Last month, California assemblyman James C. Ramos started a state legislative meeting with a prayer; it was appropriate for a meeting that would end with the funeral of anthropology in California.
The California legislators met with tribal leaders and California State University (CSU) and University of California (UC) officials to review the progress California’s public universities are making in turning over prehistoric skeletal collections to modern Native American tribes who claim that these human remains are their ancestors. This meeting followed audits conducted on both university systems to assess their compliance with the 1990 federal law, the Native American Graves Protection and Repatriation Act (NAGPRA).
NAGPRA was enacted to return human remains to culturally affiliated, federally recognized tribes. Cultural affiliation was to be made based on a preponderance of the evidence, which means evidence that provides at least 51 percent certainty. The allowable evidence included historical documents, archaeological data, biological and DNA information, and oral history. The university systems complied with NAGPRA, as it was passed in 1990. Yet, the law has recently changed considerably: “Native American traditional knowledge” was added as a category of evidence; the category of “culturally unidentifiable” was deleted; and a lower bar for affiliation is now in place – “reasonable evidence” as opposed to “preponderance of evidence.”
Also, new laws have been enacted. AB275 passed in 2020 and states that traditional Native American knowledge must be deferred to when science and traditional knowledge are at odds. AB389 and AB226 passed in 2023; they target teaching collections that may contain Native American human remains or artifacts. These laws will bury our ability to teach osteology; previous laws applied only to research collections.
The auditors’ claim that the university systems have been woefully non-compliant did not take into account these moving goalposts. The CSU and the UC had complied with NAGPRA; they had already repatriated collections to federally recognized tribes where a preponderance of evidence established a genuine connection between the human remains and a specific tribe. The collections remaining in universities for research and teaching purposes show no clear affiliation to federally recognized tribes and, thus, were not removed from curation facilities.
Now, the guardrails are off repatriation laws, and all collections are slated for repatriation. Throughout the legislative meeting, apologies were issued by CSU and UC officials—including the new CSU Chancellor, Mildred Garcia. Promises were made to repatriate all collections before 2030, and there was constant discussion about prohibiting research. Statements about targeting retired professors who may hold any materials were repeated, queries were made about shutting down field schools, and concerns about community college collections were raised. University officials and the Native American Heritage Commission (NAHC) discussed the millions of dollars allocated to repatriate collections and the millions more needed to get the job done.
Tribal leaders, such as Lynn Valbuena of the San Manuel Band of Mission Indian, who thanked “the Great Spirit” before arguing that universities should provide land for the burials, repeatedly stated that anthropology departments should be excluded from repatriation decisions. Anthropologists, however, are trained in identifying the remains and identifying links between the past and the present and know these collections better than anyone else. Leo Cisco of the Tachi Yokut tribe who spoke of “feeling the energy” that comes from skeletal remains of ancestors—an energy only Native people can feel—called scientific research into America’s past a “crime.”
Jack Potter of the Redding Rancheria tribe argued that repatriation isn’t difficult, and money is unnecessary—just give the ancestors back. However, Potter seemed to fail to understand that inter-tribal disagreements about affiliation can stall the process for years. And, as legislators chastised the universities for their slow actions, the NAHC noted the slow process of forming repatriation committees due to the requirements written in new repatriation laws that are intended to exclude anyone who may not just give the green light to any repatriation request. Raymond Hitchcock, the Executive Secretary of the NAHC, reported that 168 voting positions in repatriation committees needed to be filled, but only half of the applicants were deemed qualified for these positions, and only 29 had been nominated in the eight months since AB389 and AB226 had been passed.
Yet, most importantly, no one spoke up for science and teaching. No one mentioned the significant research conducted on these collections—research that aids in accurately reconstructing the past, helps forensic anthropologists identify the most vulnerable individuals—those who died alone and may not have been missed until their bodies became bones—and contributes to our understanding of health and disease through time. These are important lessons that were much needed—and yet ignored—during the COVID pandemic. Instead, tribal leaders lamented, as Jack Potter did, that their problems, such as alcoholism, stem from hearing the cries of unburied spirits. When all the bones are buried, Native Americans will still face these issues because prayer songs and burying bones will not eliminate disease or solve addiction.
Science can improve their lives if they choose to embrace it.
Image by Africa Studio — Adobe Stock — Asset ID#: 82111849
Yes, the 11th Amendment is part of this, but Rule 19 is the “Required Joinder of Parties” and so when the judge decides that the tribes are required Joinders, but they cannot be joined (because of the 11th Amend. — i.e., sovereignty), then this leads to the catch-22! But, I am always on the lookout for an attorney whose interested in this issue and have approached some, but no luck yet!
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)?
I don’t completely agree with Ed. Tribes and their members are somewhat different in that they are American but have additional treaty rights. Yet those rights should not in all or even most cases extend to the point of prioritizing religion over science in judicial or quasi-judicial processes, nor in areas where the tribe likely has no relationship to the bones—of course if one ignores scientific facts, as postmodernists to, then everything is up for grabs.
But WHY should they have additional rights? Because they were here before other people were?
Well, my family has been here since something like 1644 so shouldn’t I have additional rights over those whose families came here in the 19th (or 20th) Century?
And if you want to talk about land being stolen, what about the land owned by the Loyalists whose only crime was obeying the lawful government? While the Treaty of Paris included an American promise to compensate the Loyalists for their stolen property, that was never honored.
So what’s the difference?
Dr. Ed and Liz seem to be their own echo chamber. Your legal and scientific points of view are spurious. You have no understanding of federal Indian law, and seem to have no taste to simply ASK FOR CONSENT from the Peoples you wish to study. That is literally Liz’s problem – she wants the freedom to do what she wants without any responsibility for the effect or impact. Reputable scientists are doing just that. Have you read the book – All I Really Need to Know I Learned in Kindergarten? Don’t take things that are not yours, ask for permission, say please and thank you. Stop complaining that you have to ask for consent from Native Nations.
Shannon, need I remind you of other Federal laws which I (hope) you will consider repulsive? Woodrow Wilson’s segregation of the Federal Government. (It hadn’t been and President Grant was stopped for speeding by a Black DC cop.) FDR’s internment of Japanese-Americans during WWII. The denial of veteran benefits to Black Vets after that war.
These were all “laws” to the same extent of the current “laws” you cite — and one other thing, the Constitution supersedes all Federal laws.
And I think that Federal Indian law is UNCONSTITUTIONAL. Hence null and void.
As to having consent of a group before studying it, what about those who wish to study hate groups like the Klu Klux Klan or the NeoNazi fringe? Should they have to obtain the group’s permission to do so? How might that be problematic?
And isn’t there a greater good of an objective view of who these schmucks are?
As to the Treaty of Paris, it says what it does, you can go look it up.
I’d like to see this challenged on 14th Amendment (equal protection of the laws) grounds.
The 13th, 14th, and 15th Amendments were written after (and in response to) the Civil War, and essentially rammed down the throat of the former Confederacy. The 14th Amendment largely was intended to force states to not discriminate on the basis of race, and while it took Congress nearly a century to pass things like the 1964 Civil Rights Act to enforce that, such laws are now on the books.
And as the Students for Fair Admissions case tells us, these laws are racially neutral.
So what right does the government have to give certain citizens special privileges on the basis of race?
One needs to remember that in the 19th Century, Indians were treated differently because they were not considered citizens — they couldn’t vote and they weren’t taxed, and (without getting into what was really behind it) see the infamous 3/5ths clause in the 1787 Constitution. The Indian “nations” were seen as “foreign nations” like Canada, with the Indians subject to Tribal law, much as Canadians are subject to Canadian law.
This is why the 13th Amendment did not end slavery in 1865 — the Creek Nation (Indians) were able to keep their Black slaves until an 1866 treaty required the Creek tribes to both free them and give them tribal membership.
But this is no longer true — today Indians are full American citizens and hence I ask why doesn’t a Constitutional Amendment that prohibits states from making legal distinctions about race prohibit California from making legal distinctions about race?
And at its most basic, what right does the Federal Government have, in 2024, to issue racial identification cards to anyone?!?
Yes, the 14th Amendment only applies to the states, and the 5th Amendment lacks an “equal protection” clause, only having a “due process” one, and in 1787 racial discrimination (and slavery) had Federal protection — but not now… Forget the Warren Court, if today’s SCOTUS can find that the Constitution prohibits discrimination against heterosexuals (i.e. the Federal Government must recognize gay marriage) then it must also conclude that the same Constitution prohibits discriminating in favor of Indians.
It’s going to take someone pushing this, and it probably would have to go all the way to the Supreme Court, but I’d like to see it done.
This is an excellent suggestion. I think the problem that consistently arises is the one that arose in my case — Rule 19, that the tribes would be indispensable party to the case, but that you cannot sue them. I am not sure how one will overcome this catch-22.
I am not an attorney but strongly suggest you get one as several things come to mind.
First, the “taking” clause of the 5th Amendment requires compensation for taken property. When Congress freed the slaves in DC circa 1862, it had to pay compensation to the slave owners. Seriously, they brought in three slave traders from Maryland and estimated the value of each freed slave, which the US Government paid to the former owner.
That’s why the 4th paragraph of the 14th Amendment is there — otherwise there would have had to be compensation to every former slave owner.
Bones are property — the tribes have to pay the current owners “fair market value” for the bones, no matter how “legitimate” their taking of them is, the bones’ current owners must be compensated — or the US Constitution amended.
You mention “Rule 11” when I think you mean 11th Amendment which prohibits suits being brought against state governments in Federal court without their permission, and this is often called “sovereign immunity.” I can see tribal governments being considered the same as state governments (which I believe unconstitutional ).
Well, the Anti Klu Klux Klan Act of 1871, written under the enforcement authority of the 14th Amendment, gives you a way around that — a lovely Federal law known as 42 USC 1983 and the relevant portion of it reads as follows:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”[emphasis added]
I am not an attorney, but I would find one knowledgeable with Section 1983 “under color of law” claims because I strongly suspect you have a suit merely on this if California law accords the Indians the ability to deprive you of your “rights, privileges, or immunities” — it is more complicated than this, and you want a lawyer who has experience suing police departments for police brutality because that also is Section 1983.
The other thing that comes to mind is you being denied the right to practice your profession on the basis of your race (i.e. not a tribal member). Again, I’m not an attorney so find someone who is.