Spillover: Native Americans and U.S. Law

Response to Comments from Linda Cordell and Keith Kintigh

Michael A. Schillaci and Wendy J. Bustard

We would like to thank Dr. Cordell and Dr. Kintigh for their comments on our article. We must admit, however, to being somewhat astonished at the level of anger that lingers over events some 11 years old. We fully accept their statement that they brought “a good faith effort to apply the law as written” (page 381) to their evaluation of our article. We simply wish they could bring themselves to acknowledge that we too brought good faith to our efforts.

Some of their concerns and criticisms can be attributed to misinterpretations of what we wrote. For example, they interpreted our statement that repatriation, i.e., the transfer of ownership of human remains, is the end of the NAGPRA process as an indication that we thought repatriation was the goal of NAGPRA. We certainly never meant to suggest that repatriation was the only goal of NAGPRA. We were simply distinguishing between repatriation and reburial. Reburial is not a NAGPRA process. We agree with Cordell and Kintigh that NAGPRA enables repatriation when there is a culturally affiliated tribe, and thus repatriation is not the end of the NAGPRA process, but rather only one possible end of the process. They then presented a quote from a member of the NAGPRA Review Committee (NRC) stating the primary motivation of CCHNP was to get rid of the problem of human remains and artifacts through repatriation or reburial and to avoid the question of cultural affiliation. Both of us were involved extensively in CCHNP’s NAGPRA process. We would like to state for the record that avoiding the question of cultural affiliation was in no way a motivating factor during any phase of the project. Making determinations of cultural affiliation is mandated by the law. Our motivation was to adhere to the spirit and the letter of the law.

In their comment Dr. Cordell and Dr. Kintigh criticized CCNHP for establishing the cultural affiliation of modern tribes to the unitary construction of an earlier identifiable group (Chaco Anasazi). They argued that as a consequence, all human remains were effectively homogenized with respect to evaluating cultural affiliation and determinations of cultural affiliation should be made on a site-by-site basis. The implication of the criticism is that there were separate or discrete cultures or culture groups within the canyon and that these groups were ancestral to separate modern day tribes. Contrary to the claim that we sought to homogenize the ancestral population at Chaco Canyon, our evaluation of the biological evidence indicated a very heterogeneous population likely comprising multiple ethnolinguistic sub-populations. There is no archaeological or biological evidence to suggest those sub-populations could be considered prehistoric equivalents of individual modern-day tribes.

We would argue that the Chaco population should not be homogenized because it is best characterized by a high degree of population structure (see Schillaci 2003). The development of the heterogeneous population at Chaco included contributions from outside populations from various different cultural groups from different geographic locations (see Vivian 1990, Schillaci 2003). The sub-populations within what we identified as the Chaco Anasazi likely were linked socially and biologically through a complex system of intermarriage and gene flow, perhaps at a clan level. Gene flow and intermarriage, as well as cultural and linguistic diffusion would have occurred among habitation sites within the CCNHP and across generations. Because of this complex system any given sub-population potentially contributed to the ancestry of the descendants of any other sub-population of Chaco Canyon. Collectively, and individually, the sub-populations comprising the Chaco Anasazi were therefore ancestral to multiple present-day tribes.  Recent craniometric research strongly supports this notion (e.g., Schillaci, 2003; Schillaci et al., 2003). Within the context of the law, we would like to ask Dr. Cordell and Dr. Kintigh, given the biological and oral tradition evidence, which tribes do they feel are not culturally affiliated with Chaco Canyon and why?

Dr. Cordell and Dr. Kintigh state that the global approach to site assessment and affiliation resulted in a determination of cultural affiliation for all Chaco Canyon remains with all groups expressing cultural relationship to the region.  While it is true that those tribes who indicated during consultations that they were culturally affiliated with Chaco culture ended up being identified as being culturally affiliated on the Notice of Inventory Completion, their affiliation had nothing to do with a “global assessment” or the tribes expressing affiliation to the region. Cultural affiliation was determined based on a site-by-site evaluation and careful weighing of the evidence. As discussed earlier, the biological evidence indicated affiliation with multiple present-day tribes.

In their comment the authors pointed out that that the Hopi tribe was deeply concerned that consultation had not occurred with tribes on an individual basis.  In addition to collective consultation, consultation between CCNHP and the Hopi Tribe took place on an individual basis (e.g., June 9-10, 1993; September 14, 1993; January 17, 1993). This is a matter of record.

The authors of the comment also stated that for any given case one form of evidence may be compelling and others absent or weak (the absence of evidence was not considered by CCNHP in making determinations of cultural affiliation). They go on to write that making judgments that fail to weigh the totality of the evidence may be expedient but cannot lead to proper determinations of cultural affiliation as required by NAGPRA. We would like to ask Dr. Cordell and Dr. Kintigh, specifically, which evidence do they consider weak? For which tribes and why?

Dr. Cordell and Dr. Kintigh state that while the law does not state that the rigor of evidence must be established, there are excellent reasons to assign differential importance to different peer-reviewed arguments. We addressed this issue in our response to Dr. Ousley’s comment to our article. Let us also say that we felt that it was important to adhere to the spirit and letter of the law when making determinations of cultural affiliations. We would like to ask Dr. Cordell and Dr. Kintigh specifically, why Carl Seltzer’s work is not valid as evidence that the Zuni are affiliated with Chaco? Certainly it is more than the date of publication that renders Seltzer’s study invalid.

In their comment Drs. Cordell and Kintigh explain that NAGPRA’s definition of cultural affiliation requires a relationship of shared identity, and that they believe (as did the NRC) that CCNHP applied a much looser criterion of cultural relationship to geographic place as a basis for determining cultural affiliation. Interestingly, Cordell and Kintigh acknowledge an unequivocal “cultural relationship” between the Chaco Anasazi and the Navajo (page 381). The term ‘cultural relationship’ is not legally defined by NAGPRA. The phrase is used only in the section on custody for post-1990 inadvertent discoveries or intentional excavations, which as we explained in our article have different criteria for determining disposition (25 U.S.C. 3002(a)).

Because the concept of cultural relationship does not apply to pre-1990 museum collections, CCNHP did not assess cultural relationships with place but rather made determinations of cultural affiliation using the criteria for evidence for establishing a relationship of shared group identity.  In addition to the biological evidence (e.g., mtDNA) Navajo oral tradition unequivocally establishes a relationship of shared group identity. As we stated in our article, it is important to keep in mind that we cannot determine if the ancestral population at Chaco Canyon would have recognized such a relationship.  Nor can we (nor should we) determine the thoughts of modern populations. Cordell and Kintigh state that they “suspect many Navajo people as well [as themselves], that it is not reasonable to say that contemporary Navajo culture shares its group identity with the prehistoric inhabitants of Chaco” (page 381, emphasis added). In the absence of fieldwork to substantiate this statement, we cannot evaluate its merit. Further, we remind the authors that tribal sovereignty requires we consult with the Navajo Nation, not individual Navajo people. The Navajo Nation has been very explicit that it does indeed share its identity with the prehistoric inhabitants of Chaco (National Park Service 1997).

Dr. Cordell and Dr. Kintigh state that it seems to them that it is not reasonable to say that contemporary Navajo culture shares its group identity with the prehistoric inhabitants of Chaco. Again, we would remind them that Navajo oral tradition indicates cultural affiliation. The Navajo Nation has indicated this during consultation and in front of the NRC (see testimony of Ronald Largo). We would agree, in principal, that not all Navajo clans might recognize this relationship. However, the NAGPRA does not allow determinations of cultural affiliation to be made at the clan level. As we stated in the article, quoting Warburton and Begay (2005:537), not all Navajo came from all Anasazi, but some Navajo are the descendents of some Anasazi. Some of those “Anasazi” were buried at Chaco Canyon. We would like to emphasize that CCNHP was making determinations of cultural affiliation as it pertains specifically to the statute and its regulations. Academic discussion within the fields of anthropology might very well lead to different determinations. As we stated in the article, NAGPRA cannot be considered anthropological law.

Like Dr. Ousley, Drs. Cordell and Kintigh make the curious claim that the lines of evidence the NRC recommended that CCNHP emphasize (i.e., group identity, time period, specific cultural practices, and traceable cultural continuity) are not attributes of archaeological and anthropological lines of evidence. If not these two lines, then what lines of evidence do they relate to? Cordell and Kintigh seem almost offended at the idea that the NRC would refer to anthropological or archaeological evidence. Surely they do not believe the NRC recommended the park consider lines of evidence outside of NAGPRA.

Cordell and Kintigh’s description of the National Park Service response to the NRC findings as a “fairy tale” is simply insulting to us, CCNHP, the National Park Service, and the Department of the Interior Office of the Solicitor. Neither Dr. Cordell or Dr. Kintigh have ever, over the course of the last 10 years, requested access to the records on which we based our decision. All these records are public and we invite them to review them.

In their comment the authors present a scenario somewhat similar to Dr. Ousley’s not so witty Santa Clause argument. They point out that cultural affiliation based on biological evidence, as employed by CCNHP, is practically meaningless. As an example they state that under the law Anglos would also meet the shared group identity criterion with the Navajo due to intermarriage and sharing of language and culture.  This is not true. NAGPRA only applies to federally-recognized tribes, of which Anglos (however arbitrarily that is defined) are not.

The authors point out that our article states “affiliated tribes may request repatriation and conduct the reburial ceremonies on behalf of the larger group of tribes, as was done at…Pecos National Historical Park” [emphasis added] and that the Pecos collections were repatriated by the R.S. Peabody Museum in Andover and by the Peabody Museum at Harvard University not by Pecos National Historical Park. The previous sentence in our article (page 356) states “…the National Park Service’s policy has been to accommodate tribal requests for reburial of human remains from the park unit on park lands.” This was presented within a larger discussion on the conflation of reburial and repatriation in an effort to point out that in the Southwest repatriation is not usually contentious if reburial is planned. With careful attention given to detail the authors would have understood that we were talking about reburial at Pecos National Historical Park, not repatriation by Pecos National Historical Park. Parenthetically, as a point of clarification, human remains curated at Pecos National Historical Park were among those repatriated and reburied at the park, not just the remains from the Peabody Museums as indicated by Cordell and Kintigh.

The authors present two final points in their comment to our article: 1) Not all the artifacts and human remains originating from Chaco Canyon are curated at the CCNHP museum, some are curated in other institutions, and 2) the Chaco Canyon great houses are not the largest, best preserved, and most complex architectural structures in North America, as we had proclaimed. In our defense, we did not mean to say that CCNHP had curated in their collections all the archaeological remains from the canyon. We apologize for the confusion regarding the term “North America.” We were using it as most universities (including the University of Colorado and Arizona State University) do, to distinguish among North America, Central or Middle America, and South America archaeology courses. And while we are happy to concede that Cahokia and Monks Mound represent the largest earthen structures in North America (north of the Mexican border), we stand by our assertion that Chaco contains the most complex architectural structures. We do acknowledge, however, that a qualification stating that the architecture referred to consists of stone masonry and not earthworks would be clearer.


National Park Service, 1997. Report of the Navajo Nation/Navajo Lands Area Superintendents Summit Meeting, Albuquerque, New Mexico, April 16-17, 1997.

Schillaci, M.A., 2003. The development of population diversity in Chaco Canyon. Kiva 68:221-245.

Schillaci, M.A., Ozolins, E., Windes, T.C. 2001. A multivariate assessment of biological relationships among prehistoric southwest Amerindian populations. In Wiseman, R.N., O’Laughlin, T.C., Snow, C.T. (eds): Following Through: Papers in Honor of Phyllis S. Davis. Archaeological Society of New Mexico, No 27, pp. 133-149.

Vivian, R.G. 1990. The Chacoan prehistory of the San Juan Basin. Academic Press: Orlando, Florida.