Spillover: Native Americans and U.S. Law

Response to Comments from Stephen Ousley

Michael A. Schillaci and Wendy J. Bustard

We would like to thank Dr. Ousley for his thoughtful, if somewhat vitriolic, commentary on our paper “Controversy and Conflict: NAGPRA and the Role of Biological Anthropology in Determining Cultural Affiliation”. Dr. Ousely expressed his disagreement with the process Chaco Culture National Historical Parks (CCNHP) used to make its determinations of cultural affiliation, and indicated CCNHP did not correctly interpret the law in its implementation of NAGPRA. In his commentary Dr. Ousley presented four main arguments for why CCNHP’s process is flawed:

  1. CCNHP chose administrative expediency over professional ethics and scientific validity by using only the minimal requirements for evaluating cultural affiliation, and affiliated the entire agglomeration of sites based on geography without regard to site-specific information.
  2. There was a lack of transparency.
  3. CCNHP did not weigh all the available evidence when making its determinations of cultural affiliation, and the published biological evidence was not scrutinized.
  4. The determinations of cultural affiliation by CCHNP did not pass peer review

In general, we think that some of the vitriol in Dr. Ousley’s comments can be attributed to misinformation or incomplete information, as well as a biased interpretation of the regulations associated with the law. For instance, his claim that “[r]ecent remains and objects were the main focus of the NAGPRA legislation” does not accurately reflect the law. Nevertheless, Dr. Ousley does provide insight into the prevailing discourse surrounding CCNHP’s determinations of cultural affiliation. We therefore would like to respond to each of the four main arguments presented by Dr. Ousley.

Administrative Expediency and Professional Ethics

Perhaps only in archaeology, where site reports can take decades to produce, could an eight-year process be labeled “expedient.” We would like to first make explicit, as we did in the original article, that both of us were extensively involved with developing and implementing the process used in determining cultural affiliation for the human remains and associated grave goods from Chaco Canyon curated by the Chaco Museum Collection. In his assertion that we were more interested in administrative expediency than professional ethics, Dr. Ousley suggests that we satisfied only the minimal requirements which is not enough and professionally unethical. In our description of the law we do state that NAGPRA directs federal agencies and museums to make determinations of cultural affiliation based on the information possessed by such museums or federal agency, we also explain in the description of the process we used in determining cultural affiliation that we reviewed all the available information. We should have been more clear that although the law requires that we use only the information we have available to our museum collection, our literature review included published materials available to us through the library at the University of New Mexico, as well as the Chaco Archive.  The Chaco Archive contains over 300 linear feet of field notes, analyses, and reports on the archaeology of Chaco Canyon. All the literature relevant to biological affiliation was included in an exhaustive literature review. We therefore satisfied much more than the minimum. Because it was against the wishes of the tribes we were consulting with, and due to a lack of funding, no additional research on the remains housed in the Chaco Museum collection was conducted. Parenthetically, biodistance studies published after CCHNP’s notice of inventory completion (1999) have indicated the population at Chaco Canyon, as represented by skeletal samples housed in various museums, was likely heterogeneous (Schillaci et al., 2001; Schillaci, 2003), and that the Navajo are not biologically more distant that many other ancestral Pueblo populations, including the Hopi.

The assignment of “Anasazi” (i.e., ancestral Pueblo Indian) on museum catalog records was not based on geography but rather on a site-by-site basis using site-specific information. Does Dr. Ousley seriously believe that CCNHP staff does not know the archaeological context of the sites within its boundaries? From 1971-1975 and 1983-1984 (post-1980 boundary expansion) the National Park Service conducted 100 percent archaeological surveys of CCNHP.  Archaeologists recorded the cultural period on forms for each of the 3,349 identified sites. This, and information from more than 25 site excavations, was used to produce the catalog records and the cultural affiliation determinations. Cultural affiliation of modern tribes with the Chaco Anasazi was then investigated as part of the NAGPRA cultural affiliation process. The site-specific information can be found in numerous reports and publications (see, e.g., Cordell 1984:199 [“Within Chaco Canyon, in the San Juan Basin of northwestern New Mexico, are some of the most spectacular Anasazi ruins anywhere in the Southwest.”]; Lister and Lister 1981:219-257 [Inventory of investigated Chaco Canyon Anasazi settlements]; McKenna and Truell 1986:11 [“The purpose of this report is to present brief summaries of Anasazi village excavations and discuss some of the more common questions concerning the Chacoan Anasazi ….”]; Plog 1997:96 […Anasazi people who once lived in settlements throughout the plateau country of the Southwest, including … Chaco Culture National Historical Park”). The modern-day tribes comprising Pueblo Indians are indisputably affiliated with the ancestral Pueblo Indians often termed Anasazi. Not all clans or lineages of a given tribe will be affiliated with any given archaeological site. However, because NAGPRA requires affiliation to be made at the tribe level, rather than clan, each modern-day Pueblo tribe is potentially affiliated with any given ancestral Pueblo site.  As a subgrouping the Chaco Anasazi (ca AD 550-1150) are distinctive in many aspects of their material culture and architecture. Because the Chaco Anasazi population was heterogeneous, comprising multiple ethnolinguistic groups, they are likely ancestral to multiple modern-day Pueblo Tribes. Our exhaustive evaluation of reports and the published literature, in addition to the independent cultural affiliation studies mentioned in our original article all point to multiple affiliations for the human remains and funerary objects from Chaco Canyon.

In response to Ousley’s accusations, CCHNP did not choose administrative expediency but rather engaged in a comprehensive assessment of cultural affiliation.  Dr. Ousley’s suggestions that we conducted ourselves in a professionally unethical manner are without foundation and irresponsible.


Dr. Ousley’s concerns regarding transparency are not entirely unfounded. In the CCNHP’s notice of inventory completion (NOIC) we did not provide a detailed description of the lines of evidence used in determining cultural affiliation for each item. As Dr. Ousley must be aware, the Smithsonian Institution is not required to publish its determinations in the Federal Register. Sadly, agencies must pay for Federal Register publications, and there was pressure to keep CCNHP’s Notice of Inventory Completion concise. CCNHP’s NOIC used the template then-imposed by the National Park Service on park units and thus is similar in form and content to other NOICs. However, an executive summary of the lines of evidence used was published in the NOIC. CCNHP’s summary is similar to the executive summaries published on the Smithsonian Institution’s Office of Repatriation website. Furthermore, the process used for determining cultural affiliation was discussed during consultation meetings with the tribes, and subsequently described in detail in our article in the Political and Legal Anthropology Review. In addition, all materials and documents pertaining to CCNHP’s NAGPRA compliance and its notice of inventory completion are subject to the Freedom of Information Act. In fact, the Hopi Tribe made a FOIA request with CCNHP regarding its NAGPRA compliance process.

Weighing the Evidence

Contrary to Dr. Ousley’s assertions, we did in fact weigh the evidence. We did not, however, give more weight to one line of evidence over another. As we indicated in the paper, the standard used to weigh the evidence was given the totality of the evidence for a particular tribe, was that tribe more likely than not to be culturally affiliated. We in fact did weigh all the available evidence. We would like to ask Dr. Ousley, specifically, what evidence did we overlook?

We agree that NAGPRA’s regulations should have a provision regarding how evidence is treated, but it does not. The Daubert legal standard might be useful in this context. On the topic of scrutinizing the biological evidence as published in the scientific literature we strongly disagree with Dr. Ousley regarding the use of peer-reviewed literature. We believe that disregarding the opinion of previous experts such as Ales Hrdlicka when there is not enough information on how he came to some of his conclusions would lead to an incomplete assessment. Within the context of the statute, how do we establish in a non-arbitrary way how much information must be provided by a previous expert? We think that a scholarly approach to reviewing the published literature requires presenting all the relevant work appearing in peer-reviewed journals.  This allows for a transparent weighing of the evidence rather than relying on supposed experts. We would like to ask Dr. Ousley, what constitutes an expert? Furthermore, not all new methods are superior simply because they are new. For example, the use of FORDISC, a statistical software program designed to test questions of biological ancestry was common 5 to 10 years ago, and generally would have met the Daubert standard as a statistical method of classification. Most experts (and armchair anthropologists) now recognize that this program is flawed and of limited use in estimating biological ancestry, and likely would not meet the Daubert standard in most cases (see discussion in Elliot and Collard 2009).

We would like to address Dr. Ousley’s suggestion that we are “armchair anthropologists” who merely “cherry pick” published conclusions that support our position and ignore other findings to the contrary.  Sophomoric insults aside, Dr. Ousley is mistaken, we did not use conclusions published in the literature but rather used the published findings to inform our careful weighing of biological ancestry. We would like to ask Dr. Ousely, specifically, which conclusions (i.e., from what published source) did we ignore?

Although we are not sure Dr. Ousley’s question regarding the existence of Santa Claus was as witty as he had hoped, we agree with the general sentiment that the use of biological data can be limited for determining cultural affiliation under NAGPRA. We stated as much in our original article.  We were intrigued with Dr. Ousley’s statement that since the CCNHP report there have been studies that would help in a reassessment of cultural affiliation for the Chaco remains. Which reports are these?

CCNHP’s Determinations Did Not Pass Peer Review

We would like clarification of Dr. Ousley’s statements that “their [CCNHP] report did not pass peer review” and that “the overwhelming anthropological opinion (per the peer review) is that the CCNHP report reflects administrative expediency.” First, as a matter of precision, CCNHP did not produce a “report,” it made a determination. Second, what peer review? Or are we to understand that Dr. Ousley believes the NAGPRA Review Committee hearing constituted peer review? This is an interesting interpretation of the Review Committee’s role, but not one we would agree with. The Review Committee made several recommendations regarding the Hopi-Chaco dispute, which as we discussed in our article, either had already been done or were inconsistent with the law.

We are also confused as to why Dr. Ousley does not consider “group identity, time period, specific cultural practices, and traceable cultural continuity” to be attributes of archaeological and anthropological lines of evidence. If not these two lines, then what lines of evidence do they relate to? The Review Committee recommendation that CCNHP emphasize “group identity, time period, specific cultural practices, and traceable cultural continuity” over other lines of evidence (i.e., historical, linguisitic, geographic, oral tradition, and expert opinion) is inconsistent with the law. NAGPRA does not state or imply that one type of evidence must or should be accorded greater weight than any other.  Therefore, CCNHP considered and evaluated all of the types of evidence specified by the law (as listed in 43 C.F.R. subsections 10.2(e) and 10.14(e))–including archeological and anthropological evidence–and made its determination of cultural affiliation based upon a preponderance of the totality of the evidence.


We have addressed the major concerns expressed by Dr. Ousley in his comment on our article. As we have shown, CCNHP did not choose a path of administrative expediency and conducted a thorough evaluation and weighing of all the available evidence in a way consistent with the spirit of the statute and the regulations. We also asked specific questions regarding some of the points raised by Dr. Ousley.

As was discussed by Dr. Ousley in his comment to our article, the Smithsonian Institution’s Repatriation Office (RO) is also engaged with the question of cultural affiliation associated with federal repatriation legislation. Like CCNHP, the Smithsonian Institution has human skeletal remains excavated from archaeological sites in the American Southwest, including from Chaco Canyon. As the RO is undoubtedly aware of, the question of cultural affiliation is not straight forward in the American Southwest where historical patterns of gene flow and migration have resulted in complex patterns of modern biological and cultural affiliation. Making determinations of cultural affiliation in compliance with federal repatriation legislation is thus challenging. We look forward with great interest to the determinations of cultural affiliation that will be made by the RO for the Chaco Canyon remains. We anticipate the question of cultural affiliation with Chaco culture will include yet more controversy and conflict.


Elliot, M., Collard, M., 2009. FORDISC and the determination of ancestry from cranial measurement. Biology Letters 5(6): 849-852

Cordell, L.S., 1984. Prehistory of the Southwest. Academic Press, San Diego.

Lister, R.H., Lister, F.C, 1981. Chaco Canyon: Archaeology and Archaeologists. University of New Mexico Press, Albuquerque.

McKenna, P.J, Truell, M.L., 1986. Small Site Architecture of Chaco Canyon, New Mexico. Publications in Archeology 18D. National Park Service, U.S. Department of the Interior, Santa Fe.

Plog, S., 1997. Ancient Peoples of the American Southwest. Thames & Hudson Ltd., London.

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.

Smithsonian Institution http://anthropology.si.edu/repatriation/reports/index.htm, accessed January 4, 2011.