Repatriation and the First Amendment,Nicole Scott,Free Inquiry

Native American repatriations—the removal of human remains and artifacts from museums and universities and their subsequent reburial—may proceed faster in 2022 than in any preceding year. Yet repatriation hinders science because human remains and artifacts are used to reconstruct the past, which in turn helps us understand our common human experience. Factors that impact repatriation include: private museums that received Coronavirus Aid, Relief, and Economic Security Act (CARES) funding may now be subject to the federal Native American Graves Protection and Repatriation Act (NAGPRA); California bill AB275, which prioritizes traditional Native American beliefs above science; and a political landscape that has taken hold in academic organizations and institutions encouraging religious intrusion into science while framing it as promoting anti-racism.

NAGPRA is the most important repatriation law in the United States. Passed in 1990, it laid out a set of guidelines for federally funded institutions to follow to repatriate human remains and artifacts to federally recognized and culturally affiliated tribes. However, NAGPRA has been reinterpreted to require remains and artifacts that are culturally unidentifiable to be repatriated as well, resulting in remains being handed over to tribes where there is no scientific evidence of any connection.

Although some argue that the study of human remains violates Native Americans’ religious freedom, we suggest that NAGPRA should not have been passed, due to its violation of the First Amendment of the U.S. Constitution. The most common assessment of whether a law violates the First Amendment is the Lemon test, which was established by the U.S. Supreme Court in 1971 in Lemon v. Kurtzman. It requires that legislation must have a secular purpose, can neither advance nor promote a religion, and should avoid causing the government to become excessively entangled with religion. These points are essential to avoid promoting specific religious beliefs and creating undue burden on nonbelievers or those of differing beliefs.

We believe NAGPRA fails the Lemon test in multiple ways. For instance, NAGPRA does not have a secular purpose, which is evident in its extensive reference to religion, religious leaders, and sacred objects. NAGPRA also fails the Lemon test in that it promotes traditional Native American religions by requiring “traditional Native American religious leaders” be part of the review committees, thereby preferring one religion over others.

NAGPRA also causes excessive entanglement, due to the difficulty in assessing what traditional Native American religions consist of. Sacred sites are often not agreed upon; for instance, Oak Flat, Arizona, which is at the center of a controversy over copper mining, has been reported as a sacred site for the Apache. Yet former tribal historian for the San Carlos Apache Tribe Dale Miles has argued that Oak Flat was not considered sacred prior to the 1970s. The absence of religious texts and the melding of Christian symbols such as Jesus Christ in many Native American religions are further examples of how defining traditional Native American religions becomes tricky. For instance, beginning in 1799, Iroquois chief Handsome Lake reported visions in which he encountered Jesus Christ and received instructions on how to combat the evil ways of other Iroquois. His revelations gave rise to the term Handsome Lake religion and are used to describe the contemporary Iroquois religion. Should this be considered “traditional”? For a court to make this decision will inevitably lead to entanglement.

NAGPRA also causes excessive entanglement through the use of oral traditions for repatriation claims, since the committees (and sometimes courts) must assess which parts of oral tradition are fact and which are religious myths. In the case of Spirit Cave Mummy, a 10,600-year-old Paleoindian found in Nevada, members of the Fallon Paiute-Shoshone tribe attempted to use oral traditions to claim a link between them and the mummy. However, oral traditions change over the years—after 500 to 1,000 years they are not likely to contain any factual information—and they are riddled with tales of creation and miraculous occurrences. A good example of the failings of oral tradition involves horseback riding among the Blackfoot Indians. Colonial-period documents reveal that the horse was introduced to the Plains Native Americans by Spaniards in the sixteenth century and then spread by Native Americans through trade, gift-giving, and raiding. The Northern Plains’ Blackfoot Native Americans didn’t receive horses until 1750. In the 1940s, John Ewers, who established the National Museum of American History, asked Blackfoot people what they knew about the origin of horses. Although some professed no knowledge, others told myths, such as that a Blackfoot boy was given horses by water or air spirits. Thus, in a period of only two hundred years, a well-documented historical event mutated into a religious myth.

When religious beliefs are promoted to the exclusion of secular knowledge, people are deprived of information about specific prehistoric and historic events, but, more important, accounts regarding common heritage and links between humans and the natural world are also destroyed. For example, when creationists fight to keep information about evolution from schoolchildren, this deprives future generations of knowledge about the thread of life between us and all other organisms.

Problems also arise when Native American activists and their allies wish to use religion as an excuse to prevent research. Native Americans have even adopted the creationist catchphrase about evolution—“It’s just a theory”—to dismiss research published on migrations into the Americas, although there is ample scientific evidence (from craniometry, genetics, artifact analyses, and linguistics) to prove that humans evolved in the Old World and migrated into the New. The peopling of the Americas likely occurred between 14,000 to 20,000 years ago. The oldest American remains may reveal that current tribes’ later migrations resulted in the demise of the first Americans. For example, DNA research on Alaskan remains revealed genetic continuity with the 10,300-year-old On-Your-Knees (also known as Prince of Wales) skeleton and a 6,000-year-old skeleton. However, more recent skeletons dating between 5,000 and 2,500 years old that had genetic ties to contemporary Alaskan Native Americans were distinct from the earlier finds. Nevertheless, the outcome of this DNA project was reburial of all these ancient skeletal remains.

Another more recent example from a collection that one of us (Weiss) has spent over a decade studying is 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 two thousand years and use over three dozen skeletal traits. It was found that the earliest period individuals (who dated to from 200 BCE to 900 CE) differed from the most recent period individuals (who dated from 1500 to 1800 CE). The site should not be thought of as one population but rather as a mound with multiple peoples. Nevertheless, with the California Native American Graves Protection and Repatriation Act’s definition of affiliation, they will likely all be buried by the Muwekma Ohlone Tribe, who repatriated the Stanford part of the collection prior to the passing of NAGPRA.

When, in legislation, oral traditions are considered more valuable than scientific evidence, the government is promoting a religion over secular knowledge. According to California repatriation bill AB275 “deference shall be provided to tribal traditional knowledge, oral histories …” relative to other relevant categories of evidence, such as artifact analyses. Additionally, AB275 states that “Tribal traditional knowledge shall be used to establish state cultural affiliation.” Without scientific evidence for affiliation, the reburial of collections will take precedence over understanding the past.

Within the decade, if not before, we may lose all California collections to reburial, and with this passing, we lose the ability to understand our shared human past.

Repatriation laws promote religious narratives over secular truths and, thereby, break the separation of church and state—the First Amendment’s first clause. Let’s not allow real or supposed religious doctrines to suppress the scientific study of humanity in our academic institutions. Otherwise, we risk losing the stories of all peoples.

Native American repatriations—the removal of human remains and artifacts from museums and universities and their subsequent reburial—may proceed faster in 2022 than in any preceding year. Yet repatriation hinders science because human remains and artifacts are used to reconstruct the past, which in turn helps us understand our common human experience. Factors that impact repatriation …