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NAGPRA (the Native American Graves Protection and Repatriation Act)¹ is a federal law that requires skeletal remains and certain artifacts (such as grave goods and sacred objects) from past populations to be turned over to culturally affiliated present-day Native American tribes. The cultural affiliations can be determined through a variety of means including scientific, historic, and oral traditions, but the determination of affiliation should be by a preponderance of evidence, which means that half or more of the evidence should support the link between the past and the present peoples. All federally funded institutions in the U.S., such as universities and museums (even private ones that accept federal funding) are required to follow NAGPRA. This includes the requirement that they create inventory lists so that Native American tribes can request repatriation of previously discovered and curated items.

In 2017, I decided to reach out to now-retired attorney James W. Springer to see if he’d like to co-author a book on the topic of repatriation that took a critical perspective on the law and the ideology behind repatriation. Jim and I, though never having met face-to-face, had corresponded over the years based on our mutual concern that NAGPRA and similar laws would seriously hinder our ability to accurately understand the past—including the intriguing and ongoing mystery of how the Americas were first peopled.

Jim started his career as an anthropologist after receiving his PhD at Yale University, teaching, excavating, and researching for ten years prior to beginning his law career; throughout the years, he remained interested in anthropology, and continued to read and write about anthropological issues. I’m an anthropology professor at San José State University (SJSU); my focus is on studying skeletal remains and radiographic images (such as X-rays and CT scans). I’ve investigated diseases, such as leprosy in a Byzantine collection, and osteoarthritis patterns from Native Americans. I’ve also tried to reconstruct past people’s activities, looking at stress fractures² and bone strength in skeletal remains from 18^th century European Canadians³ to Paleoindians,⁴ whose skeletal remains in the Americas are 7,500 years old or older.

Jim and I wrote our book proposal and received a contract, after which I submitted a leave request to my department chair Roberto Gonzalez and my dean Walt Jacobs. Roberto provided an exceedingly supportive statement that also demonstrated that he understood the controversial nature of my position. “Dr. Weiss’s proposed project is likely to benefit the anthropology department in multiple ways,” he wrote. “Finally, since Dr. Weiss holds a controversial position on NAGPRA— focusing upon the ways in which the interpretation and implementation of repatriation and reburial laws may impede intellectual inquiry—her new project is likely to spark lively discussions among various stakeholders.”

My leave was approved, and Jim and I set out to write our book, Repatriation and Erasing the Past.⁵ It’s organized into three parts. The first focuses on debunking myths taught in K-12 and at universities, especially the conventional dogma that pre-Columbian populations in the Americas were peaceful. Examination of the skeletal remains throughout the Americas revealed clear evidence of violence, particularly the embedded arrowheads and severed limbs that were taken as war trophies. A chapter on biological relatedness discussed the frequent inability to tie past peoples to modern tribes. For example, the DNA of the 11,500-year-old Paleo-Indian Sunrise Girl could not be matched to that of any modern population, suggesting that she came from a group of lost or replaced Beringinians—those who walked across the Bering land bridge while it was in existence.

The second part of the book reviews NAGPRA, the history of Indian Laws and other conservation laws, and explores the complex issues in determining modern tribal affiliation to past peoples. One example is the Kennewick Man case, in which a claimed link between the over 8,000-year-old discovery and one of the modern tribes led to President Obama signing a congressional order to have Kennewick Man repatriated and reburied, preventing all future study. A closer look at the DNA evidence shows that Kennewick Man is, in fact, more closely related to South American Native Americans than the North American tribe who destroyed the discovery through reburial.

The third part of Repatriation and Erasing the Past delves into the problem with repatriation laws and repatriation ideology. It stems from the post-modern movement in which there is no such thing as truth and all conclusions are considered equally subjective. Repatriation ideology places importance on who is providing the information and whether that individual can claim a victim status; thus, information from Native Americans is considered to have greater validity than information coming from a European American, regardless of the latter’s scientific qualifications or demonstrable truthfulness of the information. We also explored NAGPRA’s violation of the U.S. Constitution’s First Amendment with regard to the separation of church and state in requiring each review committee to have at least two traditional Indian religious leaders and thereby promoting a specific religion—traditional Indian religion—as a required component of the law.

Further violation of the First Amendment includes NAGPRA’s acceptance of creation myths, in the form of oral tradition, as evidence for cultural affiliation (i.e., the connection between a present tribe and past peoples) to support repatriation events. We also looked at how NAGPRA and repatriation ideology encourage censorship. Due to the default acceptance that the Native American culture should be held in deference, repatriation ideology also allows for discrimination; anthropologists eager to continue collaboration with tribes must, for instance, observe menstrual taboos that prohibit women who are menstruating from engaging in research and fieldwork. In short, we called for a return to the primacy of demonstrable, objective knowledge and the abandonment of anti-scientific values.

When I returned to campus after my writing leave, I received SJSU’s College of Social Sciences highest scholarly prize for my research on and curation of the Ryan Mound collection. My university had always been happy to celebrate my achievements. In 2008, I was chosen by then Provost Gerry Selter to speak about my scientific research and my work criticizing repatriation and reburial of skeletal remains. Even earlier than that, when I was hired in 2004, I spoke out against the loss of scientific data through repatriation of remains. I point all this out because shortly after Repatriation and Erasing the Past was published, administrators, including my department chair and the university president, started to take a different view—rather than praising my accomplishments and wowing at the imagery highlighting the importance of studying skeletal remains, they started to condemn my scholarship by taking retaliatory actions to derail my career.

The first sign of trouble was in mid-December 2020 upon receiving a panicked email from my publisher, followed by a phone call, in which they lamented that they were “in crisis mode” because of an open letter⁶ calling for the banning of Repatriation and Erasing the Past crafted by Siân Halcrow (University of Otago, New Zealand), Amber Aranui (Te Papa Tongarewa, Museum of New Zealand), Stephanie Halmhofer (University of Alberta, Canada), Annalisa Heppner (Brown University, USA), Kristina Killgrove (University of North Carolina at Chapel Hill, USA), and Gwen Robbins Schug (University of North Carolina at Greensboro/Appalachian State University, USA).

The open letter, which was signed by nearly 900 academics, called the book racist and wanted it to be retracted, or at least removed from open access to universities and libraries—in other words, they didn’t want to give people the opportunity to read it. Through several phone calls with the publisher, Jim and I were able to convince them not to pull the book, but the publishers nevertheless issued an apology for its publication, written by Director Romi Gutierrez:

I write to address the current discussion surrounding a book the University of Florida Press published several months ago: Repatriation and Erasing the Past, by Elizabeth Weiss and James W. Springer. (…) Because the gears of the publication process do move gradually, a flawed editorial decision made in the past has consequences today.

Those consequences, in this case, include harm to voices we sincerely value, the potential to undo important progress, and injury to relationships we have long worked to foster. I apologize for the pain this publication has caused. It was not our intent to publish a book that uses arguments and terminology associated with scientific racism. I assure you that, months ago, changes to our editorial program had already started to take place, including greater focus to inclusivity and sensitivity, and we will continue and redouble these efforts.⁷

Jim and I stood up for what we had written; we wrote articles on our perspective, and fought back in the public press and on social media.^{8, 9, 10} Our book remains available and can be found in nearly 1,000 libraries.

When this crisis was brought to my attention, I reached out to my chair Roberto Gonzalez and my dean Walt Jacobs. Gonzalez informed me that he had already known about the cancellation attempt. What I didn’t know was that Gonzalez and Jacobs would become my biggest foes in what turned out to be the start of a campaign to cancel me.

At this time, there were two other incidents involving my university that would play into their efforts to retaliate against me. One faculty member, A.J. Faas, wrote in an email to the anthropology department:

I would like to share an important resource that just went live a few weeks ago. Cite Black Authors, a searchable database of Black scholarly journal articles, books, and expert listings, will launch to the public on November 16, 2020, at CiteBlackAuthors.com. The website is an interdisciplinary effort to enhance and recognize Black academic voices for better representation in scholarship. Sparked by the death of George Floyd and ongoing racial conflicts in the United States, a team of nine people, including researchers, developers, and graduate students, curated citations and designed a searchable website for researchers, educators, and the general public. We are overwhelmingly grateful for the support of contributors and the team behind the initiative. Please share the attached release with your friends and groups—and help us to spread the word and the WORK of Black, academic professionals.

I responded in writing that:

Although the intent of Cite Black Authors may be well-meaning, as a scholar in search of objective knowledge, I encourage researchers to look for the best source material and realize that an author’s ethnicity, race, or color of their skin has no actual bearing on the validity of their contribution.

Second, I attended a webinar on creating a Native American Studies Center, put on by Provost Vincent Del Casino. The speakers (two of the three stated that they were Native American scholars) expressed what I submit are inherently racist sentiments, including that Native Americans were better than any other people in all topics (the speaker then started to list them: math, biology, literature…) and that only Native Americans should teach and work in the Native American Studies Center because it would be an insult if a Mexican was mistaken for a Native American or vice versa. In the comments bar of the seminar video stream, I wrote that these statements were racist; why would it be an insult to be mistaken for a Mexican, unless you thought that there was something wrong with being Mexican? Would we want to restrict Shakespeare to being taught by Britons and British Americans only? The responses to my criticisms included an email from a professor of Chicano and Chicana Studies that concluded, “I’m exhausted and disgusted by Karen antics that silence BIPOC voices in the academy” and a phone call from chair Gonzalez in which he implored me not to attend such events, stating that my attendance could harm the department’s junior faculty’s chances at tenure.

Calls for the banning of Repatriation and Erasing the Past increased, and Gonzalez wrote a letter to all faculty, staff and graduate students in the department “reminding everyone that the opinions expressed in your new book don’t represent the position of the SJSU anthropology department, and that the principle of academic freedom allows us all to freely pursue our ideas—even if they’re controversial or unpopular.” He stated that because he received “numerous emails and calls from colleagues who are quite concerned and even upset about your book,” he thought that this was the best step to take. He concluded:

On a personal note, I want to let you know that after having carefully read the book, I disagree with both the substance and style of Repatriation and Erasing the Past, including its dismissal of Native American epistemologies and indigenous scholarship, its Victorian-era approach to anthropological inquiry, and its linear, pre-Kuhnian view of scientific progress. Our discipline has long played a signal role in recognizing the insight and benefits that can come from understanding different lifeways and cultural perspectives, and I’m confident that we will continue doing so in the future.

I replied, making sure that all who received his letter also received mine:

Roberto’s use of the term “Victorian-era” is to misunderstand our perspective though I would like to remind everyone Charles Darwin was from the Victorian era—and where would we be without him?! Both Thomas Kuhn and Karl Popper (the philosopher James and I cite) had remarkable careers with thought-provoking works that helped shape modern social sciences. They were also contemporaries and, thus, although their approaches to understanding science differed, to portray Repatriation and Erasing the Past as antiquated because we don’t use Kuhn, but rather cite Popper, is an unfair representation. Popper’s view of scientific progress is not a linear view and neither do James and I support a linear view of scientific progress. We even highlight the unpredictability and uncontrollability of knowledge while noting that knowledge is not an unfolding sequence, but rather a messy endeavor that is in constant flux. Science is the search for truth, perhaps never getting to the truth on many topics. New data or old data reanalyzed, we point out, can upturn previous explanations.

The end outcome of this exchange was that Gonzalez decided to put together a webinar series: “Emancipatory Theory & Praxis: Confronting Racism in American Society and American Anthropology.” His chosen speakers included Agustín Fuentes of Princeton University. In his talk, Fuentes focused on White supremacy and violence. I asked about the recent slew of Black on Asian crimes that were occurring and how he would define these acts; he stated that they too were due to White supremacy—if Blacks weren’t discriminated against by Whites, then they wouldn’t be attacking Asians. The other invited speaker was William White from UC Berkeley. White’s talk was actually quite illuminating; he pointed out that students of color were often directed to study populations that they were related to and that this didn’t always match their interests; thus, arguing against students being shoehorned into specific areas of study based on their ethnicity. A Black student may want to study Celts while a White student might wish to learn more about Caribbean archaeology.

In response to this webinar, I asked my chair whether I could put together a similar webinar to focus on academic freedom and diversity of thought. His initial response was that there was no funding and no time to do so; then, when I suggested we move it to the next semester, he dug up some rules on guest speakers that we never used and weren’t used for the equity webinar, and even had us retroactively vote on whether we approved of the topic and speakers of his webinar! Unsurprisingly, I haven’t been able to get department support to hold a webinar or invite a guest speaker.

Over the following months, the controversies simmered down, until Jim and I submitted an abstract to the 2021 Society for American Archaeology (SAA) conference. Our talk, “Has Creationism Crept Back into Archaeology?”, called for a relying on data rather than creation myths to ensure that repatriation can be done as fairly as possible. I compared creation myths of Native Americans to other creation myths while pointing out that the SAA has previously taken a stand against the teaching and use of biblical interpretations, such as intelligent design, to understand the past. The SAA was founded in 1934 and states that it is “dedicated to research about and interpretation and protection of the archaeological heritage of the Americas.” The SAA has about 7,000 members that include professional and avocational archaeologists, archaeology students in colleges and universities, and archaeologists working at Tribal agencies, museums, government agencies, and the private sector.

Although our topic did not seem particularly controversial to me, there was a movement to prevent the talk (which was pre-recorded) from being played.¹¹ It aired anyway, and the comment box quickly filled up with name-calling and accusations of racism. But even though all talks were supposed to stay on the SAA platform for two months, the incoming president apologized for the harm caused, removed the talk from the platform, and formed a committee to ensure that those critical of repatriation ideology would not be allowed on the program again. Two years later, I submitted an abstract that discussed whether X-rays were to be included in repatriation. At SJSU, X-rays are now being labeled as “sacred objects” and upon repatriation of the human remains and artifacts, the tribes plan to burn the X-rays. This abstract was rejected; the California Society for Archaeology rejected it too.

On June 3, 2021, Roberto Gonzalez—hosted by my dean Walt Jacobs—presented a review of my situation at the Council of Colleges of Art and Sciences called “What to Do When a Tenured Colleague is Branded a Racist.” In this presentation, Gonzalez painted me as being manipulative, racist, strange, and professionally incompetent. He stated that my anti-repatriation position, coupled with my reaction to the Cite Black Authors incident, were reasons to withhold resources, and that my next review would state that I am incompetent. He suggested that if I taught my perspective to students or assigned my books in classes, he would consider removing me from the classroom. Although he employed a pseudonym for me, it was clear that this was a personal attack—describing me as odd, not “warm and fuzzy,” and bizarrely suggesting that I might lock myself into the curation facility to prevent a repatriation from occurring. (While I disagree with NAGPRA, I have always followed the law.) Further, he painted my ideas as “scientific racism” and stated that he would have signed the open letter calling for my book to be banned if he wasn’t chair. Perhaps most surreally, Gonzalez painted himself as a victim, claiming that he had no idea of the “skeletons in my closet”—that I am an anti-repatriation anthropologist. Yet, this was clearly a lie, as seen in the approval for my leave to write the book, his support for my award, and the many discussions we held about repatriation over the years. Gonzalez was even on my hiring committee— so he knew that one of my first papers was on Kennewick Man and how repatriation and reburial of Paleo-Indians is an affront to scientific inquiry and hinders our ability to reconstruct the past.

It was clear that my job was on the line. Even a tenured professor can be fired for incompetence, which is what they were accusing me of!

The latest cancellations started up again after I published an op-ed critical of California’s repatriation law called CalNAGPRA.¹² The recent changes to CalNAGPRA all but set the stage for repatriation events that would hollow out collections in all of the state’s universities. CalNAGPRA states that Native American knowledge must be deferred to; that is, if there is a disagreement between scientific evidence and the Native American oral tradition, the Native American oral tradition must be given priority. All that is needed for repatriation is for a Native American to say that there is a link between the modern tribe and the past peoples—this would then trump all the DNA and forensic evidence. There must also be continuous consultation with all tribes of the area and their requests for handling, access, and repatriation must be followed.

Shortly after the op-ed, I posted on social media a now infamous photo of me holding a skull (above left), with the caption “So happy to be back with some old friends.” Provost Vincent Del Casino wrote a scathing letter condemning me, stating: “This image has evoked shock and disgust from our Native and Indigenous community on campus and from many people within and outside of SJSU.”¹³ He went on to criticize me: “in what context is it ever ethically appropriate for an academic to handle remains while smiling with ungloved hands while calling these remains ‘friends’? I doubt many colleagues in the fields of Forensic Science or Physical Anthropology would find this palatable.” I reached out to the provost and suggested that we discuss the issue and address the public together, but he didn’t wish to do this and, thus, I provided him with a letter to send to the same people on his email list, which he did.¹⁴ I clarified a variety of misunderstandings; for instance, “handling remains with gloves is only necessary if these remains have always been treated with gloved hands and other sterile conditions.” Use of gloves is actually actively discouraged by the National Park Society because it leads to people dropping materials more often. I ended the letter with:

We have no way of telling what the individuals whose remains we curate would think about this issue, but when one looks at the Egyptian mummies, Ötzi the iceman, or the bog bodies of northern Europe, public display celebrates these individuals, telling their stories in a respectful way that gives them a voice they never had in life. The same is true of our collection, and we should be celebrating the lives of these first occupants of Silicon Valley—not allowing their voices to be silenced by a vociferous campaign orchestrated by woke activists whose strategy is to try to shut down debate, and promote superstition over science. (…) Finally, it’s an attack on a genuine photo that celebrates our collection, my admiration for the collection, and my joy at being able to do my job. After your strong statement regarding academic freedom, I am disappointed that you were not courageous enough—as those reporting on me—to talk to me first, to have a rational discussion about these occurrences.

My response led to many colleagues reaching out to me; finding similar photos (from SJSU and many other institutes, including the Smithsonian); and providing support. One very supportive colleague faced an onslaught of criticism after he was quoted in the Mercury News, which led him to withdraw his support of my freedom of expression. He called to let me know that he was frightened. Others have expressed quiet support—a former student and lecturer let me know that she didn’t think that I was racist at all, but spent all day debating whether to email me from her university account or her private account, ultimately deciding on the latter. This fear of cancellation permeates academia.

On the left, the image that Provost Del Casino said did “not align with the values of SJSU” and “evoked shock and disgust from our Native and Indigenous community on campus and from many people within and outside of SJSU.” On the right, the image that the University used for multiple websites and promotional material. This image was removed from the University website in July 2023.

All of this led the then President Mary Papazian to remove my access to the curation facility. They literally changed the locks! She also stated that no photos were allowed of the Native American skeletal collection (a key aspect to understanding past diseases is sharing and comparing images) or even of the boxes that held the bones.¹⁵ I responded by noting that non-Native American remains and other collections were in the facility and not subject to repatriation law. One cultural anthropologist asked whether I had written permission from these individuals to take the photos, knowing full well that they had been dead for centuries! I fought all these restrictions. Tribal liaison Alisha Ragland was perhaps one of the most vitriolic, claiming that I was a eugenicist and shouldn’t get access to any collections. They moved the protocol for access to skeletal collections to the Institute Review Board, which I fought against. The chair held meetings to try to remove me from my duties as curator, although it is part of my job contract.

How did we get to a situation in which opposing the reburial of human remains is automatically deemed racist and can derail an anthropologist’s career?

I decided the time had come to initiate legal action against the SJSU for their various retaliatory actions. While putting together our case, Pacific Legal Foundation (who represented me pro bono) and I contacted senior academic figures in physical anthropology and archaeology to seek expert opinions on protocols for handling skeletal remains.

Dr. Douglas Owsley has worked with many prestigious universities and museums, including the Smithsonian. He is the subject of Jeff Benedict’s book No Bone Unturned: Inside the World of a Top Forensic Scientist and His Work on America’s Most Notorious Crimes and Disasters.¹⁶ Dr. Owsley wrote in his supportive amicus brief: “Based on my experience there was nothing improper about Professor Weiss’s photograph.” He also noted that, “it is not standard protocol to use gloves when examining archeological bones in the laboratory.”¹⁷ Professor Della Cook, who managed the North American skeletal collections held by the Department of Anthropology at Indiana University from 1973 to 2021 and has collected data on skeletal remains around the world, wrote “Photographs of researchers measuring or otherwise doing observations on bones, ancient and modern, are routine in our field, and many anthropologists smile in such photographs.” She added that “There are several such photos of me in circulation, and in most of them I am smiling.”¹⁸

The department also worked with Native Americans and a retired forensic anthropology lecturer to rewrite protocols that would determine access to collections. The protocol even included a menstruation taboo. They couldn’t bring themselves to state that women who are menstruating are not allowed in the curation facility or to handle remains and artifacts; thus, they used the term “menstruating personnel,” to avoid the implication that only females menstruate! Seriously? Upon seeing this, my lawyers and I decided to mention that this likely constitutes a Title IX violation and that, if it were not removed, we would file a complaint. It was removed.¹⁹

This discriminatory action against women is far more common in anthropology now than you may think; Native American tribes believing in menstrual taboos will ban women who are menstruating from engaging in fieldwork, handling remains, and even eating with the rest of the crew. Many institutions, including UC Berkeley, condone this behavior.²⁰

Further complications arose when I requested nonhuman animal bones. These items were quickly declared by Native Americans as being sacred and, thus, out of reach for my research. Previously unaware of possessing any mystical powers, I suddenly realized that whatever I requested magically and instantly became “sacred” and thus off-limits.

When we first went in front of a judge, she ruled that my case was to be dismissed, but I was allowed to amend my complaint.²¹ In the decision to dismiss the case, she stated that the tribes were an “indispensable” party to the case, but the tribes were considered sovereign and, thus, could not be sued. We filed an amended complaint, excluding the Native American collections, and—to everyone’s surprise—the motion to dismiss was overturned. Unfortunately, I still had no recourse to get access to X-rays and nonhuman animal bones, or even the ability to enter the curation facility.

This article appeared in Skeptic magazine 29.2
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How did we get to a situation in which opposing the reburial of human remains is automatically deemed racist and can derail an anthropologist’s career? It’s about turning anthropology into an ideological battleground weighted in favor of victimhood and (often disproven by evidence) tribal identity—both political and social—rather than a scientific endeavor aimed at better understanding the past for the benefit of all humankind. It doesn’t matter who is correct, it matters who gets to tell the story, with Native American narratives now considered expert testimony that cannot and must not be questioned.

The next proposed revisions to NAGPRA are sure to erase the imperfect compromise that was included in the original NAGPRA law—a compromise that tried to ensure that science would still be conducted by allowing for the retention of most artifacts and the continued curation of culturally unidentifiable skeletal remains. Native American tribes, such as the San Carlos Apache Tribe, want a definition of human remains that includes naturally-shed material (such as hair and skin cells), casts, replicas, and digital data.²² Some have argued that animals imbued with human spirits should be included as human too. Of course, the puma who recently died in Los Angeles was given a traditional Indian burial in order to stop research on its remains.²³

Why would a university or museum want to lose their collections? They may think cooperating will enable them to continue their research endeavors, but research purely for the purpose of propping up a political agenda isn’t research. When the tribes can control your conclusions, one is no longer engaged in pursuit of objective knowledge.

For my part, I shall oppose the unconstitutional NAGPRA in order to bring anthropologists, especially the next generation, back to science. And I will promote science which knows no bounds of race, sex, gender, religion, or creed over superstition, regardless of any race, sex, gender, religion, or creed affiliation—real, alleged, or imagined.