In 1990, the US government enacted the Native American Graves Protection and Repatriation Act (NAGPRA). The law requires that federally funded researchers who discover or work with Native American human remains or cultural items must turn these finds over to such modern-day Native American tribes that can demonstrate a close ancestral or geographical linkage. Congress’s goal was to ensure that human remains and sacred objects “be treated with dignity and respect.” But as I have written previously, the law has been interpreted in an overbroad way, such that unearthed Paleoindian skeletons that are thousands of years old are now being successfully claimed by modern tribes that have little or no connection to the specimens in question.
As a result of NAGPRA—and its state-level counterparts, such as the California Native American Graves Protection and Repatriation Act (CalNAGPRA)—scientists are being denied the opportunity to analyze such discoveries as part of their research. In some cases, moreover, laws such as NAGPRA and CalNAGPRA have become vehicles for activists to enforce their spiritual and religious beliefs at the expense of secular scientific research. As reported earlier this year in Quillette, this can include explicitly sexist religious or spiritual prohibitions on women handling (or even gazing upon) tribal artifacts.
I speak here from personal experience, as my own anthropological research at San José State University (SJSU) in California has been negatively affected by NAGPRA and CalNAGPRA. And I have come to regard these laws as a threat to free academic inquiry, especially since they’re now being used to repatriate Native American remains from museums and universities before they’ve been properly analyzed with modern scanning technologies. Denying researchers the ability to study unearthed human remains harms our ability to understand the past and help the living.
I believe NAGPRA was enacted with good intentions, and I respect the opinions of colleagues who continue to defend the law’s implementation. I’ve also encouraged my students to engage with tribal members, with faculty who hold opposing views, and to read widely on both sides of the issue. In addition, I have worked to ensure that SJSU complies with repatriation laws, despite my opposition to them. Yet my opponents have not extended the same tolerance toward my own position, which has drawn attacks from many quarters since the publication of my latest book, Repatriation and Erasing the Past (published by University of Florida Press, and co-authored with now-retired attorney James W. Springer), an op-ed I wrote in 2021 regarding CalNAGPRA’s negative impacts on skeletal research, and a photo I tweeted that showed me with research materials, including a skull. Over the last year, San Francisco Bay Area tribes have made common cause with my own university colleagues in a bid to strip my access to needed research materials.
CalNAGPRA, whose provisions are even broader than those contained in NAGPRA, stipulates that repatriation claims in regard to human remains and cultural items may be filed by “lineal descendants and culturally or geographically affiliated California Indian tribes.” But in truth, it is often difficult for modern tribes to demonstrate any connection to items that are thousands of years old, and which are discovered in areas that once were home to migrating or warring tribes that are unrelated to modern communities. But such inconvenient facts have been deemed irrelevant, with my university effectively taking the position that modern tribes are the sole and final arbitrator of what materials fall under CalNAGPRA’s purview. This position is argued on the basis that CalNAGPRA mandates that “tribal traditional knowledge,” not science, shall be prioritized in interpreting its provisions.
But even under an expansive interpretation of CalNAGPRA, its provisions (like those of NAGPRA) govern only human remains, funerary objects, sacred objects, and objects of cultural patrimony. My university has refused to abide by even this clearly stated limitation.
Several tribes recently demanded that I lose access to the university’s prehistoric Amerindian California skeletal collection, excavated from an area known as Ryan Mound in Alameda County, CA (known as CA-Ala-329). It seems obvious to me that this demand was made as a form of retaliation, in response to my expressed views on CalNAGPRA. Yet university officials cravenly agreed with my critics.
I then asked for access to a variety of materials that are clearly not covered by even the widest possible reading of CalNAGPRA—including a collection of remains from Tunisia, the remains of ancient fauna from California, and a collection of x-rays that researchers have taken of CA-Ala-329 specimens over the years. The tribes are even demanding site reports compiled by other researchers.
Although I was eventually granted access to the Tunisian collection, this decision was made only after the tribes that were consulted agreed to “designate” them as being non-Native American. Had the tribes decided to “designate” the remains as falling under CalNAGPRA, on the other hand—which is to say, “designating” Tunisia as being sufficiently proximate to California as to be subsumed under its repatriation policies—would officials at my university have acquiesced, and barred me from studying these remains? It seems likely they would.
Regarding the x-rays I’d requested—images that had already been taken from CA-Ala-329 remains—the tribes demanded that these should be repatriated to their custody and then burned. This would prevent me from continuing my research into Harris Lines on bones, which indicate periods when living humans stop (or stall) in their physical growth, often due to disease or malnutrition. These lines can serve as anemia indicators, which in turn may signal child neglect; and so my research has modern diagnostic applications in regard to at-risk children.
Since the beginning of my research career, I have studied bone biology through the use of CT-scanned and x-rayed skeletons, without any objections. Ironically, members of the Muwekma Ohlone Tribe, which is listed as the most likely descendant tribe for CA-Ala-329 (although there’s some evidence that, genetically, the tribe is more Mexican than Native American), had given their “blessings” for the taking and use of x-rays as recently as 2019. As far as I can tell, the only reason that x-rays are now being described as “sacred” by those petitioning my university is that I am asking to use them in my research into child health. In other words, it’s an act of spite.
It need scarcely be added that x-rays are not sacred objects, a category defined as constituting “specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.” X-rays are also not objects of cultural patrimony, which is to say, “having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American.” And they are definitely not funerary objects—“objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later.” Yet rather than explain any of this to the tribes seeking to leverage CalNAGPRA as a means to block my academic research, the university’s repatriation coordinator has apparently taken the absurd position that the tribes are free to determine what happens to the x-rays.
The same seems to be true in regard to other forms of data, such as scientific reports that are now being targeted for repatriation, despite there being nothing in CalNAGPRA to support such a demand. Repatriation laws generally indicate that this type of data should be supplied to tribes upon their request—but that is, of course, completely different from “repatriating” the information in a way that requires the destruction of copies possessed by researchers. I am all for sharing data, but certainly not for destroying it, or hiding it from those with different academic perspectives, out of a desire to exact punishment or revenge.
As I’ve tried to rebuild my academic career in the face of these spiteful gestures, I’ve also requested non-human (faunal) skeletal remains that could be used to further my bone-biology research (as opposed to anthropological research on reconstructing past people’s lives). The faunal remains of CA-Ala-329 had not been requested for repatriation prior to my expression of interest in this collection. In 1989, in fact, when Stanford University acceded to the Muwekma Ohlone’s demands for repatriation (a development that some cite as being an impetus for NAGPRA), the tribe limited its demands to the skeletal remains of 550 Ohlone Indians and associated funerary shells. Although some faunal remains are, or may arguably be, funerary objects—such as bird-bone whistles and some deer antlers—other faunal remains are just refuse. To retroactively claim that all faunal remains are “funerary and sacred objects and items of cultural patrimony,” as is now the case, simply reflects an effort to block my research efforts. But no one dares say so, because doing so would mean contradicting activists’ (ever-changing) description of tribal oral traditions.
The university has also acceded to tribal religious demands in other unsettling ways. The initial protocols that SJSU adopted in regard to CalNAGPRA collections included a statement that “menstruating personnel” be forbidden from handling indigenous human remains. (Presumably, use of the word “women” would have been offensive to the university’s gender watchdogs.) It was only after my attorneys pointed out that this may violate Title IX of the Education Amendments of 1972—the federal law that prohibits discrimination based on sex in education—that the menstrual taboo was removed from the protocol. (I have written at length about retrograde sexist menstrual taboos being applied in anthropology and archaeology, in Quilletteand Areo. These taboos aren’t being championed by Christian conservatives, but rather by progressive academics eager to be seen as acceding to every imaginable indigenous spiritual belief.)
Tribal leaders and activists have made their intentions quite clear. They want to end my research, regardless of whether it falls under CalNAGPRA or not. And my own employer seems determined to acquiesce in any way it can. I know this because some of the communications to and from my university have been made available to me as a result of my lawsuit against the university (more on this below). For instance, one self-described Native American Consultant, operating through a charity called the Nototomne Cultural Preservation, wrote to Alisha Ragland, SJSU’s tribal liaison, as follows:
We would also like to confirm that SJSU will not continue to accept any more Native American burials. In addition to insuring that EW [i.e., me] is fully investigated regarding the CA-ALA-329 should there be anything missing. Since we were notified that EW will continue to deal with human remain[s] that are from another non native [sic] collection unrelated to Native American. We want to insure that EW will do her work in a different location from where CA-ALA-329 is being housed.
Whatever readers may think of US repatriation laws that cover human remains and cultural items, it is beyond dispute that they were put in place to help tribes protect the dignity of their ancestors and culture—not as an avenue for professional retaliation against non-ideologically compliant academics, nor as a means to provide Native Americans with complete veto power on academic research. I believe that by giving in to those seeking to punish me, SJSU broke the law and violated my constitutional rights. And so I have taken legal action against SJSU, with the assistance of attorneys at the Pacific Legal Foundation, whose August 19th, 2021 letter to SJSU reads as follows:
We are writing this letter on behalf of Professor Elizabeth Weiss regarding unconstitutional threats of retaliation from officials at San Jose State University (SJSU) against Professor Weiss because of her academic research and writing, and her desire to introduce her students to a different perspective regarding the repatriation of Native American remains.
Professor Weiss has faced serious backlash and threats of adverse action by university administrators for expressing her viewpoint on a matter of academic importance in her field. She has been tarred as a racist professor by university officials even though throughout her long career she has never exhibited even a trace of racism. And she has been told that if she dares to teach her views to her students, she could face disciplinary action or other forms of retaliation.
At the start of a new semester, we write to warn the University that any action taken against Professor Weiss for her speech would violate not only norms of academic freedom, but also the First Amendment to the United States Constitution. Universities must be a place where different perspectives are encouraged and nurtured rather than suppressed.
Ultimately, California’s tribes can make whatever demands they want, whether under NAGPRA or any other claimed legal authority. But SJSU is a public university, funded by California taxpayers. It has an obligation to follow the law and respect the rights of its academics. It is not legally permitted to recast itself as an activist entity that suppresses its own professors’ research work on the basis of plainly spurious interpretations of CalNAGPRA.
The university’s actions are part of a larger pattern. Since my publication of Repatriation and Erasing the Past in 2020, I have experienced a series of retaliatory actions, which resulted not only in me being barred from accessing collections that are vital to my research, but also the imposition of strategically altering rules for departmentally-sponsored visiting speakers, attempts to withhold funding and other forms of support, an attempted ban on photographing skeletal remains, and the announcement that such views as mine, if discussed in a classroom, “very possibly could have damaging consequences for her [i.e., my] career at San Jose State.” This latter statement was made by my department chair, Roberto Gonzalez, in a talk to the Council of Colleges for Arts and Sciences, titled, What to Do when Your Tenured Colleague is Branded a Racist?
US scholars need to stand up against the expanded use of NAGPRA, CalNAGPRA, and similar statutes beyond their letter and spirit. As my case shows, there is a desire among some tribes, activists, and even university officials to impose a de facto moratorium on all research involving Native American human remains, and to insist upon a posture of complete deference toward any demand made on the basis of asserted tribal custom or folklore—even if it means throwing academics under the bus in the process. As someone close to me remarked of my legal proceedings, “If Elizabeth asked for a pencil, activists would doubtless object on the basis that it’s a sacred object.” The pity of it is that my university superiors might well nod in agreement.