arizona mummies is lice (Fornaciari and Gaeta 2014). Nits (the eggs of lice) and lice have been found on the scalps and hair of mummies from Painted Cave and Ventana Cave according to forensic anthropologist Walter Birkby who, unfortunately, did not publish his findings (see El-Najjar, Mulinski, and Reinhard 1998; Reinhard and Hevly 44

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1991). Nits are more likely to preserve because they are attached to the hair shaft using a cement‐like substance secreted from accessory glands to the oviduct, which hardens in seconds and holds fast even after the eggs have hatched (Burgess 2010). Thus, the empty eggshells can stay in the hair for months.

Cold-Climate Diets: Undercooked Flesh Alaskan mummies’ diets have also been reconstructed through rehydration of intestines; unlike the Southwest mummies, these early Arctic populations suffered from intestinal parasites likely as a result of undercooking foods due to the scarceness of wood. For instance, through the use of Ruffer solution, Zimmerman and Smith (1975) discovered that the St. Lawrence Island mummy mentioned above was infected with Cryptocotyle lingua, a parasitic worm that is found in current populations who eat raw or undercooked fish. One well-studied case of Alaskan mummies involves the Frozen Family of Utqiagvik. A collapsed igloo preserved a family of five in Utqiagvik (which is also known as Barrow) Alaska. Utqiagvik is located on the northern slope of Alaska and is known as the northern-most city in North America. The Frozen Family was found in 1982; using radiocarbon dating, it was determined that the site dated back to AD 1510 ±70 years (Zimmerman and Aufderheide 1984). Three of the individuals were skeletons, but a female in her 40s (called the South Body) and another female in her mid-twenties (called the North Body) were mummified. The South Body’s examination revealed she was afflicted with parasitic Trichinosis, which can result in diarrhea and vomiting (Zimmerman and Aufderheide 1984). The most likely culprit for her Trichinosis was the consumption of undercooked polar bear meat, since 15% to 50% of polar bears carry the parasite (Zimmerman and Aufderheide 1984). Trichinella larvae live in the muscle tissue of bears, walruses, and other carnivores. Extant populations living in the region have been infected by the same parasite through undercooked polar bear meat (Moorhead et al. 1999). The final mummy dietary reconstruction to discuss in this chapter is the 800-year-old Thule female child. Thule people are considered a proto-Inuit prehistoric semisedentary hunting culture that developed along the Arctic coast in northern Alaska. Michael Zimmerman, Anne Jensen, and Glenn Sheehan (2000) examined a child from Ukkuqsi, which is in the same area of Alaska as the Frozen Family mentioned above. They estimated the age North American Mummies: Lost Opportunities

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to be between five and eight years old. X-rays revealed that the child had multiple Harris lines on the distal tibiae. Furthermore, in the X-ray, small ovoid items were visible in the abdominal cavity. These items turned out to be pebbles, stones, and hair, which implies that the child was starving (Zimmerman, Jensen, and Sheehan 2000). Further evidence of starvation included fluid-filled lungs, which can arise due to hypoproteinemia (Zimmerman, Jensen, and Sheehan 2000). Fluid from the bloodstream leaks into tissues and body cavities during severe anemia.

Paleopathology of North American Mummies Although dietary traditions, such as raw food consumption or an overreliance on maize, can lead to poor health outcomes, other pathologies in the mummies of North America have been discovered that are unrelated to diet.

Arctic Health Hardships The starving Thule child mentioned above also had A1AT deficiency, which was identified through histopathology of the liver (Zimmerman, Jensen, and Sheehan 2000). A1AT deficiency, which is a congenital disease, leads to emphysema and liver scarring that is visible in microscopic examinations (Gordon et al. 1972). The scarring is a result of an unrelated lung infection that then triggers the body’s enzymes to attack the infection, but the proteins also attack the liver (Zimmerman, Jensen, and Sheehan 2000). In normal individuals, A1AT protein kicks in and counteracts the other enzymes. However, in A1AT deficient individuals, this counteraction does not occur, so the liver becomes scarred (Gordon et al. 1972). Additionally, the Thule child’s lungs were anthracotic (which is caused by accumulation of carbon in lungs as a result of smoke inhalation or air pollution) (Zimmerman, Jensen, and Sheehan 2000). Anthracosis of the lungs was common in cold climates, due to people’s need for warmth causing them to light fires in confined spaces. Both mummified females of the Frozen Family also had anthracotic lungs, which likely resulted from many hours stoking fires to keep the family warm (Zimmerman and Aufderheide 1984). Other lung disorders were found in the Aleut and Alaskan mummies; the constant smoke inhalation coupled with the presence of pneumonia bacteria likely made these early people susceptible to lung disease (Zimmerman and Aufderheide 1984). 46

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Zimmerman and colleagues (1971) studied an Aleut mummy bundle with X-rays and noted that the lungs show destruction of the right lung’s parenchyma, which is the lung tissue that involves gas exchange. Additionally, there are gram-negative bacilli visibly present in the lungs, heart, trachea, and retroperitoneum (which is the cavity behind the peritoneal sac in the abdominal cavity). The presence of gram-negative bacilli may be an indicator of bacterial pneumonia (Zimmerman et al. 1971). Zimmerman and Arthur Aufderheide (1984) also discovered that the South Body of the Alaskan Frozen Family had been severely ill prior to death. They surmised that she developed the infection from a bacterial pneumonia, a common illness in Alaska and the Aleutian Islands, followed by pleuritis (or inflammation of the lung tissues). The pleuritis may then have been complicated by bacteria in the blood that would have resulted in infection of the inner lining of the heart tissues. These health problems can result in kidney failure. Zimmerman and Aufderheide (1984) found that she also had calculus buildup on the mitral valve of the heart and renal (i.e., kidney) necrosis. These two ailments are often indicators of bacterial endocarditis (an infection of the inner layer of the heart). Endocarditis is usually fatal (Mylonakis and Calderwood 2001), but this individual showed signs of healing. Accordingly, Zimmerman and Aufderheide (1984) report that she made a full recovery before her untimely death; all her ribs were fractured and her lungs were filled with frozen yellow fluid that had traces of hemoglobin, which indicates that she died from being crushed. The younger female, the North Body, also had fluid in the lungs from being crushed. An Arctic landslide was also the cause of the demise of the tattooed St. Lawrence Island mummy. Zimmerman and Smith (1975) suggest that the aspiration of foreign objects indicate that she died in a landslide and was buried alive. The mummies of the Arctic reveal the difficulty of living in the region, the health problems that plagued the inhabitants, and the dangers of living in an unstable environment. Beyond lung problems, both mummies of the Frozen Family also showed evidence of atherosclerosis (Zimmerman and Aufderheide 1984). Hardened arteries are often associated with cardiovascular disease and modern lifestyle, but other mummies have revealed that atherosclerosis can result from infections (see Clarke et al. 2014; Wann and Thomas 2014). And the St. Lawrence Island mummy had a histoplasmosis fungal infection, which can be caught through bat droppings and can result in fever, body aches, and long-term lung infecNorth American Mummies: Lost Opportunities

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tions (Zimmerman and Smith 1975). Past peoples of the Southwest also endured health hardships.

Southwestern Pathology and Trauma The Skiles Mummy of Texas had a megacolon, which may have been caused by Chagas disease (Reinhard, Fink, and Skiles 2003; Reinhard and Araujo 2015). The infection causes a loss of activity in the large intestine, which then leads to the cessation of peristalsis (or muscle contractions of the gastrointestinal system) (Rassi, Rassi, and Marin-Neto 2010). Without these contractions, bowel movements become impossible and the colon fills up with partially digested foods. As the colon enlarges, the muscles weaken further and eventually the colon may start leaking bacteria-ridden waste, which can be fatal. Chagas disease is an infection from the parasite Trypanosoma cruzi (Rassi, Rassi, and Marin-Neto 2010). The vector for T. cruzi are various species of triatomine bugs, also known as kissing bugs, which are nocturnal and bite. However, it is not the bite that causes the infection but the bugs’ feces. The bug has then gotten the parasite from biting an infected animal, which waits in the bug’s feces, ready for a new host. Thus, when people inhale the feces or are exposed to the feces through an open wound, they can become infected. Another route to Chagas infection is the consumption of raw rodent meat from animals who carry the parasite (Reinhard and Araujo 2015). T. cruzi is found in rodents who are bitten by the triatomine bugs (Rassi, Rassi, and Marin-Neto 2010). Prior to the determination of Chagas in the Texas mummy, Chagas was thought to be restricted to South and Central America.

Repatriation Many of the mummies from the United States have been repatriated or reburied (see table 2.1). Even the world’s oldest mummy has been repatriated. Some of these mummies, such as the Ventana Cave mummies, were used in research and could have been continuously studied for decades. However, Reinhard and Hevly’s (1991) study, mentioned above, was the last to examine mummies from the Ventana Cave since the remains were reburied in 1992. The Ventana Cave of southern Arizona contained the largest of the Southwest mummy collections; it consisted of over two dozen mummified individuals. These mummies are the best-known and -studied mummies from Arizona. Other sites in Arizona, such as the McEuen Cave, 48

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Mummy Valley, Kentucky

Canyon de Chelly, Arizona

Ventana Cave, Arizona

Canyon Creek, Arizona

Utqiagvik Site, Barrow, Alaska

Ukkuqsi Site, Barrow, Alaska

Little Al

Pueblo Child

39 individuals

10 individuals

Frozen Family

Thule Eskimo Girl

Unknown

Mammoth Cave, Kentucky

Mammoth Cave, Kentucky

Fawn Hoof

Scudder Mummy

500 yrs old

Mammoth Cave, Kentucky

Lost John

800 yrs old

500 yrs old

AD 1300 to AD 1500

AD 1000 to AD 1400

AD 1000

2,000 yrs old

Unknown

10,600 yrs old

Spirit Cave, Nevada

Spirit Cave

Antiquity estimates

Location

Mummy

Table 2.1. Reburied North American Mummies

Six-year-old girl with evidence of starvation, including gravel and hair in the stomach

Five individuals (three were skeletons), crushed by their home’s collapse. Both mummies (40-something-year-old female and a 24- to 30-year old female) had evidence of atherosclerosis, osteoporosis, and anthracotic lungs

Included four infants who were cradle boarded

Best collection of Southwest mummies, exhibited signs of periodontal disease, head lice, and possibly Valley Fever

Covered in animal skins, had evidence of severe anemia, may have had retarded growth

Discovered in 1875; first mistaken as a female, but external genitalia were seen upon examination in 1958

Adolescent boy with fractured skull

Discovered in 1813; buried with grave goods, such as fine animal skins

Was a prehistoric minor, died from accident; all five Mammoth Cave mummies have been reinterred

Had spondylolysis, oldest mummy in North America

Facts

either have unknown dates or few well-preserved remains and thus have not received much attention from the archaeological research community (El-Najjar, Mulinski, and Reinhard 1998). A collection of ten mummies from Canyon Creek Ruin have also been repatriated (Claire Barker, email message to author E. W., May 16, 2019; El-Najjar, Mulinski, and Reinhard 1998). Claire Barker, the Arizona State Museum (ASM) NAGPRA coordinator, also stated that the “ASM currently houses the remains of 28 mummified individuals that were recovered from archaeological contexts in Arizona” and that the Bureau of Indian Affairs and the Bureau of Land Management are “both currently working with ASM to complete the NAGPRA process on collections under their jurisdiction housed at ASM” (Claire Barker, email message to author E. W., May 16, 2019).

Reburial of Spirit Cave Man The ancestry of the world’s oldest mummy, Spirit Cave Man, is ambiguous. The skull shape, which is large, long, and narrow, suggests that there may be some incongruity between the mummy and modern tribes (Jantz and Owsley 2005). Craniometrics placed Spirit Cave Man similar to South Asians, Pacific Islanders, and Australians (Steele and Powell 1999), or similar to Ainu or Europeans (Jantz and Owsley 1997). Yet Ahern, Willson, and Gill’s (2005) craniometric study of Spirit Cave Man led them to conclude that he has a mixture of Caucasoid and Amerindian traits. Other factors that may have been used to determine his ancestry also failed to bring any conclusive determination. In the Bureau of Land Management report, Barker, Ellis, and Damadio (2000) note that Spirit Cave Man’s hair, which is reddish brown in color, may have been Caucasian-like in density and pigment distribution according to a medical examiner expert opinion. Yet the FBI lab that investigated the hair concluded that it was of Asian origin. Hair color, unfortunately, is not a good indicator of ethnicity or ancestry since dark hair can turn rust red as a result of malnutrition, such as protein deficiencies (Houlton and Wilkinson 2018). Postmortem hair color changes occur too. Hair may turn red as a result of photodegradation of pigment granules in sunlight or oxidation of melanin pigment granules (Tridico et al. 2014). These changes have also been noted in Early Woodland mummies of Kentucky (Tankersley et al. 1994). In the end, DNA tests were conducted on Spirit Cave Man. Originally, the tribes who sought to repatriate Spirit Cave Man were against DNA 50

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studies, but the lack of conclusive evidence of Spirit Cave Man’s ancestry and, thus, the lack of his repatriation, made them open to DNA testing (Callaway 2016). Researchers could not link Spirit Cave Man to any specific living Native American group (Moreno-Mayar et al. 2018). The lack of a specific link is not surprising considering that over 470 generations have passed since Spirit Cave Man died (Edgar et al. 2007). Yet Spirit Cave Man was repatriated to the Fallon Paiute-Shoshone Tribe in 2016 (Callaway 2016).

Reburial of Display Mummies Some mummies were employed to stoke people’s curiosity and encourage a desire to learn more about the region and its past. Mummies from Wyoming were used to promote state tourism. For example, one mummy from the state that was discovered in 1957 was on display until 1990, when NAGPRA was passed (Sniffin 2015). Research on these mummies is extremely scarce; one article by Gill and Owsley (1985) reports a high volume of nits, revealed using electron microscopy, on a preserved Wyoming scalp that dates to the mid-1800s. Due to the severity of the infestation, they associated the nits (and lice) with an increase in social upheaval, such as the intertribal battles. A mummy named Esther, from Colorado, who was discovered with 18 other mummies, was placed on display following her 1938 discovery until 1971. She was the biggest draw at Mesa Verde Park in Colorado (see figure 2.1), but she was taken away from the display in 1971 and reburied in 2011. People were in awe of the nearly perfectly preserved 20-something-yearold female who had passed away from unknown causes 1,700 years ago (McWhirt 1939; Fine-Dare and Durkee 2011). One could say that she had become an ambassador for her people, the Basketmakers—an Early Anasazi culture. Basketmakers were seminomadic hunter-gatherers who lived in caves and rock shelters between AD 100 and AD 700. They ate a mix of hunted and gathered foods and agricultural foods, such as corn. Overall, the Basketmakers were slender, short, and seemed not to have culturally modified skulls (such as from head binding or cradle boarding), unlike many of the later Native American populations of the region. Jean McWhirt (1939) notes that Navajo Native Americans feared Esther and conducted various dances and sought out medicines to prevent Esther’s spirit from doing them harm. Native Americans who pursue reburial argue that the lack of burial of their ancestors has been a key cause North American Mummies: Lost Opportunities

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Figure 2.1. Cliff Palace in Mesa Verde, where mummies such as Esther were found, in southwestern Colorado. Photographed by Gustaf Nordenskiöld in 1891, from Finnish National Board of Antiquities.

of the high rates of alcoholism, domestic violence, and poverty that plague modern Native American communities. For a thorough review of some of these topics, see Garrick Bailey and William Sturtevant’s Handbook of North American Indians (2008). Other formerly displayed mummies of the Southwest include Spirit Cave Man, who was exhibited briefly at the Fallon County Nevada State Fair prior to being taken to Mark Harrington, who placed the mummy in storage at the Nevada State Museum (Edgar et al. 2007), and the Lemon Grove Mummies from Mexico, who were housed at the San Diego Museum of Man but are no longer available for viewing as of 2017 (Atlas Obscura 2017). Edgar and Anna Rautman (2014) reviewed the FBI confiscation of mummies from a Carlsbad, New Mexico, roadside attraction called the White City after the original owner, Charlie White, that went out of business in 2008. The White City’s collection of mummies was taken by the FBI from the business owners 52

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and then brought to the Maxwell Museum of Anthropology at the University of New Mexico. The eight mummies and one skeleton comprised seven adults and one infant who were likely nearly 2,000 years old. Even if these mummies are not available for research, they may have been better used for continuous display in a manner that can educate people.

Southeast Rock Caves: Kentucky Perhaps the most famously displayed North American mummies come from Kentucky. In the southeastern region of the United States, which is usually noted for its humid summers, rock caves have become famous for their mummified remains. In particular the Mammoth cave system, which contains Salts Cave and Mammoth Cave, has been home to several famous mummies that were displayed for decades (Tankersley et al. 1994). Most of the literature on the Kentucky mummies, including that on Fawn Hoof (discovered in 1813), Scudder Mummy (discovered in 1814), Little Alice (now known as Little Al, discovered in 1875) and Lost John (discovered in 1935), revolves around the history, discovery, description, ownership and exhibition of the mummies. For instance, Fawn Hoof was described as having been dressed in fine animal skins and had various other grave goods, such as hundreds of strings of beads, fawn hooves stained with ocher, bone needles, and rattlesnake skins (Crothers 2017). Yet extensive research on her remains is absent. The best-studied displayed Kentucky mummies are Little Al and Lost John, both of whom were displayed together. In 1875 an Early Woodland child mummy found by two local men was displayed in the region until 1958, when the remains were moved to University of Kentucky for storage and reexamination (Robbins 1971). This Salts Cave mummy, radiocarbon dated to 1,960 ±160 years BP, may have died as a result of a traumatic blow that could have ruptured his aorta, which is evidenced as a mass of red blood cells identified with a scanning electron microscope (Tankersley et al. 1994). University of Kentucky anthropologist Louise Robbins examined the remains and published reports in 1971 and 1974. The mummy was preserved well even at the time of Robbins’s examinations (nearly a hundred years after discovery). During her examination, Robbins (1971) found that a close look at the remains, which had been called Little Alice, revealed male external genitalia (Robbins 1971). The use of X-rays also enabled anthropologists to extract fecal materials from inside his lower intestines with minimal damage to the mummy (as discussed above for the southwestern North American Mummies: Lost Opportunities

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mummies), which allowed for dietary reconstruction of foods that were eaten in the 48 hours prior to death (Robbins 1971). In the intestines were hickory nutshells, sumpweed seeds (which are similar to sunflower seeds), chenopod seeds (one type of chenopod is quinoa), grubs, and some rock fragments (Robbins 1971; Tankersley et al. 1994; Yarnell 1974). The materials were also covered with mirabilite, a hydrous sodium sulfate that works as a laxative (Watson 1966). Mirabilite was the second most common mined mineral from the Kentucky caves, which may have been what Lost John was mining for, as evidenced by his toolkit that included a digging stick and, near his chin, a mussel shell, which could have been used for scrapping or digging (Munson et al. 1989; Watson 1966). The mummy, discovered by Mammoth Cave guides Grover Campbell and Lymann Cutliff, was excavated by archaeologist Alonzo Pond (Neumann 1938). Lost John, whose radiocarbon date was 1,965 ±65 years BP, led to the acceptance of prehistoric mining deep in the caves as he was found 2 km from the entrance (Gremillion 1996). Lost John’s remains revealed a severe lower arm injury in which the distal humeral bone was broken and the forearm remained attached with only muscles and ligaments (Gremillion 1996). The forearm, hence, dropped back at a right angle over the stump of the upper arm. Additionally, it appears that a fallen stone had stopped on his neck and chest, but only after having crushed his skull and pushed his face into the sand (Gremillion 1996). These injuries appear directly related to his death and can be assumed to be a mining accident. Future investigations into this mummy have been made impossible due to his reburial. Some may argue that if the mummies are not studied, then they should be reburied. Others point out that removing bodies from display is nonsense since the bodies are anonymous and the issue is one of dignity rather than personal privacy (Holm 2011). Mummies, such as Lindow Man in England, Ötzi in Italy, and Juanita in Peru, are often the most popular displays in museums. When King Tut (Tutankhamun) went on the road in the 1970s, lines wrapped around buildings stretching three blocks long (Holm 2011). Even now, museums such as the Arizona Science Center have mummy exhibits. Mummies of the World (https://mummiesoftheworld. com), a successful exhibit from Budapest, Hungary, at the Arizona Science Center, has mummies from Egypt, South America, and Europe but not North America. Exhibits, especially ones that are done well, can be educational and help foster diplomatic relations. 54

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Recent Developments in Mummy Studies: Reasons for Preservation Mummy research may be infrequent, especially since mummy specialists are few in number compared to osteologists, but the remains should be available to those qualified to study these precious remains. It should also be noted that many of the methods used to study mummies are relatively recent. Although the first CT scans of mummies were in 1977 (see Cox 2015), it was not until the late 1980s that CT scans became readily available for use in anthropological research. Furthermore, some discoveries made by examining the parts of the mummy that are only skeletal can be analyzed and understood by osteologists. For instance, Edgar (1997) was able to identify that Spirit Cave Man had a lower back stress fracture called spondylolysis on left side of the fifth lumbar. Spondylolysis is a fracture that occurs at the pars interarticularis of the vertebral arch (see figure 2.2). His exposed backbones also revealed 13 (rather than 12) thoracic vertebrae and the last lumbar bone fused to the sacrum, which is called sacralization (as seen in figure 2.3). Sacralization

Figure 2.2. Spondylolysis (in Californian hunter-gatherer from the Ryan Mound), a stress fracture of the lumbar bones; this type of fracture may increase flexibility. Spirit Cave Mummy had such a fracture. Photo by Elizabeth Weiss. North American Mummies: Lost Opportunities

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and supernumerary vertebrae are developmental anomalies that predispose individuals to spondylolysis (Weiss 2017). Even though Edgar (1997, 61) states that these anomalies of the vertebral column coupled with osteophyte growth “probably caused him quite a bit of lower back pain,” lower back pain is exceedingly difficult to diagnose (see Weiss 2015). Merbs (1996) proposed that spondylolysis is an adaptation to increased flexibility in the lower back. Furthermore, Niels Lynnerup (2009) notes that much of mummy research is destructive. Thus, the use of nondestructive methods, such as endoscopic examinations, is key to future studies. However, anthropologists (who are trained more in osteology than soft tissue anatomy) may need to look to medical researchers to interpret their findings. Samantha Cox (2015) notes that more research is also needed to understand how the pres-

Figure 2.3. Sacralization (in Californian hunter-gatherer from the Ryan Mound), a transitional formation in which the last lumbar vertebra is fused to the sacrum; such lumbosacral variations may increase spondylolysis stress fractures. S1 through S5 signify the usual configuration of five segments of a sacrum; L6 is the lumbar segment that has fused to the sacrum. Spirit Cave Mummy was found to have sacralization. Photo by Elizabeth Weiss. 56

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ervation of bodies changes the tissue in order to more accurately diagnose diseases. Research methods to study mummies are improving, but anthropologists still have a long way to go to be able to fully understand the past lives of these preserved peoples.

Conclusions Mummies can give a voice to those who can no longer speak for themselves. They reveal their cultures, hardships, and resilience. There will always be gaps in their stories, but they are silenced without study of mummies. Furthermore, the study of mummies—whether in cadaver studies or in studies of ancient peoples—can help modern-day people. Researchers endeavor to use what has been learned from ancient desiccated mummies to help identify recent people who perished in the U.S. Southwest crossing the border and help bring justice to those who may have been murdered by coyotes (i.e., a person who smuggles Latin Americans across the U.S. border) (e.g., Fulginiti 2008). Finally, mummies ignite curiosity with their humanity, and they can foster a healthy understanding of human biology and culture when they are displayed with dignity.

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3 Biological Relationships MISSING LINKS

Anthropologists have had a long-standing interest in ancestry, even before NAGPRA played a role in shaping the field. Early practitioners of anthropology, such as Aleš Hrdlička and Franz Boas, studied ancestry and ethnicity to determine where Native Americans came from, how the environment may change the skull, and how to identify race by bones alone. Determining ancestry or biological relatedness is complicated since populations change over time; all populations face natural selection forces, such as bottleneck effects brought upon by natural disasters and migration to follow resources. However, human populations also change as a result of cultural factors, such as founder effects to start new populations, warfare, and marital patterns, that can increase or decrease gene flow. Anthropologists today have a variety of tools in their research kit to look into biological-relatedness questions, which includes ancestry, mating patterns, continuity within a site, and migration events. The most common methods to examine biological relatedness include metric, nonmetric, and DNA analyses. For the most part, anthropologists focus on skulls and teeth to answer questions regarding biological relatedness. This chapter provides explanations of these methods, gives examples of their use, and highlights some of their shortcomings. Then it reviews what these methods reveal about tribal affiliations, Paleoindian ancestry, and the peopling of the Americas. These are key questions that have been asked when determining which remains should be repatriated and which should remain available for study.

Metric Analyses of Skeletal Remains Metric analyses of skulls have been conducted to understand relationships between populations even before anthropology became a separate academic discipline in the late nineteenth century. Early researchers, such as Johann Friedrich Blumenbach (1752–1840), Pierre Paul Broca (1824–1880), Eugène Dubois (1858–1940), and Aleš Hrdlička (1869–1943), were interested in cranial measurements (or craniometry), cranial shape, and discrete traits (discussed in the next section) to understand human variation and biological relatedness. Using simple tools such as spreading and sliding calipers, anthropologists measure the skull to look for similarities and differences between people. Common measurements used to reconstruct population relatedness or to examine ethnicity include maximum cranial length, maximum cranial height, maximum cranial breadth, nasal breadth, orbital height, biorbital breadth, chin height, and many more. One of the most frequently cited lists of cranial traits used comes from the William W. Howells craniometric set, which consists of over 80 measurements that he took on over 2,500 skulls from 28 populations. Howells published these in three articles (1973, 1989, and 1995) in the Papers of the Peabody Museum of Archaeology and Ethnology. The last one was titled “Who’s Who in Skulls: Ethnic Identification of Crania from Measurements.” Cranial measurements work to identify related groups because skull shape is in part determined by genes. Some facial and cranial-shape measurements, which are often reported as cranial indexes (e.g., dolichocephalic, mesocephalic, and brachycephalic), have evolved as a response to climatic stresses (see figure 3.1). For instance, brachycephalic crania (i.e., broad crania) are found in populations that evolved in cold climates, like the East Asians, because a broad form will retain heat better. This is an application of Allen’s Rule, which explains some of the natural selection pressures on morphology and climate with an emphasis on heat conservation or heat radiation. Yet skull shape has plasticity and can be molded by the environment. Some studies, for example, have shown a link between diet and cranial shape. Marlijn Noback and Katerina Harvati (2015) analyzed 15 worldwide populations with different subsistence strategies using CT scans of skulls to determine cranial shape based on 28 masticating-related landmarks and 23 general cranial-shape landmarks and found that 13.7% of cranial variation Biological Relationships: Missing Links

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Figure 3.1. Cranial indexes, such as a comparison of dolichocephalic and brachycephalic skulls from this 1896 image, have been used to classify skeletal remains by ethnicity. Illustration from William Z. Ripley, “The Racial Geography of Europe: A Sociological Study,” Popular Science Monthly 50 (March 1897): 598.

in the sample could be explained by diet. The elongated heads of the Peruvians (see figure 3.2), which resulted from head binding, and the flattened occipital bones of many Native Americans due to cradle boarding come to mind as prime examples of culturally influenced cranial changes. While an individual is young, the skull is malleable, so head binding can alter the direction the skull grows. Subtler changes were reported by Franz Boas (1912), who has been called the father of American anthropology. Based on measurements taken between 1909 and 1910 on European-born immigrants and their American-born children in New York, he claimed that immigrant children had different head shapes than their parents as a result of their new American environment (which may have affected them both in utero and after birth). More recent studies that have used the same data that Boas used and have run statistical analyses could not replicate Boas’s findings and therefore have not supported earlier claims. Corey Sparks and Richard Jantz (2002) found that only 156 out of 448 possible t-tests (tests for differences) could be run since the other comparisons had too few cases in them. Out of the 60

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156, 93% showed no difference in cranial shape. All differences (11 of them) were in the Hebrew sample, and the difference was a decrease in cranial index, which is (maximum cranial breadth / maximum cranial length) × 100. The trend was a decrease in this value, so the change was toward either a narrower skull or a longer skull. Even this change, however, may be a result of an interaction effect between the variables rather than a result of a cranial change. Furthermore, Sparks and Jantz (2002) point out that heritability of cranial length and breadth is over 0.5 (or over 50% controlled by genetics). Others have disagreed with Sparks and Jantz’s interpretation of the results. Clarence Gravlee, H. Russell Bernard, and William Leonard (2003), looking at the same results, focus on the overlapping evidence with Boas, whereas Sparks and Jantz note the differences between their study and Boas’s original work.

Figure 3.2. Ancient Peruvians engaged in head binding to elongate the skull, as illustrated in this photo; these practices started when the individual was an infant and the skull is at its most malleable. Photo by Elizabeth Weiss. Biological Relationships: Missing Links

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Although anthropologists often discuss the problem of using the term “race” to describe different populations, forensic anthropologists have been successful in determining race by collecting craniometrics. Stephen Ousley, Richard Jantz, and Donna Freid (2009) reason that this is because of institutional racism and cultural pressures that have kept the races from intermarrying and thus reduced gene flow. After all, intermarriage laws were still on the books in the United States in the 1950s. Furthermore, many people still marry within their race due to family pressures, such as to marry someone with the same religion as the family. So guidelines to identify race by skeletal remains continue to prove useful. Bridget Algee-Hewitt (2016) has found that craniometrics can be useful even in identifying mixed ancestry individuals for forensic cases. New methods of studying the skull’s metrics by looking at geometric morphometrics that use 3D digitizers involve measurements that account for the unique shape of the skull. These methods are even better at identifying race than previous methods (Spradley and Jantz 2016). Forensic methods have also been used to aid in distinguishing between prehistoric and modern crania. Cris Hughes and colleagues (2012) examined over 200 skulls to determine whether prehistoric Native Americans from California (dating from about 4,000 years BP to 500 years BP) could be distinguished from modern Guatemalan indigenous people, who were victims of the 1970s to 1990s Guatemalan massacres. Using nine variables, they found that although the California Native American skulls were very diverse, they were distinct from the forensic Guatemalan skulls. For instance, the Guatemalan crania were shorter in maximum length, narrower in maximum cranial breadth and zygomatic breadth, and less prognathic in the jaw region than the prehistoric Native Californians. Some cranial studies have looked at continuity and intertribal differences to determine affiliation. Ryan Harrod (2011) examined osteometrics to figure out whether skeletal remains from three regions of the Northwest Plateau that encompass Washington, Oregon, and the Rocky Mountains could be distinguished from one another. Using craniometrics, Harrod, whose purpose was in part to determine the rightful descendants of the skeletal remains, noted that remains from northeast Washington that are often associated with the Colville and Spokane are indistinguishable from Rocky Mountain remains that are associated with Nez Perce. Reasons for the lack of differences may be due to intermarriage between the populations. Head binding and cradle boarding also occurred within these populations and may complicate results. 62

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Dental metrics have also been used to examine relatedness. For instance, Christopher Stojanowski (2004) looked at dental measurements in Florida’s Amerindians from nine sites, including both precontact and postcontact sites, to examine gene flow. Many of the precontact sites were very homogenous, which suggests endogamy, that is, marriage within the population. This endogamy may have been a result of tense relations with neighboring tribes. Contact sites revealed more gene flow, especially involving Amerindians and Spaniards mating. Not all sites shared this experience and Stojanowski stressed that similar groups may have had different contact experiences. A complicating factor in craniometric research is high error rates. Measurements must be taken at exact points. Charles Utermohle and Stephen Zegura (1982), using 72 measurements on 28 Sadlermiut Eskimo crania, highlighted that replicability of measurements can be shockingly low. For instance, with intra-observer (one observer taking measures multiple times) error rate, the worst replicability was in minimum cranial breadth, which differed by as much as 6.27 mm. With inter-observer error rates, differences between 3 and 5 mm were found on multiple measurements. One researcher consistently got larger values than the other researcher. All research should contain error rate information to ensure that the data are valid.

Nonmetric Analyses of Skeletal Remains One strength of nonmetric traits is that error rates are lower than in metric analyses. Differences in nonpathological (not disease-related) traits found on the skull, teeth, and postcrania have been used by anthropologists to identify population differences. These nonmetric traits, which are often coded as present or absent, are called by a variety of names, such as discrete, discontinuous, macromorphoscopic, or even epigenetic. Nancy Ossenberg (2013) divides the cranial traits into six categories: sutural (e.g., Wormian bones, figure 3.3; Inca bones, figure 3.4); traits related to nerves, arteries, and veins (e.g., supraorbital foramen, frontal grooves); variations on the craniovertebral border (e.g., precondylar tubercles); hypostotic traits, which are those in which development seems halted or diminished (e.g., tympanic dehiscence); hyperostotic traits, which are traits in which extra bone occurs (e.g., trochlear spurs, mylohyoid bridges); and dental variants (e.g., shovel-shaped incisors, Carabelli’s cusps). Other Biological Relationships: Missing Links

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Figure 3.3. Wormian bones (see arrows), also known as sutural bones or supernumerary ossicles, are bones created by deviations from the sutures. These bones have been shown to have a genetic basis and thus are used in biological relatedness studies. Photo by Elizabeth Weiss.

nonmetric traits that have been used to identify populations are postcranial, such as sternal foramen, humeral foramen (see figure 3.5), and third trochanters. Joseph Hefner (2018) started a nonmetric databank of over 3,000 prehistoric and historic Amerindians to help identify biodistance for NAGPRArelated actions. The data coding varies from earlier nonmetric sources. Hefner notes that the traditional discrete scoring methods of absent or present have not been as useful as metric studies in biodistance analyses and have served forensic anthropologists poorly. Thus, his coding method used a scale that then forms an osteological score. This is commonly done in forensics. Differences in analyses and interpretation of nonmetric traits may also be in part because many of the nonmetric traits are actually continuous and have been reduced to presence or absence. For instance, Wormian bones are broken into categories of 0, 1, 2+, but the variation is far 64

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Figure 3.4. Inca bone, a bone at the back of the skull; similar to Wormian bones, Inca bones are also created by sutural deviations. Photo by Elizabeth Weiss.

greater than this scoring method would suggest. Furthermore, issues of whether to score traits bilaterally or unilaterally may affect analyses and interpretation. Nonmetric traits are genetically influenced (see Barnes 1994, 2012; Hauser and DeStefano 1989; Ricaut et al. 2010; Hubbard, Guatelli-Steinberg, and Irish 2015; Saunders and Popovich 1978). Yet researchers have also pointed out that heritability is often low or unknown (e.g., Carson 2006; Hauser and DeStefano 1989). Some of the traits correlate with age and sex (e.g., Berry and Berry 1967; Singh and Pathak 2013), but these correlations are random, and anthropologists can often control for these confounds (see Killgrove 2009). Plus, even studies that find correlations with health factors, such as anemia or hydrocephaly, find support for linking nonmetric traits with biological relationships (e.g., Bennett 1965; Bergman 1993). The majority of their nonrandom expression is a result of genes and not the environmental factors (e.g., Bergman 1993; Brasili et al. 1999). Through the use of many traits, random error caused by sex, age, or Biological Relationships: Missing Links

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A

Figure 3.5. Foramina on the postcrania used for biological relatedness studies. A, the black arrow points to the sternal (breast bone) foramen; B, the black arrow points to the humeral foramen, which is on the distal end of the upper arm bone. Photos by Elizabeth Weiss.

B

nongenetic influences will be cancelled out and the genetic relationship trend will appear. Nonmetric traits have been used to determine biological relationships and answer questions about border crossers (e.g., Birkby, Fenton, and Anderson 2008), mating patterns and gene flow (e.g., Birkby, Fenton, and Anderson 2008; Sciulli, Piotrowski, and Strothers 1984; Taxman 1994), and within-site changes (e.g., Weiss 2018). Walter Birkby, Todd Fenton, and Bruce Anderson (2008) used nonmetric traits such as shovel-shaped incisors, dental enamel extension, and nasal sill variants to create a profile that consists of traits from Hispanic, European, and Amerindian populations to help identify border crossers in the Southwest United States. Many crossers and individuals who live in the Southwest have a complex genetic heritage that consists mainly of these three populations. Thus, realizing the impacts of gene flow can improve the identification of individuals found in the deserts of the Southwest. Research may also try to determine gene flow or replacement in regions or even in sites. For instance, recently, Weiss (2018) looked at population structure at the California Amerindian site called the Ryan Mound site (or CA-Ala-329). This site, located on the southeast part of the San Francisco Bay, consists of remains that span 2,000 years, but the question that arises is that over those 2,000 years, was genetic continuity present or was there replacement? Using 38 cranial and four postcranial nonmetric traits, Weiss found that the earliest period individuals (who dated to from 200 BC to AD 900) differed from the most recent period individuals (who dated from AD 1500 to AD 1800). The site should not be thought of as one population but rather as a mound with multiple peoples. The Ryan Mound collection contains over 300 individuals and has often been associated with the Muwekma Ohlone Tribe; it used to be over twice the size prior to Stanford University’s decision to repatriate their part of the collection (550 remains between 1989 and 1991) to the Muwekma Ohlone. This decision by Stanford occurred prior to the passing of NAGPRA. Alan Leventhal and colleagues (2010) claim that the decision helped support the passing of NAGPRA due to the prestige of Stanford University. Knowing now that this site contains multiple populations, it is doubtful that the Muwekma Ohlone are the descendants of all the Ryan Mound peoples.

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DNA Research Ever since DNA research started to make headlines for anthropology in the 1980s, laypeople may have assumed that molecular data would be able to definitively answer questions about ancestry. One may question the need for doing osteological work to answer questions regarding the peopling of the Americas, biological continuity, and tribal affiliations. Yet the level of DNA precision does not provide answers to many of these questions. For instance, anthropologists may be able to say that remains were probably Native American, but they cannot say which tribe the remains belong to. The same is true for osteological studies (e.g., Watkins et al. 2017). All DNA research centers on variation at the nuclear bases. The most frequently observed variations are called SNP (or single-nucleotide polymorphisms) and STR (or short-tandem repeats). Both SNPs and STRs are areas of DNA where variation is high. SNPs have hundreds of thousands of variables. Some code for traits and are affected by natural selection pressures but, due to the high number of variables that are present (and examined), the overall construct is neutral (Jobling 2012). DNA research either examines nuclear DNA or haplotype DNA. Nuclear DNA comes from both parents and contains the most information. It consists of 98% of our DNA. Mitochondrial DNA (mtDNA) and Y chromosome DNA make up the remaining 2%. When DNA is extracted from past peoples, the DNA is distinguished from living people’s DNA by referring to it as aDNA (or ancient DNA). Ancient DNA is extracted usually from the bones or teeth through decalcification. The DNA is cleansed, which may involve a bleach. After cleaning, the DNA is amplified using polymerase chain reaction techniques, which copies the DNA by creating chains from the known nucleic bases and their compatible bases (Hofreiter and Vigilant 2003). Once amplified, the DNA is sequenced and compared to other samples. There are complications in aDNA studies. For example, archaeological remains may contain little or no endogenous (i.e., original to the test subject) DNA. Contamination may occur, and there is a high failure to extract DNA rate. Anne Stone and Mark Stoneking (1999) found that only 15% of samples from Amerindian cemeteries that were 700 years old yielded amplifiable nuclear DNA. Corrie Hyland (2018) points out that fresh, unwashed, and recently excavated bone contains on average six times the en68

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dogenous DNA than curated remains. DNA may also be of low quality due to the climate, sampling issues, or contamination. M. Thomas Gilbert and colleagues (2005) have suggested nine criteria for aDNA authenticity, such as isolating work areas to separate samples and extract DNA from polymerase chain reaction amplification products, cloning the DNA to assess damage and contamination, screening for contaminants at every step, and reproducing the results multiple times. Most results are not reproduced. They may not be reproduced due to reburial, costs, or to avoid further destruction of the remains. Independent analyses of aDNA almost never occur. These extra analyses allow for interlaboratory error rates and the ability to confirm findings (O’Rourke, Hayes, Carlyle 2000; Trinkaus 2018). This lack of reproducibility is even more disconcerting when considering that even biomedical DNA studies have high failure to reproduce rates when tested by other labs or retested by the same researchers (Baker 2016; Trinkaus 2018). When DNA extraction and analyses work, the results can be astonishing. For instance, research on Tsimshian (who are from the British Columbian coast and southern Alaskan coast) nuclear aDNA compared to living Tsimshian DNA revealed that in the time frame of 6,000 to 500 years ago, the Native Americans experienced a steady population decline. John Lindo and colleagues (2018) analyzed heterozygosity, novel alleles, potentially deleterious alleles, and allele frequency to examine the founder effect (i.e., the loss of genetic variation that happens when a new much smaller population is established from a larger population), genetic continuity, and European contact’s effect on Tsimshians. They discovered that the ancient group had higher heterozygosity than the modern group. Lindo and colleagues inferred that the loss of heterozygosity occurred prior to European contact. Furthermore, they found that gene flow from Europeans, which increased genetic diversity and decreased potentially deleterious alleles, could not explain all of the heterozygosity recovery. This contrasts with previous notions that Native American populations were increasing until the Europeans arrived with diseases and warfare (Lindo et al. 2018). Haplotype DNA, which comes from the mitochondrion organelles in cells and the Y chromosome, has been more useful in DNA studies of Amerindians and other past peoples than nuclear DNA. Mitochondrial DNA is passed on through the maternal line only. Y chromosome DNA is found only in males and is passed on through the paternal line. Haplotype DNA has some research advantages. For example, mtDNA experiBiological Relationships: Missing Links

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ences mutations at fairly regular and rapid rates (about one every 50,000 years). Changes (or mutations) are random and rarely harmful or beneficial and therefore are not pruned from populations or chosen to increase in frequency by natural or sexual selection pressures. Hence, mtDNA has been used as an evolutionary clock to look at between-species and within-species splitting times. Haplotype DNA also does not recombine, which makes looking at lineal descent more straightforward. Both types of haplotype DNA are shorter and easier to code. Finally, mtDNA is more likely to be preserved than nuclear DNA since there are 100 to 100,000 copies per cell, whereas nuclear DNA has only one copy per cell (Walker 2014). However, lineages can die out and the link to the past can be lost if there is a lack of daughters born when looking at mtDNA or a lack of sons born when looking at Y chromosome DNA. Jonathan Marks and Brett Lee Shelton (n.d.) point out that evidence of Amerindian genes may be missing if one inherited the genes from the father but only mtDNA was tested, and vice versa. And if a non–Native American parent is introduced to the mix, then this may skew results. For example, Dennis O’Rourke and Jennifer Raff (2010) report that around one in six of the over 450 Y chromosomes tested in Greenlandic Inuit samples come from non-native populations. Marks and Shelton (n.d.) also mention the possibility of false positives since the haplotype varieties found in Native Americans are also found in other populations. In mtDNA, five haplotypes (A, B, C, D, and X) have been linked to Amerindians, but there are possibilities of undetected haplotypes, and the five known haplotypes are found in other populations as well. For instance, mtDNA haplotype X is found in some Europeans (such as Germans), the Sudanese, and Turks. Also, two Y chromosome Native American markers are in 5% of Asians and non–Native American populations. Furthermore, some DNA research find incongruent results when comparing the nuclear DNA to the haplotype DNA (e.g., Williams, Chagnon, and Spielman 2002). All DNA research is destructive. Because of the destructive nature of and the expense of DNA tests, sample sizes are usually kept to a minimum. Peter Jones (2002) suggests that any sample smaller than 30 is insufficient to detect less common variants, and a sample of 50 females and 50 males should be the minimum. Even with these complications, DNA research has provided a wealth 70

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of information on questions regarding Amerindians, but like all research, conclusions are best formed when using all possible methods of inquiry. Thus, in the next sections, three main questions regarding Amerindians that may impact whether the remains are repatriated will be addressed with evidence from metric traits, nonmetric traits, and DNA: (1) How can tribal affiliation be determined?; (2) How do the Paleoindians relate to other Native Americans; and (3) How were the Americas populated?

Amerindian Remains, Tribal Affiliation, and NAGPRA DNA tests to determine Native American heritage have become a profitable venture; more than a dozen companies now sell Native American DNA tests (TallBear and Bolnick 2004). These tests check for “genetic markers” that are more likely to be found in Native Americans than in other populations. However, what the companies often fail to reveal is that there are no DNA tests for tribal affiliation. Native Americans, such as James Riding In (2005) and Andrew Kline (2007), engaged in the repatriation movement have criticized anthropologists for defining many remains as unidentifiable (or having no known cultural affiliation), and yet Native Americans have difficulty with tribal affiliation even in living peoples. Native American DNA is a constructed concept, and variations in DNA cannot be assigned to populations without constructing the group artificially (Bardill 2014). There are no unique genetic markers for any tribe, especially since tribes have not been completely isolated, the tribes migrated many times, and gene flow between tribes was common (Bardill 2014; TallBear and Bolnick 2004; Jones 2002). For instance, present-day descendants of California Native Americans may identify with a specific tribe, and yet the DNA may reveal that the people descended from a different tribe due to gene flow between tribes (Johnson and Lorenz 2006). Therefore, DNA can perhaps say whether one is more likely to be Native American than another ethnicity, but reaching the tribal level is not possible. Take mtDNA. There are five types linked to Amerindians (A, B, C, D, and X), but there are 572 federally recognized tribes. In other words, over 100 tribes could be linked to a single mtDNA haplotype. To further complicate matters, American Indian reservations are not made of a single group, and many consist of several different groups that were forced together. For Biological Relationships: Missing Links

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example, the Yakama reservation in Washington State contains five tribes who were previously independent (Jones 2002). Most tribes do not use DNA to determine affiliation but rather “quantum blood,” which is a method of analyzing family lines; no blood is actually tested. Tribes set the amount of Native American ancestry that is required to be part of the tribe. For example, the Navajo require 25% of the person’s lineage to be linked to the tribe (Chow 2018; Hair 2016). Chapter 7 discusses how being defined as “Indian” interplays with racial preferences. Remarkably, there can be a situation in which a person is 100% Native American but from various tribes and thus not a member of any tribe. But someone whose family is 75% European and 25% Navajo can belong to the tribe.

NAGPRA’s Definition of Affiliation Cultural affiliation is a key concept in NAGPRA. It is the minimum that was required for repatriation for the years prior to the issuance of 43 C.F.R. (Code of Federal Regulations) 10.11 (Disposition of Culturally Unidentifiable Human Remains), which occurred in 2013. The other relatedness term used in NAGPRA is “lineal descendant.” Lineal descent, as defined in NAGPRA, refers to an “individual tracing his or her ancestry directly without interruption by means of a traditional kinship system.” In the case of lineal descent, the skeletal remains have to be identified as an individual, which is uncommon and the less often used link between the past and present peoples. Cultural affiliation is defined by NAGPRA (Pub. L. No. 101-601; 25 U.S.C. §3001 et seq.) as “a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group.” According to NAGPRA, reasonable connection connotes continuity between the groups although some gaps are understandable (McManamon 2000). Thus, anthropologists creating inventories were tasked with determining cultural affiliation—bridging past peoples with present tribes. Affiliation can be determined through a preponderance of evidence that includes biological evidence such as DNA tests but also includes many other types of evidence such as oral tradition, folklore, linguistics, or archaeological evidence (for further discussion on types of accepted evidence for NAGPRA, see chapter 7). 72

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Physical anthropologists have often viewed the determination of affiliation through a biological lens. Thus, although one may suggest that biological affiliation should be determined prior to repatriation, this may not be possible. Due to the difficulty in linking past and present peoples at the tribal level, many remains have been determined to be unidentifiable. In cases where cultural affiliation could be determined, repatriations have been carried out. For instance, Arizona State Museum found that nearly 5,000 remains were directly affiliated with extant tribes and, thus, remains have been reburied (Beal 2009). Harvard University also repatriated remains that were clearly affiliated to the Pecos Tribe of New Mexico (Robbins 1999). In total, over 50,000 remains that have been culturally affiliated have been repatriated through NAGPRA (Redman 2016). Determining cultural affiliation is a very difficult task, especially in older remains. Despite anthropologists’ best efforts in creating NAGPRA inventories and despite advances in DNA testing, many remains cannot be affiliated with a specific tribe. It is extremely rare to be able to find a direct ancestor with DNA. One example that made headlines came from a study of British Columbian remains where scientists Yinqiu Cui and colleagues (2013) were able to link living Tsimshian speakers to ancient remains (dating back 2,500 and 5,000 years ago) found in the region. However, remains older than 6,000 years differed from the living and from later Amerindians. Native Americans have argued that the culturally unidentifiable remains are just a way to protect collections from repatriation (Redman 2016; Riding In 2005). However, many anthropologists and archaeologists have been proactive in repatriations. For instance, Chip Colwell, curator of anthropology at the Denver Museum of Nature and Science, stated that he felt satisfied as the museum’s shelves were emptying (Jenkins 2017). Interestingly, a group of Native Americans traveled from Oklahoma to rebury remains and were aghast to learn that Colwell was not sure whether they were affiliated. The Native Americans had come to repatriate their ancestors, not other tribes’ ancestors. Even repatriation coordinators realize the difficulty of linking the past with the present. For instance, Gerald White, the repatriation coordinator for the Leech Lake Band of Ojibwe in northern Minnesota, points out that he cannot tell which tribe the bones belong to if they are 500 years old or older because of the movement among Amerindians over the centuries (Lawson 2018). Biological Relationships: Missing Links

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Only about 10% of Native American remains can be linked to a specific tribe, and this is not done with genetics but rather through archaeology, geography, and historical evidence. University of California at Berkeley, for instance, has found that most of its skeletal collection is unidentifiable due to the lack of knowledge of provenance (many were excavated and donated in times when archaeological methods were not refined). Thus, only 315 out of 10,000 had been reburied by 2013 (Platt 2013). Even when affiliation is determined, it is difficult to assess from the reports what were the determining factors. AlexAnna Salmon, who engaged with the Smithsonian to rebury two dozen individuals from Southwest Alaska’s Igiugig Tribe, notes that it was a “collaborative effort between Smithsonian and our village, but it was really us telling them that these are ours” (Lill 2017, n.p.). Metric and nonmetric cranial traits can distinguish between races (as mentioned above in the discussion of forensic cases) but cannot link these differences to specific tribes. Within a site, such as the Ryan Mound, the examination of traits can tell us whether biological continuity existed over time of the occupation, but this cannot be tied to the Muwekma Ohlone since these cranial studies can only be conducted on skeletons. When anthropologists find discontinuity, they can hypothesize that there had been multiple peoples at the site (perhaps even invasions) and thus some of them were likely from a different tribe (and a different one than the living tribe). Finding discontinuity at a large site should be useful in negating a claim of cultural affiliation to a living tribe. James Brown (2015) points out that perhaps tribal leaders and anthropologists set the bar too high when requiring cultural affiliation. In Brown’s Los Angeles Times article, Alex Barker, the museum director at the University of Missouri, states that “historic movements, forcible migrations and dislocation by disease and war mean the tribe in closest proximity to where remains are discovered isn’t automatically the rightful owner.” Plus, “differing accounts of history exist between” over 500 federally recognized tribes. For instance, Keith Ridler (2018) reported on a case of a pair of well-preserved 500-year-old skeletons found in the high desert of Idaho. Three tribes (the Shoshone-Bannock, the Shoshone-Pauite, and the Nez Perce) have all claimed the remains using their oral traditions. Thus, even if you remember that scientific certainty is not needed to determine the cultural affiliation of remains, there is still a lot of uncertainty in linking the past and present. 74

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The fallacy of linking ancient DNA to specific tribes is mentioned in Ridler’s (2018, n.p.) article: “In the absence of records, using genetic information and other analysis to pinpoint the exact origin of hundreds of individuals is expensive and time consuming, according to museums.” However, genetic information is not only time consuming and expensive, but it will not provide the information that is desired: affiliation to a tribe. Code 43 C.F.R. 10.11 is likely the only way NAGPRA can proceed with reburials. This code states that for repatriation to occur, affiliation is not necessary. Rather, “the Indian tribe or Native Hawaiian organization from whose tribal land, at the time of the excavation or removal, the human remains were removed” can claim the remains. Or “the Indian tribe or tribes that are recognized as aboriginal to the area from which the human remains were removed” can claim the remains. Thus, the remains have only to be found on or near tribal lands and be Amerindian. Unfortunately, the term “near” is not defined in NAGPRA. These types of repatriation have started removing remains from museums and universities. For example, 252 remains were reburied by the Tachi Yokut Tribe after they were handed over by University of Pennsylvania Museum of Archaeology due to the fact that the remains were found on Yokut land (Williams, Espenlaub, and Monge 2016). Eric Hemenway, researcher and representative for the Little Traverse Bay Bands of Odawa Indians, remarked about receiving human remains to rebury: “It’s impossible to ascertain who these remains belong to, but they have been determined to be Native American, they are from Michigan, and based on these facts alone, we believe they are affiliated” (Rohn 2008, n.p.). Code 43 C.F.R. 10.11 has played a large role in widening the net of which remains can be repatriated. This negatively affects Paleoindian conservation. In table 3.1, a few cases of reburial are listed, some of which are of unknown affiliation whereas others are of determined affiliations. However, the reader will notice that affiliation was not determined through biological means, such as DNA or craniometric analyses.

Paleoindians: Skeletal and DNA Evidence for Affiliation

Skeletal Evidence for Affiliation The most famous of all the Paleoindians is Kennewick Man. His fame is in large part due to the legal battle for his remains, which is covered in Biological Relationships: Missing Links

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24

Igiugig

Juaneño Band (not federally recognized)

51

2,200

33

Multiple tribes

Gabrielino-Tongva Tribe (not federally recognized)

Paleoindian to Historic

821

16 tribes with Nebraska past or present presence

Affiliation Determination

Smithsonian

Denver Museum of Nature and Science

University of Nebraska State Museum

National Park Service

University of Michigan Museum of Anthropology

AD 700–AD 1800 UCLA Fowler’s Museum

Artifact and oral tradition

Geneaology and artifacts

Collaborative; Native tribe oral tradition

None

None

None

None

University of Pennsylvania Museum None of Archaeology and Anthropology

Previous Curation

1300 BC–AD 1300 UCLA Fowler’s Museum

Unknown

9,000 years old to AD 1280

10,000 years old

1

3,000–800 years old

150

Saginaw-Chippewa and others

Chumash

6,000–1,500 years old

252

Date of Remains

Tachi Yokut

Tribe(s) Active in Reburial

Number of Human Remains

Table 3.1. Repatriations That Received Media Coverage

Ko 1999; NAGPRA database

Sahagun 2017

Lill 2017

Jenkins 2017; NAGPRA database

Duggan 2010

Carlson 2018

Keeping 2010; NAGPRA database

Williams, Espenlaub, and Monge 2016

Source

17

3

Delaware Nation, StockbridgeMunsee, and Delaware Tribe

1,500

Hopi

Ohlone Costanoan Esselen Nation

2,000

67

Saginaw-Chippewa

Pecos and Jemez Pueblo Indians

Unknown

320

Nottawaseppi Huron Band of the Potawatomi

University of Michigan–Flint, Michigan State University

AD 800–AD 1600 National Park Service

Multiple institutes

700–1,500 years old National Park Service 4,000 years old

Geography

Geography

Shell midden burials, artifacts, and geography

Ancestral lineage goes back to AD 1700

Unknown (linked to 24 tribes)

Geography and historic evidence

Unknown

University of Michigan, Wayne Unknown State University, the Field Museum, and the St. Joseph County Sheriff ’s Department

Washington State University Anthropology Department

Cranbrook Institute of Science

12th–19th century Harvard University and Phillips AD Academy

1,200–600 years old

10,000 years old

45

Palus

Precontact

60

Little Traverse Bay Bands of Odawa Indians plus 11 other tribes

Pooacha 2003

Meléndez-Salinas 2017

Draper 2006

Robbins 1999

Longley 2010

Mosteller 2014; NAGPRA database

Steury 2011

Rohn 2008

chapter 5. When anthropologists examined his skull, they noted that it did not look like the skulls from later Amerindians. For instance, according to Chatters (2000), in his comparison of Kennewick Man’s craniometry to the Howells database, Kennewick Man’s skull seemed to be similar to that of the Ainu or even Polynesians. This conclusion was supported by Joseph Powell and Jerome Rose (1999) and Richard Jantz and Kate Spradley (2014). Kennewick Man’s skull is more dolichocephalic than more recent Native American skulls. Also, even with its less broad shape, Kennewick Man’s skull was larger than more recent Amerindians (Jantz and Spradley 2014). There also seems to be less of a zygomatic (cheek) projection on Kennewick Man than in Holocene Amerindian skulls. This more slender-built face seems distinct from later Holocene skulls found in the Americas. Due to this distinct craniometry, in 2002 the district court that heard the scientists’ case against reburial of Kennewick Man made the decision that “physical features of Kennewick Man appear dissimilar to all modern American Indians, including tribal claimants. . . . NAGPRA was intended to reunite tribes with remains or cultural items whose affiliation was known, or could be reasonably ascertained” (Ray 2016, 477). Kennewick Man’s skull is not the only one distinct from later Amerindians. Overall, some of the Paleoindian skulls exhibit longer, narrower crania with smaller, shorter, and more prognathic faces than later Native Americans (Chatters et al. 2014; Powell and Neves 1999; Steele and Powell 1992). However, diversity is high in the Paleoindian skulls, Jantz and Owsley’s (2001) examination of 11 Paleoindian skulls using 22 metrics, such as maximum cranial length and breadth, nasal breadth, and orbital height, revealed that three clusters of Paleoindian skulls exist. Out of the 11 examined, only one Paleoindian (Wet Gravel male) skull showed affinity to recent Amerindian skulls. For the other skulls, similarities arose with skulls from Europe, Polynesia, or East Asia. The most distinct were Minnesota Paleoindians, such as Browns Valley Man, which has a wide cranial vault, a flat frontal bone, facial forwardness, and a narrow nose. Other remains, such as Swanson Lake, have a narrow cranial vault, short face, and long parietals, which is distinct from recent Amerindians who tend to have wide and short cranial vaults coupled with high faces. Thus, although Paleoindians are often grouped together, their diversity implies to Jantz and Owsley that they should not be treated as a single population. Their results corroborate other cranial studies on the Americas that find that Paleoindian skulls, although diverse, are mostly distinctly different from more re78

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cent Native American skulls. Some of the skulls look like Caucasian skulls whereas others look more southern Pacific, but Jantz and Owsley did not find the African or Australasian traits seen in Paleoindians from South America (see Neves and Pucciarelli 1991). Not all researchers are in agreement that Paleoindians have such clear distinctions from more recent finds. For instance, the Spirit Cave mummy from Nevada has craniometrics closest to the Ainu and Norse, but forensic anthropologist George Gill states that he looks Amerindian (Barker et al. 2000). Nonmetric dental traits have also been used to assess Paleoindian origins. Some Paleoindians, such as Horn Shelter in Texas, have Sundadont traits, which consist in part of weak to no shoveling, two-rooted upper first premolar, and a two-rooted lower first molar, and are found more frequently in Southeast Asians (Steele and Powell 1992; Young, Patrick, and Steele 1987). The Sundadont pattern is found in the skeletal remains of Jomon of Japan and in living populations of Southeast Asians such as Filipinos, Indonesians, Taiwanese aborigines, Borneans, and Malaysians. Recent Native Americans have Sinodont traits, which are found most often among East Asians and living Native Americans and consist in part of well-developed shoveling incisors, winging incisors, one-rooted upper first premolar, and three-rooted lower first molar. Not all agree with this assessment of Paleoindian dentition either. Joseph Powell and Walter Neves (1999) note that the teeth of Paleoindians exhibit a mix of Sinodonty and Sundadonty (sometimes in the same individual). Others, such as Christy Turner (1983) and George Gill (see Barker et al. 2000), note that Sinodont patterns can also be found in Paleoindians, such as Spirit Cave, who has shoveled and winging incisors, and that these traits reflect origins from Northeast Asia and a link to more recent Native American populations.

DNA Evidence for Affiliation DNA tests on Paleoindians have been touted as the evidence needed to determine whether Paleoindians are related to modern Native Americans. After scientists won the right to study Kennewick Man, they pursued DNA analyses. By the time Kennewick Man’s DNA tests were complete, NAGPRA had changed and no longer was cultural tribal affiliation required for reburial due to the issuance of 43 C.F.R. 10.11. Nevertheless, scientists proceeded with the tests after two decades of consultations with Washington Biological Relationships: Missing Links

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State tribes for access to modern Native American DNA. Finally, one tribe, the Colville (who were also one of the claimant tribes who wished to rebury Kennewick Man) provided two dozen samples of DNA (Balter 2017). Using both haplotype and nuclear DNA obtained from a metacarpal (a hand bone) that retained between 0.4% and 1.4% endogenous DNA, Morten Rasmussen and his colleagues (2015) found that Kennewick Man was not more closely related to the Ainu or Polynesians than to Native Americans, especially the Colville, Ojibwa, and Algonquin. However, there is no evidence of direct ancestry, and the Colville ancestors could have diverged from Kennewick Man and his people as early as 8,500 years ago. Although this discovery was reported as proof that Kennewick Man was affiliated with the Colville tribe, Chatters (2017) points out that DNA only provides evidence that Kennewick Man is related to Native Americans but that DNA cannot show tribal affiliation. To state that Kennewick Man is affiliated with the Colville is an overinterpretation of the results. As mentioned previously, there are no genetic markers to specific tribes. Plus, many tribes were not tested, which is problematic because this results in a false strength of biological closeness. Furthermore, DNA variants are found in many populations. For instance, Kennewick Man’s Y chromosome has the haplotype Q1a-M3, which can be found in Europeans, Central and Southern Asians, and Siberians (Kivisild 2017; Rasmussen et al. 2015). In order to confirm these results, Kennewick Man’s DNA tests should be reproduced. Unfortunately, the results have brought about his reburial instead. DNA research on other Paleoindians brought about a similar fate. In 2015 Spirit Cave’s DNA revealed that the mummy was more closely linked to Native Americans than other populations but that no specific group affiliation could be made (Callaway 2016). Shortly after these results, Spirit Cave was reburied. And at an Alaskan location, researchers found that there was genetic continuity with the On-Your-Knees (also known as Prince of Wales) skeleton, which dates to 10,300 years old, and a 6,000 year old skeleton, but more recent skeletons (dating to 5,000 and 2,500 years old) from the area were distinct from the earlier finds (Ghose 2013). The outcome of this DNA project was reburial of all of these ancient skeletal remains. Sometimes DNA tests do not end in reburial. Even more intriguing is the 11,500-year-old Alaskan child named Sunrise Girl, who had nuclear DNA that could not be matched to any other tested nuclear DNA. Researchers compared the genome of Sunrise Girl’s DNA with the DNA of 49 sets of global modern and ancient genomes and with a dataset that had 80

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information from 2,537 individuals in 167 ethnic groups (Moreno-Mayar et al. 2018). With this impressive comparative sample, they found no matches and concluded that Sunrise Girl represents an individual from a forgotten or lost Beringian people. In short, Paleoindians are a diverse group. Using the evidence of skeletal features and DNA, perhaps anthropologists can determine how they relate to Native Americans and even who their ancestors were. However, many Paleoindians have been reburied before DNA tests could be conducted to see whether the distinct traits even match up with specific DNA profiles. The 10,000-year-old Channel Island remains, for example, had a longer skull and a more slender face compared to modern Native Americans, but the DNA tests were not possible and the remains have since been reburied. The Buhl Burial from Idaho, which dates back 10,000 years and had Polynesian features, was reburied in 1991 without any DNA testing (Callaway 2016; Hawkinson and Walton 2001). Both Browns Valley Man at 8,900 years old and Pelican Rapids Woman at 7,900 years old were repatriated in 1999 without successful DNA evidence. All four of these remains showed no skeletal affinity to modern Native Americans (Hawkinson and Walton 2001; Jantz and Owsley 2001). The reason for the lack of interest in Paleoindian DNA among Native Americans is difficult to grasp. Eske Willerslev, who has been active in DNA research of Paleoindians, has perhaps summed it up best when he stated that “for many tribal groups, human remains from the Americas are considered ancestors whether or not there is evidence of cultural or genetic links” (Balter 2017, n.p.).

Peopling of the Americas

Origin Myths Although many Native American oral histories contain origin myths that revolve around stories that they came from the land in which they are found and deny any migration, anthropologists have proven using multiple methodologies that humans migrated into the New World from the Old World at least once but perhaps multiple times (see Sturtevant and Ubelaker 2006). Origin myths are religious beliefs that cannot withstand the scrutiny of science, such as the Iroquois legend that their tribesmen came to Earth afBiological Relationships: Missing Links

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ter an ancestral female fell in a water hole and was saved by a large sea turtle that was summoned by birds; the turtle rose from the water and its shell became the Earth (Murtagh n.d.). Other creation stories, such as the Hopi stories, revolve around the Native Americans emerging from underground (Welker n.d.). In reference to Kennewick Man, the Umatilla Tribe repeatedly stated that they do not believe that their tribe migrated here from another continent (Raja 2016). For example, Armand Minthorn, who was appointed by President Clinton to serve on NAGPRA’s review committee and is a tribal councilman and spiritual leader for the Confederated Tribes of the Umatilla Reservation in northeast Oregon, has said, “We didn’t come across no land bridge. We have always been here” (Muska 1998, n.p.). In general, Native American activists do not think that science can tell them about their origins. For instance, Kurt Dongoske, tribal historic preservation officer of the Pueblo of Zuni in New Mexico, stated that “Native Americans do not need scientists to tell them about heritage. Their heritage has been passed down to them in oral history, through recitation of prayers and ceremonial traditions” (Balter 2017, n.p.). The oral traditions of the Zuni, which include an underwater origin component, are discussed in chapter 8. Oral traditions cannot be tested against scientific evidence and cannot help answer the four main questions about the peopling of the Americas: (1) Where did the first Americans come from?; (2) How many migrations occurred?; (3) Which route did they travel to arrive in the Americas?; and (4) When did the first Americans make it to the New World? These four questions, which overlap, can only be understood by looking at data: craniometrics, nonmetric cranial studies, and DNA all can help us better understand the peopling of the Americas, which is a story for all peoples.

Where Were the First Americans From? Hrdlička and other early anthropologists theorized that Native American ancestors had come from East and Northeast Asia. Cranial and dental similarities, such as broad faces, shovel-shaped incisors, and cold-adapted traits, led to such conclusions. More recently, Tsunehiko Hanihara, Hajime Ishida, and Yukio Dodo (2003) have found support for the Asian origin for Amerindians in their study of nonmetric traits, such as metopism (see figure 3.6), os japonicum (see figure 3.7), and Wormian bones, using a sample from 70 different populations. They discussed that although one cluster of Amerindians 82

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seems to align more with Central Asians, the Northwest and Arctic Native Americans are most similar to East and Northeast Asians populations. Early anthropological researchers did not have the advantage of DNA to test for relatedness. Even though DNA cannot be used to link remains to a specific tribe, it can be used to look at broader ethnic or population similarities. Thus, examining nuclear DNA, mtDNA, and Y chromosome DNA can help us understand where the first people who came into the Americas came from. In 2002 Ripan Malhi and David Glenn Smith used mtDNA of Native Americans and worldwide populations, including Western Asians and

Figure 3.6. Metopism (also known as a metopic suture; the black arrow points to the suture); this suture occurs when the two frontal bones of the skull do not fuse as one, but it has no harmful effects and is considered normal variation. Photo by Elizabeth Weiss. Biological Relationships: Missing Links

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Figure 3.7. Os japonica, pointed out by the arrow, is a variation on the cheek bone (which is also called the zygoma or malar bone); sometimes the suture can be long enough to separate the bone in two. Photo by Elizabeth Weiss.

Europeans, to answer the question of where the first Americans came from. They discovered a haplotype X in Native Americans that is not found in East Asians, but the haplotype is found in Altai populations. The Altai is a mountain range in Central Asia where Russia, Kazakhstan, China, and Mongolia come together (see figure 3.8). Interestingly, these people also have the other four haplotypes found among Native Americans. This suggests that Native Americans and Central Asians share a common ancestor. In an earlier article, Fabrício Santos and colleagues (1999) published data on Y chromosome DNA from over 300 samples. They found that Amerindian DNA is also shared with Siberians and Central Eurasians. Other studies of DNA, such as Genoveva Keyeux and colleagues (2002), find that some variations, such as the gain of Alu I allele at mtDNA position 10397, are found in both Mongolians and Amerindians but not in Africans or Europeans. Noboru Adachi and colleagues (2009) employed mtDNA to understand 84

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Figure 3.8. Altai region (circled); Altai lies in the Western Siberia region of northern Central Asian Russia. “Locator map of Altai Republic” by TUBS is licensed under CC BY-SA 3.0.

how Jomon (Japanese hunter-gatherers dating from 10,000 BC to 300 BC) relate to Ainu (Native Japanese thought to come from ancient Central and East Asian populations before the Han expansion) and Amerindians. They found that Jomon at the Fundamori site and Native Americans share a haplotype D1, which supports the hypothesis of a shared ancestry between the Jomon and Native Americans. Surprisingly, the Ainu did not contain this particular D1 haplotype, so there is little evidence of their link to the Amerindians. However, later gene flow from Siberia could explain this finding. Nevertheless, these studies suggest that the East Asian–Native American link that the early anthropologists surmised can be supported with use of new technologies. But, as so often happens in science, later studies bring new evidence to light that help us question the validity of previous conclusions. Fernando Villanea and colleagues (2013), for example, found a specific O allele in nuclear DNA, which relates to the O blood type that is in Native Americans, such as the Tlingit of the Northwest coast of the United States and Canada, and the Ohlone of Bay Area (near San Francisco) California. This allele is also in European and Middle Eastern populations. The authors hypothesized that the European and Middle Eastern link may be a case of homoplasy rather than homology. In other words, this mutation arose independently in the different populations, coincidentally. Toomas Kivisild (2017) reviewed the evidence that Native Americans originated from Siberia. Looking at the Y chromosome DNA, researchers have established that haplotype Q, which has been found in Paleoindians such as Kennewick Man, is also present in Northeast Siberians, Central Asians, and Native Americans. Yet this haplotype is also present in European populations. Mitochondrial DNA obtained from a 24,000-year-old Siberian humerus has been linked to Europeans. The skeleton called Mal’ta Boy had autosomal DNA that was linked to both Europeans and Native Americans (Kivisild 2017). Initially the researchers thought the presence of this European mtDNA was due to contamination, but more studies on the remains, including Y chromosome tests and replication studies, continue to provide evidence that Mal’ta Boy is more closely affiliated to West Eurasian lineages than to East Asian lineages (Kivisild 2017; Wade 2013). This may mean that European genes flowed into the Siberian lineages prior to the peopling of the Americas and, thus, Native Americans and Europeans share ancestry more recently than previously thought. 86

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How Many Migrations Occurred? Divergent origin hypotheses may be because there were multiple founding populations. For instance, Malhi and Smith (2002) propose that since the mtDNA X haplotype is common in some tribes, such as the Ojibwa of Minnesota, North Dakota, Ontario, and Manitoba, and is rare in other tribes, multiple migrations into the New World may have occurred. DNA evidence supports multiple migrations. Mitochondrial DNA haplotypes A, B, C, D, and X could mean that there were as many as five migrations (Richardson 2006). Stone and Stoneking (1998) point out that mtDNA has lots of variation, so the different haplotypes may just be evidence of one migration from one diverse population. Others, looking at craniometrics, suggest that the variation found in Paleoindians compared to more recent Native Americans can be explained by two migrations (Brace et al. 2001; Jantz and Owsley 2001; Powell and Neves 1999; Ross, Ubelaker and Falsetti 2002). Ann Ross, Douglas Ubelaker, and Anthony Falsetti (2002) examined over 300 individuals from 10 groups and found that craniometrics suggested multiple migrations. Perhaps the ancestral populations were replaced by or interbred with more recent populations. These earlier populations were likely not just from Northeast Asia. Rolando González-José and colleagues (2003) studied 656 skulls to look at craniometric variation and concluded that Paleoindian skulls are distinct from Asian skulls, whereas later Amerindian skulls share East and Northeast Asian measures. The most parsimonious explanation for this outcome is that at least two migrations occurred, but the authors also acknowledge that local evolution in the Americas could have caused the two types of Amerindian skulls. Dental variation in the Americas has also led to hypotheses of multiple migrations. Christy Turner (1983) and Joseph Powell (1993), who replicated Turner’s research, found three dental types among Native Americans when looking at 28 discrete traits, such as root numbers, winging incisors, and cusp formation. They categorized these as the Macro-Indian, which came from Siberian tundra populations; Aleut/Eskimo, which is also found on the Siberian coastal populations; and the Na-Dene, which is the inland Native Americas, likely from Northeast Asians. Thus, Turner suggests that three migrations most likely occurred in the Americas. Powell concurs that this is a possible explanation, but he also suggests that other reasons for the differences are plausible. Biological Relationships: Missing Links

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Not all evidence points to multiple migrations. Villanea and colleagues (2013) discovered that the O allele found in nuclear DNA is in so many tribes, such as the Ohlone, Sahapt, Miwok, Tlingit, and Mayans, that it must come from one ancestral population and, thus, one migrating founding population. Maanasa Raghavan and colleagues (2014), who examined the 24,000year-old Siberian Mal’ta Boy remains, also found support for one migration due to the low genetic diversity in Native Americans. They state that this loss of diversity may be due to genetic drift, such as a small founding population. But the lack of diversity may just be a result of poor DNA preservation. Rare lineages, especially in mtDNA or Y chromosome DNA, can also be easily lost due to a lack of having daughters or sons, or marital patterns of exogamy (i.e., marrying and mating outside one’s tribe or population).

What Route Was Taken? Whether the number of migrations is one or five, there are three main routes suggested: across the Bering Land Bridge, across the Pacific, or across the Atlantic. Although some research has suggested that an Atlantic voyage may have occurred, especially to explain European or Central Asian genetic, skeletal, and artifact connections, currently the Pacific Coast Route is more often discussed. Variation in dates for peopling of the Americas depends partially on how many migrations one thinks occurs, partially on which routes may have been taken, and also on research methods employed (see Goebel and Graf 2019; Froese et al. 2019; Waters, Goebel, and Graf 2019). The Bering Land Bridge and the coastal routes have two distinct time periods available to them. The Bering Land Bridge connects the Old World with the New World at the point of what is now Russia and Alaska. Currently this region is described as a strait since there is no land bridge available (see figure 3.9). However, during the Pleistocene, seawater was stored in the poles as ice lowered the sea levels and exposed land beneath the water. Once the Pleistocene ended, the water melted, sea levels rose, and the land bridge became a strait. Best estimates for these occurrences are that the Bering Land Bridge was available at about 30,000–15,000 years ago. If people arrived in Alaska long before 12,000 years ago, then they must have waited to go into the continent or they may have traveled down the coast before the sea levels had risen. James Richardson (2006) points out that to go over the Bering Land Bridge and then enter into the continen88

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Figure 3.9. Beringia: view from the north; former Beringia, now the Bering Strait, is the area in the square. On the left is Russia and on the right is Alaska. Image by NASA.

tal United States, an ice-free corridor would have to be available. Prior to 12,000 years ago, the ice sheet covering most of North America would have made entering the continent impossible. This stop, or possibly even earlier ones, are known as the Beringia Standstill (Hoffecker et al. 2016). After the ice receded, an ice-free corridor occurred around 12,000 years ago, which made the entry into the continent possible. Most often, the Beringia Standstill is said to have lasted 7,000–8,000 years (Auerbach 2012; Hoffecker et al. 2016). This would have provided a period of isolation in which unique DNA mutations could arise in the Biological Relationships: Missing Links

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newly Native American peoples and, thus, the new variants would not be found in their ancestors over in the Old World. There is evidence that at least one migration came over the Bering Land Bridge (which is sometimes referred to as Beringia). Evidence for the Beringia crossing comes from the Asian traits seen in Native Americans, such as Sinodont dentition as mentioned previously (Turner 1983). Some of the dental traits, such as shoveling incisors, were noticed as early as the late 1930s by Aleš Hrdlička (see Hoffecker et al. 2016). Cranially, modern Native Americans are also similar to Northeast Asians in that both groups have short and wide neurocrania, orthognathic jaws, broad faces that are relatively high, and high and narrow orbits and nasal apertures. Recent studies that examine skull craniometry based on 3D modeling find similarities between late Holocene Native Americans and northeastern Asians (González-José et al. 2008). Genetic data also support a connection to Beringia. Mitochondrial DNA haplotypes found in Native Americans are found in Northeast Asia (Schurr and Sherry 2004), and Y chromosome haplotype Q is found in South Central Siberia (Kivisild 2017). Using molecular data, we can estimate when the Americas were populated and, hence, which route may have been taken. Looking at mtDNA, anthropologists have surmised that the low number of differences between Old and New World populations means that at around 30,000–20,000 years ago the founding population left for the Americas. These dates could support a Beringia crossing if a standstill occurred. Furthermore, although some suggest that the peopling of the Americas occurred 25,000–15,000 years ago, few are stating that it happened before 30,000 years ago or later than 15,000 years ago (for reviews, see Hoffecker et al. 2016; O’Rourke and Raff 2010; Richardson 2006). Either of these very early or late dates would mean that the route must have differed from Beringia. Bruce Bradley and Dennis Stanford (2004) suggest that early Native Americans came from South America after arriving from Southeast Asia or Australia and traveled north. Some South American sites are too old to fit into the Beringia crossing and down the ice-free corridor scenario. For instance, South American sites that date over 14,500 years old, such as Monte Verde, Chile, cannot be fitted into this scenario. Furthermore, some of our earliest Paleoindians from South America, such as Luzia, date to nearly 11,000 years old and have craniometrics similar to Australasians and Africans (Neves et al. 2003). 90

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Some of our earliest archaeological sites, such as the 14,800-year-old Meadowcroft Rockshelter site in Pennsylvania and the over 14,500-year-old Chilean Monte Verde site, are far from Beringia, which helps to support another route (Bradley and Stanford 2004; Goodyear 2005; O’Rourke and Raff 2010). However, it is important to note that dates of these early sites have been questioned. For instance, concerns over contamination of the carbon was raised as an issue for Meadowcroft Rockshelter (see Goodyear 2005). Another option for coming to the Americas may have been coastal routes. For people coming from Europe or Central Asia, the Atlantic route may have been undertaken, and people coming from Australia or Southeast Asia may have taken a Pacific route (Bradley and Stanford 2004). Thus, either some of the peopling of the Americas occurred before ice covered the continent (circa 30,000 years ago) or they traveled by sea. The Pacific Coast Route (also known as the Kelp Highway Route) was first proposed by Calvin Heusser in 1960. There is a lack of archaeological evidence for this route because the sites along the coast could be underwater. Nelson Fagundes and colleagues (2008) used mtDNA, in part to time the expansion of the Beringia crossing, to support migration after landing in Beringia via the Pacific coast. They estimated that nearly 20,000 years ago to about 15,000 years ago, the founding population grew to a point where expansion of range was needed. Thus, since the ice-free corridor would not have formed yet, they postulate that the expansion occurred along the western coast of North America. This would also help to explain the early sites in South America, such as Monte Verde. González-José and colleagues (2003) claim support for the Pacific Coast Route. Using 14 cranial landmarks and geometric cranial morphometrics from 44 skulls (20 late Holocene Baja Californian, 20 Mexican Amerindian, and 4 Paleoindian), they discovered that the late Holocene skulls from Baja California, which represent an isolated population with little to no gene flow, have cranial shapes distinct from the Mexican Amerindians and similar to Paleoindians. The authors thus suggest that the later Amerindians migrated in a second wave and that the Paleoindians came down a coastal route. Recent DNA studies on modern Brazilians have also found a connection to Australian populations, and this may imply a Pacific route for the peopling of the Americas in addition to the traditional Bering Land Bridge route. Others suggest that this DNA may just be recently added to the Biological Relationships: Missing Links

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South American peoples and thus has no relevance to the peopling of the Americas (Hoban 2015). Other sources of information on the peopling of the Americas include linguistics and tool cultures. Linguists have noted that there is a great deal of variation in the languages along the Pacific coast, which may be assumed to have arisen due to a long period of continuous occupancy on the coast and may help to support the Pacific Coast Route hypothesis (Flanagan 2008). Multiple migrations have also been supported through linguistics. The Inuit language is distinct from all other Amerindian languages; thus, the Inuit may have arrived later than Amerindians found inland (Flanagan 2008). Many inland Native American languages are very similar, which has been used to suggest that their languages are recent and that they replaced previous tribes (Flanagan 2008). Artifacts have been used to support migration from Europe. Large Clovis projectile points that are found in the Americas starting around 12,000 years ago share similarities to European Solutrean projectile points. Bradley and Stanford (2004) have suggested that these similarities imply a European ancestry for early Americans and that the route taken was an Atlantic one. Yet artifacts older than 13,500 years (referred to as pre-Clovis) are found along the West Coast of South and North America, look different from Clovis projectile points, and have been used to support the Pacific Coast Route (Medrano 2017). There is still much disagreement in the field, so further studies are needed. But when research is hampered by repatriation and reburial, questions cannot be satisfactorily answered. Native Americans may wonder why non-Amerindians are interested in their history, but the peopling of the Americas is a human story, not a Native American story. After all, prior to their arrival in the New World, Native Americans were perhaps Northeast Asian, Central Asian, European, Southeast Asian, or even Australian.

Conclusions NAGPRA’s initial intent was to return remains to affiliated tribes. Over time it became apparent that most remains that were curated in museums and universities would be listed as unidentified or not culturally affiliated with a known tribe. This lack of affiliation was due to the fact that anthropologists have no way to link skeletal remains with specific tribes in most cases. People are 92

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mobile, they share many genes and traits, and they intermarry. The older the remains, the more difficult it is to link them to a tribe. The oldest existing culture in the United States is the Pueblo, which dates back 7,000 years (Weiser 2017), but some Paleoindians are nearly twice that old. Instead of accepting the conclusion that skeletal remains cannot be linked to specific tribes and thus should be made available for continuous research, the government changed the rules and allowed for repatriation of unaffiliated remains based on geography alone. The only protection that remains have left is to be determined not Native American. What defines being Native American? Many tribes have oral histories that deny migration over to the Americas from the Old World. Yet there is scant evidence of people in the Americas prior to the Monte Verde site 14,500 years ago. These people came from elsewhere. The first people to arrive were possibly from many locations—Siberia, Japan, Russia, maybe even Europe and Australia—and they therefore belong to the world and not just to a specific people.

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4 Reconstructing the Past C O R R E C T I N G FA L L A C I E S

The introduction to this book outlines the history of repatriation ideology. Repatriation ideology, which seeks to place research control into the hands of contemporary American Indians, stems from postmodernist ideology that regards Native Americans as victims. Thus, in retelling the past, American Indian sources and perspectives should be given priority. Further, repatriation ideology maintains that Native American elders’ narratives should be treated as truths and that scientific conclusions on the past should defer to American Indian religious views. Deference to Native American perspective creates unfair advantage in repatriation claims, as is discussed later in chapter 5. This current chapter puts forth that misconceptions of the past, which have been supported by repatriationists, should be viewed through the scientific lens of bioarchaeology to retell the past as accurately as possible. Bioarchaeology has become a hypothesis-driven field of study that has enabled researchers to answer key questions surrounding pre-Columbian Native American life and the impact of European contact, such as what the population size was in North America prior to Columbus’s arrival; how populations were structured before European contact altered the Native Americans’ way of life; whether violence was prevalent in Native American tribes; what diseases afflicted Native Americans before and after contact with Europeans; and whether Native Americans were environmentalists. Although there are still debates in the field of anthropology over some of these questions, the data used to better understand the past revolve around skeletal remains, artifacts, and sites. Without data, we cannot come to the correct answers, and our answers will be driven by beliefs such as religion, oral histories, and political tenets. This chapter reviews physical anthropologists’ and archaeologists’ assess-

ment of often-misunderstood stereotypes or false narratives that support the repatriationist agenda of Native Americans and precontact Native American lives. For example, in chapter 8, the history of horseback riding is addressed regarding the fallacy of using oral histories as evidence for repatriation. In short, horseback riding was introduced to Native Americans by Europeans and yet Blackfoot Indian mythology states that horseback riding predates European contact and that horses were given to the Native Americans by water spirits or gods. The introduction of the horse is well recorded in history. Zooarchaeologists determined that horses went extinct in the Americas 10,000 years ago (and there is no evidence of riding at that early date). Osteoarthritis patterns in Arikara Indians of North Dakota revealed that horseback riding occurred in the postcontact period only (Bridges 1992). The males’ lower limb and sacroiliac joints experienced stresses that we see in today’s horseback riders too. Herniated discs known as Schmorl’s nodes, which appear as depressions in the vertebral body, also become more frequent in the Central Plains when horses are introduced to Native Americans (Larsen 1994; see figure 4.1). The introduction of the horse brought about both good changes, such as an increased success in hunting and more consumption of protein, and negative changes, such as increased warfare and back problems (Larsen 1994; Reinhard et al. 1994). Evidence of tooth wear on horses reveals that reins were first used about 6,000 years ago in the Ukraine, and this was likely the onset of horseback riding (Anthony and Brown 1991). In addition to these changes, artifacts of clay figurines provide evidence of the changing nature of horses’ relation to man in the Ukraine at this time. The tale of the horse and the Native American is just one of the many misconceptions put out by Native American activists, the government of the United States, and those with a political agenda to make precontact America seem like a paradise that was ruined upon the arrival of Europeans. In all fairness, there are Native Americans who acknowledge these misleading stereotypes and look for truth in prehistory and history by engaging in archaeology (see Ferguson 1996). There are also non–Native Americans who propagate the utopian myth. And there are some Native Americans, like Patty Timbimboo-Madsen, the cultural and natural resource manager of the Northwestern Band of the Shoshone Nation, who do not like the idea of archaeologists telling her the history of her people even when the narrative confirms their oral histories. In the Herald Journal’s (Fenstermaker 2015, n.p.) coverage of archaeologists confirming a massacre on the Shoshone in 1863 by Col. Patrick Connor and his group of U.S. cavalrymen, she Reconstructing the Past: Correcting Fallacies

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Figure 4.1. Schmorl’s node, a type of hernia, which is sometimes associated with activities such as horseback riding. Photo by Elizabeth Weiss.

was quoted as saying, “To me, the work of archaeologists is still a one-sided story. . . . They’re telling us who and what we are, and that kind of gets a little hurtful.” However, in the same article, Darren Parry, the vice chairman of the Northwestern Band of the Shoshone Nation, was quoted as saying, “I respect what they do and what they’re trying to do, which is trying to tell a story about what happened. . . . We can all learn from it, and the more we know about it, the more we understand it.” For the topics reviewed in this chapter, there will be people from all walks of life who would rather not have the truth told if it is told by anthropologists. Yet there are also people who recognize that research and discovery are essential to get closer to what really happened, to what people’s lives were like, and who understand this is an important way to understand all humans. The topics reviewed here have been selected because they are often misrepresented, and yet, through anthropological research, answers to these topics are coming forth. There may be those who think that debunking 96

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myths and misrepresentations about Native Americans is somehow anti– Native American. Nothing could be further from the truth. We argue that persisting with a false narrative (no matter how favorably it is perceived by some Native Americans today) is disrespectful to past peoples, and that only by allowing their stories to be told as accurately as possible can we truly do justice to their lives and experiences. In all sciences, new data and reexamination of old data can result in the reversal of our conclusions. Therefore, none of the answers presented here should be taken as a fait accompli. Later in the book we discuss the importance of retesting hypotheses and reexamining previously answered questions.

Crowded Plains? Precontact Population Size of North America According to Digitalhistory.uh.edu (2016), a website developed to support the teaching of American history in K–12 schools and colleges by the College of Education at the University of Houston, the assumption that North America was sparsely populated in the period before Columbus’s arrival is erroneous. The site, which uses textbooks and many other sources, states that the “land north of Mexico area had seven to twelve million inhabitants.” Another source for teachers from tolerance.org, a project of the Southern Poverty Law Center, states that pre–European contact North America had 22 million Native Americans. From the Milwaukee Public Museum curriculum guide (2017), 112 million people were in North America before contact. Howard Zinn’s A People’s History of the United States (1980), a history book used in many introductory history courses at the university level and in high school history courses, states that 10 million Native Americans are believed to have been in what is now the United States of America prior to European contact. This population was reduced to 1 million, according to Zinn. However, this narrative is at odds with anthropologists’ current best estimates of precontact North American population size. Determining the precontact population size of North America is important to understanding the impact of European contact on Native Americans. If the population size was very high, such as 90 to 100 million, then many millions died. Thus, the current population of Native Americans at around two million would be evidence that a nearly complete genocide occurred. However, if the population size was only a million or two, then far fewer died, and the impact of contact was less severe than previously believed. Also, a nearly empty continent would make it easier to understand why Reconstructing the Past: Correcting Fallacies

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Europeans believed that the continent was destined to be settled by them, which was a concept that the new settlers referred to as “manifest destiny.” There is a vast range of possible population sizes depending on reconstruction method. Matthew Peros and his colleagues (2010) note that estimates in the academic literature range from 1,000,000 to 18,000,000. Ubelaker (1988) notes that although there are many ways to calculate population size of North America before contact, they all are somewhat problematic. Burials and artifacts can be used as tools to estimate Native American population size in the precontact era starting in the 1800s. But there are sampling issues when looking at archaeological and bioarchaeological data based on preservation of remains and artifacts. When counting burials, some individuals may be lost due to a lack of preservation. Infant and children bones, for example, are especially prone to deterioration and being missed during excavation just due to their smaller size and unfused bones. Furthermore, the historical data accompanying burials and artifacts were often inadequate, so where and when a skeleton came from may have been impossible to determine. Historical accounts may be biased too. A missionary may have exaggerated the number of converts or the number yet to be converted to ensure that his mission continued to receive support from the central church. Nonetheless, using a variety of methods from independent researchers can help to clarify the precontact population size of North America. Peros and colleagues (2010) took an approach that uses radiocarbon date frequencies. Radiocarbon date frequencies can be used to infer prehistoric population size based on the premise that the frequencies of the radiocarbon dates serve as a proxy for past populations and the intensity of human occurrence. In short, the more people there were, the greater the amount of culturally originated carbon (such as charcoal for fires) produced and deposited; thus, the radiocarbon date frequencies would be higher. Changes in frequencies enable anthropologists to identify population fluctuations too. Of course, carbon comes from multiple sources. For instance, a volcanic eruption can produce erroneously high radiocarbon date frequencies, as can fires started by lightning strikes. Thus, corrections are needed to ensure that the numbers being counted are from culturally generated carbon. Peros and colleagues’ (2010) attempt at reconstructing population size of the Americas involved using a radiocarbon database of 25,198 dates that were the result of human activity, with over half of the dates from charcoal. They concluded that the size of the population in North America was likely between 1.8 million and 2.5 million at AD 1150. Around AD 950, nearly 500 98

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years before contact, the authors argue the population began to decline due to an increased level of diseases, such as tuberculosis. Archaeologists examining climatic changes, through tree-ring data, find that population size continued to decrease after AD 950 and prior to European contact due to droughts (Benson et al. 2007; Benson and Berry 2009). Site abandonments in both the Southwest and the Eastern Woodlands reveal that droughts occurring from the eleventh to thirteenth centuries are tied to population declines. Not only did people abandon their homes, but culturally distinct groups may have started to aggregate and fight for the scarce resources, which led to increased morbidity and mortality. The population size surmised by Peros and colleagues (2010) is similar to Ubelaker’s (1988) reconstructions. Ubelaker used a tribe-by-tribe approach by examining the data provided in the Smithsonian’s 20-volume Handbook of North American Indians. For each tribe, anthropologists who were expert in the tribes were asked to consider population numbers through time. They did so by taking into account multiple factors such as burials, artifacts, and site sizes. This multiauthor and multimethod approach likely results in a cancellation of error. For example, if one author is likely to give higher numbers for the tribe he or she studied, another may tend to be inclined to underestimating the population he or she has been assigned to. The highs and lows cancel each other out to give an accurate final count. This principle of aggregation is true in many scientific endeavors (see Weiss 2003). Ubelaker suggested that North American had a total population of 1,894,350 with a possible range from 1,213,475 to 2,638,900 before contact. Furthermore, Ubelaker states that population declined to 1.3 million by 1900 and then started to recover. North American population size was likely vastly smaller than students have been taught. Nevertheless, a decrease in population size from 1.8 million to 1.3 million means that there was a 28% drop in the population between AD 1150 and AD 1900 (Ubelaker 1988). Some of this drop occurred prior to Columbus’s arrival, but European contact did impact the Native American population in negative ways too.

On Even Ground: Social Structure in Pre-Columbian North America Precontact Native American social structure is sometimes represented as being egalitarian. For instance, from the U.S. Department of Agriculture Reconstructing the Past: Correcting Fallacies

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website, “Native American Contributions,” a list of pre-Columbian Native American characteristics includes that they had no rich, no poor, no prejudice, and shared all their wealth. Humorously, the document also states, as evidence of their genuine goodness, that precontact Native Americans also had “no lawyers.” Archaeologists, bioarchaeologists, and historians have shown that this egalitarian utopia is a myth. Although some cultures were more egalitarian than others, others were stratified into elite, commoners, and even slaves (see Cameron 2011; Snyder 2010). Slaves, especially war captives, were common among Native American tribes (see Cameron 2011; Chacon and Mendoza 2007; Snyder 2010). Catherine Cameron (2011) reviewed both the historic, ethnographic, and archaeological evidence for slavery in Native American cultures. She notes that slaves and captives were reported for the Northwest coast from Alaska to California by nineteenth century travelers and missionaries. Jesuits wrote about slavery among the Huron in the Northeast. The French colonialists did not realize that the multitude of “wives” many of the Illinois Native Americans had were actually female slaves (Morrissey 2015). European explorers commented on southeastern tribal slavery. Finally, in the Southwest and the High Plains, early travelers remarked on slavery in tribes. Historic accounts are supported with archaeological data, such as the evidence of unusual burials and high male sex ratios (see Cameron 2011). Kenneth Ames (2001), who reviewed the bioarchaeological and archaeological literature on slavery on the northern Northwest coast, acknowledges the difficulty in finding evidence for slavery in the archaeological or bioarchaeological record. Ames employed the evidence from historic accounts, Jerome Cybulski’s (1979) burial accounts, and household productivity to argue that female slaves (who were likely war captives) were common in prehistoric British Columbians and Alaskans. Hierarchical structure is easier to prove than slavery. Perhaps one of the best examples of hierarchical stratification in North America comes from Cahokia, which is sometimes referred to as North America’s first city. The site of Cahokia, near modern-day St. Louis, Missouri, was occupied from AD 1050 to AD 1400, spread over five square miles, and included 120 mounds with 10,000–20,000 people (Salisbury 1996). Some mounds contained sacrificed individuals. Fifty-two females between the ages of 18 and 23 years old seem to have been malnourished prior to the sacrifice (Salisbury 1996). These sacrificed females are discussed in chapter 9 to dispel the myth that all Native Americans treated all of the dead respectfully. However, a 100

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couple buried in another mound was found with over 20,000 shell beads and were likely leaders and held political power. Other hierarchies also have been documented in Amerindian sites throughout the United States. Joshua Paddison (2005), writing about precontact California, notes that in the southern region large chiefdoms and stratified social structures were common, whereas the more nomadic peoples in the northwestern part of California tended to have less class structures and more equality. But even hunter-gatherer Californians had class differences, as documented by burial bead counts and other burial goods such as ornate mortars and pestles. Some mounds contained elite people from various villages (Buonasera 2013; Leventhal 1993). In other locations, such as the Southwest, burial variation has been noted as an indicator of elite status. In ancestral Pueblo populations of the Colorado Plateau, elaborate burials contrasted with commingled bodies of commoners (Harrod 2012). As groups become more sedentary, hierarchical class structures develop, which occurs in both agricultural and hunter-gatherer populations. For instance, it has been noted that competition for coveted acorn groves in the San Francisco Bay area generated class differences (Salisbury 1996). Cheryl Claassen (1997) reviewed female lives in prehistoric North America and found that differences between classes were prevalent. For instance, in Moundville, Alabama, elite females (who were identified by burial goods and location of burial) had fewer broken bones compared with other females. Claassen suggests that these females lived sheltered lives. In the Hopewell culture, which flourished from 100 BC to AD 500 in the Midwest and northeast region of North America, burials had stark differences in quantity and quality of grave goods, which suggests to anthropologists that a stratified social structure was firmly in place before Europeans arrived (Salisbury 1996). Neal Salisbury notes that burial goods were not the only benefit to being in a higher class. In the Mississippi River Valley, there is ample evidence from the bones that the elite ate more meat, were taller, and had fewer injuries. In central Arkansas, communal societies gave way to the emergence of elite groups within societies that allowed for the mobilization of labor for large projects such as well-planned mounds (Nassaney 1992), much like what we see in Ancient Egypt and the construction of the pyramids. Looking at sites in Alabama, Tennessee, and Georgia dating between AD 1050 and AD 1550, Mary Lucas Powell (1992) examined skeletons from 1,500 individuals and determined the class of the people through their Reconstructing the Past: Correcting Fallacies

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burial goods. Powell wanted to test whether the ethnographic accounts of elite individuals enjoying preferred foods and a better life could be documented biologically. Anthropologists look for two changes in the skull that indicate anemia: cribra orbitalia and porotic hyperostosis. Both of these indicators can be seen without technological assistance and show up as a sieve-like porosity on the skull for porotic hyperostosis and in the eye orbits for cribra orbitalia (see figure 4.2). Evidence of anemia was less prevalent in the elite. Only 2.5% of the elite suffered from anemia, whereas 6.5% of the commoners did and nearly 10% of the low class suffered from anemia. However, these differences in anemia rates were not statistically significant, which was likely due to small sample sizes. It should be noted that the anemia traits are only indicators of childhood iron deficiency; thus, if social stratification was more prominent in adults than in children, as it is in many societies, then the differences between the classes may have been muted. Hence, if status was achieved, such as through tasks completed during adulthood, childhood health indicators may not distinguish the elite

Figure 4.2. Cribra orbitalia, one of the two anemia indicators found in skeletons, in a young child from the medieval site of Helgeandsholmen, Stockholm, Sweden. Cribra orbitalia rates have been associated with low-iron diets, such as maize-based diets, or with parasitic worms, such as hookworm infections. Photo by Dead Men Tell Tales is licensed under CC BY-SA 4.0. 102

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from commoners. However, if status was ascribed (i.e., one was born into a specific class), then anthropologists may expect that health differences would be evident between classes even at a young age. Understanding the social structure of Native Americans is key to understanding patterns of violence and disease that have also been found on the skeletons. As Harrod (2012, 132) points out from his study of New Mexico remains, “violence is crucial to understanding social control and elite identity because violent encounters are, in almost all of their expressions, related to cultural ideology, social inequality, and differential access to power.” Sometimes, Harrod notes, the social structure may actually decrease violence even if there is biological stress, as in the agrarian culture he studied.

The Wars before the War: Evidence of Violence in Pre-Columbian North America One common myth about precontact Native Americans is that they were peaceful. For instance, Indians.org, which states that the organization’s mission is to provide “accurate presentation of the rich culture of the American Indian,” says that Native Americans lived contently with little disruption prior to the Europeans’ arrival. From the Natural Resources Conservation Service, a part of the U.S. Department of Agriculture, we have statements that include that Native Americans had “thousands of years of peace pre1492” and that they created “no complete annihilation weapons (Hydrogen bomb).” Although this statement of a lack of a hydrogen bomb is correct, many violent societies have not been able to acquire nuclear weapons. Frankly, there’s an intellectual dishonesty in giving credit for something negative that someone cannot conceive of or achieve, as opposed to something they could achieve but choose not to for moral or humanitarian reasons. Some anthropologists are hesitant to examine evidence of violence in pre-Columbian Native Americans, which we suggest is part of the repatriation ideology. Thomas Ferguson, Kurt Dongoske and Leigh Kuwanwisiwma (2001), for example, note that they thought of the pain and anguish Native Americans experience when being confronted with portrayals in the bioarchaeological literature of ancestral violence and cannibalism. Yet denying this evidence of violence is a disservice to Native Americans since we then fail to understand the complexity of past indigenous people. Warfare was ubiquitous in pre-Columbian North America. The violence Reconstructing the Past: Correcting Fallacies

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was continentwide and occurred for a multitude of reasons (see Chacon and Mendoza 2007). Patricia Lambert (2007b), in Richard Chacon and Rubén Mendoza’s (2007) book, notes that the osteological evidence for violence is present in many populations before contact but that there is an increase in violence at around AD 1000, which may have been in part related to climatic changes, advances in weaponry, and population increases.

Evidence of Violence Trauma is defined as injury to tissue that is a result of extrinsic (outside of the body) forces. Traumatic injuries, especially those caused by violence, are some of the most dramatic skeletal changes one can find in the bioarchaeological record. The bone alterations from traumatic episodes are often visible even to the untrained eye. However, sometimes X-rays may help to determine the causes of the trauma. Phillip Walker (1997) looked at cross-cultural patterns of craniofacial injuries and suggests that broken noses are a key indicator of violence between individuals. Broken noses are visible as angled and thin cracks of the nasal bones (see figure 4.3). Many studies examining craniofacial injuries note that males are more likely to have frontal craniofacial injuries, including broken noses, whereas females are likely to have posterior craniofacial injuries. This pattern has been suggested to indicate a culture of female victimization and male aggression—both to females and other males (e.g., Jurmain et al. 2009; Standen and Arriaza 2000; Walker 1997). Yet clinical researchers found that broken noses can also occur as a result of incidental accidents such as falls (Bremke et al. 2009). Thus, it is necessary to include a variety of traits to conclude that a broken nose came from a violent act rather than just an accident. Another indicator of violence is a penetrating fracture. A penetrating fracture occurs when something has penetrated into the bony cortex. A projectile point injury, such as the one pictured in figure 4.4, is an example of a penetrating fracture. Although projectile point injuries seem to provide clear evidence of violence, projectile points are rarely found embedded in bone, perhaps because they can cause severe injury or even death without impacting bone (Bowles 2009). Another commonly examined fracture that indicates violence occurs on the ulna and is called a parry fracture. Parry fractures are thought to be the result of a defense behavior that occurs when someone lifts their arm to protect their face from a blow. Parry fractures are usually found below 104

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Figure 4.3. Broken noses, such as the ones pictured here on precontact Californian Native Americans, are often an indicator of interpersonal aggression. Photo by Elizabeth Weiss.

Figure 4.4. Projectile wound injuries, such as the embedded obsidian projectile found in this vertebra, are common in both precontact and postcontact remains. Photo by Elizabeth Weiss.

the midshaft, toward the distal (or wrist) end (see figure 4.5; Grauer and Roberts 1996; Judd 2008). Although parry fractures are thought to occur from a direct blow to the arm, falls with an outstretched hand can cause this type of fracture too. A more common fall fracture is the Colles’ fracture of the wrist (see figure 4.6; Putigna and Ursone 2010).

Figure 4.5. Parry fractures, such as illustrated here, are traumatic fractures of the ulnae that are considered defensive wounds. The individual may have received the fracture upon raising his or her arm to avoid being struck on the head. Illustration by Elizabeth Weiss.

Figure 4.6. Colles’ fractures, which result in compression fractures of the radius near the wrist, are often a result of falls, especially in osteoporotic individuals. Illustration by Elizabeth Weiss. 106

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Bioarchaeologists need to consider all the available evidence of violence at any site. For instance, Maria Ostendorf Smith (1996) notes that late Archaic Period (10,000–4,000 years ago) West Tennessean Native American females were found to have high rates of ulnar fractures that were thought to be parry fractures, but the cranial injury rates did not support these initial conclusions. On the other hand, Robert Jurmain and colleagues (2009) discovered that in precontact California hunter-gatherers, cranial fractures were common, but parry fractures were nearly absent. Many of the female cranial fractures in this study of Californians were at the back of the skull. Thus, the individual would not have been able to defend herself. Cranial depressions seem to be related to violence in both the bioarchaeological and clinical literature (see figure 4.7; Berryman and Haun 1996; Nelson et al. 1984). It has been suggested that blunt tools, such as clubs, are more likely to form depressions than sharp instruments (Williamson et al. 2003). In order for a permanent depression to occur on the cranium, the force must cause compression to the outer cortex of the bone (i.e., the ectocranial), crush the diploë (the inner trabecular bone of the skull that is sandwiched between two thin layers of cortical bone), and cause tension

Figure 4.7. Cranial depressions, such as the one here on the frontal bone, are usually indicators of interpersonal aggression; this may be an indicator of face-to-face combat. Photo by Elizabeth Weiss. Reconstructing the Past: Correcting Fallacies

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on the endocranium. This then causes the collapse of the diploë and results in a depression of the ectocranial bone and concentric circular impressions near the depression, as the ectocranial bone sinks into the vacuum (Berryman and Haun 1996). Later, in chapter 9, violence is reviewed through the historical and bioarchaeological indications of maltreatment of enemy human remains.

Examples of Precontact Native American Violence The above-mentioned injuries, plus evidence of scalping (which can be seen as long v-shaped cuts on the skull near the hairline), torture, and cannibalism, which are also discussed in chapter 9, are found in multiple precontact sites in North America. Anna Osterholtz (2012) examined 15,000 bone fragments (representing 33 individuals) from Anasazi Native Americans found at the Sacred Ridge site in southwest Colorado dating between AD 710 and AD 825. Every part of the body had tool marks that showed perimortem (i.e., around the time of death) cuts. She also discovered through close examination of the fragments that the individuals had been scalped, defleshed, mutilated, and burned, which is an indicator of cannibalism (see White 2014). All ages were represented among victims, and both sexes were affected. White (2014) documented cannibalism at other Anasazi sites. Examining human waste at a Colorado Pueblo site (dated to AD 1075–1175) enabled Richard Marlar and colleagues (2000) to conclusively identify cannibalism through human muscle tissue proteins found in human coprolites (i.e., fossilized feces), which can only be explained by humans consuming humans. Furthermore, evidence of torture and hobbling were present at the Colorado site. Cuts to the foot bones showed a clear pattern that suggested that victims were disabled prior to being killed. Other southwestern evidence of extreme violence has been noted in the literature. For example, in a precontact New Mexico site dating between AD 1000 and AD 1300, cranial trauma was especially common on females who may have had low status and had been captured and held as slaves (Spencer 2012). In Grasshopper Pueblo, a precontact Arizona site that was environmentally stressed due to an agricultural subsistence coupled with drought, cranial depressions were found on a third of the adult skulls. It has been suggested that the occupants of Grasshopper Pueblo came from all over and were war refugees or prisoners (Baustian et al. 2012). Both sexes were equally affected, but the affected females tended to be younger than the 108

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affected males. Kathryn Baustian and colleagues suggest that the ratio of females to males indicates that females may have been captured outsiders. Capturing females of reproductive age has been noted in other studies of precontact Native Americans (Larsen 1994). Although females are often depicted as victims of violence, in the Central Illinois River Valley, they may have been engaged in violence in a similar manner to males (Bengtson and O’Gorman 2017). Males and females among the Oneota and Mississippian tradition agriculturalists of AD 1300 have equal frequencies of injuries, which included fractures of the skull, scalping, decapitation, and embedded projectile points. Thus, although males may have encountered enemy tribes by traveling for food, females were likely defending the home front—their maize-based communities. Additionally, at La Plata, New Mexico, differences between females suggest that some females were captured, beaten, and used for labor whereas other females were spared these hardships and most likely were the perpetrators of the injuries (Martin, Harrod, and Fields 2010). These examples contradict the statement put forth by some with repatriation ideologies. Teachingtolerance.org, for instance, claims that “while they [Native Americans] engaged in war and conflict, war was seen as a way for young warriors to prove skills rather than to destroy the enemy or take territory.” This evidence of violence has many explanations depending on the site. It may arise due to droughts (e.g., Baustian et al. 2012; Jurmain et al. 2009), protection of resources (e.g., Bengtson and O’Gorman 2017), or desire for reproductive-age females (e.g., Baustian et al. 2012; Spencer 2012) or laborsaving slaves (e.g., Cybulski 1994). Some argue that violence was caused by colonialists who changed the Native American way of life and introduced diseases, which were interpreted as the results of witchcraft and intertribal warfare (see Ferguson 1992). But the bioarchaeological evidence proves that violence occurred both before and after contact. Regardless of the causes of violence, Native Americans, like all other peoples, are not completely peaceful and never were. Bioarchaeologists have not answered all the questions about violent interactions, and much work still needs to be done. For instance, work on detecting how past populations treated their elderly and young is often absent. This is especially important considering the narrative that respect for elders was common among Native Americans (USDA n.d.; Teaching Tolerance n.d.). Unfortunately, injuries in the elderly and children are more difficult to assess. In the elderly, it is difficult to determine abuse by lookReconstructing the Past: Correcting Fallacies

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ing at fractures since osteoporosis may lead to fractures from falls. But there is literary evidence that hostile attitudes toward the elderly, especially females, has been prevalent for thousands of years (Gowland 2016). An example of elder abuse comes from precontact Bolivia, where an older female was buried with no burial goods and had trauma on her face and ribs that were in various stages of healing, all of which suggest long-term abuse (Gowland 2016). In children, abuse may be hidden from bioarchaeologists’ sight due to the quicker healing that is experienced in the young (see Weiss 2015). Additionally, poor preservation of children’s bones impedes anthropologists’ ability to identify child abuse. Further complications arise due to the young age of death for many and the high child mortality rates in prehistory. This leads us to the next myth—precontact Native American health status.

Spreading Germs: Health in Precontact Native Americans A major theme on precontact Native American health that one finds in the popular literature is that before Columbus, Native Americans had no diseases and, thus, Europeans brought all the diseases—sometimes deliberately. As reported initially by missionary Diego de Landa (1524–1579) and quoted by many, including Merbs (1992, 4), Yucatec (Maya) Indians believed, likely due to oral tradition, that before Europeans arrived, “there was then no sickness; they had no aching bones; they had then no high fever; . . . no smallpox; . . . no burning chest; . . . no abdominal pain; . . . no consumption; . . . no headache.” Yet paleopathologists have ample skeletal, mummy, and aDNA evidence to negate this claim (see table 4.1). Many diseases were in the New World prior to European contact, and some of the diseases were spread the other way—Native Americans gave them to Europeans (see Harper et al. 2011; Merbs 1992; Verano and Ubelaker 1992). Nevertheless, this myth is continually propagated, and the list of diseases brought to the Americas seems to increase each year (e.g., Atrocities against Native Americans n.d.; Calderone 2015; “The Impact of European Diseases on Native Americans” 2019; Native Americans Before European Contact 2013). There is evidence that some diseases from the Old World were brought to the New World. Smallpox, for instance, does seem to be a disease from the Old World that was passed on with devastating consequences (Fenn 2000; Ramenofsky 2003). There is even good historical evidence that Eu110

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ropeans used smallpox-infected blankets in hopes of winning battles in a type of historic germ warfare. Native Americans also engaged in germ warfare by throwing dead animal skins and pelts into water sources used by Europeans (Fenn 2000). Interestingly, Britain also used germ warfare against the colonialists (Fenn 2000). The fact that germ warfare was used by Europeans and Native Americans makes it no less horrendous but illustrates the complex nature of war even before the modern era. Smallpox deaths among Native Americans were likely a result of localized populations being infected rather than a large pandemic across the Americas (Ramenofsky 2003). Furthermore, due to the low-density environment of the Americas, many diseases could not become widespread. In fact, the reason diseases such as smallpox, measles, and influenza were so prevalent and deadly in Europe was due to the crowded environment coupled with the domestication of animals. Domestic animals are thought to have spread various diseases in Europe, as with pigs and the influenza virus and with cows and tuberculosis. However, influenza has also been linked to wild birds, and there is growing DNA evidence that the deadliest of the influenza viruses did not come from pigs (Ramenofsky 2003). Precontact North America had only two domestic animals—turkeys (Speller et al. 2010), which were domesticated in the New World, and dogs, which were domesticated in East Asia (Larson et al. 2012; Morey and Wiant 1992; Vilá et al. 1997). Interestingly, a calcified hydatid cyst, which is caused by Echinococcus (a dog tapeworm) infection, has been found in a skeleton from North Dakota that dates to around 1,500 years ago (Williams 1985). Some diseases that were once thought to have been brought over to the Americas by the Europeans are now viewed in a different perspective. Regarding venereal syphilis (Treponema pallidum), which at its most severe can result in permanent organ damage, neurological problems, blindness, stroke, and even death, anthropologists have debated whether it was brought from the Old World into the New World, whether it was given to Columbus’s men and then brought back to the Old World, or whether there are multiple origins. Although aDNA studies have been successful in diagnosing many pathologies, syphilis diagnostics through aDNA have failed repeatedly (Hyland 2018). Yet there is clear evidence of precontact New World cases (see Merbs 1992). Syphilis has been documented as occurring in pre-Columbian skeletons, such as a Moundville, Alabama, child with congenital syphilis. Previous Reconstructing the Past: Correcting Fallacies

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2,200-year-old Tennessee

coprolites

appetite. Infected people have an increased risk of developing gastric cancer

mummy stomach

denale (Hookworm)

or burning pain. Symptoms may also include nausea, vomiting, or loss of

Can result in iron deficiency anemia and can lead to cardiac complications.

and lymphoma.

Bacteria can cause peptic ulcers and gastritis, which present as gnawing

Columbian Mexican

pneumonia, and bloodstream infections; it can be fatal.

Bacteria that can lead to a variety of problems, such as skin infections, sepsis,

Other symptoms include weakness, weight loss, chills, fever; it can be fatal.

and coughing up blood or sputum.

Infects the lungs and may cause symptoms such as a bad cough, chest pain,

paralysis, sensory deficits, and dementia.

headache, altered behavior, difficulty coordinating muscle movements,

Primary and secondary stages usually mild skin sores and rashes followed

may cause mild to severe anaphylactic reactions, even death.

that grow and cause discomfort, pain, nausea, and vomiting. Cyst rupture

DNA from a Pre-

Ancylostoma duo-

Helicobacter pylori

osteomyelitis infections

aureus (Staph)

in many skeletons

Periostitis and

Staphylococcus

Southwest

skeletal changes in

old Wyoming bison;

mummies; 17,000-year-

congenital syphilis

South American

Alabama, child with

(venereal syphilis)

tuberculosis (TB)

nervous system at any stage and causes a wide range of symptoms, including

Precontact Moundeville,

Treponema pallidum

Mycobacterium

by a latent stage. Tertiary syphilis can be fatal. Syphilis can invade the

Dakota skeleton

tapeworm)

Hydatid cysts (mainly in the liver, lungs, and spleen) contain larval parasites

1,500-year-old North

Echinoccus (dog

Symptoms

Evidence

Disease

Table 4.1. The Dirty Dozen: Twelve Infectious Diseases Known in the New World prior to European Contact

Perry 2014

Perry 2014

2002; Merbs 1992

Martin and Goodman

2003

Ramenofsky et al.

2005; Merbs 1992;

Mackowiak et al.

Lambert 2002;

Harper et al. 2011

Williams 1985

Source

Lifelong virus that leads to occasional blisters around the mouth and lips.

or months of the sand fly bite. Another form may cause sores in the mucous

Eventually one may develop chronic liver disease, which can range from mild

mummies

Martin and Goodman 2003; Merbs 1992

around the site where the parasite entered. Acute infection may result in severe inflammation of the heart muscle or the brain and lining around the brain. Chronic Chagas can lead to dilation of the esophagus or colon and

mummies

Note: Symptoms are from Centers for Disease Control, https://www.cdc.gov/.

fatal heart problems.

and Reyman 1998;

Acute Chagas disease occurs immediately after infection; there may swelling

South American

Cockburn, Cockburn,

Maguire 2012

Gerszten, Allison, and

Maguire 2012

(Chagas)

to severe, including cirrhosis and liver cancer.

Symptoms can include fever, fatigue, abdominal pain, and jaundice.

Pre-Columbian Peruvian

low blood counts.

fatal; affected people lose weight, have swelling of the spleen and liver, and

it affects internal organs (usually spleen, liver, and bone marrow) and can be

membranes. Sores can be painful. The worst form is visceral leishmaniasis;

Gerszten, Allison, and

Trypanosoma cruzi

Hepatitis B and C

The most common form causes skin sores that develop within a few weeks

2003

as the central nervous system.

1,000-year-old Peruvian

Martin and Goodman

mummy

and Reyman 1998;

lung infection, or it can spread from the lungs to other parts of the body, such

Leishmaniasis

Cockburn, Cockburn,

pain, and body aches. Severe histoplasmosis can develop into a long-term

Alaskan mummies

fungal infection)

2013

Kolb, Ané, and Brandt

Gonçalves et al. 2003

May cause flu-like symptoms, like fever, cough, fatigue, chills, headache, chest

Precontact Aleut and

Histoplasmosis

least 15,000 years ago

suggests came over at

Genetic origin on virus

Oral herpes

loss. Vitamin B12 and iron deficiency may occur. Intestinal obstruction and gall bladder disease caused by migration of worm may arise.

in coprolites

(Tapeworm from fish

Symptoms include abdominal discomfort, diarrhea, vomiting, and weight

or fish-eating mammals)

Multiple precontact sites

Diphyllobothrium

likely cases of pre–European contact syphilis arose from Colorado, New Mexico, and Arizona, but these cases involved skeletal evidence on tibiae in the form of a saber-shaped tibia, and on skulls in which the bones become pitted and scarred. Changes to the skull (which are called caries sicca) and the tibia can be from nonvenereal treponemal diseases (such as pinta and yaws) too. Pinta (Treponema carateum) is a tropical disease spread by skin-to-skin contact and characterized by chronic skin lesions, especially among young adults. Yaws (Treponema pertenue) is considered a highly contagious tropical disease that results in skin ulcers, bone pain, and swollen lymph nodes. Yaws can also cause permanent cartilage and bone damage, especially at the nose, throat, and palate; these changes are similar to ones seen in leprosy. Only congenital syphilis, which is passed to offspring from mothers who are infected with venereal syphilis, results in dental deformation (Harper et al. 2011; Merbs 1992). Further complications of congenital syphilis include jaundice, bone abnormalities, and neurological problems. Furthermore, cases of venereal syphilis that were prior to Columbus’s return to the Old World have now been negated (see Harper et al. 2011). It appears that Columbus brought syphilis back to the Old World from the New World. Many diseases that were once thought to have been brought to the New World by Columbus are now known to have occurred in the Americas before contact. For instance, leishmaniasis was once thought to be an Old World disease, but now this parasitic disease is known to have also arisen in the New World from sandfly bites, and the conclusion is that there are New World and Old World forms of this protozoan parasite (Martin and Goodman 2002; Merbs 1992). The bubonic plague may have been endemic to North America before Europeans’ arrival (Merbs 1992). Moreover, even leprosy has been found in armadillos in North America. However, it is possible that Native Americans did not get leprosy from these animals. Tuberculosis was also once thought to have been introduced and spread to the New World by Europeans. Tuberculosis (also known as TB) is a bacterial disease known scientifically as Mycobacterium tuberculosis. Tuberculosis can destroy bone and hinder bone development. It is often fatal and still kills 70,000 children a year (Burnwal, Neogi, and Shukla 2012). When paleopathologists look to diagnose tuberculosis, they look for collapsed thoracic vertebrae, ribs with infectious lesions, and circular depressions on the skull where the bacteria have destroyed the diploë and, thus, caused the outer bone to collapse. 114

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Tuberculosis is spread via coughing and causes fatigue, difficulty breathing, vertebral collapse, and, finally, death. Since tuberculosis often does not affect the bones (i.e., individuals who die early on from the disease show no bony effects)—a common problem for bioarchaeologists in the study of other diseases too—paleopathologists have an uphill battle to find tuberculosis in the bioarcheological record. Yet evidence found on Peruvian and Chilean mummies seems to support that tuberculosis was in the New World prior to European contact (Arriaza et al. 1995; Larsen 1994; Ramenofsky 2003). The Chilean mummy evidence comes from DNA analysis in addition to skeletal evidence (Arriaza et al. 1995). A 17,000-year-old bison from Wyoming has been found to have tuberculosis, which suggests that Native Americans could have been exposed to the bacteria by animals (Ramenofsky 2003). Furthermore, precontact Colorado, Arizona, and New Mexico Native Americans had skeletal evidence of tuberculosis, such as rib lesions, that aligned with a tuberculosis diagnosis (Lambert 2002; Mackowiak et al. 2005). Tuberculosis DNA studies have been successful in part due to the nature of the bacteria, which preserves well because of a protective mycobacterial capsule and a high pathogen load during bone turnover. Although it has been suggested that Mycobacterium bovis is actually the disease that is being found on the skeletons of the New World before contact, DNA studies can distinguish between the different types of Mycobacterium (Hyland 2018). Although many different infections leave the same marks on bones, making it difficult to distinguish between them, especially when just looking at bone, other infectious diseases such as Staphylococcus aureus and various parasites are ancient and even predate Homo sapiens (Perry 2014). Some of these infections, such as coccidioidomycosis (i.e., valley fever), Lyme disease, Trypanosoma cruzi (i.e., Chagas), and Echinococcus (i.e., tapeworm from dogs), were very likely in the Americas prior to Columbus’s arrival. Other diseases seem to have arrived with Europeans, like smallpox, malaria, cholera, and polio (Martin and Goodman 2002; Merbs 1992). Oral histories use different names for the diseases, and often the names do not translate well to the many infectious agents that we can now name (Merbs 1992). Thus, sometimes paleoanthropologists are stuck at just determining level of illness rather than specific illnesses in past populations. Paleopathologists looking for general signs of infection tend to do so by looking at bony changes that are referred to as periostitis (inflammation of the periosteum) or osteomyelitis (inflammation of the bone and marrow). Reconstructing the Past: Correcting Fallacies

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Osteomyelitis is more severe than periostitis, but both these infections can be fatal, especially in infants. Infant mortality in the New World prior to Columbus’s arrival was around 40%, which means that four out of every 10 infants did not survive. Much of these deaths were likely related to infections (Merbs 1992). Bone infections are often the result of Staphylococcus aureus, which was in North America before Columbus’s arrival (Martin and Goodman 2002). Bone infections may result in a coarse bony sleeve over the bone. The bone may have a thickened shaft as a result of the coarse bony sleeve. Additionally, pus-draining holes, called cloacae, can occur (see figure 4.8). Another way to look at the health of past peoples is to examine stomachs and coprolites (see Perry 2014; Reinhard 1992). Helicobacter pylori (abbreviated as H. pylori) is a bacterium that is widespread throughout the world. It has been linked to abdominal pain, ulcers, and stomach cancer. It can be spread through fecal matter and orally. Evidence of pre-Columbian infection with H. pylori is found in a Mexican mummy’s stomach that had been

Figure 4.8. Bone infections, which often result from Staphylococcus bacteria, can penetrate to the medullary cavity and cause coarse, woven bone coupled with pus-draining holes called a cloacae, as seen in this picture. Photo by Elizabeth Weiss. 116

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tested with DNA. The similarities between the H. pylori DNA in the Native Americans and that of other populations, such as East Asians, supports the idea that the disease may have been brought over during the peopling of the Americas (Perry 2014). Hookworms, which are parasites that attach to internal organs and can cause bloody diarrhea and anemia, have been found in 2,200-year-old Tennessee coprolites. Parasitic worms flourish when a single water source is used by sedentary peoples, such as in agricultural populations (Perry 2014). Much of the decline in Native American health started before Columbus’s arrival. It likely started with the agricultural revolution in the New World (Larsen 2005, 2018; Perry 2014). The transition to agriculture led to a decline in Native American health as a result of increases in parasite loads, sedentariness, increased population density, and poor diets. Richard Steckel and Jerome Rose (2002) worked with nearly 50 scientists to assess the health of pre-Columbian Native Americans. They noted that out of 65 sites in the New World dating between 5000 BC and the nineteenth century, the oldest populations that were preagricultural were the healthiest when looking at general health indicators, such as signs of infection, growth disruption (e.g., Harris lines and enamel hypoplasias; see figure 4.9), and anemia. Cribra orbitalia and porotic hyperostosis rates increased in most places where maize agriculture was adopted (see Larsen 1987; Weiss 2015). The healthiest past populations, according to Steckel and Rose (2002), occurred at sites that were less densely populated, less sedentary, and experienced less trauma. Agricultural subsistence also allows for an environment that enables diseases to spread and flourish. For example, Maria Ostendorf Smith and Tracy Betsinger (2015) found that large, maize-intensive agriculture sites in precontact populations correlated with an increase in treponemal diseases, such as syphilis, compared to smaller horticultural sites, which they attributed in part to the increased population density. Tuberculosis and leprosy also increased in frequency with the adoption of agriculture due to the people’s compromised immune system from a lack of good foods and poor sanitation (Larsen 2018; Stone et al. 2009). In summary, pre-Columbian Native Americans were not healthier than postcontact populations. While the New World populations did not suffer from widespread infectious diseases of the Old World, they did not escape other types of infections, malnutrition, and genetic diseases that resulted in high levels of early mortality compared to today. Reconstructing the Past: Correcting Fallacies

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Figure 4.9. Enamel hypoplasia, as pictured here, is a general indicator of stress; these are linear defects of enamel form during crowns’ development during infancy and childhood and occur as a result of stress from malnutrition or disease. Photo by Brian Spatola for Otis Historical Archives National Museum of Health and Medicine is licensed under CC BY 2.0.

Even in the healthiest populations, 35 years was the average lifespan (Johansson 1982). Yet infant and child mortality rates, when these remains are preserved, could be considered a major factor in shaping and creating biased demographic reconstructions; S. Ryan Johansson (1982) tried to control for this factor. Also, male skeletons seem to preserve better than females, whereas females tend to live longer than males (Walker, Johnson, and Lambert 1988). It appears that age at death did decrease with agriculture but then likely recovered. Age can never be exact when looking at only skeletal remains (see chapter 1). For infants and children, the many age indicators help anthropologists narrow down the age estimate, but in adults when all the teeth are in place (or have fallen out) and all the growth plates have fused, aging becomes more difficult (see Mays 2010, 2015b; and chapter 1), which may cause unreliable lifespan estimates (see Gurven and Kaplan 2007). Yet it is interesting to note that the young age at death in pre-Columbian North America is not much different than age ranges in other similar populations around the world (see Johansson 1982). 118

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Although Michael Gurven and Hillard Kaplan (2007) have stated that data show it was not uncommon for hunter-gatherers to reach nearly 80 years old, others, such as Timothy Gage (1998), Johansson (1982), and Kenneth Weiss (1981), have argued that many people did not manage to live to 40 years of age in prehistoric and historic times. Demographic reconstructions of large, well-preserved sites have also provided evidence for early mortality. The Ohio Libben site, with 1,327 well-preserved articulated skeletons, for example, had an average age of death of 34 of those who lived beyond age 15 (Lovejoy et al. 1977). Thus, it is difficult to prove any truth in statements provided to educators, such as “when a great many elders died prematurely during the epidemic and wars that were part of the conquest of the Americas, we lost a significant portion of our math traditions” (Landon 1993, 2) and Native Americans “depended on oral traditions and thus elders were held in high esteem and treated with the utmost respect” (Teaching Tolerance n.d.). The oldest individuals may only have had a memory of about 35–45 years rather than the 60–70 years in modern populations.

Native Americans: The First Environmentalists Native Americans have been painted as ecologists regardless of their subsistence type. For instance, they are said to have engaged in crop rotation that did not deplete the soil (Native Americans Before European Contact 2013), used all parts of the animals they killed (Teaching Tolerance n.d.), and never killed more than they could use (USDA n.d.). However, we know these statements to be false through the examination of animal remains. When Europeans arrived, slash-and-burn agriculture was already being practiced in the Eastern Woodlands (Doolittle 1992). And in the Southwest the Hohokam had modified the landscape for agriculture, but water resources were limited, which caused their culture to collapse (Doolittle 1992). Both Paleoindians and Archaic Indians of the Great Plains left some large bison carcasses nearly untouched, and although some carcasses may have been stored for later use, many bison carcasses were abandoned and unused (Bamforth 2011). Bison kills over cliffs often killed entire herds as early as 10,000 years ago, and extensive processing of carcasses occurs only at AD 1 (Bamforth 2011). Some tribes, such as the Cherokee, according to ethnographic researchers, had myths that animals that were hunted would be reanimated in even Reconstructing the Past: Correcting Fallacies

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larger numbers and thus killed far more animals, such as whitetail deer, than they could eat (Woods 2007). Other animals were not used fully. For instance, birds were sometimes used for their feathers but not for food. An analysis of bird skeletons coupled with illustrations on pottery vessels allowed Darrell Creel and Charmion McKusick (1994) to determine that at Mimbres, New Mexico, 500 years before Columbus arrived, macaws and parrots were sacrificed at fledgling age (10 to 13 months) for their feathers. These examples are not meant to denigrate Native Americans; rather, they show that Native Americans are similar to other peoples. Native Americans are not the only peoples to have used animals in this fashion. Their use of land and animals was suited to their needs rather than to the needs of the other organisms, which is the human story—our greatest evolutionary adaptation is that we modify the world around us rather than having to be modified by the world around us.

Conclusions Using a variety of methods—visual examination, X-rays, and aDNA analyses—bioarchaeologists have been able to draw conclusions that can tested and retested and challenged as long as the materials are made available, which enables us to gain a much deeper understanding of the past struggles and triumphs of past peoples. Some of the research supports historical accounts and oral histories, such as the spread of smallpox, whereas much of the research helps us to understand what stories are not factual. Through a variety of methods, anthropologists know, for example, that the New World was a challenging place to live even prior to Europeans’ arrival. Violence was prevalent. Prisoners of war could be turned into slaves. Parasites were widespread, and infant mortality was high. Not everyone got an equal share of materials or food. Much of the decline in Native American health was due to the adoption of agriculture, but even prior to agriculture, life was short—35 years was old. Anthropologists also concluded that many times contact with Europeans had negative consequences, but sometimes there were positive effects, such as the introduction of the horse in the Plains. We still have much to learn about Native Americans’ past. For example, diseases brought over to the Americas killed many Native Americans, but 120

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why were they more likely to die than Europeans? One argument has been that they lacked immunity to the new diseases. Others suggest that among Native Americans there was a high degree of homozygosity (which occurs often in small populations and is a type of decreased variation in the gene pool due to less allelic variation) and that this can affect the ability to fight diseases because pathogens can evolve easily against the fewer immune defenses that arise (Ramenofsky 2003). Another possibility is that the Native Americans’ compromised health made it difficult for them to recover from illnesses. Using skeletal remains from medieval cemeteries, this same argument has been put forth for why the bubonic plague in the Middle Ages in Europe was so deadly (Pappas 2014). The repatriation ideology that suggests that Native Americans had it easy, were living with few illnesses, and did not modify their surroundings is an insult to those who lived through those years. Fortunately, anthropologists can tell their real stories, although this becomes increasingly difficult as remains are repatriated and reburied as a consequence of NAGPRA.

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PART II Human Remains and the Law

Part II examines key cases on sacred sites, Paleoindian repatriation, and genetic research on living tribes. Chapter 5 introduces the history of American Indian law, including repatriation legislation and the outcomes of major court cases. Chapter 6 explores the Havasupai lawsuits against geneticists, which highlights the repatriation antiscience ideology.

5 NAGPRA and Beyond R E PAT R I AT I O N A N D R E L AT E D L AW S I N T H E U N I T E D S TAT E S

In this chapter we provide historical legal context for American Indian laws. Due to the interplay of religion and Indian rights and powers, the First Amendment is also explained and analyzed in this chapter. A review of American Indian First Amendment cases precedes a section on NAGPRA cases, such as Canyon de Chelly, Kennewick Man, and the La Jolla remains.

American Indian Law in General Before considering NAGPRA it is necessary to look at Native American law more generally so that NAGPRA can be placed in context. Oliver Wendell Holmes Jr. said that, in the study of law, “a page of history is worth a volume of logic” (New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 625 L.Ed. 963 (1921)). That aphorism may or may not apply to law generally, but it applies strongly to American Indian law. The presently existing law is a palimpsest of successive policies, concepts, attitudes, and values that have changed radically since the founding of the United States as a nation-state. These various policies, concepts, attitudes, and values have been embodied in statutes and court decisions, and with the passage of time, the rationales expressed in them, particularly in court decisions, have changed to adapt to the new ideas. Old language has been reused, recast, and its coverage expanded or contracted to accommodate the new ideas. The old legal principles and language live on but reinterpreted to accord with modern sensibilities. We propose to discuss these successive policies under three

headings: Indian tribes as part of the frontier, Indian tribes as distinct entities, and Indians as a distinct people.

Indian Tribes as Part of the Frontier Indian law in British North America began as part of frontier diplomacy, and well into the nineteenth century Indian tribes were on the moving frontier. Thus, Indian law was a unique and peculiar part of international diplomacy, war, missionization, and frontier settlement by people of European extraction. It has never lost this peculiar character. In the colonial period, the principal ways of dealing with Indians were trade, military alliances and war, land purchases, and treaties, and indeed these activities frequently overlapped. Indians were recognized as having some sort of right to the lands that they used or occupied, although the European and colonial authorities recognized that Indians did not have anything like the formal apparatus of Western legal systems. The purpose of this early Indian law was to acquire Indian lands for settlement by peoples of white European origin, to procure Indian allies in the colonial border wars (or at least to keep them neutral in those wars), and to trade with them for valued goods, particularly furs. Although the American frontier has long been closed, regarding and treating Indian tribes as frontier and colonial military powers has carried over into modern law. “Indian country” is still distinguished from all other lands of the United States in many statutes and court decisions. Treating Indian tribes as something akin to foreign nation-states was part of the frontier mentality and is one of the sources of the idea of Indian tribal sovereignty and immunity, a policy that plays a prominent role in contemporary Indian law and is discussed in the section below (see also Newton 2012). When the future states of the United States were still British-American colonies, they negotiated treaties with Indian tribes, and the practice continued after the formation of the United States until 1871 (Prucha 1994; Kalter 2006). The very practice of negotiating treaties and submitting them to the Senate for approval suggests that the tribes were regarded as something like foreign nation-states. Weak though they were, the Articles of Confederation, adopted in 1777, reserved war and diplomacy and Indian relations for the new national government (Article IX). The U.S. Constitution followed suit, declaring that Congress shall have power “to regulate 126

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Commerce with foreign Nations and among the several States and with the Indian Tribes” (Article I, Section 8). That clause suggests that only the federal government has the right to acquire lands from the Indian tribes or to extinguish Indian title to the lands, an issue that continues to be litigated in the state of New York (County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985); cf. Johnson v. M’Intosh, (21 U.S. 543, 5 L.Ed. 681 (1823)), which held that private individuals purchasing land directly from Indian tribes did not acquire any right to or ownership interest in the land). The result of the moving frontier was that a progressively larger portion of British North America was conveyed to the U.S. government or assumed by it in its role as sovereign and owner, and these lands were referred to as “the public lands.” Until the twentieth century, it was the policy of the federal government to encourage settlement and development of the public lands and to transfer title to them to private individuals or corporations for use in farming, stock raising, mining, and commercial and residential settlement. This policy was generally reversed in the early twentieth century, but then, and even now, the federal government generally follows a policy of leasing public lands for recreation, timber harvesting, mining, and residential and commercial development (Coggins and Wilkinson 1981).

The Unique Status of Indian Tribes The above discussion necessarily leads to a consideration of the unique status of Indian tribes. In the colonial and early national period, the tribes were necessarily distinct and largely autonomous, but as the white American population expanded, most tribes were forcibly removed to the west, and those who were not were assigned to reservations under the direct control of the U.S. government. The reservations were generally surrounded by areas of white American settlement. The federal government wanted a tribal authority to deal with, such as a chief or tribal council, and while it did not generally recognize Indian reservations as sovereign states, it did encourage certain Western-style institutions, such as a tribal police force and tribal courts (Newton 2012; Prucha 1970). For the period of approximately 1887–1928, the U.S. government adopted a policy of allotting reservation lands to individual Indians, generally heads of families, who held them in ownership much like Western-style ownership (“fee simple”), although there were typically restraints on the owner’s ability to convey the land. All lands not allotted to individual Indians were NAGPRA and Beyond: Repatriation and Related Laws in the United States

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sold to anyone interested in buying them, generally white American settlers (Washburn 1975; Newton 2012). The New Deal witnessed a major shift in policy with the passing of the Indian Reorganization Act (1934), which encouraged the development of tribal government and the preservation of reservations (25 U.S.C. §5101 et seq.). Indeed, many tribes created their first formal governments under this act (Taylor 1980; Newton 2012). This period was followed by a policy of terminating reservations and granting lands in fee simple to their former residents, a policy that lasted from about 1943 to 1961 (Newton 2012). Since then, there has been a strong and concerted effort at the federal level to recreate terminated tribes, strengthen existing tribes, and recognize new tribes. The newly strengthened tribes have been encouraged, or at least allowed, to operate businesses and other commercial developments, which includes the purchasing of off-reservation lands for use as gambling casinos. Federal recognition gives a whole series of rights and powers to tribes and their members, including such things as consulting on federal land-use policies and bringing suit to halt policies or projects that they object to. Even Indian entities that are not fully recognized tribes have some rights and powers to influence or restrict government policy, particularly land use (Newton 2012). The peculiar status of Indian tribes is reflected in the relationship between the tribes and the federal government. The Supreme Court called the tribes “domestic dependent nations” whose care is entrusted to the U.S. government (Worcester v. Georgia, 31 U.S. 515, 8 L.Ed. 483 (1832)). Court decisions often analogize the relationship to wardship or trusteeship, in which a dependent party places trust in a dominant party, as a result of which that dominant party has particular obligations as a fiduciary for the dependent party (United States v. Mitchell, 463 U.S. 206, 224, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). As part of this relationship, treaties and statutes are interpreted in a way that favors tribal interests (County of Oneida, 470 U.S. at 247; Worcester, 31 U.S. at 551–557). It is sometimes said that because the Indians were at a disadvantage in treaty conferences, the treaties should be interpreted as the Indians understood them. In practice, what this principle amounts to is construing any ambiguity or omission in favor of the interests of the tribes and against the interests of the U.S. government or any other party or interest (Wilkins and Lomawaima 2001). The wardship relationship between Indians and the federal government is often said to justify or even require the federal government to exercise 128

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powers that it would not exercise over any other race of people in the United States. At the same time, the courts appear to be uncomfortable with that wardship doctrine and to take the view that it is a temporary thing, a necessary evil, to make Indians equal to other citizens. This mixture of philosophies was well stated in Board of County Com’rs of Creek County v. Seber (318 U.S. 705, 715, 63 S.Ct. 920, 87 L.Ed. 1094 (1943)), which states as follows: In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic. Recent court decisions commonly state that Indian tribes and their accompanying reservations enjoy sovereignty, but the exact nature of that sovereignty is uncertain. No U.S. statute or court decisions recognize Indian tribes as truly separate nation-states or truly outside the power of the federal government. Indeed, Congress has presumed, and the courts have agreed, that it has the right to extinguish Indian title to lands, or other rights, but it must do so explicitly. However, according tribes the status of sovereignty does have one very concrete legal consequence—namely, that Indian tribes and corporations established by them cannot be sued without their permission or that they are immune from suit (Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Michigan v. Bay Mills Indian Community, 572 U.S. 782, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014)). This circumstance creates numerous practical difficulties for non-Indian individuals or corporations seeking to enforce a contract or recover for a tort, but it also impacts the repatriation issue. In one case scientists seeking to prevent repatriation of ancient North American bones lost their case when it was decided that the Indian tribes were necessary and indispensable parties to the case, and since they were sovereign and could not be sued, the scientists’ lawsuit was dismissed (White v. University of California, 756 F.3d 1010 (9th Cir. 2017)). This case is discussed below under “Case Law under NAGPRA and Related Laws: La Jolla Skeletons Case.” NAGPRA and Beyond: Repatriation and Related Laws in the United States

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Indians as a Distinct People Throughout American history, Indians have been thought of as a distinct race or people, however defined. The definition might be based on phenotypic characteristics, blood, genetics, language, culture, descent from others recognized as Indians, or tribal membership. For most of American history it was regarded as permissible, perhaps even desirable, for state and federal governments to discriminate on the basis of race, which included separating people by race (Rothstein 2017; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)). Even after the passage and ratification of the 14th Amendment to the U.S. Constitution in 1868, which forbids states to deny any person “the equal protection of the laws,” some degree of state-level discrimination was allowed. The 14th Amendment explicitly states that the states may not deprive any person of life, liberty, or property without due process of law, or deny any person the equal protection of the laws. It does not contain any language placing restrictions on the federal government. It was only in 1954 that the 14th Amendment was held to outlaw racial segregation in both state and federally operated schools (Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 78 L.Ed. 873 (1954)). Until recently, court decisions stated frankly that Indian law policy was based on treating Indians as a separate “race,” a policy regarded as desirable for all concerned (United States v. Rogers, 45 U.S. 567, 573, 11 L.Ed. 1105 (1845)). Non-Indians whose rights and duties were at issue were also racially identified, such as referring to them as “whites” (United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881)). At the present time, Congress and the courts are uncomfortable with such frankly racial distinctions, and many court decisions say that the different treatment of Indians and others is “political” rather than “racial” (Morton v. Mancari, 417 U.S. 535, 554, n.24, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). However, the term and concept of race continues to be critical. 25 U.S.C. §194 states: “In all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.” This statute was interpreted and applied in Wilson v. Omaha Tribe (442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979)). At issue was the ownership of land along the Missouri River where the river had shifted. A great deal of the liti130

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gation concerned the definition of “white person.” The Supreme Court held that the term included natural persons and artificial persons such as corporations, but not a state. “Indian” was construed to include Indian tribes. The concurrence agreed with the holding but stated that it would interpret “white person” to mean any non-Indian in order to avoid “serious constitutional questions” in the form of invidious racial discrimination (442 U.S. at 680). Litigation over tribal status also turns on racial classification. In Mashpee Tribe v. New Seabury Corp. (592 F.2d 575 (1st Circ. 1979)), a group claiming to be an Indian tribe brought a land claims suit, and the case turned on whether the plaintiffs qualified as a “tribe” under the Indian Nonintercourse Act (25 U.S.C. §177). The case was tried to a jury, and the court gave the following jury instruction: “By a ‘tribe,’ we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory” (592 F.2d at 582, following Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 385, 45 L.Ed. 521 (1901)). Quite apart from the existence of legally recognized tribes, the idea persists among many that Indian people are distinct and that they have a unique perspective and interests that are valuable, legitimate, and deserving of deference. This is also a key part in repatriation ideology as discussed in this book’s introductory chapter. Indians are commonly viewed as having spiritual and ecological perspectives or insights, which are lacking in the larger American society (Jenkins 2004; Krech 1999; Clifton 1990). Chapter 4 discusses some of these misconceptions and the bioarchaeological research to address them.

American Indians and the Religion Clauses of the First Amendment The First Amendment to the U.S. Constitution states, in part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” While the amendment does not contain any reference to state and local governments, the courts have interpreted the 14th Amendment to extend the protections and limitations of the First Amendment to state and local governments (Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)). The First Amendment has generated an enormous amount of litigation, most of which has nothing to do with American Indians as a distinct people (Greenawalt 2006, 2008). NAGPRA and Beyond: Repatriation and Related Laws in the United States

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However, the fact that Indian rights and powers often take a religious form in statutes and in litigation means that the amendment must be analyzed and applied to Indian law. The attitude of the American founders toward religion was complicated but can be summarized as disestablishmentarianism and monotheistic endorsementism. At the time of the American Revolution, most colonies had some form of established religion, in the sense of state subsidies and preferences for certain churches, although it varied widely from one state to the next. One of the first things many colonies did upon declaring themselves independent of Great Britain was to pass a bill of rights, which stated certain fundamental rights, and those relating to religion were a prominent part of these bills of rights. The issue was particularly contentious and hotly debated in Virginia, and two of Virginia’s most prominent politicians, Thomas Jefferson and James Madison, took a strong disestablishmentarian position. The disestablishmentarian position generally did not reflect hostility toward religion but rather the contrary. It was thought that each individual should worship their creator in a manner that they found suitable and in conformity to their own belief, and that compelling them to worship in a particular manner or to subsidize a particular church or sect was an affront to them and to how they saw their relationship with God. These rights to worship were said to be “the sacred rights of conscience.” Religion was conceived of in a monotheistic way and usually was conceived as centering on Christianity, especially Protestant Christianity (Dreisbach and Hall 2009). At the same time, religion was seen not solely as an individual right but as a social institution that should be encouraged within the limits of the disestablishmentarian regime. It was commonly believed that religion and morality were necessary supplements or even the foundation for the virtue necessary to establish and maintain a republic. If religion weakened, the foundation of the republic itself would weaken (id.; West 2017). This twofold aspect of the First Amendment religion clause, which is unique in the Constitution, has given rise to a great deal of debate and litigation. The somewhat conflicting policies were at issue in the early case of Terrett v. Taylor (9 Cranch 43, 13 U.S. 43, 3 L.Ed. 650 (1815)). The plaintiffs were vestrymen of the Protestant Episcopal Church in Fairfax County, Virginia. In the colonial period, the Episcopal Church was the established church, and it was charged with care of the parish’s poor. The vestrymen wished to sell certain lands and use the proceeds for the church, but they 132

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were opposed by the defendants who were overseers of the poor for the county of Fairfax and who claimed the land under a Virginia statute of 1802. In ruling for the plaintiffs-vestrymen, the court recited the well-established principles that religion cannot be coerced, but the legislature may enact laws to allow churches to effectuate their spiritual and temporal purposes. The legislature could not establish a religion, “but the free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own religious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead. And that these purposes could be better secured and charged by corporate powers, cannot be doubted by any person who has attended to the difficulties which surround all voluntary associations” (13 U.S. at 49). To begin with the Free Exercise Clause, it is undisputed that neither the U.S. government nor the state or local governments to which the First Amendment applies by the 14th Amendment can forbid a person to practice any religion they choose or require them to endorse or support a religion that they reject. Furthermore, there is some right to be free from a burden imposed upon the practice of religion by government, even if that burden appears to be neutral on its face and to have some legitimate secular purpose. It is often said that the government must accommodate an individual believer’s belief and must accommodate the practices or beliefs of religious congregations (Greenawalt 2006). In Sherbert v. Verner (374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)), the plaintiff had refused to work on her Sabbath, which was Saturday; she had been dismissed and then applied to receive unemployment benefits, which were denied. The state commission held that the unwillingness of Ms. Sherbert, a Seventh-day Adventist, to work on Saturday constituted a failure to accept suitable work, which resulted in her properly being denied benefits. The Supreme Court reversed the finding and stated that such a holding would impose a burden upon her practice of her religion. This, and similar cases, turned upon the fact that the petitioner’s decision was a moral one, based upon religious convictions, and that it conformed to the established doctrine of a particular church to which the petitioner belonged. However, the state could not impose an obligation on private employers to recognize each employee’s own personally observed Sabbath by giving that person the right to be absent from work on that day. Such a law vioNAGPRA and Beyond: Repatriation and Related Laws in the United States

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lated the establishment cause of the First Amendment (Estate of Thornton v. Caldor, 472 U.S. 703, 710, 105 S.Ct. 2915 (1985)). An opposite result from Verner occurred in Employment Division v. Smith (494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)). The petitioners had been discharged from their employment for ritual use of peyote. The petitioners used the peyote as part of a sacrament of the Native American church, of which both were members. The Employment Division of the state of Oregon denied benefits on the grounds that the use of peyote was misconduct under the state’s unemployment benefits law because it was a crime under Oregon law. The Supreme Court held that the state could outlaw ceremonial use of peyote and could deny the petitioners their unemployment benefits for work-related conduct based upon use of an outlawed drug. Congress subsequently created stronger protections for religion in the Religious Land Use and Institutionalized Persons Act (42 U.S.C. 2000cc, et seq.) and the Religious Freedom Restoration Act (42 U.S.C. 2000bb et seq.; note: The U.S. Supreme Court held that the latter statute was unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)). In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)), the city of Hialeah, Florida, had passed an ordinance that forbade the killing of animals for ritual purposes, an ordinance that was clearly directed against the Santeria religion. The legislation did not forbid the keeping or killing of animals for any reason other than “sacrifice” or “ritual” slaughter, and it contained language apparently aimed at exempting kosher slaughterhouses. The justifications offered by the city government (human health and safety, avoiding cruelty to animals) did not fit with what the law forbade and allowed. The Supreme Court found that the ordinance violated the First Amendment in that it was not a neutral law of general applicability. To interfere with a religious practice, the state had to show a compelling interest, which it had failed to do. The cases dealing with the establishment of religion are also quite numerous and complex (Greenawalt 2008). Such cases tend to use both freedom of religion and disestablishment in their rulings. Several cases have held that to compel or allow prayers in official functions of the public schools is a violation of the First Amendment as an establishment of religion (Greenawalt 2008). It is also unconstitutional to forbid the teaching of evolution in the 134

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public schools or to require that evolution and creation science be taught jointly because either would constitute an establishment of religion (Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Edwards v. Aguillard, 482 U.S. 578, 109 S.Ct. 2573, 96 L.Ed.2d 510 (1987)). The same applies even to requirements that schools teach “intelligent design” without any reference to the Bible or to religion (Kitzmiller v. Dover Area School District, 400 F.Supp.2d 207 (M.D.Pa. 2006)). The tests for finding an improper establishment of religion are not always straightforward, but a frequently used test was stated in the case of Lemon v. Kurtzman (403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)). The Lemon test is as follows: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [citation omitted]; finally, the statute must not foster ‘an excessive entanglement with religion [citation omitted]’” (Lemon, 403 U.S. at 612–613). A statute or practice of government that favors one religion over another violates the Establishment Clause by discriminating against the disfavored religion. In Larson v. Valente (456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), reh’g denied, 457 U.S. 1111, 102 S.Ct. 2916), the law at issue was a Minnesota statute requiring charitable organizations to register with the state and to provide an extensive list of information about their activities. Religious organizations were formerly exempted from this requirement, but in 1978 the law was changed to state that only those religious organizations that receive more than half of their total contributions from their members or affiliated organizations would remain exempt. Religious organizations that received half or less of their contributions from such sources would be required to register with the state and fill out the required forms and make the required disclosures. The Supreme Court, in a 5 to 4 decision, held that that statute was unconstitutional. It stated: “The clearest command of the Establishment Clause, is that one religious denomination cannot be officially preferred over another” (456 U.S. at 244). The court found that that requirement was also “inextricably connected with the continuing vitality of the Free Exercise Clause” (456 U.S. at 244). It ruled that since the statute reflected a denominational preference, the government must show a compelling governmental interest and that law must be closely fitted to further that interest. The interest offered by the state of Minnesota—namely, protecting its citizens from abusive solicitation, in the belief that membership control is a safeguard against abusive solicitation and that the need for pubNAGPRA and Beyond: Repatriation and Related Laws in the United States

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lic disclosure is proportionate to the percentage of non-member contributions received by the church—did not constitute a compelling interest. The court concluded that the law was “not closely fitted to the furtherance of any compelling governmental interest asserted by appellants, and that the provision therefore violates the Establishment Clause” (456 U.S. at 255). The Lemon test was applied by the Federal District Court of Oklahoma and the Tenth Circuit to invalidate a constitutional amendment to the Oklahoma Constitution, passed by ballot, that forbade its courts from “considering” or “using” Sharia law, defined as Islamic law based on the Koran and the teachings of Mohammed. The district court issued a preliminary injunction, which was affirmed on appeal (Awad v. Ziriax, 754 F.Supp.2d 1298 (W.D. Okla. 2010), aff ’d, 630 F.3d 1111 (10th Circ. 2012)). On remand, the district court granted a permanent injunction to enjoin officials from certifying the election results (966 F.Supp.3d 1198 (W.D. Okla. 2013)). The basis of the rulings was that the amendment discriminated among religions without a compelling government interest. It is also an improper establishment of religion for a court to judge whether certain actions of the litigants violate religious doctrine. This principle was applied in Presbyterian Church of the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2nd 658 (1969)). Two local churches of the Presbyterian church filed suit in the state court of Georgia requesting the court to find that the general Presbyterian church in the United States had departed from the doctrines and practice of the Presbyterian church by making public statements on political issues, denying the doctrine of the Trinity, and violating the ethical standards of the church. The local churches informed the general church of their withdrawal from the general church, at which time the general church took over the local church’s property. The local church then filed suit in Georgia state court to enjoin the general church, and the general church moved to dismiss and counterclaimed for injunctive relief on the grounds that the secular courts could not determine the dispute. The Georgia court, after a jury trial, ruled in favor of the local churches, and an appeal was taken to the U.S. Supreme Court. The U.S. Supreme Court reversed the decisions of the Georgia court on the grounds that the central issue in the case was whether the actions of the general Presbyterian church departed from true Presbyterian doctrine, which required the secular courts to determine what was true Presbyterian doctrine and whether the actions of the general church had deviated from that doctrine. 136

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Even though the issue was control of property, which is something that secular courts can consider in disputes between church organizations, the fact that the right to the property turned upon a decision as to what was orthodox doctrine meant that what the local churches were seeking was for the courts “to engage in the forbidden process of interpreting and weighing church doctrine” (393 U.S. at 451). Such action would violate the First Amendment as applied to the states through the 14th Amendment. Courts have accepted traditional non-Christian Indian religions as deserving of the protection of the First Amendment. However, those religions differ in important ways from Christianity and all other monotheistic religions, and these differences create difficulties for the legal system. Some tribes recognize societies, sodalities, or kin groups as the unique owners and practitioners of certain ceremonies and rituals. All groups recognize certain individuals, such as shamans or medicine men, as more adept or accomplished in communicating with the divine or supernatural. However, the religions otherwise do not constitute anything that would be easily recognized as a church or a congregation in monotheistic terms. The religions include origin and creation stories in which animals, humans, and spirits are interchangeable. The stories account for the origins of their own tribes and often other tribes, incorporating miraculous events such as emergence from an underworld life, migrations involving supernatural events, and transformations of living beings into mountains and other natural features. Lakes, mountains, valleys, and other features of the natural environment are often thought of as inhabited by spiritual beings (Underhill 1965; Ramsey 1977; Thompson 1929; Smithson and Euler 1994). Congress has passed a statute called the American Indian Religious Freedom Act (42 U.S.C. §1996 et seq.), which does not have any remedies or enforcement mechanisms on its face. It has been held that the act does not create rights that are legally enforceable in court but is merely precatory as a statement of what government policy and practice should be (United States v. Mitchell, 502 F.3d 931, 949 (9th Circ. 2007) cert. denied, 553 U.S. 1094, 128 S.Ct. 2902 (2008)). However, in 1996 President Bill Clinton used that statute as the basis of an executive order directing federal agents to preserve Indian sacred sites and accommodate Indian access to those sites. The act further states, “Where appropriate, agencies shall maintain the confidentiality of sacred sites,” which at least suggests that barring non-Indians is contemplated (61 FR 26771, Exec. Order No. 13007, 1996 WL 33673745 (Pres.)). NAGPRA and Beyond: Repatriation and Related Laws in the United States

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An important example of an Indian law case that turned mostly on the First Amendment was presented in Lyng v. Northwest Indian Cemetery Protection Association (485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)). Various California Indian tribes and individuals sued the Department of Agriculture and others over a plan by the Forest Service to build a paved road through Chimney Rock section of Six Rivers National Forest, in California. The plaintiffs claimed a violation of the Free Exercise Clause of the First Amendment, the Federal Water Pollution Control Act (33 U.S.C. §1252), the National Environmental Policy Act of 1969 (42 U.S.C. §4321, et seq.), and other statutes. The plaintiffs claimed that various areas of the forest near where the road was proposed were sacred to them and were believed to be critical to the welfare of their tribe and of all humankind. The majority of the court ruled in favor of the Forest Service. It found that the First Amendment did not give a veto on religious grounds to all Americans, including American Indians, and that to ban the construction of roads as a way of limiting access to the sacred sites would go beyond protecting the plaintiffs’ freedom of religion and would confer special religious rights on the plaintiffs. A dissenting opinion by three justices held that construction of the road and granting access to the public would effectively destroy the petitioners’ ability to practice their religion by destroying the character of this remote forested area, in violation of the First Amendment. Two other federal cases illustrate the strengths and weaknesses of Indian tribes’ claims under the First Amendment. In Badoni v. Higginson (455 F.Supp. 641 (D. Utah, C.D. 1977), aff ’d 638 F.2d. 172 (10th Circ. 1980), cert. denied, sub nom Badoni v. Broadbent, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981)), individual Navajo Indians and chapters of the Navajo Nation filed suit to prevent the flooding of an area of Rainbow Bridge National Monument that they asserted was sacred to them. They asserted that their First Amendment rights had been injured by the following: “the destruction of holy sites; the drowning of entities recognized as gods by the plaintiffs; prevention of plaintiffs from performing religious ceremonies; desecration of holy sites, especially abodes of gods of the plaintiffs, by tourists; and, by virtue of all of this, injury to the efficacy of plaintiffs’ religious prayers, and entreaties to their remaining gods.” Such actions were said to cause “severe emotional and spiritual distress for plaintiffs and Navajo people generally” (455 F.Supp. at 644). The district court granted summary judgment to the defendants on the grounds that the Indian plaintiffs had no property interest in Rainbow Bridge National Monument, that 138

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the balancing of interests favored the defendants, and that it was not at all clear that the ceremonies of the medicine men who used the area were recognized by the Navajo Nation as their official religion, which contrasted with other cases where the federal courts have ruled in favor of the Amish, Seventh-day Adventists, and other groups that have well-defined rituals and beliefs. On appeal, the Tenth Circuit affirmed but held that the lack of plaintiffs’ property rights in the monument was not determinative. However, the circuit court held that what the plaintiffs were seeking—namely, exclusion of tourists from sacred areas or limiting their access—was asking the government to take affirmative action to support the traditional Navajo religion and this in turn would violate the Establishment Clause of the First Amendment (638 F.2d. at 176, 178–180). A similar situation obtained in Sequoyah v. Tennessee Valley Authority (480 F.Supp. 608 (E.D. Tenn., N.D. 1979), aff ’d, 620 F.2d 1159 (6th Circ. 1980)). Bands of Cherokee Indians objected to the construction of a dam and the flooding of the Little Tennessee River Valley on the grounds that it would inundate areas and sites that are “sacred to the Cherokee religion and a vital part of the Cherokee religious practices. The land includes several old Cherokee settlements and burial grounds with religious significance to the Cherokee people” (480 F.Supp. at 610). The court did not deny that the Cherokee had a First Amendment right to their traditional religion, but it stated that the flooding caused by the reservoir would have no coercive effects on plaintiffs’ beliefs or practices, that plaintiffs sought control over property that did not belong to them, and that the First Amendment did not give them such right to control. In affirming, the Sixth Circuit agreed that the Cherokee do have the right to their traditional religion but held that they had not shown an infringement of their First Amendment rights. The plaintiffs had not shown that access to these sites was central or indispensable to the practice of their religion, and, in fact, the location of many village sites was unknown to the plaintiffs until the Tennessee Valley Authority and the University of Tennessee undertook archaeological research in connection with the flooding. The affidavits offered by the plaintiffs did not show convictions shared by an organized group, so the criterion of centrality, which was key to the decisions involving the Amish, Seventh-day Adventists, and others, was lacking. The dismissal of the case was affirmed. A state court, faced with similar assertions, reached a similar holding in State ex rel. Commissioner of Transportation v. Medicine Bird Black Bear White Eagle (63 S.W.3d 734 (Tenn. App. 2001) app. denied 2001). The TenNAGPRA and Beyond: Repatriation and Related Laws in the United States

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nessee Department of Transportation engaged in a road-widening project, in the course of which two Native American graves were discovered. The department filed a petition to relocate the graves and terminate the property as a cemetery, in accordance with the applicable Tennessee statutes. The Tennessee Commission on Indian Affairs, its executive director, and 15 Native Americans intervened to oppose the relocation of the graves. The court reviewed the common-law rules concerning dead bodies, the Tennessee statutes pertaining to burial grounds, and the federal statutes concerning Native American human remains. The Native American interveners claimed to be “interested persons” under the relevant Tennessee statute, which allowed them to intervene in the case. The court held that in the absence of an interest in the property or a genetic relationship to the persons buried, they did not qualify as interested persons. The court engaged in extensive discussion of the claim by the Native Americans that the actions of the state interfered with their First Amendment rights. The court conceded that “the widespread removal, retention, and display of Native American human remains and funerary objects has had a tremendous impact on Native Americans causing them emotional trauma and spiritual distress” (63 S.W.3d at 760). It also noted the claimants believe that when a skeleton is excavated, that person’s spirit is disturbed and cannot resume its journey through the spirit world until its remains are reburied. One claimant asserted that he hears the cries of these spirits of the deceased all the time, and that the removal of remains from the ground and their storage, even if later reburied, “is a direct, violent, and obtrusive interference with and a prohibition of that religious worship” (id. at 766n49). Nonetheless, the court concluded that the Indian plaintiffs had not stated a cause of action against the state. It stated: “Claims based on religious convictions or rights of conscience do not automatically entitle persons to establish unilaterally the terms and conditions of their relations with the government [citation omitted]. . . . Neither the federal nor the state Constitutions give individuals a veto power over permanent government actions that do not prohibit the free exercise of religion. [Citing Lyng]” (id. at 763). On these grounds, it reversed the orders of the trial court by finding that neither the individual Native Americans nor the commissioner of Indian Affairs were interested persons entitled to intervene (id. at 776). Native American beliefs were at issue in Bowen v. Roy (476 U.S. 693, 103 S.Ct. 2147, 90 L.Ed.2d 735 (1986)). The plaintiffs–Native Americans wished to receive state benefits under Aid to Families and Dependent Children 140

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and the food stamp program. However, they objected to the rule that required their two-year-old daughter to obtain a Social Security number, which would be used to administer the program. The plaintiff-father testified that, based upon conversations with an Abnaki chief, he realized that technology was robbing the spirit of man and that the use of his daughter’s Social Security number by the government would damage her soul and her spirit, which he was obligated to protect her against. The U.S. District Court enjoined the government from using a Social Security number, and the case went to the U.S. Supreme Court. There were four separate opinions with partial concurrences and partial dissents. However, the opinion of the U.S. Supreme Court held that the use of Social Security numbers was a legitimate, neutral way to administer benefit programs and did not reflect any hostility toward religion. The petitioner’s demand would hinder the government’s administration of the program. It ruled: “Appellees may not use the Free Exercise Clause to demand Government benefits, but only on their own terms, particularly where that insistence works a demonstrable disadvantage to the Government in the administration of the programs” (476 U.S. at 711). On the other hand, there are instances where traditional Indian practices have been found to be constitutionally protected against state or federal regulation, where the government has failed to show a compelling interest that would justify imposing a burden on traditional Indian religion. These included in Teterud v. Burns (522 F.2d. 357 (8th Circ. 1975)), long braided hair worn by a prisoner; and in Frank v. State (604 P.2d 1068 (Alaska 1979)), use of moose meat in religious funeral ceremonies, when the moose were hunted out of season. Although First Amendment claims by Native Americans have had mixed success on solely constitutional grounds, the U.S. Congress and state legislatures have frequently created exceptions in their favor to drug laws and conservation laws. 42 U.S.C. §199a allows the ceremonial use of peyote in Native American religions. 16 U.S.C. §608, 703 and 50 C.F.R. 22.2 outlaw possession of feathers of eagles or migratory birds but allow applications for permits for such possession for specified uses, including religious uses by members of a federally recognized Indian tribe (50 C.F.R. 22.22). Three individuals had eagle feathers seized, and two were criminally prosecuted. None of them was a member of a federally recognized tribe, although one was Chiricahua Apache, and the other two practiced a Native American religion. All three appealed the actions against them. After a long discussion NAGPRA and Beyond: Repatriation and Related Laws in the United States

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of the issues of Indian law, the Tenth Circuit held that the Religious Freedom Restoration Act provided a defense to all three individuals and that the government had not carried its burden of showing that it had chosen the least restrictive means of carrying out its conservation duties. The court remanded for further proceedings with respect to two individuals and affirmed the judgment in favor of the third (United States v. Hardman, 297 F.3d 1116, 1135–1136 (10th Cir. 2002)). This was an en banc opinion, meaning that all of the judges of the Tenth Circuit participated in it. Furthermore, the National Park Service (NPS) and other agencies have made efforts to accommodate Native American religions by restricting public access to certain sites that Native Americans consider sacred. Two of these are Devil’s Tower National Monument in northeastern Wyoming and Medicine Wheel National Historic Landmark in central Wyoming, within the Bighorn National Forest (Brown 2003). Devil’s Tower is a popular site for rock climbing and for visitation by tourists. It is also claimed as a sacred site by certain American Indian tribes who perform ceremonies there. The NPS issued the “Final Climbing Management Plan / Finding of No Significant Impact” for Devil’s Tower National Monument in February of 1995. The plan restricted the use of bolts, fixed pitons, or other climbing devices to those currently in place and asked visitors to voluntarily refrain from climbing on Devil’s Tower during the month of June, when it is used for religious ceremonies by American Indians. The action was challenged by Bear Lodge Multiple Use Association, which claimed, among other things, that the plan wrongfully promoted religion in violation of the First Amendment. The court found that the plaintiffs-climbers did have standing to challenge the plan but that, since the ban on climbing in the month of June was voluntary, it was not an improper exercise of governmental coercion, and it did not improperly deprive the public of access to and normal use of the area. In response to the claim of excessive entanglement with religion under the Lemon test, the district court found that the organizations benefited by the voluntary plan are not solely religious communities but also represent a common heritage and culture, and thus the government’s involvement is less likely to constitute excessive entanglement (Bear Lodge Multiple Use Association v. Babbitt, 2 F.Supp.2d 1448 (D. Wyo. 1998)). The decision was affirmed by the Tenth Circuit Court of Appeals in Bear Lodge Multiple Use Association v. Babbitt (175 F.3d 814 (10th Circ.), cert. denied, 529 U.S. 1037, 120 S.Ct. 1530, 146 L.Ed.2d 345 (2000)). It found that the climbers and the commercial 142

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climbing service did not have standing to object to the plan because they could not show a perceptible harm. In the case of the Medicine Wheel National Historic Landmark, the NPS, noting the increased number of visitors to the site as well as the importance of the site to Native American religions, published an environmental assessment, a decision notice, and a finding of no significant impact, which involved closure of a forest development road, cancellation of a timber sale, and an agreement to close areas of multiple use forest for the purpose of promoting Native American religious ceremonies. The decision was challenged in Wyoming Saw Mills Incorporated v. United States Forest Service (179 F.Supp.2d 1279 (D. Wyo. 2001)). The plaintiff claimed an injury from the government’s restricting its ability to harvest timber and claimed an Establishment Clause violation because the NPS was promoting Native American religions in violation of the First Amendment. The court rejected the Establishment Clause claim on the grounds that the plaintiff did not claim to be offended by the religious symbolism that the NPS’s decision advanced, and the mere expenditure of tax monies did not give the plaintiff standing (id. at 1292–1297). The court also entered judgment on the merits against the plaintiff on the environmental law cause of action (id. at 1297–1306). The decision was affirmed in Wyoming Saw Mills Incorporated v. United States Forest Service (383 F.3d 1241 (10th Circ. 2004), cert. denied, 546 U.S. 811, 126 S.Ct. 330, 163 L.Ed.2d 43). The courts viewed the restrictions on activity at the Devil’s Tower National Monument and the Medicine Wheel National Historic Landmark as simply an accommodation to traditional American Indian religions and not an endorsement or promotion of such religions. Under those circumstances, the actions of the NPS were held to be constitutional.

Conservation and Preservation Laws Several federal conservation and preservation laws are relevant to the subject of this chapter. Many statutes dealing with conservation, such as the National Historic Preservation Act, discussed below, grant Indian tribes and Indian peoples interests that are not granted to other ethnic groups. These include the right to be consulted before certain actions are taken and legal standing to intervene in administrative agency proceedings and appeals to the courts. One of the earliest statutes to provide protection for archaeological reNAGPRA and Beyond: Repatriation and Related Laws in the United States

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sources and restrictions on their removal is the Antiquities Act of 1906 (Harmon et al. 2006; 16 U.S.C. §§431, 432, 433). Section 431 authorizes the president to establish, by public proclamation, national monuments in areas that contain “historic and prehistoric structures, and other objects of historical or scientific interest that are situated upon the lands owned or controlled by the Government of the United States.” Section 432 allows the secretaries of the interior, agriculture, and the army to issue permits for archaeological excavations. Section 433 establishes criminal sanctions for anyone who excavates archaeological sites or removes archaeological materials from United States lands without such a permit. (Note: this act was amended and recodified in 2014 to 54 U.S.C. §§320301–320303 and 81 U.S.C. §1866.) The enforceability of the criminal provisions of the Antiquities Act is questionable. In United States v. Diaz (368 F.Supp. 856 (D. Ariz. 1973)), the Federal District Court convicted an individual of violating the act by acquiring and possessing Apache religious artifacts. There was testimony by an expert anthropologist and by an Apache medicine man that the objects were Apache religious objects used in religious ceremonies, which were normally placed in caves or other remote locations after they had been used. The Apache medicine man testified that the headdress at issue had probably been made by a medicine man whom he knew between the years of 1969 and 1970. The court pointed out that “antiquity” was not defined in the statute but that it would be understood to include “religious or sacred artifacts such as the ones in this case” (id. at 858). However, the 9th Circuit Court of Appeals reversed the conviction (United States v. Diaz, 499 F.2d 113 (9th Circ. 1974)). It held that the lack of definition of “object of antiquity” made the statute vague and therefore unconstitutional and unenforceable. The 9th Circuit’s jurisdiction includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. An opposite result was reached in United States v. Smyer (596 F.2d 939 (10th Circ. 1979), cert. denied, 444 U.S. 843, 100 S.Ct. 84, 62 L.Ed.2d 55 (1979)), which held that the statute was not unconstitutionally vague. The 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The Archaeological Resources Protection Act (ARPA), formerly 16 U.S.C. §470aa et seq., makes it illegal to remove or excavate archaeological resources from federal lands and Indian lands except pursuant to the issuance of a permit. An excavation on Indian lands requires the consent of the tribe and the Indian landowner. Those officials charged with issuing 144

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permits pursuant to this act are required to consult with and notify the Indian tribe, which may consider the site as having religious or cultural importance. This is required by the American Indian Religious Freedom Act (42 U.S.C. §1996, et seq). The National Historic Preservation Act (NHPA), formerly 16 U.S.C. §470 et seq., now 54 U.S.C. §300101, et seq., provides the framework for conservation, preservation, and consultation with tribal governments. This statute authorizes the secretary of the interior to maintain a national register of historic places, and “traditional cultural property” of Indian tribes may be eligible for listing on the register. The NHPA requires any federal authority with jurisdiction to take into account the effects of any undertaking and to consult with state historic preservation officers and tribal historic preservation officers in reviewing the action (Newton 2012). The National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. §4332, et seq.) also gives rights to Indians to object to construction projects, and other environmental laws may also be available to Indian plaintiffs. The National Museum of the American Indian Act of 1989 (Pub. L. 101185) established and authorized construction of the Museum of the American Indian on the National Mall in Washington, D.C. This museum was to include collections formerly owned by the Heye Foundation in New York City, whose purchase was also authorized by the act. The act provided for “repatriation” of human remains and their associated artifacts to descendants of the deceased individual or the “culturally affiliated” tribe where such relationships could be established. The act also required repatriation for “unassociated funerary objects,” “sacred objects,” and “objects of cultural patrimony.” These requirements applied only to the collections of the Smithsonian Institution and the newly purchased collections of the Heye Foundation (20 U.S.C. §§80q–80q-15).

NAGPRA The federal statute with the most implications for the study of human remains is the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. §3001 et seq. This act gives special federal restrictions on human remains, “associated funeral objects,” “unassociated funerary objects,” “sacred objects,” and “items of cultural patrimony.” For Native American human remains and cultural items discovered or excavated on federal lands or tribal lands after November 16, 1990, priority NAGPRA and Beyond: Repatriation and Related Laws in the United States

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in ownership shall be given to lineal descendants of the Native Americans whose remains are found, the tribe on whose land such objects were found, the tribe that has the closest cultural affiliation with the remains, or, for culturally unaffiliated objects, the tribe recognized as occupying the area aboriginally (25 U.S.C. §3002). Even for objects and remains recovered before that date, a federal agency or any museum, defined as any institution receiving federal support, is required to produce an inventory of human remains and associated funerary objects, to give notice to Indian tribes, to consult with Indian tribes, and to repatriate remains to those tribes which claim them (25 U.S.C. §§3003, 3005). Where an inventory or summary of the remains has not been prepared or remains were not included in those documents, then upon request such remains “shall be expeditiously returned where the requesting Indian tribe or Native Hawaiian organization can show cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral tradition, historical, or other relevant information or expert opinion” (25 U.S.C. §3005a(4)). Any museum failing to comply with these requirements will be assessed a civil penalty (25 U.S.C. §3007). NAGPRA directs the secretary of the interior to establish a committee to “monitor and review” the progress of repatriation. The statute further states that there shall be seven members on the committee, “3 of whom shall be appointed by the Secretary from nominations submitted by Indian tribes, Native Hawaiian organizations, and traditional Native American religious leaders, with at least 2 of such persons being traditional Indian religious leaders” (25 U.S.C. §3006(b)). Regulations pursuant to NAGPRA occur at 43 C.F.R. §10.1 et seq. The regulations appear to lay out a very thorough policy favoring repatriation. For example, 43 C.F.R. §10.11, which is entitled “Disposition of Culturally Unidentifiable Human Remains,” governs skeletons and other human material and associated funerary objects that cannot be associated with any contemporary tribe or group. Chapter 3 addresses why bioarchaeologists cannot link all human remains to specific cultures and how 43 C.F.R. §10.11 impacts the scientific study of human remains. The regulations require that the agency with possession must initiate consultation with relevant Indian groups, including those from whose “tribal lands” the remains come or those from whose “aboriginal lands” the human remains and associated funerary objects came. Aboriginal lands may be determined, among other 146

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ways, by a final order of the Indian Claims Commission, which established a series of findings as to what areas various Indian tribes and other groups occupied at the time of European contact, including areas that were traversed by Indians for hunting, fishing, trade, warfare, and so on. This, of course, would cover huge areas of the United States, including areas that are far from any existing reservations. Repatriation is required for funerary objects, sacred objects, and objects of cultural patrimony unassociated with human remains where cultural affiliation of the materials is established, although this regulation allows for study of those remains that are indispensable to completion of a specific scientific study. The remains must be repatriated within 90 days after completion of that study (10.10(c)(1)).

Case Law under NAGPRA and Related Laws Numerous reported cases were litigated under one of the environmental laws and conservation laws cited above as well as under NAGPRA, and indeed the various claims, causes of action, and factual scenarios often overlap. We cannot survey in any completeness this extensive case law. However, certain cases will be representative of the issues that are typically raised in these disputes. In Yankton Sioux Tribe v. United States Army Corps of Engineers (83 F.Supp.2d 1047 (D.S.D. 2000)), the issue was the effects of a dam and artificial lake in South Dakota maintained by the Army Corps of Engineers called Lake Francis Case. As part of its flood control responsibilities, the corps regularly adjusts the level of the lake by retaining or discharging water. During this adjustment, the lake would flood St. Phillips Cemetery, a nineteenth century Indian cemetery associated with the Episcopal Church, which the tribe maintains contained the burial grounds of tribal members buried in the early twentieth century. At the beginning of 1990 skeletal remains, casket parts, and other evidence of burials began to appear along the shore of the reservoir. The tribe asserted that certain ceremonies must be performed prior to disturbing human remains, and it sought time to perform the ceremonies and remove the remains in accordance with its rights under NAGPRA. The court recited the usual interpretation that statutes are to be construed liberally in favor of Indians and on this basis found that the Indians had a right to what they sought. The court noted that there was no evidence as to the tribal affiliation of the human remains being uncovNAGPRA and Beyond: Repatriation and Related Laws in the United States

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ered. It stated that it would retain jurisdiction because “plaintiffs [Indians] do not want the remains subjected to any scientific study, while it appears that the Corps may wish to conduct such a study as necessary, in its view, to discharge its duties under the Act” (83 F.Supp.2d at 1058n15). It stated the Indians had the right to conduct their ceremonies and to recover the remains and that they were entitled to a preliminary injunction preventing the corps from raising the water level above a set amount until a set date or until all human remains and cultural items had been removed from the lakeshore (id. at 1060). Similar cases involving the Yankton Sioux Tribe and human remains were litigated in Yankton Sioux Tribe v. United States Army Corps of Engineers (194 F.Supp.2d 977 (D.S.D. 2002)), Yankton Sioux Tribe v. United States Army Corps of Engineers (209 F.Supp.2d 1008 (D.S.D. 2002)), and Yankton Sioux Tribe v. United States Army Corps of Engineers (258 F.Supp.2d 1027 (D.S.D. 2003)). In one of these cases, in ruling on the plaintiff Indian tribe’s motion for a preliminary injunction, the court was required to consider “the public interest” in favoring one side or the other. It ruled: “Given the plaintiffs’ beliefs about their ancestors and how disturbance of their ancestors’ remains affects plaintiffs’ lives, the public interest factor weighs in favor of plaintiffs, at least to the point of protecting the status quo” (209 F.Supp.2d at 1024). Other cases arise from the impoundment and release of water from reservoirs in the arid Southwest. In San Carlos Apache Tribe v. United States (272 F.Supp.2d 860 (D. Arizona 2003) aff ’d., 417 F.3d 1091 (9th Cir. 2005)), the San Carlos Apache Tribe sued the United States under NHPA, ARPA, NAGPRA, NEPA, and other acts. The Apache argued that the drawdown would expose human remains and that the “removal of human remains is forbidden and spiritually dangerous in the Apache culture” (272 F.Supp.2d at 891n20). The court held that the proposed drawdown was not an intentional excavation under ARPA and thus that act does not apply. The court further held that the plaintiffs had not established any inadvertent discovery of remains covered by NAGPRA and that therefore they had failed in their proof. The court granted summary judgment to the defendants. On appeal, the 9th Circuit Court of Appeals affirmed. The only issue on appeal was whether the tribe’s claims under the NHPA had been properly dismissed, and the court held that they had been since there was no private right of action under that statute. The complications of administrative law, including the Administrative Procedure Act (APA) often are at issue in repatriation cases. In Navajo Na148

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tion v. United States Department of the Interior (2017 WL 530302 (D. Ariz. 2013) rev’d. 819 F.3d 1084 (9th Cir. 2016)), the Navajo Nation sued to obtain immediate repatriation of 303 sets of human remains and associated cultural objects removed by the NPS from Canyon de Chelly National Monument, which is located within the Navajo reservation. The remains, some of which are mummified, were being held at the National Park Service Center in Tucson, Arizona. (See chapter 2 for a review of the research on Canyon de Chelly and other Southwestern mummies.) The complaint alleged violations of the treaties with the Navajo of 1850 and 1858, breach of fiduciary duty by the federal government, violation of ARPA, violation of the First Amendment, and violation of the APA. The national monument was established by Congress, but Congress reserved the right of the Navajo Tribe to use the lands for agriculture, grazing, and oil and gas drilling. However, the NPS was charged with the maintenance and restoration of prehistoric ruins and other features of historic and scientific interest. The tribe argued that the NPS never had lawful possession or control of the remains under NAGPRA since the remains belonged to the Navajo. The court concluded that there had not been a final agency action that could be reviewed under the APA and therefore dismissed the cause of action. On review, the 9th Circuit Court of Appeals reversed. The court concluded that the NPS had made a final and appealable determination under the APA—namely, that NAGPRA’s inventory requirements apply to these remains. The court noted that “Navajo creation stories include events in the canyon, and Navajo lore maintains that key spiritual figures still reside there” (id. at 1087). The court noted that “the Navajo continue to seek the immediate return of the objects consistent with their belief that exhumation ‘causes illness[,] . . . damages crops, natural ecosystems and the environment, and disrupts local and global weather patterns’” (id. at 1090n10). The dissent (id. at 1095) noted that the Navajo were relative latecomers to Canyon de Chelly and that the early inhabitants were Ancestral Puebloans or Anasazi, probably related to the modern Hopi and Zuni. It argued that the NPS had not made a final or reviewable determination within the meaning of the APA, and therefore the cause of action should have been dismissed.

Kennewick Man Case Far and away the most important decided case is that dealing with Kennewick Man, which is the subject of five published court decisions (Bonnichsen v. United States Department of the Army, 969 F.Supp. 614 (D. Or. NAGPRA and Beyond: Repatriation and Related Laws in the United States

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1997); 969 F.Supp. 628 (D. Or. 1997); and 217 F.Supp.2d 1116 (D. Or. 2002), aff ’d, 357 F.3d 962 (9th Circ. 2004), amending and superseding prior order, 367 F.3d 864 (9th Circ. 2004)). Kennewick Man was an accidental discovery of a nearly complete human skeleton along the south bank of the Columbia River in Oregon. The discovery was reported to anthropologist James Chatters, who examined the remains and determined that they were not recent. For a more detailed description of Kennewick Man’s discovery and dating, see chapter 1. He informed the Army Corps of Engineers, which had jurisdiction over this area, which advised him to apply for an ARPA permit, which he did. Chatters then excavated the remaining portion of the skeleton (969 F.Supp. at 617, 969 F.Supp. at 631). Radiocarbon dating determined that the skeleton was approximately 9,000 years old. Douglas Owsley of the Smithsonian Institution had asked for permission to remove the skeleton to the Smithsonian for study, but before that could occur the Corps of Engineers seized the remains from Chatters and took them into its possession. The corps immediately announced that it believed the remains were Native American within the meaning of NAGPRA and declared its intention to turn the remains over to Native Americans, specifically those five Columbia River basin tribes and bands that it believed had the closest relationship to the remains. It refused to allow the anthropologists to conduct any further study. The anthropologists then filed suit, disputing the finding that the remains were Native American within the meaning of NAGPRA, contesting the decision to turn the remains over to Indian tribes, and seeking permission to study the remains. In its first two decisions, the district court held that the Corps of Engineers’ decision was ripe for judicial review, that the scientists had stated a legally cognizable cause of action, and that the corps’ decision to repatriate the remains would be vacated, and the case remanded for further consideration and decision by the agency (969 F.Supp. 614, 969 F. Supp. 628). The U.S. Department of the Interior then took control over the litigation on behalf of the government. The secretary of the interior again determined that the remains were Native American, subject to NAGPRA, and that they should be repatriated. The anthropologists appealed the decision, and the U.S. District Court reversed the Department of Interior’s decision (217 F.Supp.2d 1116). Specifically, the court found that the conclusion that the skeleton was Native American and subject to NAGPRA was arbitrary and capricious and was not supported by any of the evidence that 150

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the secretary of the interior supposedly relied upon. It also found that the plaintiffs-anthropologists had standing to challenge the agency’s decision and had the right to sue under NAGPRA because the agency’s interpretation of NAGPRA was over-inclusive, meaning that it extended to situations and remains not covered by NAGPRA. It further held that the right to have a case judged by a neutral and unbiased decision maker was violated by the Department of the Interior in the Kennewick Man case. Specifically, there was extensive evidence of collusion, secret communications, and extensive favoritism shown toward the tribal claimants that was not shown toward the plaintiffs-anthropologists. The court laid out an extensive discussion of the definition of “Native American” and found that the evidence of the skeleton and the embedded projectile point did not show the remains to be Native American. Specifically, the morphology of the bones was distinct from those of modern Native Americans and was similar to those of various groups in East and Southeast Asia. It also found that there was no evidence of continuity from the age of Kennewick Man to any historic tribe in terms of archaeological evidence, linguistic evidence, evidence from folklore and oral traditions, and so forth. Both chapters 1 and 3 review and analyze the evidence for Kennewick Man’s ancestry and connection to modern tribes. It further found that the remains were validly collected by Chatters under the ARPA, which was the controlling statute. It therefore granted the plaintiffs-anthropologists’ request for access to the remains and vacated the Department of the Interior’s decision to repatriate. On appeal, the district court’s decision was affirmed (357 F.3d 962 as modified in 367 F.3d 864). It held that no reasonable person could conclude upon the evidence available that Kennewick Man was Native American within the meaning of NAGPRA. It concluded that NAGPRA required that to be considered Native American, the remains have to have a relationship to a presently existing tribe, people, or culture, which had not been demonstrated in this case. It therefore affirmed and remanded to the district court for further proceedings. The result was that the anthropologists were permitted to study the skeleton, and a book giving the results of their analysis and conclusions was subsequently published (Owsley and Jantz 2014). Chapters 1 and 3 highlight some of the findings published by Owsley and Jantz (2014). The initial attempts to extract DNA from the skeleton were unsuccessful, but in 2015 a team announced that it had sequenced the DNA from Kennewick Man and that it was similar to that of the present-day tribes in NAGPRA and Beyond: Repatriation and Related Laws in the United States

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the vicinity of the find (Rasmussen et al. 2015). Chapters 1 and 3 cover the DNA results of Kennewick Man, but chapter 3 in particular takes a critical look at the use of DNA to draw links from Paleoindians to modern tribes. Congress then passed a law to repatriate the remains to the coalition of tribes that had intervened in the Kennewick Man suit.

La Jolla Skeletons Case The peculiarities of Indian law are well illustrated in the other case where there was substantial litigation on NAGPRA applied to an ancient human skeleton. In 1976 there was a double human burial, which was radiocarbon dated between 8,977 and 9,603 years, excavated from the grounds of the residence of the chancellor of the University of California, San Diego. Chapter 1 provides a review of the research conducted on the remains. The university inventoried the remains and the artifacts and granted a request from the Kumeyaay Cultural Repatriation Committee (KCRC) to transfer them to La Posta Band of Diegueño Mission Indians, a federally recognized tribe. Anthropologist Timothy White and others filed a lawsuit seeking temporary and permanent injunctions to enjoin transferring the remains or altering their condition. Like the anthropologists in the Kennewick Man suit, they argued that it was highly probable they would be permitted to study the remains, which they could not do if the remains were transferred to the tribe (White v. University of California, 2012 WL 12335354 (N.D. Cal. 2012), aff ’d, 765 F.2d 1010 (9th Cir. 2014), cert. denied 136 S.Ct. 983 (2016)). The entire case turned upon a somewhat arcane rule of civil procedure concerning “necessary” and “indispensable” parties. Federal Rule of Civil Procedure 9(a) allows a party to raise an issue as to “a party’s capacity to sue or be sued.” A party who cannot be sued cannot be joined in a complaint. Federal Rule of Civil Procedure 19 says that certain parties not named in the suit must be joined as parties if the court cannot grant complete relief without those parties or the parties claim an interest in the suit and the suit would impede the parties’ ability to protect that interest or subject another party to inconsistent obligations. Such a party is “necessary.” If for any reason the necessary party cannot be joined, the question is whether it is “indispensable”—that is, whether its absence would prejudice it and the already existing parties. If it is indispensable, the suit must be dismissed (Baicker-McKee, Janssen, and Corr 2018). The university argued that the KCRC and tribes themselves enjoy sover152

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eign immunity and could not be sued by the plaintiffs. The court accepted this argument. The anthropologists argued that the KCRC had waived its immunity by filing another suit against the University of California over the same remains. However, the court held that where a tribe files suit, it submits itself to jurisdiction only for purposes of adjudicating its own claims but not other matters, even if related. Even if the defendant were to offer its claims against the tribes in a counterclaim, still the tribe would have immunity (2012 WL 12335354 at *5–*8). The university then moved to dismiss the claim on the grounds that the tribe was both a “necessary” and “indispensable” party to the litigation, citing Federal Rule of Civil Procedure 19. The court found that even if the remains were not Native American, the La Posta Band had at least an interest relating to the cause of action and was therefore necessary and should be joined as an additional defendant. The question then became whether joinder is feasible, which the court found it was not, due to sovereign immunity. The court then asked the question of whether the Indian claimants were indispensable parties under Rule 19(b), and it concluded that they were and that, therefore, the case should be dismissed. The plaintiffs argued that this case fell under the “public rights” exception to Rule 19, but the court rejected that defense (2012 WL 12335354 at *9–*12). The court then stated, “The troubling implications of that conclusion are worth noting” (id. at *12). It stated that “invoking sovereign immunity selectively permits the tribes to claim the benefit of NAGPRA, without subjecting themselves to its intended limitations. This is undeniably an unsatisfactory result, which a higher court or other branch of government may elect to address as a matter of policy. This court, however, does not have that luxury” (id. at *12). On appeal, the 9th Circuit affirmed (765 F.3d 1010 (9th Cir. 2014)). The court found that NAGPRA did not waive tribal sovereign immunity. It also affirmed the district court’s decision that the tribal claimants were necessary and indispensable parties. It affirmed that the public rights exception did not apply. The dissenting judge argued that the tribal claimants were not necessary and indispensable parties. The issue was not whether NAGPRA compels repatriation but whether NAGPRA applies in the first place. The dissent argued that the defendant-university was in a position to protect the interests of the Indian claimants and that all the factors commonly invoked in the indispensable party test of Rule 19 favored the plaintiffs-anthropologists (id. at 1029–33). NAGPRA and Beyond: Repatriation and Related Laws in the United States

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Conclusions NAGPRA is the main manner in which human remains are repatriated to Native American tribes. However, to understand NAGPRA, one must put it into context. For instance, NAGPRA allows Native Americans to sue for repatriation of human remains, but they cannot be sued to prevent repatriation due to the earlier sovereignty doctrine dating from the frontier days. Since the passing of NAGPRA, lawsuits to retain remains for study have had mixed outcomes. In some cases, such as the La Jolla skeletons, suits have been dismissed and remains have been reburied. In other cases, like Kennewick Man’s case, remains were eventually provided for study. Unfortunately, Kennewick Man was reburied following an Act of Congress, which provides an example of how just looking at NAGPRA to understand repatriation is not enough.

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6 Other Repatriation Movements in the United States

Repatriation ideology can be found in Native American protection of their DNA against research answers that may contradict their beliefs. This chapter summarizes the legal issues surrounding genetic research involving Native Americans. Although initial cooperation with Native Americans is required for data collection in genetic research, the Havasupai case illustrates that cooperation may be fickle; therefore, bioarchaeologists may wish to reexamine the wisdom of cooperative research.

The Havasupai Suit The Havasupai are a small, federally recognized tribe with a reservation at the bottom of the Grand Canyon in northern Arizona (Schwartz 1983). They consist of approximately 350 members. Their contact with the outside world has been far more limited than that of most Indian tribes, so their genes may provide particular insight into Native American genetics before the arrival of European Americans as well as insight into the dynamics of very small gene pools (Schwartz 1983). In 2004 the Havasupai Tribe, several of its members, and numerous unnamed plaintiffs filed two suits against several geneticists and Arizona universities, claiming that genetic studies of the Havasupai had been carried out under false promises; that their blood samples and palm prints had been procured and used for studies they had not been informed of or authorized and they disapproved of; and that they had suffered emotional and reputational harm as a result. In one case, the plaintiffs also sued Stanford University and a Stanford University scientist who received portions of the blood samples for use in their own research.

The significance of these suits and their underlying allegations for our purposes is twofold. First, they have defined, constrained, and inhibited cooperation between American Indians and scientists in ways that are likely to persist for decades. Second, the suits represent the repatriationist ideology (as defined in the introductory chapter) in a revealing way, even though the suits did not depend upon any of the laws that are generally thought of as repatriationist. Both complaints were brought primarily under the common law of the state of Arizona but also included federal civil rights statutes as sources of the injury. As a result of the allegations of violation of federal law, both cases were removed to the U.S. District Court for the District of Arizona, as allowed by 28 U.S.C. §1441 and §1446(b) and 28 U.S.C. §1367. In the case of Tilousi v. Arizona Board of Regents (No. 04-cv-1290PCT-FJM (D. Ariz. 2004)), the plaintiffs alleged eight different causes of action against the defendants. All plaintiffs were identified as members of the Havasupai Tribe who had provided blood samples or palm print samples to the defendants, which they understood would be used only to study diabetes. The defendants used those data to study things other than diabetes. The defendants allegedly persuaded the plaintiffs to provide the samples on the grounds that they were studying only diabetes in this particular Indian tribe and did not disclose that they were going to study anything else. According to the complaint, the various individual and institutional defendants actually used the blood samples and palm prints to study such things as inbreeding, schizophrenia, and the origin of the Havasupai. The Second Amended Complaint at 17 alleged that the materials from the Havasupai were used for at least 21 scholarly publications, of which 16 were particularly objectionable to the plaintiffs. The source of the harm was as follows: At least sixteen (16) of these publications deal with non-diabetes subjects including schizophrenia, inbreeding, and theories about ancient human population migrations from Asia to North America. Defendants used and/or allowed others to use the Blood Samples in an attempt to prove theories about ancient human population migration to the Americas. Defendants’ theories are directly counter to the core religious beliefs of the Havasupai. Had Plaintiffs known about such intended use of their Blood Samples, Plaintiffs would not have provided Blood Samples to Defendants. 156

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Count II was brought for fraud, alleging that the defendants misrepresented the purposes for which the samples would be used. Arizona law requires the following: A claim for fraud requires proof of nine elements by clear and convincing evidence: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that it be acted upon by the recipient in the manner reasonably contemplated; (6) the ignorance of its falsity; (7) the hearer’s reliance on its truth; (8) the hearer’s right to rely upon it; (9) the hearer’s consequent and proximate injury [citation omitted]. (Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291, 229 P.3d 1031, 1033 (2010)) Count II concluded: “Plaintiffs were harmed as a result of Defendants’ false and fraudulent misrepresentation and concealments. As a direct and proximate result of Defendants’ actions, omissions, and conduct as described above, Plaintiffs have suffered and continue to suffer severe mental and emotional harm, suffering, fright, anguish, rage, shock, nervousness, anxiety, sleeplessness, unrest, depression, humiliation, loss of self-esteem, and loss of dignity” (Tilousi, Second Amended Complaint at 25). The next count, Count III, was brought for intentional infliction of emotional distress and alleged similar injuries. It alleged the same harms as Count II. Under Arizona law the tort of intentional infliction of emotional distress requires three elements: “First, the conduct by the defendant must be ‘extreme and outrageous’; second, the defendant must either intend to cause emotional distress or recklessly disregard the near certainty that such distress will result from his conduct; and third, severe and emotional distress must indeed occur as a result of defendant’s conduct. [citation omitted]” (Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987)). That same decision quoted the Restatement 2nd of Torts as defining intentional infliction of emotional distress as “where the conduct has been so outrageous in character, and so extreme in the degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community . . . in which . . . an average member of the community would . . . exclaim ‘Outrageous’” (153 Ariz. at 43, 734 P.2d at 585). Count V of the complaint was brought for deprivation of rights, in violation of the federal civil rights statute, 42 U.S.C. §1983. That statute makes Other Repatriation Movements in the United States

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it illegal for any person under color of state or territorial law to deny any person the equal protection of the laws or deprive any citizen of the United States, or person within its jurisdiction, “of any rights, privileges, or immunities secured by the Constitution and laws.” The statute grants a private course of action to any person injured by such an act. The concluding paragraph of Count V reads as follows: As a result of said unlawful acts and utilization of the Blood Samples and Diabetes Project information to publish research papers unrelated to diabetes, including such subjects as schizophrenia, inbreeding, and ancient human population migration, Plaintiffs have suffered and continue to suffer severe mental and emotional harm, suffering, fright, anguish, rage, shock, nervousness, anxiety, sleeplessness, unrest, depression, humiliation, loss of self-esteem, and loss of dignity. (Tilousi, Second Amended Complaint at 28) The second case, The Havasupai Tribe of The Havasupai Reservation v. Arizona Board of Regents (Case No. CIV-04-1494-PCT-FJM, (D. Ariz. 2004)) contained similar allegations. It alleged improper use of the information derived from the blood samples and palm prints. It stated: “At least fifteen (15) of these publications deal with non-diabetes subjects, including schizophrenia, inbreeding and theories about ancient human population migrations from Asia to North America, all to the harm and detriment of the TRIBE and its Members, whose religion and culture is based on the premise and profound belief that their origins as a people come from ‘Red Butte’ located in the Grand Canyon and called ‘Wi gidwisa’ in the Havasupai language” (id. at 14). In both cases, defendants filed numerous motions to strike or dismiss various counts and allegations by various plaintiffs. The federal district court judge found that the plaintiffs could not state a cause of action under any federal law and therefore the cases would be remanded to state court. However, the judge did find that several of the allegations of the complaint stated causes of action under Arizona state law, and thus those counts were remanded to state court for further proceedings (Havasupai Tribe, No. 04-CV-1494-PCT-FJM Order of May 2, 2005). One of the principal researchers in the project was Therese Ann Markow, originally at Arizona State University and later at the University of Arizona. Her deposition was taken in the case of Tilousi, et al. v. Arizona Board of Regents, et al. (No. CV2005-013190 (Sup. Ct. Ariz. Maricopa Co.)) 158

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on April 5, 2006. She stated that she believed that the individuals providing the blood samples and palm print samples had been adequately informed of the purposes of the research. Each person who provided a sample was asked to sign an Informed Consent Form (For Adults). That form read, in relevant part, as follows: Dr. Theresa Markow, who is a Research Professor at Arizona State University, has requested my participation in a research study at this institution. The title of the research is “Medical Genetics at Havasupai.” I have been informed that the purpose of the research is to study the causes of behavioral/medical disorders. (Id., Exhibit 9) She stated that she also believed that the researchers had been instructed to read to the subjects the following: We are conducting research to try to identify factors that cause some of the health problems experienced by many of the Havasupai and other Native American peoples. Many of these diseases, such as diabetes, schizophrenia, depression, are complicated and so we try to look at as many factors as possible. There may be causes that are passed down in families through genes and there may be causes also from different lifestyles and from the environment. Risk factors for many diseases that occur in families can sometimes be identified by tests on genetic material from the blood. (Id., Exhibit 11) Once remanded to state court, the suits were the subject of numerous challenges by the defendants (Havasupai Tribe v. Arizona Board of Regents, 220 Ariz. 214, 204 P.2d 1063 (2008), review denied 2009). In 2010 the suits were settled for a payment to the plaintiffs of $700,000, additional funds for a clinic and school, and the return to the tribe of the DNA samples (Dalton 2010; Havasupai Tribe and the Lawsuit Settlement Aftermath n.d.).

Native American Restrictions on Genetic Research A large number of tribes and intertribal organizations have established policies and recommendations concerning limitations on genetic research on Native Americans. The website American Indian & Alaska Native GenetOther Repatriation Movements in the United States

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ics Resource Center (http://genetics.ncai.org) has a large number of online documents and reprints of published documents concerning this issue. The purpose of these rules is to place limitations on genetic research to ensure that Native American tribes and individuals do not participate in such research, absent full information about the purpose of the research and opportunities to restrict the kinds of research that are done and the kinds of conclusions that are drawn. In discussing the Havasupai suit, the American Indian and Alaska Native Genetics Resource Center was particularly concerned about migration studies. If research suggests that a tribe originally came from across the Bering Straits, as some bioarchaeologists have also suggested (see chapter 3), that research might have implication for sovereignty and land rights. The center was also concerned about stigmatization, such as studies that show that a certain degree of inbreeding had occurred in an Indian population. To the Havasupai and other tribes, inbreeding is taboo, and the publication of information suggesting a high inbreeding coefficient implies that members of the Havasupai Tribe had been violating that taboo. At the most extreme, the Navajo tribe has imposed a moratorium on genetic research beginning in 2002, which apparently still has not been lifted. The most extensive statement of such principles known to us is a document by Victoria Warren-Mears titled “Principles and Models for Data Sharing Agreements with American Indians/Alaska Native Communities” (n.d., accessed December 21, 2018). The article notes that many tribes have established their own tribal institutional review boards, apart from those of granting agencies or colleges or universities. She states, “As required by the reviewers, data can only be gathered with tribal consent. Permission to carry out research can be granted by both the tribal research review entity and the tribal government, often in the form of a tribal resolution, which specifically outlines how the data will be used, reported, and disseminated.” In her discussion of justice as a criterion for research she asserts that “academicians have traditionally been members of colonial cultures; that is, researchers have held power in forms of money, knowledge, and perceived expertise over their human subjects.” In her discussion on data sharing, one section is entitled “Participatory Research.” She notes, “In participatory research models, the community is respectfully accorded equal power to that of the traditionally trained experts.” 160

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Her section on data sharing and ownership states: “Federally recognized tribes are sovereign nations, and so they often make collective claims to their traditional knowledge, biogenetics resources, and intellectual property. Some tribes may also claim ownership over data collected in research studies conducted with their citizens.” She states that the principle of data ownership “means that a community owns information collectively in the same way that an individual owns their own personal information. In other words, the information belongs to the community and is the tribe’s ‘property.’” Under a section called “Control,” she states: “The principal of control asserts that tribal members and representative bodies are within their rights in seeking to control all aspects of research and information management processes which impact them.” She notes, “Tribal control over data may be a foreign concept for some researchers new to Indian Country and may appear at first to contradict the value of academic freedom. However ethics and values are culturally defined [citation omitted].” She further states, “The principle of control also includes interpretation and publication of data. . . . Tribes that assert tighter control over data interpretation may require that researchers submit their manuscripts for tribal approval before submission to any publisher. In these cases, some tribes retain the right to deny permission to publish if the manuscript is viewed as stigmatizing or harmful to the community.”

Conclusions This chapter provides a case study of repatriation ideology without reference to the repatriation statutes. The ideology has seeped into genetic research, some of which has possible applied medical benefits, especially for the Native American subjects. However, the perceived harm of stigma and challenges to origin stories (whether to protect land rights or religious convictions) outweighed the Havasupai’s desire to help researchers, the greater public, and themselves.

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PART III A Critique of the Repatriation Movement

In this final part of this volume, problems with repatriation, especially regarding NAGPRA, are reviewed. Specifically, chapter 7 addresses issues of religious preference, which should be forbidden due to the First Amendment of the Constitution, and racial preference that enable Native Americans to engage in repatriation in a way that would not be possible for other races. Chapter 8 attempts to understand why oral tradition is allowed as evidence in repatriation cases while similar evidence would be inadmissible in most court cases. Chapter 9 reviews the data on treatment of human remains to negate repatriationists’ claims that reburial is necessary due to traditional Native American culture of burying all human remains. And, finally, chapter 10 looks at the impact of repatriation ideology on anthropological research.

7 Reburial, Religion, and Race

This chapter reviews the constitutional protections against religious and racial preferences. The question arises whether non–Native Americans, both in NAGPRA cases and other cases, have been restricted more so than Native Americans.

Critiques Specific to NAGPRA NAGPRA itself contains extensive references to race and religion, and it is appropriate to examine NAGPRA’s actual language and probable effect based upon these considerations. Under the Lemon test, in order for a statute to be constitutional under the Establishment Clause of the First Amendment, “first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [citation omitted]; finally, the statute must not foster ‘an excessive entanglement with religion [citation omitted]’” (Lemon v. Kurtzman, 403 U.S. 602, 612–13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)). Furthermore, statutes may not favor one race over another except under extraordinary circumstances. Statues or governmental practices that favor one race over another have to follow a demanding strict scrutiny test (Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995)). NAGPRA established special rights and obligations for human remains, funerary objects, sacred objects, and all objects of cultural patrimony, but only when the objects are “Native American.” Any federally funded institution must repatriate those materials to an Indian tribe, upon its request, where the tribe can show a cultural affiliation with the remains or show that it formerly occupied the area from which they came.

Furthermore, the progress of repatriation efforts is to be overseen by a committee of three individuals nominated by Indian tribes, Native Hawaiian organizations, and “traditional Native American religious leaders, with at least 2 such persons being traditional Indian religious leaders” (25 U.S.C. §3006(b)). Thus on its face, the statute establishes religious and racial qualifications for being a member of a federal administrative agency—namely, being nominated for membership by members of a certain racial group (Native Americans) and being leaders of the “traditional” religions of that racial group. These issues have been inadequately considered by the federal courts, and the serious constitutional problems with NAGPRA have hardly even been discussed, much less resolved. Issues regarding the legitimacy of the NAGPRA committee were raised in one of the Kennewick Man decisions (Bonnichsen v. US Dept. of Army, 969 F. Supp. 628, 643 D. Oregon 1997). The court considered the opinions of the NAGPRA review committee on ancient remains and stated that the committee appeared to recognize the problems posed by ancient remains, such as Kennewick Man, but could not agree on how to resolve the issue (id. at 644). In this discussion, the court considered the problems of the appointments clause of the U.S. Constitution since NAGPRA gave the secretary of the interior power to appoint members of the committee without Senate confirmation. The court noted that the NAGPRA review committee’s opinions are advisory but that its opinions must be taken as important by the secretary of the interior in issuing regulations (id. at 644, n. 13). The larger problem of the obvious restriction of the NAGPRA committee by race and religion was not even mentioned by this court.

Violation of First Amendment Establishment of Religion Clause The ambiguity of defining “traditional” American Indian religion and its leaders is also ignored by the courts. Finding out who qualifies as such a person would invariably involve the courts in inquiring into the content of American Indian religions and deciding who is a legitimate representative of them, which is exactly the sort of inquiry that has been barred by the First Amendment when dealing with monotheistic religions (Presbyterian Church of the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969)). The exclusion of nontraditional religious leaders obviously discriminates on the basis 166

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of religion. Most obviously, the statute excludes Indian religious leaders who are Christian leaders. The courts have held that traditional American Indian religions, that is, animistic religions, not monotheistic religions, are entitled to the protections and restrictions of the First Amendment (Badoni v. Higginson, 638 F.2d (10th Circ. 1980), 172, 179). However, the courts also recognize that the traditional animistic religions are different in many important respects from any monotheistic religion. In particular, the animistic religions are much more closely tied to features of the natural environment, to which knowledge, intelligence, consciousness, and a soul are attributed. Furthermore, the lack of a sacred text or a body of recognized priests makes it difficult to determine the extent to which a claim asserted in court is actually based upon a traditional Native American or Indian religion (id. at 177; Badoni v. Higginson, 455 F.Supp. 641, 645–646 (D. Utah, C.D. 1977)). There are many illustrations of the difficulties in defining “traditional” Indian religion for legal purposes. The dominant current religion among the Iroquois is often called the longhouse religion, which is a very complex amalgam of practices of different ages and sources. In the colonial period it seems very likely that the dominant Iroquois religion was similar to the traditions, rituals, beliefs, and sacred symbols that were not described in any detail until the investigations of Lewis Henry Morgan, Henry Rowe Schoolcraft, and Ely Samuel Parker in the nineteenth century (see Fenton 1998; Wallace 1972). These traditions centered around a creation story (the Land Diver) common among North American Indians and various gods, goddesses, spirits, and human–animal combinations. Beginning in 1799, one of the sachems of the Iroquois league, who held the title of Handsome Lake, reported a series of visions in which he encountered spiritual beings, including Jesus Christ and the souls of deceased individuals, and received divine instructions as to how to combat the evil way of life of his fellow Iroquois. His revelations were enormously influential, and the term “Handsome Lake religion” is sometimes used to describe the contemporary Iroquois religion. That religion combines obviously old customs with much more recent monotheistic beliefs and ethical principles that derive from Handsome Lake. How much of this should be considered “traditional” is a very difficult matter (Fenton 1998; Wallace 1972). The use of peyote is a matter that has received a fair amount of legal attention. It appears that before the eighteenth century, the use of peyote was restricted to northern Mexico and Mesoamerica and was rare or nonReburial, Religion, and Race

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existent within the United States and Canada. Beginning in the nineteenth century, the ritual and religious use of peyote spread widely into North America, particularly among the Southwestern and Plains Indians. Today it is a central ritual of the Native American church. As noted above, federal statutes have made special exemptions for ritual use of peyote. The spread of peyote well illustrates the ambiguity of the label “traditional.” It seems very unlikely that peyote was widely used within the United States and Canada until the middle of the nineteenth century. Since then it has been established as the central part of a ritual associated with American Indians or Native Americans (LaBarre 1969; Aberle 1966). Peyotism among the Navajo presents a particularly strong example of the mixed and syncretic character of contemporary American Indian religions. The Navajo have an extensive set of rituals and beliefs that predate peyotism and are concerned, to a large extent, with curing individuals suffering from physical or spiritual illness or distress. David Aberle notes the variety of uses of peyotism among the contemporary Navajo: “A Peyote meeting is held for a purpose, such as curing, blessing children who are about to go to boarding school or thanking God for their safe return, asking for help in economic stress or for success in livelihood, celebrating a holiday such as Thanksgiving, Christmas, Easter, or the Fourth of July, solemnizing a marriage (after a Roman Catholic, Protestant, traditional Navajo, or civil marriage service), or memorializing the dead” (Aberle 1983, 559). Aberle also notes that “most Navajo peyotists also use Navajo ceremonies. Many belong to Christian churches as well” (Aberle 1983, 563). The Eastern Pueblo Indians of New Mexico present a particularly clear example of persistent, strong pre-Christian religious practices, such as the kachina cult, combined with the regular practice of Catholic Christianity. Non-Christian prayers, rituals, dances, symbols, and ideas are regularly employed by individuals who also attend Catholic mass, and the participants apparently do not see any contradiction (see, e.g., Lange’s (1968) study of Cochiti Pueblo). This issue of the character of “traditional” Native American religions came up in the district court’s decision in Badoni (455 F.Supp. at 645). The court considered the claims by certain Navajo Indians seeking to bar tourists from certain portions of Rainbow Bridge National Monument in Utah. The plaintiffs alleged that certain geological formations in this area are shrines “which are regarded as the actual incarnate forms of Navajo gods” (id. at 643). Plaintiffs further alleged that the dam and opening the area to tourism resulted in 168

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destruction of the sites, drowning of sites, injury to the plaintiff ’s prayers and entreaties to the remaining gods, and severe emotional distress. Among its other findings, the court stated that the interests of the plaintiffs “do not constitute ‘deeply religious conviction(s), shared by an organized group and intimately tied to daily living’” (id. at 645, quoting Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.Ct. 1526, 1533, 32 L.Ed.2nd 15 (1972)). In contrast to the Amish, whose rights were at issue in Yoder, “the medicine men who allegedly conduct the religious rites involving Rainbow Bridge and the surrounding areas are not recognized by the Navajo Nation as such. Also, the training of these medicine men has not been tribally organized or carried out and took place years ago” (id. at 646). The court further concluded “there is nothing to indicate that at the present time the Rainbow Bridge National Monument and its environs has anything approaching deep, religious significance to any organized group” (id. at 646). While the district court judge was conscientiously attempting to apply Supreme Court precedents, the obvious consequence was that he had to evaluate traditional Navajo Indian religion, contrast it with monotheistic religions, come up with some sort of test that would do justice to both, and then evaluate the extent to which the plaintiffs’ claims qualified for constitutional protection as genuine religion. This is the sort of entanglement with religion that the Lemon test is designed to avoid. A similar example of entanglement with religion occurred in United States v. Hardman (297 F.3d 1116 (10th Circ. 2002)), which, as noted above, considered the situation where two claimants were convicted of illegally possessing eagle feathers and another claimant had his eagle feathers seized by the Bureau of Indian Affairs. The court noted that the Religious Freedom Restoration Act allowed for permits for possession of eagle feathers by Indians of federally recognized Indian tribes, in contravention of the general ban on such possession. The claimants did not claim to be members of such tribes, but they did claim to follow traditional American Indian religion, in which eagle feathers had an appropriate ritual use. The court’s decision held that the U.S. government had not proven that it had adopted the least restrictive means of balancing the various interests involved here (id. at 1135). Quite apart from the problem of whether the government had produced sufficient empirical evidence to support its restrictions on use of eagle feathers by non-Indians, we question whether the government should have been involved at all in such an inquiry. The court noted: “We do not express an opinion on whether distributing eagle feathers to sincere adherents of NaReburial, Religion, and Race

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tive American faiths irrespective of whether they were members of federally recognized tribes or not, or of Native American lineage or not, would foster or inhibit this compelling interest” (id. at 1133, n. 23). A more relevant question would be whether the government has any business making such an inquiry in the first place. The same strictures would apply to NAGPRA.

Racial/Ethnic Favoritism and Collectivism Racial discrimination is at the heart of NAGPRA. The objects of its protections are racially defined and the individuals and organizations that are given legal powers are racially defined. The simple fact that a material object or person can be labeled “Native American” entails a whole series of legal consequences that are enforced by the U.S. government on persons of all races. One frequently heard defense of NAGPRA and other racially discriminatory laws is that Congress has traditionally been given plenary power over Indian tribes, based upon the United States Constitution’s Article I, Section 8 (Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974)). That power may extend to regulating the actions of members of other races who trade with the Indians or live on Indian reservations. Morton noted an 1834 letter from the Indian commissioners to the secretary of war stating, “If the Indians are exposed to any danger, there is none greater than the residence among them of unprincipled white men” (417 U.S. at 542n11). However, NAGPRA does not just regulate Indians or those living on Indian reservations. It is imposed on every individual and institution that receives federal funds or possesses artifacts or bones from an area formerly occupied by an Indian tribe or a Hawaiian organization, which is to say the inhabitants of every state and territory of the United States, except for a few Western Pacific islands. Another defense often heard for this sort of racial discrimination is that it is “political,” not “racial” (417 U.S. 535, 554n24; United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977); Newton 2012). Nonetheless, numerous legal rights and privileges, including tribal membership and participation in federal benefit programs, depend upon one’s descent, which may be defined specifically, such as that one must be at least 25% or other percent Indian, or “of Indian blood” (25 U.S.C. §5129). Almost all definitions of “Indian” or “Native American” refer to the tribe’s or individual’s descent, in however attenuated a manner, from the biological popula170

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tions that occupied North America before 1492. Chapter 3 discusses some of the complexities of determining Native American ancestry by “blood quantum” rather than by DNA. And, indeed, it is ironic that at the time that physical anthropologists are recognizing the limitations of the racial concept, particularly when applied to continent-wide populations, the U.S. government has created a legal and racial category that has such serious legal consequences for the study of the past. In 1924 Congress passed a law declaring that American Indians are citizens of the United States. Before that time, Indians were generally not thought of as American citizens unless they had served in the United States’ military or otherwise shown their allegiance to the United States. As a result of the 1924 act, American Indians are citizens of the United States and of the state where they are born. As such, they have the same rights and obligations as other citizens (Newton 2012, 922–991). Under these circumstances, it is difficult to sustain the claim that treating Indians as distinct people is political rather than racial. Some Indian advocates have attempted to evade the force of this argument by asserting that Indians have dual citizenship in the United States and in their tribe (Newton 2012). However, dual citizenship as recognized in United States’ law means citizenship in two distinct nation states (Vance v. Terrazas, 414 U.S. 252, 100 S.Ct. 540, 62 L.Ed.2d 461 (1980)). It is very difficult to assimilate that concept to the special status of American Indians. Morton held that it was legitimate and constitutional and in conformity with long usage for the Bureau of Indian Affairs to prefer Indians in employment with the Bureau of Indian Affairs, but only if they are members of federally recognized tribes. The court seemed to recognize some limitations on the power of Congress and the federal agencies to discriminate in favor of Indians, but it said, “As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation towards the Indians, such legislative judgments will not be disturbed” (417 U.S. at 555). The old idea that Indians are owed a special duty because of their dependent status easily slides into the new idea that Indians are vulnerable and are historically victims and therefore deserving of special treatment in statutes and litigation. This vulnerable or victim status has appeared in several suits but most particularly in the suits brought by the Havasupai, as summarized previously. The idea that the Havasupai as individuals and as a tribe are vulnerable was a key assertion in the plaintiffs’ pleadings (as also discussed in chapter 6; see Tilousi v. Arizona Board of Regents, No. 04-CV-1290-PCTReburial, Religion, and Race

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FJM (D. Ariz. 2004), Plaintiff ’s Second Amended Complaint at 4, ¶3; at 21, ¶72; Havasupai Tribe v. Arizona Board of Regents, No. CIV-04-1494-PCTFJM (D. Ariz. 2004), Second Amended Complaint at 7, ¶29; at 12, ¶50). The complaints allege that if the plaintiffs had not been misled, then they could have bargained more effectively for some additional consideration (perhaps money) in exchange for providing blood samples and palm prints. Otherwise, all of their damages are reputational and emotional. Intentional infliction of emotional distress is the central cause of action, and the other counts are alternative statements of that same cause of action. As noted above, for such a cause of action, the defendant’s action must be outrageous, atrocious, and beyond all possible bounds of decency. As a result of the defendants’ outrageous conduct, the Havasupai are alleged to have suffered mental and emotional harm, suffering, fright, anguish, rage, shock, nervousness, anxiety, sleeplessness, unrest, depression, humiliation, loss of self-esteem and loss of dignity (Tilousi, Second Amended Complaint at 28). It is important to keep in mind what was the defendants’ wrongful conduct that supposedly caused all of these harms—namely, that the scientists used data derived from the Havasupai to conclude that some unspecified level of inbreeding had occurred among the Havasupai, that some unspecified frequency of schizophrenia occurred among the Havasupai, and that the Havasupai’s ancestors had migrated to the New World from Siberia rather than emerging supernaturally from the underground, as told by Havasupai traditions (see chapter 6 also for further discussion on this issue). Thus, conducting mainstream scientific research and publishing the results are alleged to have been outrageous and to have caused severe emotional trauma such that a court could award damages to the plaintiffs. The severe restrictions on speech sought by the Havasupai plaintiffs, contrary to the First Amendment, appear to have been approved by the federal district court and the state court because the plaintiffs were members of an Indian tribe living in a remote location, were poor, and not well educated. Such a course of action would never be entertained by a court if the plaintiffs had been members of other races. Ordinarily the federal courts are extremely hostile to any claim of intentional infliction of emotional distress where the claim would threaten the defendant’s rights of freedom of speech or freedom of the press. Consider Snyder v. Phelps (562 U.S. 443, 133 S.Ct. 1207, 179 N.E.2d 172 (2011)). The father of a U.S. Marine killed in combat in Iraq brought suit against the Westboro Baptist Church and other individuals for picketing his son’s 172

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funeral, which was held at a Roman Catholic church. Westboro and its members maintained that the United States’ policy of tolerance of homosexuality, particularly in the military, is contrary to God’s word and will bring harm upon the members of the United States, including supernatural punishment by God. The defendants picketed the funeral and carried signs, including the following: God Hates the USA/Thank God for 9/11 America Is Doomed Don’t Pray for the USA Thank God for IEDs Fag Troops Semper Fi Fags God Hates Fags Maryland Taliban Fags Doom Nations Not Blessed Just Cursed Thank God for Dead Soldiers Pope in Hell Priests Rape Boys You’re Going to Hell God Hates You (562 U.S. at 454) The defendants also produced an online video attacking the deceased, his family, the military, and the Catholic Church (562 U.S. at 469). Following a jury trial, the defendants were found liable for intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion, and civil conspiracy. The jury awarded actual and punitive damages, but the district court remitted the punitive damages. The U.S. Court of Appeals for the Fourth Circuit reversed the finding of liability and the plaintiffs appealed to the U.S. Supreme Court. That Court held that, however offensive the speech might be, it was protected speech on a matter of public concern and therefore intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy were not actionable in this situation (562 U.S. at 459–461). In so ruling, the Court relied upon its holding in Hustler Magazine, Inc. v. Falwell (485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)), where the court held that a prominent Christian fundamentalist preacher could not recover for intentional infliction of emotional Reburial, Religion, and Race

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distress where the defendant published a parody accusing him of having sexual intercourse with his own mother, while intoxicated, in an outhouse. The courts have held that scientific studies, including physical anthropology, are protected by the First Amendment, Bonnichsen (969 F.Supp. at 646), and cases cited therein. Given the above two Supreme Court cases, it is hard to imagine that those principles, if applied to the Havasupai suits, would have sustained a complaint against a motion to dismiss, much less allowed a recovery by the plaintiffs. The Havasupai plaintiffs were the beneficiaries of a practice of racial discrimination in litigation.

Conclusions Whatever the issues may be in reconciling human biology with morality, art, religion, and other important aspects of our nonmaterial life, they should be the same for American Indians as they are for members of other races. Biologist Kenneth Miller has written extensively on the moral and philosophical implications of evolutionary biology and the problems it poses for many religious beliefs (Miller 2002, 2008) and has testified in the Kitzmiller case against the proponents of intelligent design. In his most recent consideration of these issues, he notes: “Nearly all creation stories agree on one thing, which is the uniqueness of the human species and the need for a special story to explain how we came to be. At a fundamental level, the idea of evolution undermines these stories, whether they are set in an Abrahamic Eden or upon the sacred mesas of the Hopi” (Miller 2018, 14–15). If it is unconstitutional for our legal system to endorse the Abrahamic Eden, then it should be unconstitutional for it to endorse the Hopi or Havasupai equivalent. We express no opinion as to whether the courts’ current interpretation of the First Amendment is the correct one or the best one. We simply say that whatever restrictions are placed on non-Indians should also be placed on Indians. If the government cannot endorse Christianity, then it cannot endorse the origin stories of the Navajo or the Havasupai. In this discussion and throughout this book, we assert that whatever strictures or limitations are placed on the incorporation of monotheistic religious beliefs into scholarship and law should apply with equal force to Native American animistic religions.

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8 Oral Tradition as Evidence for Repatriation

One of the underappreciated aspects of the repatriation movement is the challenge it presents to what is commonly accepted as evidence or proof. NAGPRA states that “folkloric” evidence and “oral tradition” shall be accepted as evidence in a repatriation claim, but it does not define the terms or say how such evidence shall be evaluated or weighed (25 U.S.C. §3005a(4)). NAGPRA does not say that religious doctrines and beliefs may be accepted as evidence, but such acceptance has occurred. The traditional scholarly disciplines demand that objective evidence be offered that any researcher can evaluate and challenge and that such evidence be subjected to empirical confirmation or refutation. Miracles, divine forces, magical causes, transformations of humans into other species or inanimate objects (and vice versa), and physical objects being animated by spirits or souls, are the type of processes that simply cannot be entertained in a scholarly discipline. It is an important historical fact that seventeenth-century English Puritan settlers and their French Catholic enemies commonly saw the hand of God in the wars, famines, and epidemics that wracked colonial North America as well as in the good fortune that the colonies occasionally enjoyed (Slotkin and Folsom 1978). For a historian to make a similar assertion today would be to say that he is no longer doing history or ethnohistory. This is not to deny the possible existence of a spiritual reality. It is simply to say that history and science cannot resolve, or prove, or disprove, the existence of such a reality. The same is true of our legal system. Yet that is the choice that the repatriation movement invites.

Anti-Science and Repatriation Ideology The easiest starting point for our discussion is the opinion of the most extreme repatriationists, of whom Vine Deloria Jr. is an apt representa-

tive. His Red Earth, White Lies: Native Americans and the Myth of Scientific Fact (1997) is a polemic against natural science and any non-Indian understanding of the world. Biological evolution, natural selection, migration across the Bering Strait, and the extinction of New World megafauna by early Native Americans are dismissed as racist fictions perpetuated by individuals claiming to pass themselves off as objective researchers. By way of opposition to scientific theories, Deloria offers the stories of miraculous events told by the traditional Native North Americans’ religions. His attitude toward these traditions is ambivalent and uncertain, and its uncertain character highlights the issues that any defender of the repatriation movement must address. At times Deloria seems to suggest that a reasonable person must accept as literal truth, or entertain such an acceptance, stories about giants, gods, monsters, and magical transformations. At other times he seems to suggest that such events should be subjected to confirmation by secular disciplines such as geology before they are accepted as truth. In a similar vein, Kathleen Fine-Dare’s Grave Injustice: The American Indian Repatriation Movement and NAGPRA (2002, 152–156) dismisses archaeology, physical anthropology, and museum studies and exhibits as fatally tainted by racism, capitalism, and imperialism, and indeed hardly more than expressions of those evil ideologies. At other times, however, she herself undertakes what seems to be a traditional anthropological study of archaeological remains to support NAGPRA claims. If the views of Deloria and Fine-Dare are to be accepted, is there any reason, apart from racial discrimination and racial favoritism, that the traditions of other American subcultures about the supernatural are to be excluded from law? Can testimony about divine intervention, divine revelation, magical harm, witchcraft, and divination be excluded from testimony in American courts? Would not the acceptance of such testimony violate the Establishment Clause of the First Amendment?

Zuni: A Case Study The issue finds clear expression in the Zuni land claims cases. Zuni is a single pueblo in western New Mexico that in the historic period contained approximately 2,000–6,000 people. The modern reservation consists of about 400,000 acres (Ladd 1979). However, the Zuni claimed ownership rights over a huge portion of New Mexico and Arizona, based in part upon their continuing use of these areas for ritual activity, but based even more upon their traditions of their origins and migrations. 176

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The Zuni say that in the earliest period of their history they lived in the underworld and in a watery environment, and as a result had webbed hands and feet and slimy bodies (Ferguson 2007). While living underground, the Zuni were instructed by the gods in rituals and prayers and were guided by some of the same religious societies that govern them in the historic period. At some time, the Zuni emerged from the underworld in an area near the bottom of the Grand Canyon and began their migrations. Their migrations were accompanied by stops at various locations, where they built villages. Traditionally it was said that each stop was four days and four nights, although some Zuni informants regard that phrase as metaphorical, referring instead to four years, four centuries, or four millennia. This is a striking parallel to the “day age” interpretation offered of the Book of Genesis by some non-Indian Christian creationists, whereby the “days” of Genesis and interpreted as periods of time that may be far longer than a 24-hour day (Numbers 2006, 7–11). One of the Zuni stops “is identified in many sources as the spring where the slime was washed off the Zuni and where their physiology was changed by creating mouths and anuses, cutting the webbing of their hands and feet, and cutting off their tails and ‘horns’ [citations omitted]. [Edward] Curtis (1926), however, says that it is at Ubulemi that the ‘great shocks of hair’ that projected from their foreheads and their hairy tails were cut off ” (Ferguson 2007, 390). The Zuni proceeded to migrate to a series of points in eastern Arizona and western New Mexico, at which time various miraculous events occurred. For example, at one stream crossing the children turned into water creatures and proceeded to bite their mothers, which caused them to be dropped into the stream. Those children who had been dropped and not removed turned into kokko (katchinas), who still visit Zuni pueblo. Various battles were recounted in which either the Zuni or their opponents used magic to protect themselves against their enemies (Ferguson 2007). The Zuni claim to the land that is described in their migration traditions came to court in Zuni Tribe of New Mexico v. United States, 12 Cl. Ct. 607 (1987). The Zuni and their attorneys presented to the judge two very different types of evidence—namely, (1) evidence from archaeology and from written documents describing the location and activities of the Zuni in the historic period, and (2) stories of their migrations as briefly recited above and the other oral traditions that referred to areas that the Zunis were claiming. The government’s attorneys objected to the court’s considerOral Tradition as Evidence for Repatriation

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ation of the Zuni migration traditions on the grounds of their unreliability. The judge stated as follows: The court acknowledges that, like any religious history, oral recounting through generations can become less than accurate. Again, however, this Finding is to be taken in context with all other Findings. Moreover, the court is persuaded by the testimony of plaintiff ’s experts that, to the Zunis as to members of other tribes, the transmission of historical data and tradition was always of great import with little, if any, reliance placed on written documentation. Defendant conjectures, but offers no evidence to contradict or impeach the Zuni recounting of their history. (Id. at 616, n.12) The problem, of course, which the judge finesses, is that the tradition is inextricably bound up with stories of the supernatural and the miraculous—that is, with Zuni religion. One cannot evaluate the historical and legal value of the exact location of the place of emergence from the underworld, for example, without dealing with the issue of whether the story of emergence from the underworld is the sort of thing that a court should entertain. Likewise, with the stopping points that involve supernatural and miraculous events, the issue is not simply whether oral tradition could accurately preserve the memory of a particular geographical location. It is whether a story of miracle working is to be accepted as evidence in a court of law. It is not merely the supernatural character of oral tradition that should give rise to caution in its use. It is also the obvious anachronisms that are incorporated into the oral traditions that undermine their probative value. One of these emerged in the Indians’ presentation of their case in the suit over Kennewick Man. (Scientific investigation of Kennewick Man is discussed in chapter 1, and the DNA research on Kennewick Man is discussed in chapters 3 and 10.) By way of establishing their affiliation with Kennewick Man’s skeleton, the tribal claimants presented stories about how natural phenomena along the Columbia River had formed. Those events often involved Coyote, who is a standard trickster figure in North American Indian mythology. Those narratives include the following: Thus, one narrative begins, “In the days of the animal people, the Columbia River used to flow through the Grand Coulee. Coyote had a big steamboat then.” DOI 6946. It proceeds to describe how Coyote 178

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cut a hole through the place where Coulee Dam is now, which caused the river to leave its old channel and flow through its present one. Coyote’s steamboat was left in the dry channel. Jack Rabbit laughed at Coyote, and was turned into a rock. “You can see him sitting there today, at the left of Steamboat Rock.” (Bonnichsen 217 F.Supp.2d at 1153, n.61) Whatever period of time or events this story may be taken to refer to, the Indians of the Columbia River region did not have steamboats at any time prior to the arrival of Euro-Americans. Their river transportation was by dugout canoe (Coues 1965, 674, 770–72; Drucker 1965). Similar anachronisms occur in Indian discussions of other elements of technology introduced in the colonial period. In a recent and very thorough study of the effect of the introduction of firearms into North America in the colonial period (Silverman 2016), the author notes that the firearms were rapidly assimilated to traditional Indian religion and symbolism. A common North American Indian word for firearm literally means “thunderstick” or “thunderbolt.” Thus, firearms were associated with the traditional Thunderbird, who could shoot lightning bolts from his eyes. There was a further association with the Horned Underwater Serpent or Underwater Panther, both of which were associated with natural phenomena and success in hunting or other activities important to the Indians. Firearms became seen as a manifestation of these spirits. Wielding a gun was analogous to the powers of these gods to exercise spiritual power and the ability of a shaman to injure another person. It is unlikely that the traditions of Thunderbird, the Underwater Panther, or the Horned Underwater Serpent originated in the seventeenth century, but however far they go back, they were quickly assimilated to technology introduced in the seventeenth century (Silverman 2016).

Blackfoot Indians: Revising History A further example is provided by John Ewers’s thorough study (1955) of the role of the horse in traditional Blackfoot Indian culture of Montana. The horse had become extinct in North America at the end of the Pleistocene, ca. 10,000 years ago, but was reintroduced by Spanish settlers, missionaries, and soldiers coming north from Mexico in the sixteenth century and spread by Indians through trade, gift-giving, and raiding. Colonial-period accounts document the spread of the horse north through the Plains tribes, Oral Tradition as Evidence for Repatriation

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which was a subject of great interest to the colonial officials, military officers, and fur traders who were interacting with the tribes. Ewers asked his informants, elderly Blackfoot living in the 1940s, what they knew about the origin of the horse in their tribe. Some professed no knowledge at all. Others recited stories that a particular Blackfoot man or boy was given horses by spirits of the water or spirits of the air, such as the Thunderbird or Morningstar. Other myths state that the horses were created by the gods for the benefit of a human visitor. The visitor then returned to his tribe with the horses and taught his tribesmen their use. Bioarchaeologists have traced the biological changes in both humans and horses that occur with domestication and have found no evidence of horseback riding among Native Americans prior to European contact (see chapter 4). Ewers (1955) notes that, in a period of approximately 200 years, a well-documented historical event had been assimilated into the timeless world of legend and myth.

Testing the Validity and Reliability of Oral Traditions The question of the validity and reliability and admissibility of oral tradition has been litigated much more frequently in Canadian courts than in the U.S. courts, and the Canadian experience is instructive (Leclair 2005; Burrows 2001; Newman 2005; Flanagan 2008). The Canadian courts, and particularly the Canadian Supreme Court, have stated that judges should give due weight to oral traditions. The Chief Justice of Canada has held as follows: A court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times when there were no written records of the practices, customs and traditions engaged in. The courts must not undervalue the evidence presented by aboriginal claimants simply because that evidence does not conform precisely with the evidentiary standards that we applied in, for example, a private law torts case. (Delgamuukw v. C.B., (1997) 3 R.C.S. at 1065, quoting its earlier decision in Van der Peet) The difficulties of applying this standard are reviewed in the excellent article by Jean Leclair (2005). In the Delgamuukw trial, Indian claimants asserted that they occupied and owned certain lands in British Columbia. 180

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One of the tribes offered into evidence the following story. After the men had finished fishing, girls or young women from the group made headdresses out of the backbones and tails of the fish and began to sing and dance with them. Then there was a sudden attack by a gigantic supernatural grizzly bear who came down the side of the mountain and trampled the trees and crossed the lake. When the men of the village attempted to defend against the grizzly, their arrows were magically deflected, and the bear trampled them to death. The bear then disappeared into the lake. The elders offered this story as the reason that young people must not play with fish or meat or anything else that was given to them to eat. The food was a gift of the Sun God, and the bear’s attack was revenge by the spirits of the trout whom the Indians had caught (Delgamuukw v. British Columbia, 1991 CanLII 2372 (BCSC) at 133–147). In the Delgamuukw trial, a geomorphologist testified that a landslide had occurred about 3,500 years ago, which would have made a tremendous amount of noise and caused debris to be deposited at the bottom of the lake at issue. A paleobotanist confirmed the findings, saying that the clay layer showing the landslide was 3,380 years old and that the water level had risen as a result of the landslide (id). This testimony was said to “support” the story recited above. The problem is to consider how much weight the oral traditions should be given, even when supported by geology. After all, the oral traditions do not refer to a landslide; they refer to a giant supernatural bear’s causing the earth to shake as punishment for offending the spirits of the trout. If one accepts the admissibility of supernatural occurrences, one can set about finding physical facts that seem to confirm those occurrences, just as Christian creationists do with geology (Numbers 2006). However, the issue is whether any materially documented event can corroborate a supernatural event, so as to make it admissible as evidence. This is a situation similar to that found in proof offered by the Indian claimants in the suit over Kennewick Man (Bonnichsen, 217 F.Supp.2d at 1151–1155), that certain miraculous events of the past were confirmed by research in geology that indicated that floods, and so forth, had indeed happened in the past in the Columbia River region. The plaintiffs-anthropologists argued that to accept these traditions as evidence would violate the First Amendment’s Establishment Clause. The trial court very briefly reviewed selected case law on the First Amendment and then rejected the plaintiffs’ contention. The court ruled: “The Establishment Clause might Oral Tradition as Evidence for Repatriation

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have been violated here if the Secretary had assumed that the narratives were true because they are religious in nature. However, the Secretary did not do so, but instead used the narratives for purely secular purposes” (id. at 1152; emphasis in original). The trial court referred to one of the three parts of the Lemon test (the secular purpose test) but ignored the other two parts of the Lemon test—namely, having the principal or primary effect of advancing or inhibiting religion and fostering an excessive government entanglement with religion. What the secretary of the interior and the district court judge both did is to take a religious tradition and simply translate it into secular terms and accept it as evidence. Such an argument would never be accepted if the party asserting it were a Christian creationist (Kitzmiller v. Dover Area School District, 400 F.Supp.2d 207 (M.D.Pa. 2006)). The ruling does not adequately refute the plaintiffs’ First Amendment objection. Leclair’s article also deals with the issue of bias on the part of experts offering testimony on behalf of Indian claimants. In the Delgamuukw case, one of the expert cultural anthropologists testifying for the Indian claimants cited the code of ethics of the American Anthropological Association to the effect that a cultural anthropologist owes his primary allegiance to the people he studies, and he has a duty to protect their welfare and honor their dignity and privacy. In another case, the trial court judge expressed his skepticism about the evidence of a cultural anthropologist who had lived with one of the Indian claimants. The judge recognized the qualifications of the anthropologist but stated that he was acting more as an advocate than as a witness (Leclair 2005; for a similar point about expert witness bias in the United States, see Van Gestel 1990). By way of supporting the value of oral tradition, John Burrows (2001, 34–35) offers the argument that scholars are used to interpreting works such as the Iliad, the Bible, and the Norse sagas “as containing a mixture of literal and psychological facts.” Those texts contain a variety of statements, all of which can only be understood within their proper cultural context. Burrows’s point is a legitimate one, and certainly literature contains a great variety of insights that cannot be reduced to literal, factual accuracy. However, if one is studying statements as literature, then one is simply using them for a different purpose than history or science. All three modes of interpretation are legitimate, but it is important to be clear about which mode one is adopting. For example, one may appreciate the artistic and psychological insight shown by Shakespeare in his play Richard III and still 182

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doubt that its portrayal of Richard is historically accurate. Issues about the historical Richard III, such as where and when he lived and died, what he did or didn’t do (as opposed to what he is accused of doing), and whether he had any of the physical deformities that are attributed to him by Shakespeare are all historical and scientific issues (Pitts 2014). No amount of eloquence or psychological insight in Shakespeare’s play can substitute for the search for historical and scientific fact. Using Burrows’s example of the Iliad, the poem contains a great deal of useful information about ancient Greek law, particularly the famous “shield scene” that describes litigation over a homicide (Gagarin 1986). In this respect, it offers parallels to the litigation over Indian claims in Canadian and United States courts. However, that research in legal history treats the Iliad critically, demands confirmatory evidence, and does not base itself on the actions of the Greek gods. Quite apart from the issues discussed above, the issue arises as to how the evidence of oral tradition shall be presented and criticized in court proceedings. The events described by the witnesses, in whatever form they occurred, occurred hundreds or thousands of years before the trial. It is not simply a matter of hearsay but rather a gap of thousands of years between the declarant at trial and the person who observed the events being offered as evidence. There is also the issue of the extent to which cross-examination may be used by the opposing party to call into question the aboriginal stories. Burrows (2001) objects that the ordinary practice of cross-examination at trial is humiliating for Indian elders of the tribe, who are used to being deferred to as authorities on traditional culture. The implication is that such witnesses should not be cross-examined at all or should be treated far more deferentially than all other types of witnesses in Canadian trials.

Conclusions In accepting oral traditions as evidence, it is apparent that the courts have practiced religious discrimination and racial discrimination in their admission and weighing of evidence. Such a practice is a further manifestation of the undesirable consequences of the repatriation ideology.

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9 Indian Treatment of the Human Body

One of the common assertions of the repatriationist movement is that, according to traditional American Indian culture, all of the dead are to be treated respectfully, and respectful treatment consists solely of immediate inhumation of the deceased person, with no subsequent disturbance of the body. It is thought that this treatment is necessary to quiet the soul of the deceased. If the deceased’s body is not immediately buried or is disturbed, the soul will also be disturbed and will be unable to achieve its full emotional rest after death. Repatriationists also claim that the disturbed soul of a deceased person will affect the living in various ways. Perhaps the deceased will cause sickness or injury among the living, cause disturbance of weather or other physical phenomena, and in general cause injury to the living due to the disturbance of the dead. At the very least, repatriationists claim that Indians believe these things; sometimes they imply that these things are actually true (see Tsosie 1997; Fine-Dare 2002). These assertions are made in litigation, in claims presented to government agencies, and in books and articles supporting the repatriationist movement. Thus, the Indian claimants in Bonnichsen v. United States Department of the Army (217 F.Supp.2d (D. Or. 2002) at 1121) opposed scientific study of Kennewick Man with the following argument: “When a body goes into the ground, it is meant to stay there until the end of time. When remains are disturbed and remain above the ground, their spirits are at unrest. . . . To put these spirits at ease, the remains must be returned to the ground as soon as possible.” The allegation that Indian cultures traditionally treated all the dead respectfully by immediate inhumation with no disturbance is untrue and is easily disproven. A good anecdotal example of this is when Native Americans from Oklahoma did not wish to rebury remains that were not

affiliated to them although the Denver Museum of Nature and Science was ready to hand over the skeletal remains (see chapter 3). However, the situation regarding traditional Indian attitudes and customs toward the dead is so complex that it is difficult to summarize it in a way that is not misleading. We believe that the proper way to approach the issue is by making the traditional distinction between friends and enemies. A friend was anyone to whom the people of an Indian society owed an obligation of cooperation, respect, support, protection, and so forth. An enemy was a person to whom one did not owe such respect and support. Typically an enemy meant a resident of a foreign tribe or village with whom a permanent or recurrent state of enmity existed. The situation was actually quite complex, with varying degrees of alliance, cooperation, and friendship toward neighboring tribes and villages and varying degrees of hostility or enmity.

Policies toward the Bodies of Friends Toward friends, a person owed a duty of assistance and cooperation, support, protection, and provision of physical and spiritual benefits. This would include providing medicine and curing ceremonies for a friend and mourning the dead and according appropriate treatment for the dead. Regarding the treatment of the body of a deceased friend, the policies and attitudes were quite complex. There were indeed examples, as the repatriationists claim, in which the proper treatment of a dead friend was immediate inhumation with no further disturbance or treatment. On some occasions the dead were buried with burial goods, which might consist of tools or weapons and, apparently, food. Examples of burials with grave goods go as far back as the Paleoindian period (see chapter 1). There was a common belief that the spirit of the deceased could use the tools, weapons, and food after his death. In archaeological contexts, the deceased’s inhumed body is often found beneath house floors, in burial mounds, and in special areas treated as cemeteries, although the dead are also buried in trash accumulations or refuse mounds. Some are buried in elaborate tombs with extensive grave goods while others are simply buried with minimal adornment or elaboration (Milner 2004; Driver 1969). Chapter 4 discusses some of these variants in burials as they relate to societal rank. Among the grave goods found in Hopewell Mounds (ca. A.D. 1–400) are cut and modified human jaw bones (Seeman 2007). Indian Treatment of the Human Body

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It is notable that, even in this situation, remains of members of one’s own group might well be disturbed. At the Dickson Mounds site in Illinois, which is a Middle Mississippian cemetery apparently used intensively for some period of time, it is common to find early burials disturbed by later burials. The disturbance is shown by the fact that some parts of the skeleton are missing, and some skeletons are disturbed or displaced by later burial pits being cut through portions of the earlier interred individuals (Harn 1980). The burial area of Dickson Mounds was sealed over after protests by repatriationists claiming that permitting the public to see the remains was offensive (Benner 2001). Some of these disturbances were likely unintentional because no records of burials would have existed. There are also examples in earlier cultures in the nearby area of individual human bones being found in nonburial contexts, which suggests that in some ways disturbed burials came to be deposited in ordinary refuse (Cole and Deuel 1937). In certain societies the dead were cremated, and this was considered a respectful treatment. Typically, so far as we can tell, the cremated bones were then gathered and buried, sometimes with grave goods interred with them (Driver 1969; Haury 1976). Among some tribes, particularly the Plains tribes, there was permanent or at least long term, scaffold burial, in which the deceased was placed on a scaffold erected several feet above the ground, usually in a special cemetery area apart from the village or at least apart from the inhabited area of the village. The body was left on the scaffold until and after it had decayed. Such disposition of the dead would not normally show up in the archaeological record, since the deceased’s remains would be destroyed by scavengers and the weather (Driver 1969). Among many groups there was a variant of the scaffold burial in which the deceased was temporarily placed on a scaffold or in some kind of hut or structure above ground. The soft parts of the deceased were allowed to decay, which might take a period of several years. Among some groups, the body of the deceased, after being allowed to partially decay, was defleshed by particular individuals whose job it was to perform that service. The defleshed bones were then collected in a box or hamper and kept by the relatives of the deceased. In the southeastern United States, bones of important individuals, particularly those of the chiefly lineage, were kept in a temple, atop a temple mound, for an indefinite period of time (Swanton 1931; Dye and King 2007). Those groups who practiced defleshing of the dead and preserving of 186

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the bones would typically bury those individuals’ bones in cemetery areas, including, in some cases, mounds. The archaeological manifestation of this would be a secondary burial, in which you have the bones, or at least most of the bones, of one individual buried in a cemetery or mound, often with burial goods (Gold 2004). Among some groups practicing secondary burials, there were periodic group interments, in which an entire village or tribe participated in the interment of the bones of the deceased in one large ossuary, accompanied by grave goods. The most famous example of this was the Huron Feast of the Dead, which was extensively described by seventeenth-century French observers (Kinietz 1940; Tooker 1964). It should be noted that all of the above, so far as we can tell, were considered by their practitioners to be respectful treatments of the dead. In other words, it was not disrespectful or dangerous to keep the bones of the dead unburied for several years at a time.

Policies toward the Bodies of Enemies Again, definition is essential before any clear analysis of the data can be made. By “enemy” we mean anyone to whom one did not owe a duty of assistance, support, and respect. The enemy might be members of a foreign tribe or village, or people enslaved by the host village, or witches or other individuals who were regarded as threats to the community. The bodies of enemies deserved mistreatment, not respect. The principal way in which hostility toward enemies was expressed was in warfare, which is well documented in the archaeological record and in the ethnohistoric record (e.g., Keeley 1996; LeBlanc and Register 2003 for warfare generally among pre-state level societies; Chacon and Mendoza 2007; Kroeber 1925; Swanton 1946 for warfare in North America). Chapter 4 discusses the bioarchaeological evidence of pre-Columbian violence in the Americas. There were certain periods of time and areas where warfare was particularly intensive, as indicated by numerous fatal injuries reflected in the bones, missing limbs, and sometimes arrow or spear points found inside the person’s body. Other skeletons show that the individuals lived for some period of time even after suffering a serious injury. At some sites, a substantial proportion of the village was wiped out, either in a single attack or under repeated attacks (Kuckelman et al. 2002; Milner and Smith 1990). One of the reasons for warfare was to take captives from the enemy tribe. Indian Treatment of the Human Body

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It was very common for the captors to torture and kill these captives and to dismember their bodies (Knowles 1940). Human sacrifice, in the sense of dedication of human life to the gods, is not nearly as well documented in North America as it is in Mesoamerica, but there are such examples. The clearest examples come from the Natchez in western Mississippi. The death and burial of the Suns (the highest social class) was observed by the French in the eighteenth century, and the burial rites included sacrifice of individuals to accompany the deceased in the afterlife (Swanton 1911). Otherwise, the clearest ethnographic example of human sacrifice known to us is the Morningstar sacrifice of the Pawnee, which involved killing a single young female who had been captured from a foreign tribe. Her death was a sacrifice to the Morningstar (Weltfish 1971). There are numerous archaeological examples of mass graves strongly suggestive of human sacrifice, such as Mound 72 at the Cahokia site in southwestern Illinois, which contained several burial pits each with numerous beheaded and behanded individuals (Pauketat 2004; see also chapter 4). However, even the torture of enemies captured in war was sometimes regarded as human sacrifice. Observers of the Huron during the seventeenth century stated that the Huron were instructed that torturing and killing an enemy captive was a human sacrifice in which the dead person was offered to the sun and the war god. Therefore, the participants were required to observe the proper solemnity (Tooker 1964). In a large number of cases captured enemies were saved and kept alive, long term, as some kind of lower-status members of the capturing group. It appears that in some cases the captured individuals were treated as slaves for the rest of their lives, but in other cases they were adopted into the capturing tribe and became indistinguishable from the native-born members of that tribe (Richter 1992). The issue of dismemberment invariably raises the issue of the treatment of witches. There was an elaborate set of beliefs among southwestern Pueblos Indians about witches and the harm they did. “Witch” was a very broad category that included people who used magic to injure other members of the village but also included religious non-conformists, subversives, fifth columnists, and others who were simply antisocial or unreliable. As late as the twentieth century there was symbolic killing and dismemberment of the body of a witch. Some researchers believe that the dismembered bodies found in archaeological sites in the Southwest may be those of witches (Darling 1999; Brooks 2016). 188

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Apart from dismemberment, trophy taking is well documented in aboriginal North America, of which the most famous and widespread was scalping. The purpose of scalping was manifold. It showed the prowess of the individual warrior in taking enemies’ scalps, the scalps were used in scalp dances, and among some groups the scalps were thought to have supernatural powers to, for example, cause rain (Axtell and Sturtevant 1981; Schaafsma 2007). Head taking and taking of hands or other body parts is also documented historically and archaeologically for North America (Pauketat 2004). A recent volume of excellent essays assembled by Richard Chacon and David Dye (2007b) provides a survey of trophy taking in North America. Herbert Maschner and Katherine Reedy-Maschner (2007) document scalping, beheading, and cutting off of genitals in the Arctic and western subarctic. Joan Lovisek (2007) documents taking of heads and hands of enemies by Northwest Coast peoples and the displaying of heads on poles. Patricia Lambert (2007a) documents scalping and head taking by California Indians and relates the various practices to linguistic groupings. Polly Schaafsma (2007) documents and elucidates the evidence of scalping and beheading in Basketmaker, Fremont, Anasazi, and Navajo rock art in the Southwest. Douglas Owsley and colleagues (2007) document the removing of fingers from the enemy dead and the manufacture of necklaces that incorporate human fingers or bones among Great Basin and Plains Indians. Ron Williamson (2007) documents torture, scalping, beheading, and general dismemberment practiced against their enemies by Iroquoian speakers as well as artifacts made from human bone. Robert Mensforth (2007) documents the taking of heads and scalps, the dismemberment of bodies, and the use of skulls, mandibles, and teeth as trophies in the Archaic Period (ca. 8000–1000 BC) of Eastern North America and relates these practices to warfare. Keith Jacobi (2007) documents scalping and head taking in the southeastern United States and the presence of trophy skulls as burial goods. Nancy Ross-Stallings (2007) documents scalping and decapitation in the Central and Lower Mississippi Valley, but with citations to other parts of North America. Just as important as the physical activities associated with the trophy taking, the motives for trophy taking help to elucidate attitudes toward the dead. Those motives are actually quite variable. One set of motives relates to using the trophy as a demonstration of prestige, rank, and success. Among many North American Indian groups, it was important to bring back evidence of the success of a raid, in the form of scalps, heads, or live Indian Treatment of the Human Body

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prisoners. The presence of trophies not only indicated the success of the war party but indicated the success of the individual who actually took the trophy. A second set of motives concerns trophy taking as taking revenge against another group that had killed a kinsman or a relative of the avenger, punishing or insulting the deceased represented by the trophy, protecting living people against punishment by the soul of the deceased, or making the deceased serve one’s kinsmen in the afterlife. A third very common motive relates to the use of scalps and other trophies as access to supernatural power. Trophies could be used in curing or healing, to guarantee success in hunting, to bring rain, and to ensure fertility of humans, crops, and animals. Finally, trophies were used to pay respect and honor to the gods or spirits who ordained the institution of trophy taking and to thank the gods for their generosity in allowing a successful war party (see Chacon and Dye 2007a, 2007b). Quite apart from trophy taking, deliberately disrespectful treatment of the bodies of enemies is well documented. In the southeastern United States, the larger towns contained a temple mound, with a temple on its flattened top that contained the bones of the chiefly lineage. Also present in the temple were various expensive and rare trade goods, carved images of the ancestors, and so forth. In short, the temple, with its bones of the chiefly lineage, was the center of the cult and also the center of political authority. Consequently, attacking and capturing an enemy town involved destroying the temple and its contents, including spilling the bones of the chiefly lineage onto the ground, deliberately trampling and breaking the bones, and so forth. The practice is well documented in sixteenth-century Spanish accounts of the southeastern United States and is represented in several archaeological contexts (Dye and King 2007). One of the most famous examples occurred during the Hernando de Soto expedition of 1538–1543, which crossed the southeastern United States. One of its chroniclers describes the actions of the Casquin Indians who had captured the capital of their enemies, the Capaha, which was probably located in what is now eastern Arkansas: Not content with having sacked the town and the houses of the Curaca and with having made what slaughter and seizures they could, the Casquins moved on to the temple in the large public plaza, which was the burial place of all who had ever ruled that land—the fathers, grandfathers, and other ancestors of Capaha. . . . Summoning all their 190

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forces so that everyone might enjoy the triumph, the Casquins went to this temple and sepulchre, and since they realized how much Capaha (proud and haughty because of their not having attacked previously) would resent their daring to enter and desecrate this place, they not only proceeded within but committed every infamy and affront they could. Sacking it of all ornaments and riches, they took the spoils and trophies which had been made from the losses of their own ancestors. Then they threw to the floor each of the wooden chests which served as sepulchres and for their own satisfaction and vengeance as well as an affront to their enemies, strewed upon the ground the very bones and bodies the chests contained. Afterwards, not content with having cast these remains to the ground, they trod upon them and kicked them with utter contempt and scorn. Many of the heads of the Casquin Indians which the men of Capaha had placed on the points of lances at the doors of the temple as a symbol of victory and triumph, they now removed, substituting for them the heads of citizens of the town whom they themselves had decapitated on that very day. (Vega 1951, 438–439) In the historic period, the Iroquois would mistreat the buried bodies of their enemies, and the same practice was followed by the enemies of the Iroquois (Hall 1997; Membré 1852; Richter 1992). Finally we come to the subject of cannibalism, which is only briefly touched upon in chapter 4. There are numerous ethnohistoric accounts of cannibalism (Feldman 2008; Tooker 1964; Richter 1992). There are numerous archaeological sites, particularly in the southwestern United States, where the remains of humans are treated in ways similar to the way that game animals are treated. That is, they are dismembered, broken, cut, burned, and otherwise treated in ways that suggest that they are being used as food. There is some chemical evidence from remains of human feces that, in fact, cannibalism did occur (Kuckelman et al. 2002; White 2014; Turner and Turner 1999). As noted above, some researchers believe that some of the dismembered bodies from southwestern archaeological sites might be better interpreted as witches who had been killed and dismembered to destroy their power. Besides literal cannibalism, symbolic cannibalism occurred among some groups, particularly the Kwakiutl of the Northwest Coast. A cannibal among the Kwakiutl was a particular individual or small category of indiIndian Treatment of the Human Body

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viduals (cannibal dancers) who had supernatural power, which involved killing and eating humans. A great deal of the cannibalism, as observed by Boas and other ethnographers, was symbolic. That is, the cannibals would imitate killing or eating victims, but the performance was an imitation, not real. However, there is certainly at least the suggestion that the symbolic cannibalism was important because it stood for an actual practice (Boas 1966; Feldman 2008).

Conclusions The above discussion shows that agreeing to the repatriationist claim that all human bodies should be immediately interred and not disturbed is problematic. If repatriationists claim to believe literally that non-inhumation of the dead will cause the soul of the dead to be disturbed, which in turn will cause physical injury and illness to the living, then those who do not accept that belief have no reason to defer to the repatriationist demand for inhumation of the dead. If the repatriationists claim that those beliefs are part of their culture, which should be deferred to by the larger society, including non-Indians, then the above has made clear that actual attitudes toward the dead are highly variable among American Indian societies. There is no consensus that immediate inhumation and nondisturbance is desirable. There is no reason to believe that the deceased individuals whose remains are at issue shared the attitudes toward the dead that are urged by repatriationists. It is unclear as to why the repatriationist view should be deferred to by the larger society. If, in fact, repatriationist policy amounts to incorporating and carrying out the traditional American Indian attitudes toward the body, as the repatriationists claim, then the U.S. government is effectively establishing a religion, contrary to the First Amendment to the U.S. Constitution. It is not simply that the repatriationists wish to have their views respected but rather that they seek to have their views incorporated into official political and judicial policy. This is something that is difficult to square with the Establishment Clause of the First Amendment. Certainly, if a Christian fundamentalist were to argue that refusing to punish sin or allowing nonbiblical theories to be taught in the public schools would invite divine punishment now and in the hereafter, the courts would not defer to those demands. More likely, they would say that any official action taken under such motivations would be unconstitutional. 192

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The Supreme Court has held that “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another” (Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982)). There is no good reason why Native American animistic religions should be treated more favorably.

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10 Repatriation and the End of Scientific Freedom

This chapter explains how repatriation hinders scientific research through the loss of collections, the inhibition of freedom of inquiry, and censorship. Collaboration and consultation restrain researchers and promote repatriation ideology and religious perspectives.

The Loss of Data The loss of data due to repatriation laws and ideology is particularly problematic for those studying skeletal remains. In 50 years, it is likely that all Native American skeletal remains will be repatriated or reburied (Shepherd 2012). New requirements to dispose of culturally unaffiliated remains have put even these once-safe collections at risk (Colwell-Chanthaphonh 2010; Midler 2011; Van Horn 2008). Although many anthropologists are sympathetic to repatriation, others are concerned that the loss of remains will translate to the inability to restudy collections, to retest hypotheses, and to train students to reduce errors (Clark 1999; Kakaliouras 2014; Landau and Steele 1996; Ubelaker and Grant 1989; Putnam 2014). Archaeology professor Duncan Sayer from the University of Central Lancashire stated that “the destruction of human remains prevents future study; it is the forensic equivalent of book burning, the willful ruin of knowledge” (Strauss 2016, n.p.). Simon Mays points out that scientific study is never truly complete (Strauss 2016), and yet NAGPRA states that the only way to keep a collection beyond the normal period when repatriation has been requested is for “the completion of a specific study, the outcome of which would be of major benefit to the US.” Of course, once bones have been repatriated, any chance of correcting errors in earlier works is lost. Collections should be protected to ensure that the scientific method can proceed in anthropological research.

Hypothesis-Driven Science Bioarchaeology, like the other physical anthropology subfields, is a hypothesis-driven science (Armelagos and Van Gerven 2003; Kakaliouras 2014; Mays 2015a). Anthropologist Sherwood Washburn, back in 1951, encouraged physical anthropology to turn away from individual-oriented case studies and toward population-oriented studies that incorporate questions regarding evolutionary processes, such as the environmental influences on human adaptations (Kakaliouras 2014). Although physical anthropologists, especially bioarchaeologists, still conduct some case studies, studies using larger sample sizes, rigorous technologies, and statistical testing have become very much the norm in the field. Large collections, which are especially hard to come by, not only allow for the best hypothesis-testing studies, whether they are about the population or on another topic, but also increase the odds of finding rare pathologies that may help us understand past and present diseases. At its best, science is self-correcting, either through new data or through re-analyses of data (Clark 1999; Mays 2015a). There has been a misconception that once an osteological report is completed, the skeletal remains that have been excavated can go back into the ground because they are no longer needed. For instance, some researchers have supported the collection of data before repatriation, sometimes even during excavation (e.g., Dongoske 1996). Others have noted that NAGPRA is beneficial for anthropology because it requires basic osteological inventory of the remains (Rose, Green, and Green 1996). However, the osteological report is just the beginning; skeletal collections should be preserved for continuous research (Alberti et al. 2009; Mays 2015a; Powell, Garza, and Hendricks 1993). An osteological report cannot substitute for long-term retention of bones because it is impossible to predict what information future researchers may need (Mays 2015a). Hypothesis-driven research involves the examination of the materials themselves; new questions and new methods could arise that we cannot even imagine. Science, even the softer sciences such as anthropology, are accretionary; that is, they build up over time with an increase in data, techniques, and perspectives. Continuous research on a well-documented collection allows for the use of ever-better techniques to reexamine old questions; for new perspectives from researchers to ask new questions; and for a continuous reexamination of the evidence in light of accruing information. Thus, to Repatriation and the End of Scientific Freedom

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understand a specific population best, we must continue to study the remains. For example, the Ryan Mound collection (CA-Ala-329) housed at San José State University has been continuously studied for decades, with topics ranging from osteoarthritis to biological continuity. Although this collection has a well-done osteological report connected to it, only in the last year did we first learn that there may be multiple populations at the site, with one population being displaced by another (see Weiss 2018). Also, the Pecos Pueblo of New Mexico collection, which is now reburied, was first described in 1930 by E. A. Hooton and studied throughout the decades, being examined as a comparison to other Native American samples, European samples, and even Neanderthals, right up until it was repatriated in the 1990s.

New Techniques Used on Old Collections Within the last 50 years anthropologists have added many new techniques to help us understand humans. For example, isotopic studies to reconstruct diet and determine where one has migrated from, which are now used in forensic studies of deceased border-crossers who die from exposure to the elements or are murdered, have only been in use since the 1980s (Landau and Steele 1996). Moreover, the first time DNA analyses were conducted on Kennewick Man the tests yielded no results, but less than twenty years later DNA research has advanced to the point that a much smaller sample can produce better results and, thus, Kennewick Man’s DNA results are now known (Rasmussen et al. 2015; for more information on Kennewick Man’s DNA and aDNA studies, see chapter 3). Yet, we should not conclude that because Kennewick Man’s DNA is now known and there was a connection between him and one of the Native American tribes that he is most closely affiliated to the tribe that reburied him since DNA results depend on the robusticity of the database. When the database is not diverse enough and does not have enough samples (which is the case for Native American samples), results become skewed to the “next closest sample” available (Bardill 2014, 158). Thus, to truly understand Kennewick Man, one needs further testing with more Native American samples of DNA in the database; unfortunately, currently, only 0.05% of genomic information comes from Native Americans, Australian Aborigines, and Pacific Islanders combined (Popejoy and Fullerton 2016). One reason for the success in forensic DNA analyses is the large DNA database since the requirement of DNA collection for many types of convicted criminals; these advances in 196

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DNA have also helped forensic scientists catch more criminals and release more innocent people. But it is not just about DNA; methods of examining cross-sections of bone to reconstruct activity patterns have moved from destructive sawing of the bones to X-rays to CT scans to 3D scans in the last 40 years. Techniques to understand group relations, such as ethnicity and affiliation, have improved by increasing the number of traits examined and improved statistical analyses that allow for robust testing of the data. For example, remains of the Gordon Creek Paleoindian, which are discussed in detail in chapter 1, were first examined in 1971 and the researchers used eight measurements of the skull to assess ethnicity; the results did not enable researchers to determine how the remains compared to later Amerindian skulls. Yet when Owsley and Jantz (2001) used many more metrics and had a larger comparative sample, they determined that Gordon Creek Woman was distinct from later Native American skulls and, thus, not likely affiliated with any modern tribes. Other changes may include noting which traits are important to record. For instance, whether porotic hyperostosis lesion activity was active, healing, or remodeled was not recorded in early studies, but this activity status is now considered important for understanding anemia rates; yet high interobserver error rates have been found with porotic hyperostosis activity status scores (Jacobi and Danforth 2002). Hopefully, techniques will continue to improve, which will assist in our understanding of past peoples but also will be used in fields such as forensics and medicine.

Reproducibility In addition to new techniques, reproducing results through retesting data is important in science. Although some have suggested that anthropology, especially due to the fieldwork component, cannot be reproduced, much of anthropology—and even archaeology specifically—can be retested (see Beheim 2016). For example, a researcher can reanalyze data from a previous study and should be able to get the same results. Ben Marwick and Zenobia Jacobs (2017) suggest a three-pronged approach to reproducibility in archaeology: fieldwork should be undertaken in a way that allows for further excavation (or a site that has already been excavated once before should be chosen); in the lab, all work should be double-checked with a blind duplicate, which is an additional researcher who does not know what the first researcher’s measurement was; and the statistical analyses should be done using software that allows for visibility with each step. Repatriation and the End of Scientific Freedom

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The social sciences, including anthropology, have faced a reproducibility crisis in part because of the focus on new information for publications but also in large part because too much data is lost (Baker 2016; Marwick and Jacobs 2017). Ancient DNA research required many replication studies to narrow down the actual DNA, reduce contamination, and improve methods to become reliable from one lab to another (Austin et al. 1997; Hofreiter et al. 2015; Mulligan 2006); nevertheless, replication and contamination continue to be issues in DNA studies, especially when ancient hair and skin are used (Llamas et al. 2017). Studies on bone morphology also face reproducibility problems. High interobserver error rates have spurred researchers to improve data collection methods, such as incorporating 3D digital techniques, to get a better grasp on complex morphological traits (Freire and Dunford 2012; Spradley and Jantz 2016; Utermohle and Zegura 1982; Walrath, Turner and Bruzek 2004). For example, Shannon Freire and Ashley Dunford (2012) looked at digitizing Wormian bones to reduce interobserver error rates when documenting these cranial variations that have been used to determine biological relatedness. However, Bebelyn Placiente Robedizo (2016), who examined cranial sutures, cribra orbitalia, and a metatarsal surface, noted that 3D digital images are difficult to create correctly in a manner that preserves features, such as porosity and texture. Robedizo (2016, 73) cautioned that “overconfidence in our own highly flawed 3D technologies may lead our future peers to think that our reproductions are more representative of their originals than they in fact are, something that may lead to misinterpretation and mismeasurement.”

Consultation and Collaboration

Asking the Right Questions: To Whose Benefit? One of the arguments in favor of the repatriation movement in general and NAGPRA specifically has been that it increases collaboration between Native Americans and anthropologists, due in part to the required consultations and in part to changes in anthropologists’ perspectives on their relationship to the collections. Some of the perspective change is the result of ownership changes in the law while other perspective changes are due to guilt from the past. For instance, Jessica Bardill (2014) notes that researchers of Native American DNA have now come to the conclusion that owner198

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ship of the data lies with Native Americans and not with the researchers. Also, Lynne Goldstein and Keith Kintigh (1990) expressed dismay at the past abysmal treatment of Native Americans and noted that to rectify the treatment, anthropologists must change the way they work, including treating all perspectives as equal and engaging in collaboration and consultation even when it is not legally mandated. James Clifford (2004) says that although researchers may regret the loss of scientific freedom, they should remember our colonial past. It has been suggested that repatriation ideology, which includes collaboration and consultation activities, contributes to a more just or ethical science (Clifford 2004; Colwell-Chanthaphonh and Ferguson 2004; Goldstein and Kintigh 1990; Rose, Green, and Green 1996). Some anthropologists also claim that that collaboration infuses the field with new perspectives since oral tradition is placed on equal footing with scientific evidence (Goldstein and Kintigh 1990; Weaver 1997; Zimmerman 2000). However, oral tradition is flawed evidence as shown in chapter 8. For instance, anthropologist Roger Anyon has stated that the Zuni perspective of knowing is just as valid as scientific research (see Wylie 2015). Also, Jace Weaver (1997) argues that Native American ways of knowing should be added to research. One alternative theory Weaver promotes in his article is polygenesis (which means different origins for different people), which was disproved by Charles Darwin over a hundred years ago. Remarkably, polygenesis was a theory promoted by colonialists in the late seventeenth and early eighteenth centuries, who thought that they were better than the people they encountered in their travels. We think that repatriation ideology has done more to replace scientific perspectives with religious ones. Anthropologists who are processual and positivist-oriented (and thus believe that there is one true past) are likely to treat these other perspectives, which are often in the form of oral tradition, as religion and therefore not equal to scientific inquiry, which may hinder their collaboration abilities. Collaboration can be considered harmful to the pursuit of the truth. Collaborative efforts—whether required by law or voluntary—have contributed to subjective and biased influences, many of which are based on religious sentiments, in anthropological research. These new views that are provided by consultations and collaboration are religious intrusions into the science that shape what information can be accessed, what questions can be researched, and, most worrisome of all, what can be published and Repatriation and the End of Scientific Freedom

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therefore disseminated. This is all before remains are even repatriated or reburied. Consultations with Native Americans can be difficult. Even anthropologists who are in favor of repatriation, such as Larry Zimmerman, who has been rewarded by the World Archaeological Congress for his repatriation efforts, admit to this (Zimmerman 2002). Devon Mihesuah (1993) advises anthropologists to allow for lots of time in the consulting and consenting process; granting research access may take months or even a year. This slow pace is unsustainable for universities who run graduate programs in which students may only have a finite amount of time for their research, which may be one of the reasons that we see bioarchaeological research decreasing. Bioarchaeological research on Native American remains has been decreasing in popularity since the passing of NAGPRA (see Armelagos and Van Gerven 2003; Kakaliouras 2008; Lawler 2010; Weiss 2006), but other fields of physical anthropology have not experienced this same fate. Forensic anthropology has been a particularly strong area of growth in anthropology in terms of student interest and research; part of the popularity of forensic anthropology is likely the result of television shows, such as the CSI franchise and Bones. Bioarchaeologists George Armelagos and Dennis Van Gerven (2003) lamented this shift in anthropology, arguing that forensic anthropology is a shift away from the hypothesis-driven paradigm and a step toward more descriptive work with an emphasis on typological race identification. More recent endeavors in forensic anthropology, such as publications on trauma processes, highlight that forensic anthropology is more than just “police work” (Ubelaker 2018). The theoretical foundations of the field include evolutionary theory to understand human variation and the use of scientific methods to understand taphonomy (see Boyd and Boyd 2018). Thus, although forensic anthropology is a case-driven applied science, both researchers and practitioners incorporate and integrate theories and methods from multiple fields of study, such as medicine, archaeology, and geology, to best explain the case at hand (see Boyd and Boyd 2018). In short, when forensic anthropologists are called upon in legal settings, their conclusions are based on research that employs the scientific method and aims for value-free scientific research. One may wonder why consultation is difficult; the answer seems to lie in the fact that many Native Americans who engage in these consultations distrust scientists and science. Native Americans look at every step in the 200

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process to determine if the research offends their religion. There is an antiscience perspective among many tribes, and some tribes argue that studying remains violates their religious beliefs (Claw et al. 2017; Tsosie 1997; Van Horn 2008). Although some tribes are more zealous than others regarding their religion, even relatively pro-science tribes argue that religion trumps science (Watkins 2005). Thus, what is being asked of anthropologists is that they consult with religious enthusiasts who often consider the oral history to be the sole, genuine, and invariant source of information (Echo-Hawk 2000; Mason 2000; see chapter 8). Roger Echo-Hawk (2000, 268) notes that tribal historians and religious leaders “frequently rely on oral tradition as literal records of ancient history.” Furthermore, whether the questions being asked dispute their religious tales is key in deciding whether the research is approved. Mihesuah (1993) advises anthropologists to deal directly with only religious leaders and elected officials when seeking permission to study remains, getting a topic approved, or even using materials that have been shared with researchers from other tribal members. Furthermore, some anthropologists, such as archaeologist Sonya Atalay (2006), have suggested choosing topics that are in harmony with Native American beliefs which, frankly, is a form of self-censorship. Native Americans engaged in the process of collaboration and consultations also tend to approve research that benefits their tribe. Anthropologists Goldstein and Kintigh (1990, 590) note that “research questions relevant to the group should be considered seriously.” Katrina Claw and her colleagues (2017) propose that since tribes are not interested in research that does not benefit them, anthropologists should frame their research in ways that do benefit Native Americans; these wishes, according to Claw and her colleagues, should be respected. Finally, Thomas Ferguson (1996) suggests that Native Americans may consider controversial topics, such as religion, power, gender, and treatment of the dead, inappropriate for research. In short, if the “right” questions are not asked, then research access may be denied. Research that may be deemed to benefit the tribe includes questions in areas Native Americans lack “knowledge,” thus, where no oral traditions exist and, hence, the research will not contradict the Native American version (Mason 2000); questions that will explicitly validate Native American perspectives on land and water (Claw et al. 2017); and, questions that promotes the tribes’ assets or that will help with land claims (Wylie 2015). This ethnocentrism is anathema to anthropological science. Anthropological scientific endeavors—whether examining academic questions such Repatriation and the End of Scientific Freedom

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as who were the first Americans or researching better methods of victim identification—are not for a single culture or people but for all people (Landau and Steele 1996; Seidemann 2004). Phillip Walker (2000) notes that studying remains allows us to accurately tell the story of the past and prevents revisionist history; he states that this is for the good of all people, not just one particular group. Bioarchaeologists should be dedicated to the scientific method to aid in understanding the human story in its truest form; this requires the preservation of skeletal collections. Two areas in which species-wide benefits are overt are in medical and forensic research and training.

Medical Training and Research Physical anthropologists not only answer questions about the past; they also address issues that affect living people. Perhaps Walker (2000) stated it best when he noted that bioarchaeology is positioned between medicine and anthropology. In the most basic form, many physical anthropologists trained in osteology have learned skeletal anatomy using archaeological collections; some of these physical anthropologists are recruited to teach anatomy at medical schools to train the next generation of medical doctors. Furthermore, anthropologists have been key in helping medical professionals understand human skeletal variation; they have highlighted variations in vertebral anatomy, such as the differing number of lumbar bones and stress fractures from bipedalism, that have helped us understand what may cause some of our most common ailments, such as back pains (see Weiss 2015). Anthropologists have also alerted doctors, and even alternative doctors such as acupuncturists, of naturally occurring holes such as the sternal foramen to avoid fatal medical accidents by going through this hole and hitting the heart. Physical anthropologists and medical doctors also use archaeological collections to understand trends in disease, which may improve our understanding of diseases and modern lifestyle (see Alberti et al. 2009; Ubelaker and Grant 1989; Weiss 2015). Studies of cardiovascular diseases, such as atherosclerosis, found in ancient mummies have helped medical doctors understand this lifestyle disease better (see chapter 2). In a skeletal example, Sharon DeWitte (2014) examined remains from the plague epidemic period compared to pre-plague and post-plague periods housed in the Museum of London to discover whether changes in dietary quality and overall improved standard of living reduced deaths during periodic 202

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plague outbreaks that occurred in the post-plague period. She found that people were more likely to die from the plague when already stressed (as indicated on their teeth and bones). Knowing this has implications for future epidemics—finding a cure is not the only way to stem an epidemic. Interestingly, in an article about her research, DeWitte states that she chose to study European skeletons to avoid groups that were historically or currently marginalized or exploited (Strauss 2016); yet were the poor in medieval Europe not marginalized or exploited? The Natural History Museum in London holds collections of skeletal remains from around the world; these remains have been used by medical doctors to develop better techniques for joint replacement surgeries and by dentists to examine the impact of diet on dental disease (Jenkins 2003). The museum’s director, Sir Neil Chambers, has stated that the collections are an important key to help in combating disease (Jenkins 2003). Native American remains have been useful in understanding disease as well. Bioarchaeologists conduct research in part to yield information that is useful for all modern people. Sometimes this information aids understanding for a specific population and even for a specific tribe (Ubelaker and Grant, 1989). For instance, John Gregg and colleagues (1981) studied craniofacial anomalies to understand cleft palate trends among Native Americans; by comparing clinical data on Native Americans with that of 3,300 skeletons from archaeological sites in the Dakotas, they helped to elucidate the patterns, some possible causes, and the treatment of those with the deformities. Some Native Americans have been reluctant to support medical research on skeletal remains (or on their own DNA) due to concerns about stigma associated with diseases, especially diseases that are inherited (see Claw et al. 2017 and chapter 6). Yet the answer should not be to shut down research but rather to educate those who promulgate these stigmas and help them understand that disease is not shameful. In the United States, non–Native American tissues are often used in scientific inquiry, and the United States protects research on these tissues by refusing to give property rights to living donors (Elliott 2009). Furthermore, the tissues can even be used for commercial endeavors, and burial custody does not extend beyond closest kin (which is the offspring, parents, or spouses) (Elliott 2009). Yet NAGPRA promotes religious sanctity above science, so Native American DNA, tissues, and bones are treated differently from other research collections. Repatriation and the End of Scientific Freedom

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Forensic Training and Research Our knowledge of determining or estimating sex, age, race, and manner of death is largely dependent on training that involves skeletal collections. Nearly all we have learned about determining age, such as the pattern of dental formation, the ages at which sutures close once growth has stopped, and the changes in the rib ends and pelvises, articular surfaces, has come from the study of bones that have come from autopsy collections, historic cemetery sites, and archaeological sites. The known-age donated collections contain extremely few children, which is not likely to change any time soon, so other skeletal collections, such as archaeological and historic collections, along with knowledge from the medical field are key to understanding child development (Ubelaker 1987). Furthermore, these skills are honed on archaeological samples in universities around the world. Students are often encouraged to examine numerous individuals to assess sex and age differences since variation can make determining even these basic traits difficult at first. To excel in these forensic methods, anthropologists look at many skeletons from ancient times to the recently deceased (see Hilf 2016). Forensic anthropologists also incorporate knowledge of natural selection, biocultural changes, lifestyle effects, and genetics on their methods of age estimation (Langley and Dudzick 2018). Although fragmented bones and collections without provenance may seem useless for research, these less-than-pristine remains are essential in training forensic anthropologists, especially those who go on to identify humans in cases of mass graves, such as in the Cambodian killing fields or the Branch Davidians killed in Waco, Texas (Seidemann 2004). Persons unfamiliar with the field of forensic anthropology may mistakenly believe that anthropologists already know how to identify victims’ race, age, and sex, and, thus, no new research on the topic is needed. However, forensic research continuously strives to improve methods to more accurately pinpoint the victim’s age, sex, and race; forensic anthropologists, for instance, are still debating the usefulness of cranial sutures in age estimation even though the earliest studies were done over a hundred years ago (Donato et al. 2016; Dwight 1890; Hershkovitz et al. 1997). Mays (2015a) highlights some of the environmental impacts (such as cranial deformation) or congenital factors (such as craniosynostosis, a type of premature closure of the cranial sutures) that can make age estimation difficult. Changes in demography require continuous research on skel204

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etal remains to ensure that we understand human variation at its greatest expression. For example, although forensic anthropologist George Gill (1995) conducted research on distinguishing European American skulls from Native American skulls for forensic purposes, our population has become increasingly diverse, and the need to identify victims of all races has become a key issue for forensic anthropologists (e.g., Birkby, Fenton, and Anderson 2008; Hughes et al. 2012; Spradley and Jantz 2016). As mentioned in chapter 3, Kate Spradley and Richard Jantz (2016) have been researching methods to better identify border-crossing victims; they examined whether cranial landmarks are a better way to determine race than 3D geomorphometrics. One of their concerns is whether there is an effective way to distinguish Central Americans (and other Hispanics) from Native Americans (both modern and ancient). Thus, when a skull is found in the Southwest desert, forensic anthropologists may assist in identifying the deceased to help law enforcement be able to notify next of kin when appropriate. Three-dimensional scanning has also enabled the assessment of the atlanto-occipital articulation (which is the articulation of the neck to the head). The atlanto-occipital articulation, which is an often-preserved body part in mass graves, has both sex and race differences (Dudar and Castillo 2016). Unfortunately, the most commonly used database for forensic anthropologists, FORDISC (which allows for comparisons with a discovered skull to skulls from known populations) has data from only 50 Native Americans; this lack of Native American skulls impedes the usefulness of the database when trying to distinguish between ancient finds and forensic cases (Hughes et al. 2012). Law enforcement officials are beginning to understand that archaeologists can be useful at the scene of the crime. In outdoor crime scenes, forensic archaeologists help identify what materials should be collected from a scene and identify changes in the ground that indicate a grave (Crist 2001; Haglund 2001; Owsley 2001). Forensic archaeologists may use techniques to find burials that are used in archaeological sites, and they are trained to recognize human-made intrusions into an environment. Thus, they may notice slight depressions or rises that indicate the dirt has been tampered with (Owsley 2001). Forensic archaeologists need to be trained for crime-scene investigation, archaeological field methods, and skeletal analyses; forensic archaeology—like forensic anthropology—marries academic endeavors with “real-world” applications. Forensic anthropologists and archaeologists cannot obtain these skills without studying the remains of all types of people. Repatriation and the End of Scientific Freedom

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Collaborative Research Once a research question is approved, Native American consultants may still require modification of the methods of study so that the methods are in accord with their values, or they may determine what part of their history can be used in the research (Wylie 2015; Gonzalez 2015). Some of these intrusions during the data collection, preservation, or analyses are just nuisances from a practical perspective, such as sage and sweet grass burning in curational facilities, blessings of remains, or cleansing ceremonies practiced on skeletal remains (Putnam 2014; Wylie 2015). Others may be offensive to researchers and yet are not challenged. For example, some tribal requests, which really are demands, are discriminatory toward particular researchers. Some Native American tribes have requested that certain remains, such as former warriors, are handled only by males (Putnam 2014). Kent Lightfoot (2005) notes that the Native Americans he collaborated with had strict regulations regarding menstruating women; they were not allowed to work at the field site, participate in activities, or even prepare foods because they were considered unclean. Other intrusions may actually affect the research outcome. In the field, some areas of an archaeological site may be determined to be too “dangerous” for excavation due to possible spiritual disturbances (Gonzalez 2015). Furthermore, the Hopi, Zuni, Navajo, and Hualapais want to control anthropologists’ ability to use oral traditions in their research (Mason 2000; Zimmerman 2002). Native Americans who collaborate with anthropologists often discuss matters relevant to research in an indigenous language that is not understood by the researchers, and what the Native American consultants want to share will be relayed in English (Colwell-Chanthaphonh and Ferguson 2004).

Publication Censorship Native Americans and anthropologists who sometimes self-censor have changed not only what they publish but the language they use in publications. Once the research is completed, interpretations of the data may be shaped by Native American sensitivities (Goldstein and Kintigh 1990; Wylie 2015). Researchers, thus, may be hesitant to make strong inferences and may be inclined to interpret the data in a way that favors the Native American perspective; for instance, it has been suggested that “archaeolo206

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gists should strive to place their conclusions in a cultural and intellectual context” that serves to improve collaborations (Anyon et al. 1996, n.p.). Anthropologists may change their language in publications in an effort to be sensitive (Claw et al. 2017; Echo-Hawk 2000; Zimmerman 2000). Claw and her colleagues (2017) suggest that the use of the terms “cranium” and “burial” are insensitive. In the Society for American Archaeology Bulletin, Roger Anyon and his colleagues (1996) note that, when contradicting oral traditions, publications should “not be done in a belligerent manner that directly challenges these traditions.” According to the World Archaeological Congress’ Vermillion Accord on Human Remains, which was published in 1989, “results should be presented with deference and respect to indigenous people.” Yet Native American activists, such as Devon Mihesuah, use language that can be described as offensive when referring to anthropologists. For instance in describing physical anthropologists’ activities, Mihesuah (1993) states that they should get permission to “desecrate burials” and “plunder” sites. One reason for the promotion of the Native American perspective in publications is that researchers may be concerned that future access will be denied if their write-up upsets the tribal leaders (Anyon et al. 1996). Even more troubling is that Native Americans have been able to stop the publication of research if the results (or the topics) are not to their liking (see Mihesuah 1993). Some repatriationists have suggested that journals should require evidence of meaningful consultation prior to publishing articles (Claw et al. 2017). Sara Gonzalez (2015), in the SAA Archaeological Record, puts forth that tribes should have the right to determine the process and dissemination of research on sensitive topics. Mihesuah (1993) has argued that researchers need to allow Native Americans the right of determining whether research should published, what should be published, and where the research should be published, but he states that it is only the tribalelected politicians and religious leaders who should be approached for approval of research and publications. These perspectives have rattled some anthropologists. For instance, in the Nevada Journal, Dowd Muska (1998, n.p.) quoted Jim Chatters, the first anthropologist to examine Kennewick Man, as stating “just don’t talk about the truth. It might offend somebody.”

Conclusions In the field of anthropological study of Native Americans, researchers are no longer allowed academic freedom. Many anthropologists want to exRepatriation and the End of Scientific Freedom

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plore the entire human story. The collections of human remains, whether they are European or Native American, should be preserved to enable researchers to answer new questions, to better answer old questions, and to apply that knowledge to both intellectual endeavors and practical cases for all peoples (see Mays 2015a; Powell, Garza, and Hendricks 1993). Skeletal collections assist us in medical and legal settings in ways that are relevant to the anthropologist, the Native American, and all in between. In order to train our next doctors and forensic scientists, collections of bones are critical; thus, although some collections, such as ones without provenience, may seem useless in research, they are key in training (Edgar and Rautman 2014). Collections need to be diverse for us to best understand human variation. Others argue that scientific freedom is not enough of a reason to study Native American remains; they argue that explicit contracts are needed along with negative reciprocity (e.g., Clifford 2004; Mihesuah 1993). Some Native American activists have questioned why we need to study remains that are not our own (see Ayau 1995; Beal 2009; Deloria 1997). Edward Haleaoha Ayau (1995, n.p.), for example, wrote, “Osteology begins at home. Study the bones of your ancestors first, before touching ours.” They do not need to understand the past from the “European” perspective (Reardon and TallBear 2012). Joe Joaquin, a Native American activist who has coordinated repatriations for the Tohono O’odham Nation in Arizona, has stated that he has “never understood why archaeologists needed to study his ancestors’ bones” (Beal 2009, n.p.). Anthropologists also study remains to improve our knowledge of the past; as Douglas Ubelaker and Lauryn Grant (1989, 250) pointed out, “much of what is known today about American Indian history has been learned through the study of human remains.” Anthropologists have been key in shattering unfavorable and unbelievable stereotypes of Native Americans; studying skeletal remains allows for the most accurate representation of the true past (Meighan 1992; Ubelaker and Grant 1989). However, we also study bones—both Native American and other peoples’—to answer questions that help all “races” of humans. Now, collections are being reburied at an alarming rate and, unfortunately, new collections are not likely to arise due to museums’ hesitancy to take on collections that may be subject to reburial laws (Jenkins 2011). Some may suggest that training on fake bodies or 3D-printed images is the way of the future, but as museum anthropologist Samuel Alberti and his 208

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colleagues (2009, 250) stated, “no plastic skeleton or even well-made cast can ever replace a genuine skeleton.” Recent research on 3D scanning supports Alberti and colleagues’ conclusions; Robedizo (2016) looking at both cranial and postcranial bones using 3D digitizing techniques found that scanning resulted in distortions and loss of features. Just as disconcerting as losing a skeletal collection to reburial is the censorship of research through consultations and collaborations. Inquiries are shaped by consultations and collaborators who act as censors from the first step of the project to the last. For instance, Anyon and his colleagues (1996) have noted that connecting with believers is essential to collaboration and that the tribal cultural advisor should determine what aspects of the oral tradition are appropriate for use, must help interpret the research results, and needs to guide decisions on publications. Furthermore, Native American consultants and anthropologists sympathetic to the repatriationist movement may lament that the written form can cause Native Americans to lose control of the information and therefore will be misappropriated by researchers. Anthropologists, especially those in favor of collaboration, have become good at self-censoring. Goldstein and Kintigh (1990) suggest incorporating Native American beliefs, allowing Native American consultants to interpret the data and decide on whether sensitive materials should be published. Alison Wylie (2015, 192) states that “requirements of consent, consultation, and reciprocity may constrain what archaeologists can study and publish.” Yet, even after the research is completed and publication has gone through, Native American activists may still engage in punitive actions to prevent future publications of deviations from the Native American repatriationist perspective. For example, Karl Reinhard of the University of Nebraska published a chapter that suggests that Omaha and Ponca Native American lives improved with the introduction of the horse from Europeans; although he had received permission to conduct the research from tribal members, a coalition of Native Americans tried to have him fired four years after In the Wake of Contact (the book in which his chapter appeared) was published (Ojibwe News 1998). Native American activists, such as Pemena Yellow Bird (a repatriationist and member of the Mandan, Hidatsa, and Arikara nations), felt that the chapter revealed disrespect for their ancestors. It is ironic that in Jerome Rose, Thomas Green, and Victoria Green’s seminal article NAGPRA Is Forever (1996), which tried to promote the benefits of NAGPRA to anthropologists, Karl Reinhard’s research was Repatriation and the End of Scientific Freedom

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highlighted as evidence that collaboration through consultation can result in tribal permission to conduct scientific research. It is no wonder that anthropologists have become meek to the point that they self-censor, they engage in religious activities that may contradict their own morals, and they promote these actions to future generations to prevent bioarchaeology from dying. However, even with all the “right” moves, repatriationists will continue to push for the permanent removal of collections and more.

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Conclusions

Repatriation and Religion Starting as early as the 1970s, some anthropologists began to express concerns about repatriation becoming the norm, but with the passing of NAGPRA in 1990, the realization of reburial by force of law became unavoidable (Kakaliouras 2014). Still, anthropologists consoled themselves with the knowledge that remains that were unaffiliated to a modern tribe would remain available for study. In 2013, however, unaffiliated remains lost their protected status. This change to NAGPRA means that all collections of Native American remains will likely be gone in the next four to five decades (Gonzalez and Marek-Martinez 2015). It is doubtful that the repatriation movement will end with the reburial of the last remains. For instance, the state law CalNAGPRA allows Native American tribes to require museums and universities to hand over materials such as newly made artifacts, replicas, casts, and written reports. The Hopi tribe in Arizona has long had a complete moratorium on access to field notes, photos, and sound and video recordings. When the remains are gone, more removal of materials is likely to be required by the repatriation movement; nothing should be considered safe (see Weiss 2001). As collections are repatriated, anthropologists continue to think that research can continue through collaboration. However, this hopefulness should be tempered with the reality that many Native American tribes and others who follow the repatriation ideology want all skeletal remains to be reburied (see Harris 1991; Walker 2000) and that the desire for collaboration only extends to the degree to which reburial will be assisted. When remains are gone, collaborations will end. After all, the goal of NAGPRA is the repatriation of all Native American remains (Daehnke and Lonetree 2011).

The reason for reburials lies in the fact that NAGPRA, specifically, and repatriation ideology, generally, is about religion. NAGPRA was a major victory for the religious interests of Native Americans (Skibine 2009), but it was one that likely could not have been realized without the support of many other religious groups, such as American Baptist Churches, Churches of Brethren, Church Women United, Evangelical Lutheran Church in America, American Episcopal Church, the United Church of Christ, and many more (Weiss 2009). Traditional religious leaders are required in the committees of NAGPRA and creation myths are often used to determine affiliation. The curator of anthropology at the Denver Museum of Nature and Science, Chip Colwell-Chanthaphonh (2010), notes that affiliation pits science against religion and laments that the NAGPRA committees are too science-oriented. Some may argue that repatriation is a human rights law, but Native Americans involved in repatriation are forthcoming in their religious agenda (for a review of this perspective, see Nilsson Stutz 2012; Weiss 2009). In a 1996 New York Times article by George Johnson, the term “creationists” is used to describe Native Americans who are active in the repatriation movement. In this article, archaeologist Steve Lekson of the University of Colorado is quoted as saying, “Some people who are not sympathetic to fundamental Christian beliefs are extraordinarily sympathetic to Native American beliefs. I’m not sure I see the difference.” The reason for Lekson’s inability to see the difference is that there is none. That repatriation is about religion is not obscured by Native Americans. Each NAGPRA meeting is started with an indigenous prayer and ended with an indigenous prayer. Consultations and collaborations often revolve around demands to include blessings or religious activities (Wylie 2015). At the Smithsonian, Native Americans hold seasonal blessings. Kurt Dongoske (1996) notes that, in his collaboration with the Hopi, he worked with priests and religious societies to ensure that the research was sensitive to their needs. Some anthropologists have suggested that researchers can do more to move Native Americans to understanding the benefits of scientific knowledge (Mayes 2010). Phillip Walker (2000) proposes that perhaps we can find a common ground with Native American repatriationists. Yet these anthropologists may not understand that not all Native Americans see knowledge of the past as a good thing (Tsosie 1997). These religious adherents argue that research damages the spirits and is harmful (Walker 212

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2000). It is like arguing about evolution with a creationist; it can be futile. Thus, we must turn to a different path—instead of collaboration and consultation, we may need to return to an emphasis on objective knowledge.

Objective Knowledge and the Unpredictability of Knowledge We offer an alternative to repatriationist thinking in the form of objective knowledge (Popper 1979; Bartley 1987). Karl Popper and John Eccles (1983) define three worlds of which we can have knowledge. World 1 is the world of physical objects, World 2 is the world of consciousness, and World 3 is the world of public and objective knowledge. World 3 is created by the consciousness of individuals, but it transcends all such individuals. It consists of all communications among humans that manifest a statement or a hypothesis as to reality. It incorporates not merely the original communications but all subsequent repetitions, expressions of support, criticisms, extensions, analogies, and refutations based upon the original communications. It is an extrasomatic institution that can be expressed and preserved in physical form such as books, maps, images, and electronic storage, which is indeed one of its most valuable features. The principal characteristic of such a system is that it is constantly being revised, at least minimally, by every individual who takes from it and contributes to it. It does not consist simply of individual genius, but it benefits from every individual genius who takes it upon himself or herself to contribute to World 3. It is these individual contributors who revise and improve World 3 and (sometimes) make mistakes, major or minor, that harm that world. No one has a privileged position in World 3. There are individuals who claim superior knowledge based upon education, training, experience, or credentials; for certain purposes, such as an expert witness testimony in a court of law, the public may recognize that superiority. However, the superiority of authority is always tentative and can always be called into question. Recognition of authority or superior knowledge is merely a shorthand, approximation, or proxy for knowledge. It is never knowledge itself. Under these conditions, objective knowledge and the pursuit of scientific explanations is uncontrollable and unpredictable. It is uncontrollable because there is no one who can say that they alone possess that knowledge and that everyone should recognize that fact and defer to their pronouncements. No one has the power or the right to suppress or censor competing Conclusions

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views. Anyone may be right or wrong, and in the long run, everyone is likely to be wrong to some extent, even on matters within their expertise. Objective knowledge is consequently unpredictable. People often speak of the “growth” of knowledge, but the changes that World 3 undergoes bear little resemblance to the growth of an organism. It is not a process of expressing or exposing or unfolding a predetermined sequence or structure. It is, in part, a process of accumulation of knowledge, but it is never just accumulation. It is also a process of sifting, weighing, revising, extrapolating, transferring, analogizing, criticizing, and refuting. What the results of one’s labors will be is largely unknowable. How one’s work will be used by future participants in World 3 is unpredictable. This is not a counsel of despair. Everything that we know about World 3 suggests that improvement is possible—indeed, likely—as long as World 3 exists. The researcher’s ethnic, racial, social class, or national background has no bearing on the validity of their contribution to World 3. There may indeed be individuals who think that such backgrounds validate or invalidate a person’s contribution to World 3, but they are mistaken. Two examples must suffice to show the fertility and power of the concept of objective knowledge. The first is Michael Coe’s (2012) outstanding summary of the history of the decipherment of the writing system of the Maya Indians. It is a story of innumerable conjectures, guesses, insights, dogged and slow teasing out of inferences and conclusions, and exquisite recording of images via sketching, painting, and photography. Slow and grinding detailed work alternated with wild conjectures and sober and limited inferences. The basic character of the writing system, whether entirely logographic, entirely phonetic, or some complex combination, had to be debated, and it was disagreed over and argued over by the experts. The armchair scientists and the daring and enterprising jungle explorers were both necessary to its successful resolution. Entirely false steps were made as well as steps that were a combination of valid insight and great confusion. Scholars from several countries and schools of thought made their contributions, and along with them came the usual imperfections of scholarship: national and political biases, jealousy, and academic politics. There was competition with cooperation. What emerges from Coe’s account is a kind of conversation or debate, sometimes degenerating into insults and shouting, that moved the discipline along a trajectory of gradual improvement in a direction and to a result that no one had entirely foreseen and no one could have controlled. 214

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Our second example of the world of objective knowledge comes from the history of geology, a story that has considerable relevance to the subject of this book (Gillispie 1959; Baxter 2003; Jackson 2006; Poole 2010; Toulmin and Goodfield 1965; Rudwick 1976, 2003, 2008, 2014; Adams 1954). Part of the history of geology is simply the appearance of an appreciation of the enormous amount of time that is recorded in the Earth. Early efforts were constrained by a literal interpretation of the book of Genesis, including seventeenth-century Bishop James Ussher’s calculations based on the Old Testament that the Earth was only 6,000 years old, but also by the very limited written information available from all literate civilizations. Those who made a contribution to advancing knowledge of geology did so in a great variety of ways. Many individuals who contributed to its advancement accepted the biblical literalism that was common in their time. Others believed that the Earth had been devastated by several catastrophes that exterminated all, or nearly all, recorded life, of which the flood recorded in Genesis was merely the latest. One of these individuals, Georges Cuvier, made outstanding contributions to paleontology. His Scottish nearcontemporary, James Hutton, articulated an appreciation of the immensity of time represented in the geological record but had almost no conception of a narrative history of time and life. His “uniformitarianism,” which is often cited as a key contribution, was part of a theory of the Earth as a system of physical processes of erosion, deposition, and uplift, more like a huge cycling machine than a history in which new things happen. Alfred Wegener, hypothesizer of “continental drift,” had he lived to an older age, might have seen himself vindicated in the new science of “plate tectonics,” which is based upon causes that he could hardly have envisioned. As with the decipherment of the Mayan writing system, freewheeling speculation, painstaking and rather pedestrian fact-collecting, and everything in between contributed to World 3 geological knowledge. What we now view as correct inferences competed with, cooperated with, stimulated, and modified what we now view as incorrect inferences, and the whole advanced a larger enterprise than any one of the individuals involved could have conceived of. With the ideal of objective knowledge in mind, we propose to examine the repatriation movement to determine its compatibility with that ideal. The most obviously objectionable feature of the repatriation movement is its racial and ethnic classification of researchers. For example, David Wilkins and K. Tsianina Lomawaima (2001) refer to and contrast Conclusions

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“indigenous” with “non-indigenous” scholars (20, 266n4). They also refer to certain researchers as “Indian legal scholar” or “noted Lakota scholar” (27, 64). Larry Zimmerman (2000, 203) also writes about “recognizing the obligation to employ and/or train indigenous peoples” and distinguishes between nonindigenous and indigenous researchers with an emphasis on indigenous control over research questions, methods, and interpretations. We are troubled by such usage because it suggests that one’s ethnic background should be counted as an argument for or against one’s views. When a person’s statements are offered as those of an informant, for example, on the issue of tribal custom, then of course their ethnic background is relevant and may be offered as an argument as to the validity of their knowledge. Even here, however, we reject the idea that a tribal elder’s testimony is to be automatically accepted as proof of a tradition. There may be, and indeed commonly are, alternative and somewhat conflicting versions of a group’s origin and migration stories. The extent to which a particular informant’s statements reflect a village or tribal tradition cannot be based simply on the statements of that one informant. It should be tested against other evidence and supported by, and opposed by, argument. Such an inquiry was undertaken by the U.S. District Court judge in Badoni V. Higginson (455 F.Supp. 641 (D. Utah, C.D. 1977), aff ’d 638 F.2d 172 (10th Cir. 1980), cert. denied sub non Badoni v. Broadbent, 452 U.S. 954, 101 S.Ct. 3097, 69 L.Ed.2d 968 (1981)), who found that the Indian plaintiffs had not proven that their medicine men witnesses actually represented a religion recognized by the Navajo nation. A second thing that we find incompatible with objective knowledge is the repatriationists’ demand for secrecy. For example, Rebecca Tsosie (1997) promotes the belief that knowledge about tribes should remain exclusive to the tribal members, and Devon Mihesuah (1993) speaks of sheltered or secret knowledge for Native Americans. Phillip Jenkins (2004) notes that Apache activists attempted to keep telescopes from being constructed on Mount Graham in Arizona on the grounds that the mountain was holy to the Apache but refused to provide evidence of such, claiming that it was required to be kept secret. A similar argument was offered by some Hopi to oppose a quarry. Ronald Mason (2000) notes that even parts of oral traditions are kept from “outsiders.” If a court were to allow such evidencedeprived claims, it would effectively be establishing an animistic religion as a preferred doctrine, contrary to the First Amendment. As noted above, some repatriationists propose establishing a system of 216

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censorship in genetic studies in which a tribe or village would dictate to the researchers what they could or could not study, what conclusions they could reach, and what they could publish. Such attitudes apparently extend even to scientific journals. David Reich (2018, 167) notes that he was denied access to the raw data behind the claims that Kennewick Man was closely related to the contemporary Indian groups that claimed him, contrary to the stated policy of the journal where the article supporting such claims was published. We are apparently drifting back toward a system of censorship and prepublication licensing that our civilization had to escape from to establish the world of objective knowledge. Among the many harmful effects of the new system of censorship and licensing is that it attempts to freeze knowledge and opinions to determine in advance what conclusions are acceptable. We think that such an effort, if successful, would destroy the world of objective knowledge. Everything we know about the history of genetic and morphological variation and change among Old World populations suggests that the patterns were very complex ones in which gene flow and population movement constitute a very complex pattern of interaction (Reich 2018). Allowing for differences in population size and technology, we suspect that the same thing is true of New World populations. Probably the relationship between Old World and New World populations is a very complex one, and the only way knowledge of that history can be advanced is by allowing every researcher access to the relevant data and allowing them to publish their views based upon their own interpretation of those data.

Science over Sensitivity One of the demands of the repatriationists that often elicits a great deal of sympathy is that treatment of non-Western cultures be sensitive, respectful, and sympathetic. The demands of people who claim to speak for nonWestern cultures in this regard are well-summarized in the article by Arthur Demarest (2007). While this demand comes in a variety of forms, in all forms it suggests that interpretations that might be considered demeaning to non-Western peoples or even the underlying data itself should be in some way censored, or at least apologized for. In an otherwise excellent article, which we cite in chapter 9, Kristin Kuckelman and colleagues appended a long footnote that appears to apologize for their research. It states: “One goal is to conduct archaeological research and public educaConclusions

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tion in a manner that is respectful of Native American peoples and their perspectives. . . . Whenever possible to do so without compromising the integrity of our research, we revise our reports in response to comments from our advisory group [of Native Americans]. . . . We avoid publishing in ways that sensationalize human remains or interpretations based on their analysis” (Kuckelman et al. 2002, 513n2). It is difficult to know what to make of this disclaimer, but this certainly suggests that certain plausible inferences will be disregarded or suppressed simply because a member of a population conceived of as indigenous will take offense. Given the unpleasantness of human history and prehistory in all parts of the world, it is hard to imagine any objective study of any cultural practice in any part of the world that would not offend someone or be uncomfortable to someone. For research, interpretation, and publication to depend upon such sensitivity is to undermine the whole concept of objective knowledge and, indeed, of science itself. Science is neutral; it does not take sides and is utterly without prejudice. And that is the beauty of science. Rather than be concerned about sensitivity, respect, and sympathy, we should remember our ethical obligation to help explain the world around us and therefore protect the scientific truth from the demon-haunted world, as Geoffrey Clark (1999) would say. As anthropologists, we need to stand for the best scientific way to understand both past and present people and the world we live in and lived in, which means to reject the intrusion of the supernatural, including creation stories and other religious traditions, into scientific research. However, we believe that science and religion, and perhaps other categories, are what Stephen Jay Gould (1997) called “nonoverlapping magisteria.” Therefore, we express no opinion as to the truth or falsity of any religious opinion or religious doctrine. Rather, we are simply saying that to allow religious interpretations into science is to undermine science, particularly when the First Amendment says that the government shall make no law establishing a religion. Science is the search for truth, perhaps never getting to the truth on many topics. The best estimate of truth is what we can logically infer from data that have been analyzed using the scientific method—observe, hypothesize, gather data, analyze, draw conclusions, and repeat! New data or old data reanalyzed may turn the tables, but that is the power of science, and when results are replicated and reproduced, scientific explanation is at hand and we understand the world around us better. Thus, we end with 218

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our position that the free search for objective knowledge through scientific research, sometimes referred to dismissively as “idle curiosity,” should never be considered a luxury; the search for objective knowledge without interference from race, religion, or politics encourages critical thinking, which is a skill needed to address all problems. Objective knowledge is universal, not “European,” as repatriationists try to argue, and thus it benefits all humans.

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Index

The letter f following a page number denotes a figure; the letter t denotes a table. Academic freedom, 161, 207–208. See also Scientific freedom Activity reconstructions, 2, 25–29, 96f, 197 Administrative Procedure Act, 148–149 Affiliation, tribal, 58; cultural, 71, 146–147, 165; DNA, 68, 79–81; NAGPRA, 71–75; Paleoindians, 75–81; quantum blood, 72, 171. See also NAGPRA Age estimation, 2, 118; forensic, 204; mummies, 42, 44–45; Paleoindians, 12t, 17–21, 27, 42 Agriculture, 41, 42–43, 51; environmental distress, 108, 119; health decline, 117, 118, 120; slash-and-burn, 119; social class, 101; violence, 29, 109 Ainu, 32, 32f, 50, 78–80, 86 Alcoholism, 51–52 Aleut, 39, 40, 41, 46–47, 87, 113. See also Mummies Algonquin. See Kennewick Man Altai region, 84, 85f American Indian and Alaska Native Genetics Resource Center, 160–161 American Indian Religious Freedom Act, 137, 145; United States v. Mitchell, 128, 137 Anachronisms, 178–179. See also Oral traditions Anasazi, 41, 51, 108, 149, 189 Ancient DNA (aDNA). See Genetics Anemia, 2, 44, 46, 49t, 65, 102, 102f, 112t, 117, 197. See also Diseases Animal domestication, 15, 111, 180 Animism, 4, 167, 174, 193, 216. See also Creation myths; Religion

Antiquities Act (of 1906), 144 Anzick Child, 31t. See also Paleoindians Apache, 141, 144, 148, 216 Archaeological Resources Protection Act, 144, 148, 149, 151 Archaic period, 11, 107, 119, 189 Arlington Springs Woman, 12t, 16, 21–22, 23, 23f, 31t. See also Paleoindians Asians. See Ainu; Dental Studies; Jomon; Paleoindians; Peopling of the Americas Basketmakers. See Anasazi Bering Land Bridge. See Peopling of the Americas Bighorn National Forest. See National Parks Bison, 23–24, 112t, 115, 119. See also Environmentalism Blackfoot Indians, 95, 179–180 Boas, Franz, 58, 60–61, 192 Bog bodies. See Mummies Bonnichsen, Robson, 30, 149, 166, 174, 178–179, 181, 184. See also Kennewick Man; Paleoindians Brazil. See Luzia Browns Valley Man, 12t, 17, 36; activity reconstruction, 26, 27; cranial studies, 78; reburial, 30, 31t, 81. See also Paleoindians Buhl Burial, 12t, 14, 16; age estimation, 18; diet, 24–26; reburial, 31–33, 31t, 37, 81; sex determination, 21. See also Paleoindians Bureau of Indian Affairs, 50, 169, 171 Burial goods, 49t, 53, 101–102, 110, 185, 186, 187, 189. See also Funerary objects

Burial grounds, 138, 139, 140, 147, 185–187 Burial traditions: Capaha, 190–191; cemeteries, 147, 185, 186–187; cremation, 186; enemies, 187–192; friends, 185–187; scaffolding, 186; scalping, 108, 109, 189 Cahokia, 100–101, 188 CalNAGPRA, 211 Cannibalism, 103, 108, 191–192 Canyon de Chelly, Arizona. See National Parks Case studies, anthropological, 37–38, 44, 45, 74, 195 Caucasian, 50, 79. See also Paleoindians Cemeteries, Native American. See Burial grounds Censorship, 5, 194; academic freedom, 161, 207–208; freedom of speech, 172; objective knowledge, 213–214, 216–217; publications, 206–207; self-censorship, 201, 209–210 Chatters, James, 150, 151, 207. See also Kennewick Man Cherokee, 119, 139 Clinton, William, 6, 82, 137 Collaboration, 3, 5, 198–202, 213; censorship, 194, 198, 201, 206–207, 209–210, 211; discrimination, 206; NAGPRA, 5, 199, 212; Paleoindian, 35–36; reburial 74, 76t; religion, 199, 212 Collections, human remains. See Skeletal collections Columbus, Christopher, 99, 110, 117; syphilis, 111, 114; tuberculosis, 114–115 Colville, 62, 80. See also Kennewick Man Constitution, U.S., 7, 126–126, 140, 143, 158, 166, 169, 170–171; First Amendment, 131, 132, 141, 163, 165, 192; Fourteenth Amendment, 130–131; unconstitutional, 134–135, 144, 174, 192. See also First Amendment; Fourteenth Amendment Consultations, 34, 194, 198–202, 213; censorship, 207, 209–210; Kennewick Man, 79–80; NAGPRA, 5, 146; National Historic Preservation Act, 145. See also NAGPRA Court cases: Christian creationism, 181–182; First Amendment, 131–143, 149, 165, 166–170, 171, 174; Fourteenth Amendment, 130–131; freedom of religion, 134, 137, 138, 142, 169; freedom of speech, 172–173; Havasupai Tribe, 155–159, 160, 171–172, 174; 260

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hunting, 141; Kennewick Man, 35, 78, 174, 181; La Jolla Skeletons, 34, 129, 152–153, 154; Lemon test, 135, 136, 142, 165, 169, 182; Native American religion, 143, 168; race, 128–129, 130–131, 165; Social Security, 141 Cranial studies: forensics, 62; Howells, W. W., 59; indexes, cephalic, 59, 60f, 78; modification, cranial, 51, 60, 61f, 62; nonmetric, 58, 63–67, 64f, 65f, 71, 74, 79, 82, 83f, 84f; Paleoindian craniometrics, 33, 37, 38, 50, 79, 82, 87, 90; tribal affiliation, 63, 75 Creation myths, 5, 82, 137, 149, 161, 167, 212, 218 Culturally affiliated, 42, 73, 92, 145. See also NAGPRA Culturally unidentifiable, 72, 73, 143. See also NAGPRA Data, loss of, 11, 194 Data ownership, 161, 198 Dental disease, 24, 25, 43, 49t, 203 Dental studies: age estimation, 18–20, 44, 204; biological relatedness, 63, 67, 79, 82, 87, 90; DNA, 38; health, 25; medical studies, 203; syphilis, 114; wear, 42, 43. See also Genetics Devil’s Tower National Monument. See National Parks Dickson Mound Site, Illinois, 186 Dietary reconstructions: attrition, 24–25, 43; coprolites/paleofecal, 41–44, 108, 112t–113t, 116, 117; isotopic studies, 24, 196 Discrimination: collaborative practices, 206; racial, 6–7, 130–131, 170–174, 176, 183; religious, 135, 136, 166, 183 Diseases: anemia, 2, 44, 46, 49t, 65, 102, 102f, 112t, 117, 197; bacteria, 46, 47, 48, 112t, 114–116, 116f; Columbus’s effect, 110–117; enamel hypoplasia, 24, 117, 118f; Harris lines, 24, 26, 46, 117; parasites, 24, 39, 41–45, 48, 112t–113t, 114, 115, 117, 120; Ruffer solution, 40, 45; viruses, 111, 113t Dismemberment, 188, 189 Display (of human remains), 2, 51–54, 57, 140 DNA. See Genetics Egalitarian society, 99–100. See also Social class Elders, Native American: ethnography, 180; Paleoindian, 28; past treatment of, 109–110, 119; oral tradition testimony, 4, 94, 181, 183, 216. See also NAGPRA; Oral tradition

Enemies. See Burial traditions; Violence Environmentalism, 94, 108, 119–120 Eskimos, 34, 39, 49, 63, 87 Esther, 51, 52f Ethnic favoritism. See Discrimination Ethnicity, determination of, 2, 50, 58–59, 60f, 71, 81, 83, 197 Ethnocentrism, 201–202 Excavations, 12t–13t; accidental discoveries, 17, 150; planned excavations, 16; salvage excavations, 16–17, 24, 34, 36, 40, 42 Fallon Paiute-Shoshone, 51, 52. See also Spirit Cave Man Fawn Hoof, 49t, 53. See also Mummies Federal recognition, 5, 7, 71, 74, 128, 141, 161, 169–170. See also Havasupai Tribe; La Jolla Skeletons Firearms. See Anachronisms First Amendment: Establishment Clause, 135–136, 139, 143, 165, 176, 181, 192, 193; Free Exercise Clause, 133, 135, 138, 141; freedom of press, 172–173; freedom of speech, 172–173; Larson v. Valente, 135, 193; Lemon test, 135–136, 142, 165, 169, 182; Lyng v. Northwest Indian Cemetery Protection Association, 138, 140 Forensic anthropology: definition of, 2; mass graves, 204; Mexican-US border, 57, 67, 196, 205; race, 32, 62, 64, 74; techniques, 196–197, 200; training, 202, 204–205, 208 Fourteenth Amendment, 130, 131, 133, 137 Freedom of press. See First Amendment Freedom of speech. See First Amendment Frozen Family of Utqiagvik, 45, 46, 47, 49t. See also Mummies Funerary objects, 140, 145, 146, 146. See also Burial goods Gathering. See Hunter-gatherer Genetics: aDNA (ancient DNA), 68–69, 75, 110, 111, 120, 196, 198; alleles, 69, 84, 86, 88, 121; American Indian and Alaska Native Genetics Resource Center, 160–161; contamination, 68–69, 86, 198; dental studies, 38, 63, 67, 79, 82, 87, 90; flow, gene, 58, 62, 63, 67, 69, 71, 86, 91, 217; haplotypes, 68, 69–70, 71, 80, 84, 86, 87, 90; Havasupai Tribe, 155–159, 160, 161,

172; markers, Native American, 70, 71, 80; mtDNA (mitochondrial DNA), 35, 68, 69– 70, 71, 83–84, 86, 87, 88, 90–91; peopling of the Americas, 68, 82–86, 87–88, 89–90, 91–92; SNP (single-nucleotide polymorphism), 68; STR (short tandem repeats), 68; Tsimshian, 69, 73; tribal affiliation, 68, 71, 80; Y-chromosome, 68, 69, 70, 80, 83, 84, 86, 88 Germ warfare, 111. See also Diseases; Violence Gordon Creek, 12t, 15, 16, 19, 25; compared to Kennewick Man, 22, 36; repatriation, 31t, 35, 197. See also Paleoindians Grand Canyon, Arizona, 155, 158, 177. See also Havasupai Tribe Grave goods. See Burial goods Haplotypes. See Genetics Harris lines, 24, 26, 46, 117 Havasupai Tribe, 155–161, 171–172, 174. See also Genetics Hopi, 5, 77t, 206, 212, 216; creation stories, 82, 149, 174 Horn Shelter, Texas, 12t, 14, 17, 19, 20–21, 79; activity reconstructions, 28, 29; repatriation, 31t. See also Paleoindians Horses, 95, 96f, 120, 179–180, 209. See also Activity reconstruction; Blackfoot Indians Hourglass Cave, 12t, 15, 17, 19, 21; activity reconstructions, 26, 27, 28; repatriation, 31t, 35. See also Paleoindians Howell, William W., 37, 59, 78 Hrdlička, Aleš, 58, 59, 82, 90 Hunter-gatherers, 26, 28, 41, 43, 51, 86, 101, 107, 119 Hunting: artifacts, 21; bison and big-game, 23– 24, 41–42, 119; eagle feathers, 141, 169–170; firearms, 179; Frank v. State, 141; horses, 95; moose, 141; trophies, human, 190 Inbreeding, 156, 158, 160, 172 Indian Reorganization Act, 128 Indigenous scholars, 215–216. See also Discrimination; Repatriation ideology Interpersonal aggression. See Violence Inuit, 3, 45, 70, 92. See also Eskimos Inventory. See NAGPRA Isotopic studies, 24, 33, 196. See also Radiocarbon Index

261

Japan. See Ainu; Jomon Jomon, 79, 86 Kennewick Man: 11, 13t, 15, 17, 19–20, 22; activity reconstructions, 20, 27–28; censorship, 207, 217; conspiracy theories, 38; court cases, 125, 149–152, 154, 166, 178, 181, 184; cranial studies, 75–78; diet, 24; genetics, 79–80, 82, 86, 196; injuries, 29–30; repatriation, 30, 31t, 35–36. See also Paleoindians La Brea Woman, 13t, 14, 16, 25, 31t; dog, 15. See also Display; Paleoindians La Jolla Skeletons, 13t, 24, 26, 27, 37; court case, 125, 129, 152–153, 154; repatriation, 31t, 33–34. See also Paleoindians; White, Tim Land bridge. See Peopling of the Americas Leanne, Texas, 13t, 24, 31t. See also Paleoindians Lemon test, 135, 136, 142, 165, 169, 182. See also First Amendment Linguistics, 5, 72, 92, 146, 151, 189 Little Al, 49t, 53 Lost John, 49t, 53, 54 Luzia, 38, 90. See also Paleoindians Mal’ta Boy, 86, 88. See also Peopling of the Americas Mammoth Cave, Kentucky, 49t, 53, 54. See also Mummies Markow, Therese Ann, 158–159 Mashpee Tribe v. New Seabury Corporation, 131. See also Race Mayans, 38, 88, 110, 214–215 Medical studies and training, 24, 161, 202–203, 204, 208 Medicine men. See Native American traditional religion Medicine Wheel National Historic Landmark, 142–143. See also National Parks Megafauna, 23, 176. See also Environmentalism Mesa Verde Park, Colorado. See Esther Methods: contamination, 68–69, 86, 90, 198; error rates, 63, 69, 194, 197, 198; reproducibility, 69, 80, 197–198, 218; scientific method, 194, 200, 202, 218; Standards, the, 36, 37 Migrations. See Peopling of the Americas Mitochondrial DNA (mtDNA). See Genetics 262

Index

Mongolia, 84. See also Peopling of the Americas Monte Verde, Chile, 90, 91, 93 Moundville, Alabama, 101, 111 Mount Graham, Arizona. See Apache Mummies: Bog remains, 39; cave mummies, 41, 48, 49t, 53, 55f, 79; Fawn Hoof, 49t, 53; Frozen mummies, 40, 45–47, 49t; Little Al, 49t, 53; Lost John, 49t, 53, 54; Pueblo Child, 49t; Ruffer’s solution, 40, 45; Southwestern mummies, 41–44, 48, 49t, 52f, 53, 149; Spirit Cave Man (see Paleoindians; Spirit Cave Man); Tattoos, 39, 47; Thule Eskimo Girl, 49t Museums, 2, 14, 50, 53, 203; CalNAGPRA, 211; display, 52, 54; NAGPRA inventories, 146; National Museum of the American Indian, 4, 145; repatriation, 73, 75, 76t–77t, 184, 208; Smithsonian, 4, 74, 76t, 145, 150, 212; unaffiliated, 92 Muwekma Ohlone, 67, 74, 86, 88, 239 Natchez, 188. See also Violence National Historic Preservation Act, 143, 145, 148 National Museum of the American Indian Act, 145 National Parks: Bighorn National Forest, 142; Canyon de Chelly National Monument, 44, 49t, 125, 149; Devil’s Tower National Monument, 142–143; National Park Service (NPS), 34, 76t–77t, 142–143, 149; Rainbow Bridge National Monument, 138, 168–169; sacred places, 138–139, 142; Six Rivers National Forest, 138 Native American Graves Protection and Repatriation Act (NAGPRA), 145–147, 154; affiliation, 64, 71, 72–75, 78, 92; committee, 6, 82, 146, 166, 212; consultation, 5, 79–80, 146, 198, 212; culturally unidentified remains, 72–73, 146; display of remains, 51; First Amendment violation, 165–170; inventories, 36, 72–73, 146, 149, 152, 195; Kennewick Man, 22, 79, 149–152, 181; La Jolla Skeletons, 152–153; Navajo, 148–149; oral tradition, 5, 72, 146, 151, 175, 176, 178–179, 181; osteological report, 22, 33, 36; Paleoindians 11; prayer, 212; racial discrimination, 170–174; religious leaders, 146, 166–167, 212; sacred objects,

145, 147, 165; San Carlos Apache Tribe, 148; tribal land, 75, 145, 146; Yankton Sioux Tribe, 147–148 Native American religion: animism, 4, 167, 174, 193, 216; Badoni court cases, 138, 167, 168, 216; church, Native American, 134, 168; creation myths, 5, 6, 82, 137, 149, 167, 174, 177, 212–213, 218; divine forces, 175; Frank v. State, 141; Handsome Lake Religion, 167; Kachina, 168; medicine men/Shaman, 28, 29, 137, 139, 144, 169, 179, 216; miracles, 175, 178; Teterud v. Burns, 141 Navajo, 72, 138–139, 148–149, 160, 168–169, 174, 206, 216 Obama, Barrack, 34 Objective knowledge, 2, 213–219 On-Your-Knees Skeleton. See Prince of Wales Skeleton Oral tradition: anachronisms, 178–179; elders, 4, 94, 119, 180, 181, 183, 216; validity, 180–183 Osteological report, 17, 22, 26, 36, 43, 195–196 Owsley, Douglas, 30, 150 Paleoindians: aDNA, 11, 33, 35, 36, 50–51, 79–81, 86, 151–152, 196; activity reconstructions, 25–29, 55, 119, 185; affiliations, 58, 75–79, 93; antiquity, 11–16, 93; court cases (see Bonnichsen, Robson; Kennewick Man; La Jolla Skeletons; White, Tim); cranial studies, 75–79, 90, 91, 197; culture, 25–29, 119, 185; demographics, 17–22; dental studies, 24–25, 42, 75–79; diet, 23–25, 33–34, 41–42; discovery, 16–17; disease 25; repatriations, 11, 30–36, 41, 49t, 50–51, 52, 75, 80 82; violence, 29–30 Parasites. See Diseases Parry fractures, 104, 106, 106f, 107 Pelican Rapids Woman, 13t, 14, 18, 28, 29; repatriation, 30, 31t, 81. See also Paleoindians Peopling of the Americas: Northeast Asia, 82– 83; Bering Land Bridge/Strait, 38, 81, 88–90, 91, 160, 176; coastal routes, 88, 91–92; cranial and dental studies, 82–83, 83f, 84f, 87, 90, 91; Clovis, 92; DNA studies, 83–86, 90, 91–92, ice free corridor, 89, 90, 91; Solutrean, 92 Population size of Americas, precontact, 94, 97–99, 217 Postmodernism, 2–3, 94

Prayers, 3, 212; First Amendment, 134; oral traditions, 82, 177; spiritual distress, 168, 169 Prince of Wales Skeleton, 80. See also Paleoindians Pueblo: archeological, 93, 101, 108, 188, 196; modern, 77t, 129, 169. See also Anasazi, Zuni Pueblo Child, 49t. See also Mummies Race, 1, 6–7, 219; forensics, 62, 200, 204–205; Havasupai Tribe, 172, 174; Montoya v. US, 131; Morton v. Mancari, 130–131, 170; NAGPRA, 165–166, 170; Plessy v. Ferguson, 130. See also Fourteenth Amendment Racial discrimination: authority, 4, 166; Fourteenth Amendment, 130–131; Havasupai Tribe, 174; NAGPRA, 170, 183; objective knowledge, 214–215; preference/favoritism, 72, 165, 176 Radiocarbon: dating, 14, 39, 42, 44, 45, 53, 54, 150, 152; population size, 98 Rainbow Bridge National Monument. See National Parks Reanimation. See Environmentalism Reinhard, Karl, 209–210 Relatedness: biological continuity, 6, 68, 74, 195–196; biological relatedness, 11, 26, 35, 58, 59, 63–64, 66, 198; cultural affiliation, 72–75, 146, 147, 165; lineal descendant, 70, 72, 146. See also Genetics Religion: Amish, 139, 169; Animism, 4, 167, 174, 193, 216; Catholicism, 168, 173, 175; Christian creationists, 177, 181–182; Christian fundamentalists, 173–174, 192; Episcopalian, 132, 147, 212; monotheism, 132, 137, 166–167, 169, 174; Protestants, 132, 168; Seventh-day Adventists, 133, 139; Traditional Native American Religion (see Native American Religion); support for NAGPRA, 212 Religious Freedom Restoration Act, 134, 142, 169 Religious Land Use and Institutionalized Persons Act, 134 Repatriation ideology: anti-science, 123, 175–176, 183; definition of, 1, 2, 6; genetic research, 123, 155–156, 161; loss of data, 194, 211; religion, 131, 194, 199, 212; victimization, 3, 94, 103, 121 Reproducibility. See Methods Reservations, Indian, 71, 127, 128, 129, 147, 170 Ryan Mound, California, 55f, 56f, 67, 74, 196 Index

263

Sacred sites, 3, 137, 138–139, 142, 174 Sacrifice, human, 100, 188 Santa Rosa Island, Channel Islands, CA, 22, 23f, 34. See also Paleoindians Scalping, 108, 109, 189. See also Burial traditions; Violence Schizophrenia, 156, 158, 159, 172 Schoeninger, Margaret, 34 Scientific freedom, 194, 199 Scientific method. See Methods Scudder Mummy, 49t, 53. See also Mammoth Cave, Kentucky; Mummies Sex determination, 2, 20–22, 204–205 Shamans. See Native American traditional religion Shoshone-Bannock Tribe. See Buhl Burial Siberia, 85f; Eskimo, 39, 87; genetics, 80, 84, 86, 90; Havasupai Tribe, 172; Mal’ta Boy, 88. See also Peopling of the Americas Sinodont, 79, 90. See also Dental Studies; Genetics; Paleoindians Six Rivers National Forest. See National Parks Skeletal collections, 2, 74, 195, 202, 204, 208–209 Skiles Mummy, 43, 48. See also Mummies Slavery, 100, 108, 109, 120, 187, 188 Smallpox, 110–111, 115, 120. See also Diseases; Violence Smithsonian. See Museums Social class, 40, 188. See also Burial goods Sovereignty, Indian (and immunity), 126, 129, 154, 160 Spirit Cave Man, 11, 40, 41–42; cranial studies, 79; dental studies, 42, 79; display, 52; DNA, 50–51, 80; repatriation, 31t, 41, 49t, 50; spondylolysis, 55–56. See also Paleoindians Spiritual distress, 138, 140, 168, 169 Stanford University, 67, 155. See also Ryan Mound Sundadont, 79. See also Dental studies; Genetics; Paleoindians Sunrise Girl, 80–81 Supreme Court, U.S., 128, 131, 134, 135, 136, 141, 169, 173–174, 193. See also Court cases Swanson Lake, Nebraska, 78. See also Paleoindians

264

Index

Syphilis, Treponemal, 111, 112t, 114, 117. See also Diseases Tattooing, 39, 47. See also Mummies Teeth. See Dental studies Thule Eskimo Girl, 49t. See also Mummies Tilousi v. Arizona Board of Regents. See Havasupai Tribe Torture, 108, 188–189. See also Violence Traditional religious leaders. See NAGPRA Tribal lands. See NAGPRA Tribal Membership, determination of, 130, 170 Trophy taking. See Burial traditions; Scalping Tuberculosis (TB), 99, 111, 112t, 114–115, 117. See also Diseases Tuqan Man, 13t, 14, 25, 31, 33. See also Paleoindians Umatilla. See Kennewick Man Ute. See Hourglass Cave Ventana Cave, Arizona, 41, 44, 48, 49t. See also Mummies Violence: cranial depressions, 107, 107f, 108; fractures, 29–30, 104–110, 105f; germ warfare, 111; hobbling, 108; penetrating factures, 104, 105f; sacrifices, 100, 188; warfare, 95, 103, 109, 187–188, 189 Warfare. See Violence Wet Gravel, Nebraska, 14, 78 White, Tim, 34, 129, 152. See also La Jolla Skeletons Wizard Beach Man, 13t, 15, 17, 19, 25, 31, 37. See also Paleoindians Women, treatment of, 100, 101, 104, 107, 108–109, 110, 206 World Archaeological Congress, 200, 207 X-rays, 104, 120, 197; age estimation, 18, 44; fracture identification, 29, Harris lines, 24, 46; mummies, 43, 46, 47, 53 Yaws, Treponemal, 114. See also Diseases Zuni, 82, 149, 176–179, 199, 206

Elizabeth Weiss is professor of anthropology at San José State University. She is the author of Reading the Bones: Activity, Biology, and Culture and Paleopathology in Perspective: Bone Health and Disease through Time. James W. Springer is a retired attorney in Peoria, Illinois, and holds a Ph.D. in anthropology from Yale University.

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