YEARBOOK OF PHYSICAL ANTHROPOLOGY 48:2–32 (2005)
Federal Repatriation Legislation and the Role of Physical
Anthropology in Repatriation
Stephen D. Ousley,* William T. Billeck, and R. Eric Hollinger
Repatriation Office, Department of Anthropology, Smithsonian Institution, Washington, DC 20013-7012
KEY WORDS NAGPRA; NMAIA; forensic anthropology; cultural affiliation
ABSTRACT Two laws governing the disposition of Na-
tive American human remains in museums and institu-
tions have had a profound impact on anthropology, and
especially physical anthropology. In contrast to the percep-
tion of constant conflict between Native Americans and
physical anthropologists, the repatriation process based
on these laws has been in large part harmonious bet-
ween institutions and Native peoples in the US. Despite
misconceptions, the Native American Graves Protection
and Repatriation Act (NAPGRA; 25 United States Code
(U.S.C.) 3001-3013) was not intended to halt further
research on Native American remains in museums. In
fact, court decisions have affirmed that the documentation
of human remains produces information no other methods
can provide, and provides necessary evidence to be incor-
porated and weighed, along with other evidence, in evalu-
ating \cultural affiliation," the legal term for the required
connection from federally recognized Native American
INTRODUCTION
In 1989, on the eve of the passage of the first federal repa-
triation legislation, the National Museum of the American
Indian Act (NMAIA; 20 United States Code (U.S.C.) 80q
et seq.), Ubelaker and Grant (1989) published a cautionary
article in the Yearbook of Physical Anthropology, warning
that repatriation issues were inherently confrontational,
that the proposed repatriation legislation would be problem-
atic, and that the issue of cultural affiliation would be espe-
cially challenging. They advocated an informal approach to
repatriation discussions that they maintained had suc-
ceeded for the Smithsonian, favoring meetings between
museum staff and tribal representatives, and addressing
Native American concerns on a case-by-case basis.
It has been 16 years since the enactment of the NMAIA,
which applies to the Smithsonian Institution, and 15
years since the passage of the Native American Graves
Protection and Repatriation Act (NAPGRA). The repatria-
tion laws were meant to be a compromise between Native
Americans, and museums and scientists, as Senator John
McCain, one of the main sponsors, noted:
The subject of repatriation is charged with high
emotions in both the Native American community
and the museum community. I believe this bill rep-
resents a true compromise... In the end, each party
had to give a little in order to strike a true balance
and to resolve these very difficult and emotional
issues. (Congressional Record, October 26, 1990, p.
S17173)
The NAGPRA was formulated through the efforts of the
Society for American Archaeology, the American Associa-
C 2005
V WILEY-LISS, INC.
groups to their ancestors. The wide variety of osteological
data collected at the National Museum of Natural History
(NMNH), Smithsonian Institution, have proven indispen-
sable when evaluating cultural affiliation, especially when
other information sources are unhelpful or ambiguous,
and provide an empirical basis for determining the ances-
try of individuals whose remains will be discovered in the
future. To date, the claim-driven process at the NMNH
has resulted in the affiliation and repatriation of more
Native American remains than any other institution in
the country. Repatriation experiences at the NMNH dem-
onstrate the changing relationships between museums
and Native peoples, the continuing important contribu-
tions that physical anthropology makes to the repatriation
process, and the importance of physical anthropology in
understanding the recent and ancient history of North
America. Yrbk Phys Anthropol 48:2–32, 2005.
V
C 2005 Wiley-Liss, Inc.
tion of Physical Anthropologists, the Native American
Rights Fund, and the National Congress of American Indi-
ans (Lovis et al., 2004). Reburial is the predominant prac-
tice for human remains after repatriation, which results
in a loss to science because the physical remains cannot be
researched further (Ubelaker, 1990). However, repatria-
tion need not result in a total loss of information. Much
has been gained and can still be gained through the docu-
mentation and analysis of human remains as part of the
repatriation process, which has for the most part impro-
ved relationships between museums, tribes, and anthro-
pologists.
The NAGPRA and NMAIA are very similar, but their
differences have necessitated different procedures for
implementing them. Both hinge on \cultural affiliation,"
the idea of biological and cultural descent between ances-
tral and modern Native Americans. Both laws have had
significantly impact on the way physical anthropologists
research Native American remains, and on the relation-
ships of museums and especially physical anthropologists
to Native American groups. The remains of the Kenne-
wick Ancient One have highlighted contentious issues
such as cultural affiliation and Native American identity
(Thomas, 2000). However, the Kennewick litigation is one
highly publicized exception to the general experience of
*Correspondence to: Stephen Ousley, Repatriation Office, Department
of Anthropology, Smithsonian Institution, National Museum of Natural
History MRC 138, PO Box 37012, Washington, DC 20013-7012.
E-mail: ousleys@si.edu
DOI 10.1002/ajpa.20354
Published online in Wiley InterScience
(www.interscience.wiley.com).
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
successful and collaborative interactions between Native
peoples and museums, not all of which have resulted in
repatriation and reburial. There is a much greater diver-
sity of opinions among scientists and Native Americans:
museum and Native American opinions and concerns are
neither inherently conflicting nor monolithic (Killion,
2001; Killion and Molloy, 2000; Reinhard and Hastings,
2003; Ubelaker and Grant, 1989).
At the National Museum of Natural History (NMNH),
which had negotiated several repatriations before 1989,
the last 16 years have produced valuable lessons as to how
a repatriation program can benefit all concerned parties.
Museums subject to the NAGPRA have had similar experi-
ences, though few museums have had the resources to hire
sufficient qualified staff to oversee the process (NAGPRA
Review Committee Minutes, April 29–May 1, 1992; Octo-
ber 8–10, 1992; February 16–18, 1995; and November 1–
3, 1996). In fact, several government agencies, including
the National Park Service, Bureau of Land Management,
Fish and Wildlife Service, Army Corps of Engineers, and
Bureau of Indian Affairs, some of which have their collec-
tions in nonfederal institutions, have complained of insuf-
ficient funding for them to carry out their NAGPRA duties
expeditiously, thus creating delays (NAGPRA Review
Committee Minutes, January 29–31, 1998; June 25–27,
1998; December 10–12, 1998; November 18–20, 1999; May
3–5, 1999; and December 11–13, 2000). Since 1991, the
Repatriation Office at the NMNH has carried out exten-
sive archival compilations, verifications, and corrections,
conducted reevaluations of archaeological and ethnological
assessments, and performed thorough documentation of
skeletal remains based on the osteological documentation
standards of Buikstra and Ubelaker (1994). This documen-
tation is essential for assessing cultural affiliation, and
has greatly improved the information relating to the
museum’s collections. The efforts of the Repatriation Office
at the NMNH also coincide with the Smithsonian’s mission
of \the increase and diffusion of knowledge" since the
Institution’s founding in 1846 (Smithsonian Institution,
2005a,b).
As pointed out elsewhere, the study of human remains
has potential benefits for specific groups as well as
humanity in general, through tracing the history and evo-
lution of diseases and discovering possible treatments
(Ubelaker and Grant, 1989; Landau and Steele, 2000).
The most obvious and immediate benefit of studying
human remains, especially those of Native Americans, is
for the continued identification of such remains, in
archaeological, forensic, or other contexts (Ubelaker and
Grant, 1989; Ubelaker, 1990; Owsley, 1996). Physical
anthropologists have analyzed remains to aid in the prose-
cution of attempted sales of Native American remains,
some of which have even appeared on eBay (John Byrd,
personal communication, 2004; Viotti, 2004; Reany, 2005),
which is a violation of US law (18 U.S.C. 1170) as amended
by the NAGPRA. The NMNH curators, in consultation
with tribes, have on occasion analyzed remains from other
museums in order to facilitate repatriation. Native Ameri-
can remains also appear in a benign fashion, turned in by
individuals to the NMNH or other institutions or agencies
such as the Federal Bureau of Investigation (Houck et al.,
2001). Many individuals who have held remains for a time
now want a proper disposition for them. Human remains,
some of which will be Native American, will continue
to be inadvertently discovered above and below ground,
and developing reliable methods of identification will be
essential.
3
Many books and articles (e.g., Billeck, 2004; Bray and
Killion, 1994; Rose et al., 1996; Crowther, 2000; Mihesuah,
2000; Bray, 2001; Fine-Dare, 2002; Lovis et al., 2004; Rich-
man and Forsyth, 2004) have been written concerning the
history, details, and impact of repatriation legislation. Rel-
atively little has been written about the role of physical
anthropology in the repatriation process. In this paper, we
will highlight certain aspects of implementing the laws,
especially regarding assessing cultural affiliation and
physical anthropology. We will first review the federal
repatriation laws and outline the concepts underlying cul-
tural affiliation. Next, we will review some of the experi-
ences at the NMNH and other museums in implementing
the laws, including changes in museum policies as rela-
tionships have shifted between museums and tribes. Then
we will describe physical anthropology documentation at
the NMNH, and provide examples of how the osteological
documentation process has been used to answer questions
important to Native peoples, museum personnel, and
anthropologists.
THE LAWS
Prefederal legislation
The first state legislation relating to repatriation, or the
\reburial issue" as it was commonly called at the time,
was passed in Iowa in 1976. Legislation in other states
soon followed amid growing national discussions and
debates relating to repatriation (Price, 1991).
As the repository for the US national collections, and
given the large numbers of human remains housed at the
museum, the Smithsonian Institution featured promi-
nently in the public discourse on repatriation. Prior to the
1980s, the Smithsonian Institution had received few
inquires regarding the human remains in its collections,
although the Institution began repatriating cultural items
in 1982. In 1984, in accordance with the Smithsonian’s pol-
icy to return remains of known individuals to their living
descendents (Adams, 1987), the NMNH returned the
remains of five Modoc individuals to family members. In
1985, recognizing that tribes might not be aware of the
large numbers of Native American remains housed at the
Smithsonian, the NMNH mailed summaries of the re-
mains to tribal leaders of the 241 federally recognized
tribes at the time (Ubelaker and Grant, 1989, p. 255). In
1988, the museum returned remains of 16 Blackfeet indi-
viduals under its policy of repatriating remains obtained
illegally or unethically. Also in 1988, the American Indian
Program of the Smithsonian’s National Museum of Ameri-
can History compiled the first of several editions of a bib-
liography of resources relating to repatriation and reburial
as an aid for anyone interested in the issues (Green and
Mitchell, 1990).
In the 1980s, repatriation issues moved to the forefront
of thinking for museums and Native American organiza-
tions, and drew the attention of Congress. National organ-
izations like the American Association of Physical Anthro-
pologists (1982), the Society for American Archaeology
(1986), and the American Association of Museums (1988)
established policies and passed resolutions on repatriation
and the ethical treatment of human remains. Both archae-
ologists and Native Americans were alarmed by increased
looting and other indiscriminant excavations of Native
American burial sites, especially after several high-profile
cases such as the 1988 Slack Farm Ten case, in which pot-
hunters destroyed more than 600 graves at a late prehis-
toric Kentucky cemetery and left the remains scattered on
4 S.D. OUSLEY ET AL.
the surface. In, 1989, with the support of the Senate Select
Committee on Indian Affairs of the 100th Congress, the
Heard Museum and the Barry M. Goldwater Center for
Cross-Cultural Communication organized a yearlong dia-
logue between museum and tribal representatives that
became known as the \National Dialogue on Museum-
Native American Relations." While the discussions were
underway, legislation was proposed that would force muse-
ums to repatriate. In fact, during the 101st Congress, 10 dif-
ferent bills relating to repatriation and the protection of
Native American graves were proposed in Congress (Rich-
man and Forsyth, 2004). In 1989, before the National Dia-
logue on Museum-Native American Relations could complete
its work, one of these bills became law in the form of NMAIA.
Federal legislation
The NMAIA had the primary purpose of transferring
the collections of the Museum of the American Indian,
Heye Foundation, of New York, to those of the Smithso-
nian Institution to form the National Museum of the
American Indian. With the NMAIA, the Smithsonian set a
national precedent for museums by agreeing to the repa-
triation provisions that make up a significant portion of
the act (Inouye, 1990, p. 2). The repatriation process man-
dated by NMAIA is limited to the museums of the Smith-
sonian Institution, but served as a foundation for subse-
quent NAGPRA legislation with nationwide applicability.
Section 11(a) of the NMAIA requires the Secretary of
the Smithsonian Institution to work in consultation and
cooperation with Native American religious and tribal
government officials to:
1. Inventory the Indian human remains and Indian
funerary objects in the possession or control of the
Smithsonian Institution; and
2. Using the best available scientific and historical docu-
mentation, identify the origins of such remains and
objects (20 U.S.C. 80q-9(a); emphasis added).
The NMAIA standard for documentation to be used in
establishing cultural affiliation, using the \best available"
documentation, is a higher one than in the NAGPRA,
which is based on the information readily available, and
thus varies greatly among institutions (Lovis et al., 2004).
In the event that this inventory and documentation proc-
ess leads to the identification of the \tribal origin of any
Indian remains" or funerary objects by a preponderance
of the evidence, the Secretary of the Smithsonian is
required to notify any affected tribe (20 USC 80q-9, sec-
tion 11(b)). Later amendments to the act set a deadline of
June 1, 1998 for completion of the inventory, and specified
the information to be contained in it (National Museum of
the American Indian Act Amendments of 1996, section 3).
If descendants of identified individuals or the culturally
affiliated tribe request the return of the affiliated remains
or funerary objects, the Secretary shall expeditiously
return them (20 U.S.C. 80q-9, section 11(c and d)). A sepa-
rate section of the act extends these same principles and
procedures to Native Hawaiian remains and funerary
objects (20 U.S.C. 80q-9, section 13). The 1996 amend-
ments to the NMAIA extended these provisions to include
unassociated funerary objects, sacred objects, and objects
of cultural patrimony, as defined by the NAGPRA of 1990.
The NMAIA also mandated the creation of \a special
committee to monitor and review the inventory, identifi-
cation, and return" of remains and funerary objects
(20 U.S.C. 80q-9, section 12(a)). This Repatriation Review
Committee was originally composed of five members,
three of whom were required to be nominated by Native
American tribes or organizations. The 1996 amendments
to the NMAIA added two traditional religious leaders to
the committee, and required that tribes nominate four of
the seven members. The Review Committee is also respon-
sible for facilitating the resolution of any disputes that
may arise between the museum and tribes or among
tribes. The NMAIA also authorized appropriations specifi-
cally for fulfilling the repatriation provisions.
Almost a year after the passage of the NMAIA, Con-
gress passed the NAGPRA, which applies to all US insti-
tutions and governmental agencies receiving federal
funds. Because it was already subject to the NMAIA, the
Smithsonian Institution was exempted from the NAGPRA
(Senate Report no. 101-473, 1990, p. 19). The NAGPRA
established procedures for determining the ownership of
Native American remains and cultural objects found on
federal or tribal lands after November 16, 1990, and for
determining the disposition of Native American remains,
funerary objects, sacred objects, and objects of cultural
patrimony in the possession or control of museums and
federal agencies. Like the NMAIA, the NAGPRA created
a seven-member Review Committee to monitor and
review the implementation of the repatriation provisions
of the act. The NAGPRA also included an amendment to
Chapter 53 of Title 18, United States Code, making it ille-
gal to buy, sell, or transport for sale Native American
human remains and objects subject to the act.
Paralleling the NMAIA, the NAGPRA requires muse-
ums and federal agencies to inventory Native American
remains and associated funerary objects in their posses-
sion or control, and identify their geographical origin and
cultural affiliation \to the extent possible based on infor-
mation possessed" by the museum or agency (25 U.S.C.
3003(a)). This inventory process was to be conducted in
consultation with Native American representatives and to
be completed by 1995. An inventory under this section is
required only to be a \simple itemized list that summa-
rizes the information" (25 U.S.C. 3003(e)). Culturally
affiliated remains and objects include those \that are
clearly identifiable as to tribal origin" and those that,
although \not clearly identifiable as being culturally affili-
ated ... are determined by a reasonable belief to be remains
or objects culturally affiliated with the Indian tribe or
Native Hawaiian organization" (25 U.S.C. 3003(d)(2)). If
the inventory process results in the determination of cul-
tural affiliation of human remains or associated funerary
objects, the affected tribes are to be notified within 6
months. If requested by the lineal descendant or culturally
affiliated tribe, the museum or federal agency is required
to return the remains and funerary objects.
When cultural affiliation is not identified in the inven-
tory process, the burden of proof shifts to the tribes, and
remains are to be offered for return if \the requesting
Indian tribe or Native Hawaiian organization can show
cultural affiliation by a preponderance of the evidence
based upon geographical, kinship, biological, archaeologi-
cal, anthropological, linguistic, folkloric, oral traditional,
historical, or other relevant information or expert opinion"
(25 U.S.C. 3005 (a)(4)). The NAGPRA Review Committee
is responsible for compiling an inventory of culturally
unidentifiable human remains and \recommending spe-
cific actions for developing a process for disposition of such
remains" (25 U.S.C. 3006, (c)(5)). At this time, an initial
draft of regulations for the disposition of culturally un-
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
identifiable remains was proposed by the NAGPRA
Review Committee and continues to undergo revision.
Although the repatriation requirements of the NMAIA and
the NAGPRA are almost identical in many ways, the NAG-
PRA expands on many of the provisions found in the NMAIA.
The NAGPRA added sacred objects and objects of cultural
patrimony as claimable item categories, and although the
NMAIA does apply to \funerary objects not associated with
Indian human remains" (20 U.S.C. 80q-9(d)), the NAGPRA
distinguished unassociated funerary objects as a discrete cat-
egory. The 1996 amendments to the NMAIA added these cat-
egories to the repatriation provisions of the NMAIA.
Among the NAGPRA’s elaborations are more detailed defi-
nitions of terms used, and extensive regulations for the
implementation of the act (43 Code of Federal Regulations
(CFR) Part 10). Section 13 of the NAGPRA requires the Sec-
retary of the Interior to promulgate regulations for imple-
mentation of the act. The regulations and \Final Rule,"
which took effect in 1996, attempt to elaborate and clarify
points of the law, which also necessitated the Secretary’s
interpretation of congressional intent, an administrative step
that recently came under scrutiny (Bonnichsen v. United
States) and which was delegated to the National Park Serv-
ice. Though the NMAIA provided no such regulations, the
NMNH voluntarily follows relevant portions of the regula-
tions in implementing the NMAIA. Some details of these defi-
nitions and regulations are particularly relevant to the role of
physical anthropological research in the repatriation process.
Although not defined in either the NMAIA or the NAG-
PRA, human remains are defined in the NAGPRA regula-
tions as:
The physical remains of the body of a person of
Native American ancestry. The term does not include
remains or portions of remains that may reasonably
be determined to have been freely given or naturally
shed by the individual from whose body they were
obtained, such as hair made into ropes or nets. For
the purposes of determining cultural affiliation,
human remains incorporated into a funerary object,
sacred object, or object of cultural patrimony ... must
be considered as part of that item [43 CFR 10.2(d)(1)].
Therefore, remains of individuals whose ancestry is not
Native American are not considered to be human remains
that fall under the regulations of the NAGPRA. Also,
according to this definition, isolated deciduous teeth, when
free of alveolar bone, may be interpreted as naturally shed
and are not considered human remains under the law.
Ironically, while the NAGPRA was intended to counteract
the treatment of remains as objects, this section explicitly
directs museums to view remains as objects when remains
are incorporated into claimable cultural objects (sacred
objects, objects of cultural patrimony, or funerary objects).
If the item into which the remains have been incorporated
does not fall into one of these categories, then, according to
the regulations, the proper disposition of the remains
should be determined \on a case-by-case basis" for \the
legislative history is silent on the issue" (Federal Register,
1995, p. 62137). Examples of such items may include scalp
shirts, finger necklaces, or other items that are not funer-
ary objects and not objects of cultural patrimony into
which human remains have been integrated.
Custody of human remains
Descent is the essential basis for repatriation rights
under the US federal legislation. In most circumstances, a
5
claimant seeking custody must either be a lineal descend-
ant of the individual or a representative of a federally rec-
ognized tribal government. While the NMAIA does not
define \cultural affiliation," the NAGPRA defines it as \a
relationship of shared group identity which can be reason-
ably traced historically or prehistorically between a
present day [federally recognized] Indian tribe or Native
Hawaiian organization and an identifiable earlier group"
(25 U.S.C. 3001 (2)). The NAGPRA regulations further ex-
plain that this relationship must be supported by evidence
that establishes a relationship of descent between the ear-
lier group and the present-day tribe (43 CFR 10.14(c)(3)).
It is only when the remains are new discoveries (after
November 16, 1990) on federal or tribal land that priority
may not be given to descendants (43 CFR 10.4 and 10.6).
In such cases, the remains are offered according to the fol-
lowing priorities: 1) to lineal descendants; 2) if the re-
mains are found on tribal land, to that tribe that lives on
the land regardless of the affiliation of the remains (43
CFR 10.6 (a)2(i)); 3) if the remains are found on federal
land, not tribal land, to the affiliated tribe, if affiliation is
possible; and 4) if the remains cannot be affiliated and if
the land has been recognized by the Indian Claims Com-
mission or the US Court of Claims as aboriginal to a tribe,
to that tribe. In the second case, the sovereign rights of
tribes to administer their lands takes priority over the
rights of culturally affiliated tribes whose ancestors many
have been buried on the land now under the control of
another tribe (Federal Register, 1995, p. 62142). The
fourth case is of significance for the Kennewick remains,
as the skeleton was found on federal lands after 1990, but
the recovery area is not located on the recognized aborigi-
nal land of any tribe.
Lineal descendents receive priority for custody of
human remains in repositories over all other parties. As
the NAGPRA regulations stipulate, \A lineal descendent
is an individual tracing his or her ancestry directly and
without interruption by means of the traditional kinship
system of the appropriate Indian tribe or Native Hawaiian
organization or by the common law system of descendence
[sic; descent] to a known Native American individual
whose remains, funerary objects, or sacred objects are
being requested under these regulations. This standard
requires that the earlier person be identified as an indi-
vidual whose descendants can be traced" (43 CFR
10.14(b)). Although support for relationships of lineal
descent typically rely on combinations of historical, genea-
logical, and kinship evidence, some Native American indi-
viduals and tribes have begun to express interest in the
potential for DNA analysis to confirm suspected relation-
ships of lineal descent.
Cultural affiliation is the most frequently cited basis for
determining to which group remains are to be offered. The
regulations and final rule of the NAGPRA alter the word-
ing of the definition of cultural affiliation found in the law:
Cultural affiliation means that there is a relation-
ship of shared group identity which can reasonably
be traced historically or prehistorically between
members of a present-day Indian tribe or Native
Hawaiian organization and an identifiable earlier
group. Cultural affiliation is established when the
preponderance of the evidence—based on geographi-
cal, kinship, biological, archeological, linguistic, folk-
lore, oral tradition, historical evidence, or other
information or expert opinion—reasonably leads to
such a conclusion [43 CFR 10.2(e)].
6 S.D. OUSLEY ET AL.
The process for how such evidence \reasonably leads to
such a conclusion" is explained in procedures for deter-
mining cultural affiliation in the regulations (43 CFR
10.14). According to the procedures,
All of the following requirements must be met to de-
termine cultural affiliation between a present-day
Indian tribe or Native Hawaiian organization and
the human remains ... of an earlier group:
1. Existence of an identifiable present-day Indian tribe
or Native Hawaiian organization with standing under
these regulations and the Act; and
2. Evidence of the existence of an identifiable earlier
group. Support for this requirement may include, but
is not necessarily limited to evidence sufficient to:
i Establish the identity and cultural characteristics
of the earlier group,
ii Document distinct patterns of material culture
manufacture and distribution methods for the earlier
group, or
iii Establish the existence of the earlier group as a
biologically distinct population; and
3. Evidence of the existence of a shared group identity that
can be reasonably traced between the present-day
Indian tribe or Native Hawaiian organization and the
earlier group. Evidence to support this requirement
must establish that a present-day Indian tribe or Native
Hawaiian organization has been identified from prehis-
toric or historic times to the present as descending from
the earlier group. (43 CFR 10.14(c), emphases added)
This last sentence is probably the most critical, yet com-
monly overlooked point of the regulations. It stresses that
cultural affiliation should be viewed as a relationship of
cultural or biological descent, and is in line with Con-
gress’s intent to address tribal concerns for the disposition
of their own ancestors (e.g., 20 U.S.C. 80q section 2(8)).
\The requirement of continuity between present day
Indian tribes and materials from historic or prehistoric
Indian tribes is intended to ensure that the claimant has a
reasonable connection with the materials" (Senate Report
101-473, p. 9). Unfortunately, the use of the term \cultural
affiliation" has not served to remind interested parties of
the central importance of the ancestor-descendant rela-
tionship intended by Congress.
Determining cultural affiliation
Because the concept of cultural affiliation has been the
source of so much confusion and disagreement, the criteria
required to establish it deserve some discussion. Although
the term \cultural affiliation" might suggest a limitation
to cultural evidence, NAGPRA clearly acknowledges the
use of biological evidence in determining cultural affilia-
tion (25 U.S.C. 3005 (4); 43 CFR 10.14(e)). Its potential
application becomes obvious when the goal of affiliation is
to show that a present-day group descended from the ear-
lier group (43 CFR 10.14(c)).
A present-day group. The first criterion, the identifica-
tion of a present-day group with legal standing, i.e., able
to make claims under the law, may be the easiest to fulfill
because the only groups with legal standing are federally
recognized tribes, including Alaskan Native villages and
corporations as defined by the Alaska Native Claims Set-
tlement Act, and Native Hawaiian organizations (43
U.S.C. 1602). This is in keeping with the government-to-
government relationship intrinsic to federal recognition.
State-recognized tribes, non-US tribes, and other nonfed-
erally recognized tribes lack legal standing to make repa-
triation claims under the NMAIA and the NAGPRA, even
if there are very good reasons to believe that they are
related to the remains in question.
An identifiable earlier group. The second required cri-
terion, \evidence of the existence of an identifiable earlier
group," is often easy to meet for historic remains. For
example, with no other potentially conflicting information,
the attribution by the original collector that remains were
those of a member of a specific tribe, or other specific
group, is usually sufficient to establish, by a preponder-
ance of the evidence, the identity of the earlier group. Oral
histories or early historic maps can sometimes identify a
specific site or locality as having been inhabited by a spe-
cific group whose identity is known through these tradi-
tions or histories. However, in many other situations, the
process of trying to identify the earlier group in a way that
meets the requirements is more complicated.
For human remains predating written histories, and as
a supplement to those sources of knowledge, the tools of
archaeology and physical anthropology become crucial
assets for defining identifiable earlier groups. In the
archaeological systematics of Americanist archaeology,
the closest unit that may be characterized as an identifi-
able earlier group is the phase. Although the term \phase"
has been used a number of different ways, creating confu-
sion even among archaeologists, here we are speaking of
phase as defined in the taxonomic system of Willey and
Phillips (1958). Willey and Phillips (1958, p. 22) defined
phase as \an archaeological unit possessing traits suffi-
ciently characteristic to distinguish it from all other units
similarly conceived, whether of the same or other cultures
or civilizations, spatially limited to the order of magnitude
of a locality or region and chronologically limited to a rela-
tively brief interval of time." It may be considered to rep-
resent the archaeological manifestation of a social entity
roughly comparable to a \tribe" or other social unit having
a group identity shared by its members at a certain time
(Willey and Phillips, 1958; Lovis et al., 2004). Of course,
most archaeologists recognize that phases are not exactly
equivalent to social groups, because phases are archaeologi-
cal taxonomic units defined in the dimensions of time,
space, and form. \Form" includes the material and immate-
rial characteristics or traits of a group such as material cul-
ture, mortuary practices, social organization, and other
manifestations of a group that can be recognized in the
archaeological record. It is these traits that archaeologists
see as representing the residual traces of distinct social
groups.
Archaeologists continually debate the utility of the
phase concept, the evidence used to define phases, and the
relationships that might have existed among them, but
such is the nature of the methodology. Information can be
reevaluated, and new evidence can lead to new conclu-
sions. Properly defined, a phase can occupy one or more
localities as long as they are restricted to a single region.
Phases are not likely to exist for more than a few hundred
years. The phase concept has proved useful to tribes,
museums, and federal agencies in numerous repatriation
cases.
Biological data can be used to discern the closest biologi-
cal equivalent of a phase, the local breeding population, or
deme. The first step in an analysis would be to find out if a
group is biologically distinct in comparison to other groups
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
using some combination of biological traits, in other
words, whether or not the group has a distinctive biologi-
cal profile. When osteometric data are used in multivari-
ate analyses, statistically significant differences are quite
often found among groups, and these differences can be
used to establish groups as biologically distinct. For in-
stance, if two biologically distinct groups were known to
have inhabited the same area in close temporal succession,
and any associated material culture is either lacking or so
indistinct that remains cannot be associated with either
group based on temporal, spatial, or material-culture traits,
then biological evidence could be used to demonstrate that
they represent distinct earlier identifiable groups and to
indicate to which group the remains are most similar.
Because biological evidence rarely exists without some addi-
tional contextual and cultural evidence, in practice, biologi-
cal evidence is usually combined with other forms of evi-
dence to supplement and reinforce similarities and differen-
ces among groups. Once the connection between biology and
group membership is established, biological data alone can
be used to identify the earlier group in circumstances where
other data are not available.
Although a social group, such as a tribe, might have had
a distinct cultural group identity, it may not be biologi-
cally unique in relation to neighboring tribes. Biologically
distinct populations can be very large and may encompass
many communities or groups with culturally diverse and
distinct group identities. Populations at this scale may not
reflect biologically definable group identity comparable to
the \earlier identifiable group" or \present-day tribe" con-
cepts. In these cases, a finer-grained analysis may prove
fruitful in discerning differentiated groups.
At the time that the federal repatriation legislation was
drafted, the nature of biological evidence that might have
been used to \establish the existence of a biologically dis-
tinct population" (43 CFR 10.14(c)(2)(iii)) was primarily
morphological. Morphological data have been used in de-
termining whether remains are Native American or not,
as well as which Native American group the remains most
likely come from (Ousley, 2005). Beyond morphology,
advances in ancient DNA methods may permit the identi-
fication of a group as genetically distinct enough that it
could be considered an earlier identifiable group. This
could be termed the molecular or genetic profile of a group.
In the recent Kennewick Ancient One case, the Depart-
ment of the Interior attempted DNA analyses in an effort
to determine the mitochondrial DNA haplogroup and hap-
lotype, and Y-chromosome characteristics, to assess possi-
ble cultural affiliation, but the extraction was not success-
ful (McManamon et al., 2000). However, other studies
have successfully traced migrations of genetically distinct
groups over time (Parr et al., 1996; Carlyle et al., 2000;
Hayes, 2001; Kaestle and Smith, 2002).
Similarly, isotopic or other bone chemistry analyses can
be used to help characterize distinct biological populations
based on chemical or elemental signatures, or what may
be termed the biochemical profile. For instance, in south-
ern Australia, isotopic analysis of Aboriginal remains of
unknown provenance was compared to isotopic values of
remains of known origin to identify the geographical ori-
gin of the remains (Pate et al., 2002). That investigation
measured stable carbon and nitrogen values, and was able
to identify the likely geographic zone of origin for 89 out of
91 unprovenienced individuals. The biochemical approach
requires extensive sampling of populations of known ori-
gin to provide an adequate basis for comparisons, but it is
essentially defining an earlier group isotopically from
7
known remains, and then identifying to which group
unknown remains most likely belonged. Once again, prob-
abilities of group membership can easily be calculated.
Isotopic analysis has also been used to identify the local or
regional origin of remains of suspected illegal immigrants
to the United States, which quite often cannot be posi-
tively identified (Phillip Walker, personal communica-
tion). Future analytical approaches are likely to become
even more sophisticated and useful in efforts to establish
the existence of earlier identifiable groups.
Forensic anthropologists have used all of these methods
when attempting to identify skeletal remains, especially if
the remains are recent and foul play is suspected. When
investigating recent human remains, the goal is one of
identification at the individual level, and all elements of
the biological profile can aid the identification, including
age, sex, and ancestry. Individual identification aids in
helping to identify suspects, and the return of the re-
mains, provide closure for the decedent’s family. In repa-
triation, the level of identification is most often tribal,
though occasionally, individual identifications are made
as well. So the level of identification is different in each
application. One other difference between forensic anthro-
pology in criminal law, as in a homicide investigation, and
forensic anthropology in civil law, as in repatriation, is
that the identification standard in repatriation is the pre-
ponderance of evidence, as opposed to beyond a reasonable
doubt, i.e., scientific certainty. Preponderance is defined
as \evidence which is of greater weight or more convincing
than the evidence which is offered in opposition to it; that
is, evidence which as a whole shows that the fact sought
to be proved is more probable than not" (Black and Black,
1990, p. 1182).
A statistical approach to determining the cultural affili-
ation of an individual using biological traits would enable
one to calculate the probability of membership in a dis-
tinct population (in this case, a biologically distinct earlier
identifiable group) if one can be discerned. In other words,
it can be ascertained whether or not the individual’s bio-
logical profile is consistent with a certain group. These
techniques of statistical discrimination have been applied
mainly to morphological data, in forensic (Ousley and
Jantz, 1996) and paleoanthropological (Albrecht, 1992)
contexts, but could be applied to any biological observa-
tions. The procedures rely on reference samples of groups
that may be affiliated with the remains, and probably at
least one outgroup, i.e., a group to which the remains
could not possibly be affiliated. Multivariate distances can
be calculated among groups, so the overall pattern of rela-
tionships among them can be ascertained and tested for
statistical significance (Albrecht, 1980; McLachlan, 1992;
Krzanowski, 2000). Often, sufficient samples of earlier
identifiable groups are not adequate, and the amount of
variation within groups is unknown, but well-defined
modern groups can be used to estimate the level of
expected variation within groups, and to calculate inter-
group distances as well as distances to the individual to be
classified (Jantz and Owsley, 2001). Naturally, all possibly
affiliated groups would need to be considered.
Classification of an individual who may belong to one of
the defined groups can be accomplished using discrimi-
nant analysis, especially in calculating statistics reflecting
the probabilities of group membership: the posterior and
typicality probabilities (Albrecht, 1992; McLachlan, 1992;
Ousley and Jantz, 1996; Jantz and Owsley, 2001). Poste-
rior probabilities are based on an individual’s relative sim-
ilarity to all groups, and for each group, it is the probabil-
8 S.D. OUSLEY ET AL.
ity that the individual belongs to that particular group.
The individual is classified into the group with the highest
posterior probability, which is also the group to which it is
most similar. Posterior probabilities sum to 1 (100%), and
are most informative when an individual is assumed to
belong to one of the groups in the analysis. Typicality
probabilities are essential in indicating when an individ-
ual may not be a member of any of the groups. Typicality
probabilities are based on the absolute similarity to each
group, and for each group, it is the probability that the
individual belongs to that particular group, independent
of the other groups (Albrecht, 1992). An individual with
typicality probabilities of less than 0.01 for all groups is
not likely a member of any of them, or is the result of
measurement error, or may have a pathological condition
that affects observations, and the posterior probabilities
and classification should be disregarded (Ousley and
Jantz, 1996; Mulhern et al., 2001). Generally, typicality
probabilities above 0.05 for all groups indicate that the
individual could belong to any of them. The posterior and
typicality probabilities are direct estimates of the proba-
bilities of group membership, and together, can indicate
preponderance of biological evidence for affiliation.
Such a statistical analysis proceeds thus: 1) Assemble
samples of earlier identifiable candidate groups. If none
are available, then stop; there are no comparative samples
available. The use of outgroups (certain groups to whom
the remains cannot be affiliated) would provide a check
against spurious classifications, in cases where only a few
traits are available for analysis, or when there are only
small samples of possible groups. 2) Gauge how well the
classification methods perform on candidate groups, using
cross-validation (Huberty, 1994; Krzanowski, 2000). If
classification rates are not significantly greater than ran-
dom assignment, then stop; the groups do not show
enough differentiation and cannot be reliably separated
using the particular variables and methods. Other varia-
ble combinations and methods, including nonparametric
methods (such as nearest-neighbor and kernel density
classification) and logistic regression, can be evaluated. 3)
Calculate the posterior probabilities of the unknown for
all groups. If the individual does not show very low typi-
cality probabilities for all groups, then the individual is
affiliated to the most similar group (with the highest poste-
rior probability). If the individual shows very low typicality
probabilities for all groups, the individual very likely does
not belong to any of the groups, and cannot be affiliated to
any of them. Similar analyses are carried out in other
areas of biological and forensic anthropology, and could be
applied to any data set, whether metric or nonmetric, or
even cultural, as long as correct classification rates and
probabilities can be reliably estimated. A similar process
occurs in most publications tracing ancestry through time.
In an ideal case, all possible earlier groups would have
large samples, they would have high correct classification
rates, and the individual would be classified into a group
with high posterior and typicality probabilities, and would
show low typicality probabilities for all other groups. The
possibility of missing or poorly represented groups is a
concern. However, an initial finding of no apparent cul-
tural affiliation could be reversed later through using
larger samples, different variables, or better group re-
presentation. A finding of nonaffiliation need not be per-
manent.
Shared group identity. The third criterion required is
\evidence of the existence of a shared group identity that
can be reasonably traced between the present-day [feder-
ally recognized] Indian tribe or Native Hawaiian organi-
zation and the earlier group" (43 CFR 10.14(c)). As previ-
ously mentioned, this criterion gets to the heart of the
process by focusing on a relationship of descent to the
present-day group. This is made clear in the requirement
that \evidence to support this requirement must establish
that a present-day Indian tribe or Native Hawaiian organ-
ization has been identified from prehistoric or historic
times to the present as descending from the earlier group"
(43 CFR 10.14(c), emphasis added). The present-day group
must be shown to have descended from the earlier group.
Although references in US laws and regulations to bio-
logical evidence acknowledge the potential of the evidence
to show relationships of biological descent, the term \cul-
tural affiliation" seems to emphasize a primacy of rela-
tionships of cultural descent. The desire to trace the
descent of archaeological cultures and the ancestry of
present-day tribes or other groups has always been a goal
of American archaeology and ethnohistory, and approaches
were developed to aid this effort. Best known among these
is the \direct historical approach" first used in Plains
archaeology of the early 1900s (Strong, 1940). The direct
historical approach works from historically documented
sites of known groups to identify traits diagnostic of that
group, and then attempts to trace them through other sites
deeper into the past. In essence, the approach traces
descent from present-day groups to identifiable earlier
groups, as required by repatriation legislation. Biological
approaches function similarly. Most of the Plains cultural
affiliations that have taken place under NMAIA and NAG-
PRA were based on references to the work of early archaeol-
ogists who had applied the direct historical approach.
Independent of repatriation legislation, archaeologists
working in the American Midwest and Great Plains have
developed additional conceptual tools to represent rela-
tionships of shared group identity that can reasonably be
traced between the earlier group and a present-day Indian
tribe. These concepts are the \group continuity" (Hall,
1962, p. 94–99; Henning, 1998, p. 14) and the \ethnic tra-
dition." A group continuity is identified when cultural pat-
terns, such as ceramic stylistic attributes, link a phase
with subsequent phases. This demonstrated relationship
between two or more phases is considered indicative of
descent over time from one phase to another. Group con-
tinuities are usually traced over time within a locality or
region, but as groups migrated, abandoning old territories
and occupying new ones, localities may show discontinu-
ous occupations, and group continuities may be traceable
across larger regions. The ethnic tradition similarly
charts ethnic groups through time and across space by
archaeologically tracing shared material-culture traits
(Ahler, 1993). As Ahler (1993, p. 63) explained, the ethnic
tradition \concept is used to describe the product of syn-
thesis of all available data from oral traditions for resident
cultural and ethnic groups with all other available data
from the historical and archaeological records. What
emerges from this is a tracing of the historical develop-
ment, through time and space, of the distinctive ethnic
groups which can be identified in historic records."
Biological evidence in the form of metric traits, nonmet-
ric traits, and biochemical or genetic information can be
used to show a relationship of descent from an earlier to a
later population. As group continuity is composed of
phases through time, a lineage is composed of demes
through time. For instance, craniometric comparison of
remains recovered from archaeological sites of the Coales-
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
cent tradition (AD 1300–1865) in North and South
Dakota, with historic remains attributed to historic Plains
tribes, demonstrated a morphological continuum for remains
from these Coalescent sites, and established that the
inhabitants were ancestral to the Arikara (Bass, 1964;
Jantz, 1972, 1973, 1977; Jantz and Willey, 1983; Jantz et al.,
1981; Key and Jantz, 1981; Willey, 1990; McKeown, 2000).
A major challenge of this approach is tracing groups
that may have changed over time. Biological dissimilarity
between the earliest and latest manifestations of a lineage
need not always indicate that remains cannot be cultur-
ally affiliated. In some regions, it may be possible to trace
group descent back several thousand years, and outlining
group identity and descent would depend on archaeologi-
cal and biological traits. Analyses using possible ancestor-
descendant groups could be analyzed as explained above,
with overall group similarities tested from adjacent tem-
poral units. For instance, Konigsberg (1990a) found a
trend in nonmetric traits that paralleled the archaeologi-
cally based temporal ordering of several mounds of the
Pete Klunk Mound Group in Ohio. Proceeding backward
through time, well-established group identities from his-
toric remains could be used to estimate degrees of change
and diversity over time, which could be due to various
causes. This method is analogous to the direct historical
approach in archaeology mentioned above. There are
many examples of morphological changes over time, but
they are largely unpredictable as to direction and perma-
nence, and factors such as environmental changes,
amounts of gene flow, and gene drift cannot be controlled
for (Eveleth and Tanner, 1990), though morphological
changes have been modeled in human groups, including
Native Americans (Konigsberg, 1988, 1990a,b; Konigsberg
and Blangero, 1993; Steadman, 2003). There are examples
of tremendous secular changes in American groups after
1800 (Meadows Jantz and Jantz, 1999; Jantz and Mead-
ows Jantz, 2000), but also examples of apparent mor-
phological stasis for over a thousand years in certain
Native American groups (Herrmann, 2002). Large secular
changes absent gene flow seem to depend on great, per-
haps unprecedented, changes in the environment such as
those occurring in the US since the beginning of the 20th
century (Meadows Jantz and Jantz, 1999; Ousley and
Jantz, 2002). Tracing Native American lineages back in
time would not only help to affiliate remains, but would
also illuminate more of Native American population his-
tory and provide a greater understanding of variation in
ancient North America (Owsley and Jantz, 1999).
Evidence
How do we go about assembling a finding of affiliation?
Under NAGPRA regulations, \a finding of cultural affilia-
tion should be based upon an overall evaluation of the
totality of the circumstances and evidence pertaining to
the connection between the claimant and the material
being claimed and should not be precluded solely because
of some gaps in the record" (43 CFR 10.14(d); emphasis
added). Questions immediately come to mind as to what
kind, size, or number of gaps in the record may be con-
sciously overlooked in considering affiliations. But the
\totality" of evidence that should be used in the process is
better outlined:
Evidence of a kin or cultural affiliation between a
present-day individual, Indian tribe, or Native Ha-
waiian organization and human remains, funerary
9
objects, sacred objects, or objects of cultural patri-
mony must be established by using the following
types of evidence: geographical, kinship, biological,
archeological, anthropological, linguistic, folklore,
oral tradition, historical, or other relevant informa-
tion or expert opinion. (43 CFR 10.14(e))
This evidence list is in no way restrictive. Tribes and
museums are to use \relevant information or expert opin-
ion," which can take many different forms. Thus, the NAG-
PRA encourages the use of all types of pertinent evidence.
This mandate to consider all available evidence and all
forms of relevant information is reasonable, and should be
obvious. Despite being described as \numerous, incommen-
surate forms of evidence" (McLaughlin, 2004, p. 193) and \a
laundry list of both cultural and biological variables, [which]
is inherently flawed" (Walker, 2004, p. 17), these forms of
evidence are nothing new to anthropologists, who often inte-
grate and synthesize such diverse data. The assumption
that this process of consideration of evidence somehow pits
archaeology against oral tradition, or scientists vs. Native
Americans, is generally false. Such assumptions incorrectly
presume that tribes do not use science or have scientists
among them, and that there are no Native Americans
employed by museums as archaeologists or biological
anthropologists. It also fails to recognize that anthropology
has always considered oral tradition, folklore, linguistics,
and other cultural information as important sources of infor-
mation. Anthropologists trained in the four-field approach
should easily recognize that this portion of the regulations is
in fact directing us to apply anthropological information and
methods to present-day, real-world problems and legal
issues. Therefore, the process of evaluating repatriation
claims is in the realms of applied anthropology (Hollinger,
2005) and forensic anthropology, in determining the legal
disposition of human remains (Ousley, 2000, 2005).
The regulations do not instruct that one form of evi-
dence be emphasized over others, nor do they direct that
all forms of evidence be given equal weight in their bear-
ing on the question of affiliation. Of course, multiple lines
of independent evidence supporting the same conclusions
strengthen a particular argument, and are certainly used
in determining cultural affiliation in the repatriation con-
text (Eng and Walker, 2002). This brings us to the prepon-
derance-of-evidence standard that must be met under the
US legislation: \Lineal descent of a present-day individual
from an earlier individual and cultural affiliation of a
present-day Indian tribe or Native Hawaiian organization
to human remains . . . must be established by a prepon-
derance of the evidence. Claimants do not have to estab-
lish cultural affiliation with scientific certainty" (43
CFR 10.14(f)). Characterizations of \preponderance of evi-
dence" to mean at least 51% in favor of one conclusion
over another can be misleading, because it is rarely possi-
ble to convert evidence into quantifiable form. Also, it is
seldom possible to assign an objective weight and proba-
bility to each bit of evidence. As mentioned, statistical
results can give quantified probabilities, but they are
rarely used without additional evidence. All potentially
relevant evidence should be considered, but evidence is
often weighed and critically evaluated differently, depend-
ing on the nature of the evidence and its bearing on a case.
Guidance on assembling, weighing, and evaluating evi-
dence from many sources comes from the legal realm.
Recent court cases stemming from the Supreme Court
decision in the case of Daubert vs. Merrell Dow Pharma-
ceuticals 113 Supreme Court 2786 (1993) have changed
10 S.D. OUSLEY ET AL.
approaches to expert witness testimony, forensic analysis,
and scientific evidence in general (Feinberg et al., 1995;
Steadman, 2003). The Daubert case stresses the need for
testable, replicable, and reliable methods to be used in jus-
tifying conclusions. The Daubert case requirements can be
met through following scientific methods, peer-reviewed
publications employing the methods, general scientific
acceptance, and estimated error rates. Innovative meth-
ods can be employed if they can be independently tested
(Feinberg et al., 1995). The testability and reliability of
methods are necessary to establish that conclusions are
objectively arrived at, rather than reached through mere
subjective opinion. The Daubert standard for evaluations
by a scientific expert is higher than for most physical
anthropology publications, in which papers can be pub-
lished despite questionably supported conclusions, meth-
odological problems, and reliability concerns (Weaver,
1980; Loth and Henneberg, 1996, 2001; O’Loughlin, 2004;
cf. Donnelly et al., 1998; Hill, 2000; Scheuer, 2002; Wilc-
zak and Ousley, 2005). It is quite another matter when
another expert can challenge one’s methods and conclu-
sions, perhaps even using the same data. Forensic scien-
tists, including forensic anthropologists, have responded
to the Daubert standard by publishing tests of previously
accepted methods (Benjamin, 2001; Tigar, 2001; Stead-
man, 2003; Harrington et al., 2003; Koot, 2003; Olson,
2003; Williams, 2003; Christensen, 2004). The Daubert
case also brought about changes in federal standards for
evidence, which are applicable to civil and criminal legal
proceedings, and which more and more states are follow-
ing after clarifications to the Federal Rules of Evidence in
2000 (Faigman et al., 2002). Before 2000, Rule 702 of the
Federal Rules of Evidence read:
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowl-
edge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in
the form of an opinion or otherwise.
After the Daubert case and other cases affirming the
changes (such as Kumho Tire Co. v. Carmichael (119 S.Ct.
1167 (1999)), Rule 702 was modified with the following
addition: \provided that (1) the testimony is sufficiently
based upon reliable facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to
the facts of the case."
In essence, Rule 702 merely reminds anthropologists
that their conclusions should be based on following proper
scientific methods, rather than deferring to previous
expert opinions, which were not necessarily derived scien-
tifically. Replicable methods are preferred, and specific
direct examples, rather than analogies, are preferred.
Evaluations using quantitative methods are preferred
over those employing qualitative methods (Feinberg et al.,
1995). However, Rule 702 allows contradictory opinions
and conclusions, and recognizes that an expert can render
an opinion based on inference or present a scientific con-
clusion based on certain facts. An expert’s opinions and
conclusions may also be challenged and qualified. The
weight given to different lines of evidence may depend on
the quantity, quality, and reliability of the methods and
the plausibility of the conclusions derived from them in
light of other facts (Faigman et al., 2002). Walker (2004)
noted the challenge facing anthropologists who are asked
to weigh the biological and cultural evidence in evaluating
cultural affiliation. The Daubert decision and Rule 702
may provide guidelines to anthropologists for weighing
the totality of evidence that is largely anthropological and
diverse.
Culturally unidentifiable. The laws recognize that it
may not be possible to culturally affiliate all human
remains or objects with the currently available evidence.
As mentioned, for collections that were found to be cultur-
ally unidentifiable, it may be possible to affiliate when
new information comes to light that demonstrates a pre-
ponderance of evidence for a particular affiliation. In this
sense, the term \culturally unidentifiable" is not a final
declaration, but means the available information is not
sufficient at the time to identify the cultural affiliation,
and is culturally indeterminate. As research by reposito-
ries, tribes, and independent researchers continues, more
affiliations will be identified, and the descendant tribes
will be able to exercise their right to determine the dispo-
sition of remains. The ability of museums and tribes to
carry out the process of determining cultural affiliation is
highly variable, and depends heavily on the material be-
ing evaluated, the availability of related information, and
the resources they are able to invest in the effort. In testi-
mony before the Repatriation Review Committee, muse-
ums have regularly asserted that a lack of time available
for evaluating evidence, a lack of expertise, or a lack of
finances have resulted in fewer remains and objects being
found affiliated than would likely be the case if adequate
resources were available (NAGPRA Review Committee
Minutes of April 29–May 1, 1992; October 8–10, 1992;
February 26–28, 1993; November 17–19, 1994; and
December 10–12, 1998; Arbolino, 2005; Goldstein, 2005;
Steponaitis, 2005).
For remains that are found to be culturally unidentifi-
able, the NAGPRA regulations stipulate, \Museums or
Federal agencies must retain possession of such human
remains pending promulgation of 10.11 unless legally
required to do otherwise, or recommended to do otherwise
by the Secretary [of the Interior]" (43 CFR 10.9(e)(6)).
Beginning in 1995, the NAGPRA Review Committee
began circulating drafts of the proposed 10.11 regulations
regarding the disposition of culturally unidentifiable
remains. The draft of May 6, 2002 makes it clear that
museums may voluntarily transfer culturally unidentifi-
able remains, as was already true, and leaves it implicit
that museums could choose to retain culturally unidentifi-
able remains. This issue continues to be contentious for
those who assumed that the intent of the NAGPRA was to
transfer all Native American remains, regardless of affili-
ation (Larsen, 2000).
Federal repatriation legislation does not prohibit the
return of remains or objects outside of the acts. This proc-
ess, usually based on a recommendation from the NAG-
PRA Review Committee in a finding on the matter pub-
lished in the Federal Register, has been used by some
museums and federal agencies to proceed with transfer-
ring custody of culturally unidentifiable remains in ad-
vance of promulgation of the regulations intended to pro-
vide guidance for that process. As of September 2004, the
NAGPRA Review Committee had received 33 requests
for recommendations on disposition of remains. In some
cases, these transfers were to descendant Native Ameri-
can groups that lacked federal recognition. Others were
transfers to coalitions of federally recognized tribes of
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
remains that were culturally unidentifiable because the
earlier group to which they belonged could not be identi-
fied, or a relationship of shared group identity could not
be confirmed between the earlier group and any federally
recognized tribe.
One example of such a transfer is the University of
Nebraska-Lincoln’s transfer of 821 culturally unidentifi-
able individuals and 2,896 associated funerary objects in
2001. The University first approached the NAGPRA
Review Committee in 1998 with a request for approval of
repatriation of 152 culturally unidentifiable individuals to
a coalition of tribes. A total of 30 tribes was originally
invited to consult on the disposition of the remains. Cus-
tody was ultimately awarded to 16 tribes that signed an
agreement with the University (NAGPRA Review Com-
mittee Meeting Minutes, November 17–19, 2001). A
Notice of Inventory Completion published in the Federal
Register (2000a) declared that 491 individuals and 2,896
objects from numerous known and unknown contexts
throughout Nebraska would be repatriated to the 16 sig-
natory tribes, based on a broad relationship of shared
group identity between the coalition and the Native Amer-
ican remains in the museum from the state of Nebraska.
A second notice (Federal Register, 2000b) published on the
same day, referencing the support of the Review Commit-
tee, declared the intent to transfer 330 additional individ-
uals to the 16 tribes, despite the fact that no relationship
of shared group identity could be traced between the
tribes and the remains. Interestingly, none of the 330 indi-
viduals could be confirmed as having been removed from
any site in Nebraska; some were from a collection known
to have originated primarily in Illinois or Ohio. In addi-
tion to remains of unknown age or provenience, some of
the remains repatriated dated to the Paleo-Indian,
Archaic, and Woodland periods, and one individual was
described as \mixed-blood Native American/Negroid or
possible Negroid from the historic period" (Federal Regis-
ter, 2000b: 58805). It is hard to fathom any preponderance
of evidence for affiliation, and the remains were first
declared culturally unaffiliated in the notice, but then
declared affiliated to the 16 signed tribes. The unidenti-
fied remains were offered to Nebraska groups merely
because \the majority of documented Native American
human remains in the possession of the University of
Nebraska-Lincoln are derived from Nebraska, making it
likely that many of the human remains listed above in this
notice also were derived from the area of the present state of
Nebraska" (Federal Register, 2000b: 58805). Although the
NAGPRA Review Committee originally supported a transfer
of only 152 individuals and no objects, they were informed in
November 2001 that 821 individuals and nearly 3,000
objects were transferred, based on the NAGPRA Review
Committee’s original consent (NAGPRA Review Committee
Meeting Minutes, November 17–19, 2001, p. 28). Despite
the disparity in counts, some members of the committee
lauded the transfer as exemplary, even though the Univer-
sity of Nebraska-Lincoln’s actions conflicted with the intent
of the law. Not all tribes that resided in the areas with
remains were consulted, and not all that were consulted
signed the agreement. Also, as another member of the com-
mittee noted, 1 year earlier, the NAGPRA Review Commit-
tee had chastised Chaco Canyon Cultural National Historic
Park in its analysis of remains and artifacts from Chaco
Canyon, which were affiliated to many local groups, main-
taining that a \cultural relationship to geographical place"
is not sufficient for affiliation (Federal Register, 2000c: 6622;
see below).
11
The recent dispute between the Chaco Culture National
Historic Park and the Hopi tribe shows the concern of
some Native Americans that care be taken in determining
affiliations. The Chaco Culture National Historic Park
affiliated all of the remains and funerary objects from the
park to 19 area tribes, including the Navajo, regardless of
the provenience of the remains. The affiliations offended
the Hopi and other tribes, who objected to the Navajo
being found affiliated with Anasazi sites. The Hopi felt
that the park’s decision was politically motivated, and
that an item-by-item careful consideration of the evidence
would have found more group-specific affiliations that
would have made repatriation to a broad umbrella of
tribes unnecessary and inappropriate (Kuwanwisiwma,
1999; Fine-Dare, 2002). The National NAGPRA Review
Committee agreed with the Hopi, and recommended that
the park reassess its determinations of affiliation on a
site-by-site basis, carefully evaluating and weighing all
available evidence (Federal Register, 2000c: 6621–6622).
In fact, the scientific community and nearly all of the
affected tribes agreed with the NAGPRA Review Commit-
tee on the key criticisms, but the Superintendent of the
Chaco Culture National Historic Park disregarded the
consensus of opinion, and refused to change the park’s
assessment (Kintigh, 2000). Subsequently, the National
Park Service (NPS) Intermountain Regional Director,
NPS Director Fran Mainella, and finally the Office of the
Secretary of the Interior rejected the Review Committee’s
recommendations that the park revisit the process they
had used to determine affiliations. More recently, in a sim-
ilar dispute leveled by the Hopi against Mesa Verde
National Park, the Secretary of the Interior refused to
allow the NAGPRA Review Committee to hear the dispute
by reminding the committee that they ultimately reported
to the Secretary, and their additional advice would not be
required.
International repatriation
International repatriation is a developing concern for
museums that hold collections from other countries. As
repatriation has become more common in the United
States and Australia, other countries have been driven to
explore the development of policies, procedures, and legis-
lation for repatriation processes. At the same time, a
growing number of international requests have fueled
interest in developing approaches to address such re-
quests. Currently, in the United States, unless a collection
can be shown to have been obtained illegally, and is
claimed under appropriate international agreements re-
garding illegal trafficking in cultural property, non-US
groups have little legal support for their repatriation
efforts.
A gray area relating to US repatriation is the situation
in which groups that were once united have been sepa-
rated by international borders. Under US federal repa-
triation legislation, only federally recognized tribes have
the standing to make repatriation claims. According to
the NAGPRA regulations, the NAGPRA applies to human
remains \which are indigenous to Alaska, Hawaii, and
the continental United States, but not to territories of the
United States" (43 CFR 10.1(b)2). Interpretation of the
term \indigenous" in this sentence may be critical. Does it
mean that the people to whom the remains or object
belonged must be native to the US, or that the remains
and objects must have been found within the borders of
the US? According to the National NAGPRA Office of the
12 S.D. OUSLEY ET AL.
NPS, the law does not apply to remains recovered from
outside the US that are housed in US museums (National
Park Service, 2004). This position means that a member
of a tribe indigenous to the US who, because of trading or
seasonal travels, happened to have been buried just across
the Canadian or Mexican border, would not be eligible for
repatriation if the remains were held in a US repository.
However, in recognition of the rights of US federally rec-
ognized tribes to claim their ancestors when identified in
collections, the policy of the NMNH is to repatriate
remains found outside the US if they can be affiliated to a
federally recognized tribe. For instance, if remains origi-
nally found in Ontario now housed in the NMNH are
found to be affiliated to a US federally recognized tribe,
then the remains would be offered for return to the US
group. Participation of any Canadian First Nation group
or other non-US group in the repatriation process would
depend on the consent of the affiliated US tribe. In this
sense, the repatriation is not truly international, because
the transfer is legally to a US tribe.
At this time, true international transfers of human
remains take place outside of US federal repatriation
legislation. Some museums have adopted policies of inter-
national repatriation. For instance, the National Museum
of the American Indian voluntarily adopted the policy to
repatriate all human remains and associated funerary
objects in its collection, regardless of country of origin,
with the goal of completing all repatriations by the end of
2003 (West, 2000). In 2002, the American Museum of Nat-
ural History repatriated remains from 48 individuals, and
in 2003, the Field Museum repatriated remains from at
least 150 individuals to the Canadian Haida Gwa’ii (Thomp-
son, 2004; Field Museum, 2005).
Australian Aborigines have been perhaps the most suc-
cessful group at national and international repatriations.
They have received large repatriations from within Aus-
tralia and from Edinburgh University, and have increased
pressure on museums in the United Kingdom for the
return of remains. Pressure for the return of Australian
Aborigine remains led in part to the creation of recent rec-
ommendations for possible repatriation policies for British
museums, known as the Palmer Report (Department for
Culture, Media, and Sport, 2003). These recommendations
were interpreted by many as problematic (Brothwell,
2004; Walker, 2004; Chippindale, 2005).
IMPACTS OF THE LAWS
Museums across the country have benefited from hav-
ing to complete inventories of their collections under the
NAGPRA. It is very doubtful that any large museum had
a complete and accurate inventory of the contents of their
collections until federal repatriation legislation forced
museums to review their records, record inventories, and
assemble and summarize the information in consistent
ways in order to disseminate the information to tribes and
to the NPS. Most repositories underestimated the size of
their collections at that time, but in the late 1980s, the
mounting pressure to establish repatriation legislation
often led to overestimates. The information museums now
have in regard to their own collections is much more accu-
rate as a result of repatriation legislative requirements.
An earlier attempt at ascertaining counts of skeletal
remains by nationality or tribe in US museums, using an
informal survey, was attempted (El-Najjar, 1977), but the
counts were likely very inaccurate, based on comparisons
to the correct NMNH numbers, which are quite a bit
higher for some groups. Computerized databases have, no
doubt, improved the ability to generate more accurate
counts of museum remains. Ubelaker and Grant (1989)
reported that few of the remains in the NMNH collections
had known affiliations, but as documentation efforts have
progressed, many more remains have been affiliated (Bill-
eck, 2002, 2005).
Under the NAGPRA, human remains and associated
funerary objects that were in collections before the pas-
sage of the law in 1990 are listed in \Inventories." Unas-
sociated funerary objects, sacred objects, and objects of
cultural patrimony appear in \Summaries." As of Septem-
ber 30, 2004, the National NAGPRA Office of the NPS had
received 1,138 Inventories from 689 museums and 449
federal agencies (National NAGPRA Fiscal Year 2004
Annual Report, p. 1). They also received 861 Summaries
from 696 museums and 165 federal agencies. The number
of sets of human remains that were affiliated (but not nec-
essarily repatriated) in the Inventories by October 1, 2004
is 29,284 (National NAGPRA Fiscal Year 2004 Annual
Report, p. 4). There were also 578,553 associated funerary
objects, 91,901 unassociated funerary objects, 1,222 sac-
red objects, 274 objects of cultural patrimony, and 657
objects that are both sacred objects and objects of cultural
patrimony that were affiliated in the Inventories and
Summaries (National NAGPRA Fiscal Year 2004 Annual
Report, p. 4). Human remains that were found after 1990
on federal lands are reported as Notices of Intended Dis-
position in newspapers, and National NAGPRA has been
notified of 50 notices for 175 sets of human remains, 775
funerary objects, and five objects of cultural patrimony.
Museums were required to submit their Notices of
Inventory Completion by November 1995, and by October
1, 1996, 224 inventories were received at National NAG-
PRA (National NAGPRA Fiscal Year 2004 Annual Re-
port). The major period of submissions actually occurred
between 1997–2000, when the number of inventories
received averaged about 175 per year. It was during this
period that six major museums, some of which had previ-
ously been granted multiple extensions due to the size of
their collections, were denied additional extensions by the
Secretary of the Interior and ordered to hasten completion
of their inventories. The response of these \forbearance
institutions" produced a flood of inventories. Since then,
the numbers have declined yearly, dropping to 118 inven-
tories in 2001, 108 inventories in 2002, 82 inventories in
2003, and 61 inventories in 2004. While the number of
inventories submitted each year is declining, the total
number of remains offered for repatriation continues to
increase, but the rate of increase is slowing.
The National NAGPRA Office reports only the number
of human remains that have been affiliated and offered
for repatriation. It is not clear if this number of remains
refers to the number of remains with distinct museum
numbers, the minimum number of individuals, the esti-
mated number of individuals, or a combination of these
ways of counting human remains. Museums and federal
agencies are not required to report to the National NAG-
PRA Program the number of human remains that are
actually repatriated. While it is certain that thousands of
affiliated human remains have been repatriated, the
actual total is unknown. Many museums and federal
agencies have human remains in their collections that
have been affiliated and offered for repatriation, but have
not been returned. The ultimate disposition of affiliated
human remains that presently reside in collections of
museum and federal agencies awaits decisions by the
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
affiliated Native Americans. There are no deadlines for
these decisions, and not all Native American groups wish
to have human remains returned to them.
The human remains that have been evaluated by muse-
ums and federal agencies and found to be in the category
of \culturally unidentifiable human remains" are pres-
ently being summarized by National NAGPRA. As of
October 1, 2004, National NAGPRA has summarized the
information submitted by 595 museums and federal agen-
cies that list 111,238 culturally unidentifiable human
remains. National NAGPRA estimates that the number of
culturally unidentified human remains includes approxi-
mately 99% of the Cultural Unidentified Inventories that
they have received (National NAGPRA Fiscal Year 2004
Annual Report, p. 1). The number of culturally unidenti-
fied remains will grow as additional inventories are com-
pleted by museum and federal agencies and summarized
by National NAGPRA. Of the total of 140,532 human
remains that have been reported as culturally affiliated or
as culturally unidentifiable human remains under NAG-
PRA, 79% are culturally unidentifiable.
The human remains at the Smithsonian are not
included in the NAGPRA reports. The NMNH of the
Smithsonian Institution offered the remains of 5,200 indi-
viduals as of September 1, 2005. Affiliation evaluations
continue at the NMNH, and it is expected that many more
of the 18,000 Native American human remains that were
housed at the museum when the legislation was passed
will be affiliated when all of the remains have been eval-
uated. The policy of the National Museum of American
Indian of the Smithsonian Institution is to repatriate or
transfer all of the approximately 500 human remains in
their collections (Rosoff, 1998, p. 33–34; West, 2000).
For physical anthropologists who wish to study the skel-
etal remains of Native Americans, the affiliated remains
under the NAGPRA and under the NMAIA are, for the
most part, unavailable for study. Some of these remains
have been repatriated and may have been reburied by
Native Americans. Those affiliated remains awaiting dispo-
sition decisions by Native Americans that are in the posses-
sion of museums and federal agencies have been generally
designated as unavailable for study by the museum or the
agency that holds them, unless permission is obtained from
the affiliated Native American group to study the remains.
Museum and federal agencies vary in the access that
they grant to physical anthropologists for the study of
the over 100,000 culturally unidentified human remains.
Some of these collections are closed to research, while
others are available for study. Not all of these 100,000 cul-
turally unidentifiable human remains are still held by
museums and federal agencies. As mentioned, 33 muse-
ums and agencies have asked the NAGPRA Review Com-
mittee for permission to return culturally unidentified
human remains to nonfederally recognized tribes and to
coalitions of federally recognized tribes (NAGPRA Fiscal
Year 2004 Final Report, p. 37–41). The Iowa Office of
the State Archaeologist, the Minnesota Indian Affairs
Council, the University of Nebraska, and others have been
given permission to transfer culturally unidentified human
remains. In these cases, the museum or agency and some
Native Americans have reached an agreement to transfer
remains and then approach the NAGPRA Review Commit-
tee. These agreements reached between museums or agen-
cies with Native Americans fall outside the legal require-
ments of the NAGPRA, and will certainly become more fre-
quent as museums and agencies are pressured to transfer
culturally unidentifiable human remains. Although some
13
Native Americans favor repatriation of culturally unidenti-
fiable remains to nonfederally recognized tribes, many
representatives of federally recognized tribes have argued
at the NAGPRA Review Committee meetings and elsewhere
that remains should only be repatriated to affiliated federally
recognized tribes (NAGPRA Repatriation Review Committee
Minutes, November 1–3, 1996; Walker, 2004). In no case has a
museum or agency been forced under the NAGPRA to transfer
culturally unidentifiable human remains.
Museum policies
Among the major impacts of repatriation have been modi-
fications of museum policies regarding human remains
(Rose et al., 1996). At the NMNH, all collections are avail-
able for study until the Secretary of the Smithsonian Insti-
tution approves a report finding the remains to be cultur-
ally affiliated. Afterward, culturally affiliated remains
awaiting repatriation from the Smithsonian are unavail-
able to researchers without the consent of the affiliated
tribe. However, many other institutions have restricted visi-
tor access to remains for study. Some museums have
adopted policies of avoiding responsibility for human re-
mains entirely by deaccessioning human collections, refus-
ing to accept new accessions of remains, or intentionally
striving to rid themselves of remains by transferring them
to other museums or to any aboriginal groups willing to
take them. More typically, some museums have restricted
access to remains, and prohibited research of any kind on
human remains. Others permit only noninvasive research or
limit research to that consented to by potentially affiliated
tribes. Motivations for such restrictions may range from
purely symbolic, to political, or to perceived legal limitations.
For instance, many museums and tribes are under the false
assumption that research on human remains is prohibited by
the repatriation legislation. The NAGPRA does not prohibit
additional research on human remains (Stevenson, 1998).
Many museums and tribes have misinterpreted Section
3003 of the NAGPRA to mean that scientific research is
prohibited, but Section 3003 of the NAGPRA was intended
merely to prevent museums from delaying repatriation by
asserting that the NAGPRA requires additional research
(Goldstein, 2005; Lovis et al., 2004). In reference to \docu-
mentation," 25 U.S.C. 3003 (b)(2) reads, \Such term does
not mean, and this Act shall not be construed to be an
authorization for, the initiation of new scientific studies of
such remains and associated funerary objects or other
means of acquiring or preserving additional scientific
information from such remains and objects." In 2000, the
NAGPRA Review Committee reinterpreted Section 3003
in their proposed regulations for the disposition of cultur-
ally unidentifiable remains to mean, \Once inventories
have been completed, the statute may not be used to re-
quire new scientific studies or other means of acquiring or
preserving additional scientific information from human
remains and associated funerary objects [25 U.S.C. 3003
(b)(2)]" (Federal Register, 2000d: 36463). The proposed
regulations also acknowledge that during the inventory
process, additional study is allowed.
The importance of careful documentation in the inven-
tory process was clarified and explored in depth by the US
District Court in the case of Na Iwi O Na Kupuna O
Mokapu v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995). In
this case, the Native Hawaiian organization Hui Malama
I Na Kupuna O Hawai’i Nei sued the Navy and the Bishop
Museum on the grounds that they had violated Section
14 S.D. OUSLEY ET AL.
3003 of the NAGPRA by conducting additional research
on human remains, and asked that the court order that
results of the research from inventory reports be deleted.
The court found against Hui Malama, and in its review of
the history of the NAGPRA stressed that:
Contrary to Hui Malama’s contention, the legisla-
tive history actually elucidates Congress’ intent to
provide for the disclosure of as much information
as possible. Congress did not insert the language
in NAGPRA defining an inventory as a \simple
itemized list" as a stifling mechanism but rather
as a minimum standard... Congress intended not
only to permit but to favor inventories containing
more than a simple list to provide for more definite
cultural affiliation and ethnicity determinations,
which would in turn better satisfy NAGPRA’s ulti-
mate goal, accurate and efficient repatriation.
Further, in regard to the NAGPRA’s Section 3003, the
court noted, \Commentators have also uniformly inter-
preted Section 3003(e) as permitting, though not requir-
ing, further examination to facilitate proper repatriation."
In the specifics of the Navy’s inventory research, \the
information provided furthered the identification of the
cultural affiliation and ethnicity of individual skeletons,
and thus served the NAGPRA goals. According to the let-
ter and spirit of the NAGPRA Section 3003(e), the inven-
tory was proper." The court also recognized that \in the
course of the examination, the actual cultural affiliation of
at least four sets of remains appeared ambiguous, and
required more exacting scrutiny. Had the Federal Defend-
ant blindly relied on the information available before the
inventory process, some remains may have been repatri-
ated to an incorrect party. Such a result is obviously not
intended by the NAGPRA and was probably avoided by
the Federal Defendant’s concern for accuracy." Thus, the
importance of physical anthropology in generating accu-
rate inventories, and the acceptability of additional stud-
ies, have been supported by federal courts.
In fact, a memorandum from the National Park Service
(1993) to all federal agency and museum officials and
tribal representatives also emphasized the important role
of the physical anthropologist in documentation:
Museum and Federal agency officials and Indian
tribe and Native Hawaiian organization represen-
tatives may undertake additional documentation to
determine the identity or cultural affiliation of hu-
man remains and associated funerary objects which
would otherwise be identified as unaffiliated. Addi-
tional information may include:
A. For Native American remains, osteological and other
documentation may include measurements and obser-
vations for the limited purpose of determining the
geographic origin and cultural affiliation of the re-
mains.
B. The individual documenting the human remains should
have appropriate experience in skeletal biology and an
advanced degree with a specialization in physical an-
thropology, and be able to conduct analyses of skeletal
remains (including age, sex, race, osteometry, identifica-
tion of osteological disease, and the like).
Physical anthropologists are thus acknowledged to play
a significant role in the documentation of human remains
in museums subject to the NAGPRA.
TRIBES AND MUSEUMS/INSTITUTIONS
In the US, the repatriation debate has been couched in
terms of Native American spirituality and human rights
vs. the interests of science. But many physical anthropolo-
gists have acknowledged that Native Americans should
have the right to determine the disposition of the remains
of their ancestors. Unaffiliated remains are a point of con-
tention, however. Some Native American groups have
questioned the scientific value of remains if their origin is
truly unknown. Physical anthropologists have stressed
that experience is necessary in analyzing and inventory-
ing archaeological remains from a variety of archaeologi-
cal contexts, even if their origins are unknown, as opposed
to plastic casts or anatomical preparations. This experi-
ence is essential for the training of the next generation of
physical anthropologists, who will have to deal with the
inevitable new archaeological discoveries (Larsen, 2000).
There is no doubt that human remains have meaning
and significance for all peoples (Walker, 2004), and where
the remains are located and who controls them seem para-
mount to concerned parties. For instance, the remains of
saints are often retained as relics by the Catholic Church
for the faithful. The remains of saints John Chrysostom
and Gregory Nazianzen were recently transferred to the
Orthodox Church from the Catholic Church, which had
held them for centuries, as part of an effort at reconcilia-
tion (Williams, 2004). The US government employs over
400 personnel and spent $54 million in 2004 for the Joint
POW/MIA Accounting Command’s mission to locate and
retrieve some of the estimated 40,000 recoverable remains
of US servicemen from around the world (Mann et al.,
2003; Cole, 2004).
Consultation
Some Native American groups are especially interested
in several components of osteological analysis. Their most
consistent interest is in methods of determining age and
sex (Dongoske, 1996). Many Native American groups have
different treatments for the dead that depend on the sex
and age group of individuals. Age and sex estimation has
also been used as the first criterion to help identify possi-
ble known individuals. Many groups have expressed inter-
est in the overall health of individuals repatriated to
them. Based on disease indicators, dental health, and esti-
mated ages at death, we can provide them with a general
picture of health. Other questions pertaining to ways of
life and causes of death are answered to the extent that
we can, based on the preservation of remains. Tribes also
ask about burial practices, and the taphonomic indicators
can often give a good idea of what methods were used in
the aboriginal disposition of the dead. This information is
essential to tribes who have had several traditional mor-
tuary treatments of the dead, or who want to incorporate
traditional mortuary treatments in developing new meth-
ods of interment because they have never had to reinter
remains. Several tribes have begun to inquire about test-
ing remains in order to establish genetic connections, re-
construct diets, or look for traces of toxins in remains. The
NMNH Repatriation Osteology Laboratory policy is to not
conduct destructive analyses. Tribes may choose not to
bury repatriated remains immediately, and some have
indicated a desire to hire their own consultants to perform
further studies (Dongoske, 1996). These expressed inter-
ests illustrate the ongoing relationships of tribes to
human remains, not only because of their ancestral and
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
spiritual connections, but also because some groups have
an interest in learning from their ancestors in new ways.
More and more museums are asked in consultations
with tribes about the potential of DNA analysis to help
in affiliating remains. Several tribes have actively
begun to explore the potential of DNA analyses for
group affiliation (e.g., Steeves, 2000). For instance, the
NMNH has received inquiries from Native individuals
interested in using DNA to determine the identity of
remains that archival records indicate may be their
direct ancestors. We have also received many questions
about the use of DNA analysis to affiliate culturally
unidentifiable remains. Some DNA studies have shown
a potential to contribute additional lines of evidence
that can have a bearing on affiliation assessments (Parr
et al., 1996; Carlyle et al., 2000; Hayes, 2001; Kaestle
and Smith, 2002).
Most tribes are quite concerned with conducting any
reburials properly, and have decided to take their time in
determining the best approach for them. New approaches
are especially important for groups that associate ill-
nesses with handling human remains (Fine-Dare, 2002).
Many tribes have concentrated on collecting the available
information from many museums so that they can
adequately prepare for the repatriation and reburial of all
remains at some later time. Tribes have thus become repo-
sitories for information regarding their related remains
and objects in US museums. That information can be used
to help work out internal and external tribal agreements
that are necessary before repatriation can proceed (Kill-
ion, 2001).
Tribal visitors also inform us as to how the remains can
be treated properly while the remains are curated at the
museum. Most traditional-care requests are readily ac-
commodated through creative collections management.
For instance, many groups want to \feed" human remains
by leaving pollen, tobacco, or foodstuffs nearby. Placing
food in proximity to museum collections is generally
avoided as a practice, because food and other organics can
attract numerous pests that can harm collections. How-
ever, offerings inside plastic containers often meet the spi-
ritual need for feeding the remains and prevents the food
from attracting pests. One group specified that certain
remains were from warriors, and stipulated that they
should only be moved or handled in the early morning.
Another group instructed us to make sure that the crania
faced east. All of these requests were easily accommo-
dated. Requests for ritual smudgings, or other forms of
burning, are accommodated by special rooms with ventila-
tion systems that allowed the smoke to escape. These tra-
ditional-care requests include specifications of specialized
housing, indicating appropriate objects that can or should
be stored with the remains, providing a covering such as
red cloth, and facilitating access for feeding, ceremonies,
or prayers.
In other cases, for various reasons, tribes may choose
not to claim remains to which they are likely affiliated.
Some tribes still have taboos against returning remains or
even discussing the dead (Walker, 2004). In some cases at
the NMNH, archival information has revealed that partic-
ular individuals were killed by their own people for prac-
ticing witchcraft, or treason, and the affiliated tribes have
expressed a reluctance to accept those remains back into
their communities. A few tribes have entered into coopera-
tive agreements with institutions for the ongoing care of
their ancestral remains. For example, the Chumash tribe
has a cooperative agreement with the University of Cali-
15
fornia at Santa Barbara (Larsen and Walker, 2005), and
the Fallon Paiute-Shoshone tribe has an agreement with
various agencies (Simms and Raymond, 1999) that pro-
vide for tribally acceptable curation as well as opportuni-
ties for scientific research. The incorporation of tradi-
tional-care practices with contemporary curation approaches
is common in such cooperative agreements.
Perhaps most importantly, the consultation process has
helped improve relationships between museums and
tribes. Through repatriation consultation, many groups
become aware of museums as resources for their cultural
interests and later visit to conduct their own research,
using archival resources and collections (Killion, 2001).
Museums have more clearly recognized that tribes are a
resource for enhancing the cultural and educational value
of their collections through the continuing input of tribal
authorities.
DOCUMENTATION OF SKELETAL REMAINS
SUBJECT TO REPATRIATION AT THE NMNH
NMNH human skeletal collections
When the NMAIA was passed, the NMNH had approxi-
mately 32,000 catalog numbers of human skeletal remains
from throughout the world. Of this total, approximately
18,000 represented the remains of Native Americans from
the US that are subject to repatriation legislation. Also
included in the collections are approximately 7,000 non-
Native American skeletal remains from the US. The
18,000 Native American remains are primarily derived
from two sources: archaeological excavations that resulted
in the recovery of skeletal remains, and transfers from the
Army Medical Museum (AMM). The NMNH (then the
United States National Museum) and the AMM were
located next to each other on the National Mall at the time
of the transfers. Because the AMM collection contains the
remains of Native Americans who were killed in engage-
ments with the US military, these remains are particu-
larly significant and sensitive to Native Americans, for
they represent some of the most tragic events in the his-
tory of US-Native American relations. The composition of
the collection, however, is not widely known. The NMAIA
estimated the number of US Native American remains
transferred from the AMM to the Smithsonian at 4,000
individuals. The actual number of transferred remains is
much lower, i.e., only approximately 3,200 remains, of
which only 2,200 are Native Americans from the US.
These 2,200 Native American remains came to the AMM
primarily from two sources: directly from US Army per-
sonnel, and by the transfer of over 1,000 Native American
remains from the Smithsonian. The records of the AMM
indicate that approximately 800 of the US Native Ameri-
can remains were voluntarily collected by US Army per-
sonnel, often surgeons, in response to the 1868 request
from the Assistant Surgeon General \to aid in the prog-
ress of anthropological science by obtaining measure-
ments of a large number of skulls of the aboriginal races
of North America..." because he maintained that \it is
chiefly desired to procure sufficiently large series of adult
crania of the principal Indian tribes to furnish accurate
average measurements" (Lamb, 1917, p. 50–51).
Actually, the majority of the 800 remains collected by
US Army personnel came from contemporary Native
American cemeteries, most of which were in use between
the late 1860s and early 1890s. Some remains were
obtained from archaeological excavations of ancient sites,
but significantly (based on information that arrived with
16 S.D. OUSLEY ET AL.
the remains), only about 60 individuals had been killed in
battle. While archival records indicate most of the 60
deaths occurred in battles with US soldiers, a few
occurred during intertribal warfare, and for some, the cir-
cumstances in which individuals were killed are
unknown. Some remains derive from prominent histori-
cally documented encounters such as the Fort Robinson
Outbreak of 1879, the Modoc War of 1873, the Sand Creek
Massacre of 1864, and the Bear River Massacre of 1863.
Most of the skeletal remains from battlefield deaths were
obtained a considerable time after death. However, in one
extreme example, several Pawnee scouts who had served
with the US Army were mistakenly killed by the Army
after their discharge in 1869. One day later, an army hos-
pital steward decapitated them and defleshed their skulls,
and sent them to the AMM (Riding In, 1992; Baugh and
Makseyn-Kelley, 1992). Also represented within the AMM
collection were Native American individuals who had
been executed by the US Army, notably Captain Jack and
several other Modoc who were hanged after the Modoc
War of 1873. Those individuals killed in battle or executed
were given highest priority in repatriation by the NMNH.
The Modoc remains were repatriated in 1984, prior to the
NMAIA, and the Sand Creek, Fort Robinson, and Pawnee
scout remains were repatriated between 1993 and 1995.
Nearly all remains that the Smithsonian received from
the AMM had actually been transferred to the AMM by
the Smithsonian earlier. In 1869, the Smithsonian agreed
to transfer all human remains, including Native American
remains, to the AMM. The agreement was in effect until
1898, and the AMM had received most of its Native Amer-
ican remains from the Smithsonian. Most of the Smithso-
nian human remains that were transferred to the AMM
were obtained from archaeological excavations. A series of
transfers occurred over many years, aided by the proxim-
ity of the museums to each other. After the agreement
ended, the AMM transferred most of its US Native Ameri-
can and other remains back to the Smithsonian between
1898 and 1904. Up to that time, only the staff at the AMM
had been studying skeletal remains. It was not until 1903
that Aleš Hrdlička, the first physical anthropologist at the
Smithsonian, was hired.
Archival documentation
Researching archival documentation goes hand-in-hand
with skeletal documentation. In its 150-year history,
the NMNH has collected or received remains acquired
through planned excavations, accidental discoveries, pur-
chases, and donations. A few remains were noted as
\Indian," with no further provenience. Archival errors are
also a concern. Sources for errors in the documentation
and inventory of human remains include the excavators,
archaeologists, or anthropologists in the field who com-
piled information, museum accessioning and cataloging
staff who numbered remains and specimens, museum
curators and visiting researchers who temporarily relo-
cated remains, data-entry personnel who entered informa-
tion, and other museum staff who work with the collec-
tions. For most of the history of the NMNH, remains were
cataloged by department staff, and information such as
skeletal elements present (whether a cranium, mandible,
and postcranial bones were present, individually and in
lots), sex estimates, age group (infant, adolescent, or
adult), and provenience were written on catalog cards.
Occasionally, an inventory of the major bones was also
entered on the catalog cards. In the 1980s, some of the
information from catalog cards and accession records was
assembled, and coarse-level skeletal inventories were con-
ducted. This information was integrated with storage
information in a computerized database. These data were
the basis for collections management operations, for di-
recting visiting researchers to remains they were inter-
ested in, and for inventory mailings to all federally recog-
nized tribes in 1985 before the NMAIA, and in 1995,
under the NMAIA. Also, thanks to the database, the stor-
age locations of remains can be sorted and printed out,
and remains can be efficiently retrieved.
Assessing biological relationships must begin with refe-
rence groups with well-established affiliations, because
well-documented remains form the basis for identifying
remains with less certain cultural affiliations. Professio-
nal archaeologists excavated most of the Native American
remains in the physical anthropology collections, and
their publications and field notes are evaluated as part of
the repatriation report. At the NMNH, many of the origi-
nal field notes are in the National Anthropological
Archives (NAA), part of the Department of Anthropology,
though other archives from around the country are used
as needed. The cultural affiliations of remains from some
archaeological sites are also investigated through histori-
cal accounts such as the journals of Lewis and Clark
(Moulton, 1983–2000). Numerous specialists, including
Native American authorities, are also consulted. Ubelaker
and Grant (1989) reported that only 14 named individuals
had been found in the collections at that time, and since
then, after concerted documentation efforts, 36 additional
named individuals were found.
Important information from the original excavators is
sometimes found written on notes stored with the re-
mains. This information often had not been entered into
the Department of Anthropology database. When the
Repatriation Osteology Laboratory finds this information,
the departmental and skeletal documentation databases
are updated. Likewise, information written on remains
has proved to be extremely valuable for verifying archival
records. Virtually every bone has a catalog number writ-
ten on it, and previous field and museum numbers are
often found on the remains. Other information such as
geographic location and/or a tribe name are often written
on the remains, especially the cranium. Occasionally, the
recovery date and circumstances are written only on the
remains. Ultraviolet light is used to highlight writing in
faded ink. Occasionally, this writing has proved essential
in finding out where remains came from. One cranium
from Alaska (P346243) was, according to the electronic
database, from an unknown location in Alaska, but ac-
cording to the catalog card, was from Point Hope, Alaska,
and had the catalog number and \Pt. Hope, Alaska" writ-
ten on the left temporal by the NMNH personnel. Other
remains from Point Hope had been previously repatriated.
The cranium was numerically within a large series of
crania from Port Clarence, Alaska, collected by Henry
Collins in 1929. Also, this cranium, like all others from
Port Clarence, had \Ex Clarence" written on it in pencil
by Collins. The original collector’s writing helped to estab-
lish that the cranium came from Port Clarence rather
than from Point Hope (Lippert, 2002).
Skeletal documentation at the NMNH
Because of its holistic nature, skeletal documentation in
the Repatriation Osteology Laboratory (ROL), as part of
the NMAIA responsibilities, involves compiling informa-
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
tion for the benefit of physical anthropologists and Native
Americans. While physical anthropologists have tended to
concentrate on well-defined studies of specific bones,
pathological categories, sites, or regions, often examining
only specific age groups, the ROL has the duty of record-
ing information from all remains and spheres of physical
anthropology, using the latest techniques in response to
Native American claims for remains. As a result, unusual,
unexpected, unrecognized, or previously unseen patholog-
ical changes and anomalies have been discovered, from
Albright hereditary osteodystrophy, Binder syndrome,
hyperostosis frontalis interna, mycotic infections, and ver-
tebral shifts in the Southwest (Mulhern, 2002; Dudar and
Ortner, 2004; London et al., 2005; Mulhern et al., 2005, in
press) to scurvy, echinoccocosis, and probable fluorosis in
Alaska (Mulhern and Jones, 2003).
Before the NMAIA, the documentation of remains at
the Smithsonian had not been systematic, and had
depended on the curators and their particular interests.
Though Aleš Hrdlička published cranial measurements
through many articles published in the Proceedings of the
United States National Museum, each of which concen-
trated on a particular part of the collection (e.g., Hrdlička,
1942), relatively little information was recorded system-
atically. Also, there was little hope of integrating the
numerous studies that had been conducted over the years
on the department’s collections. Raw data from visiting
researchers were provided to the department only rarely.
Moreover, while remains from some regions of the country
(such as the Plains) were studied thoroughly and repeat-
edly, other regions (such as the Northeast and mid-Atlan-
tic) have infrequently been examined. Only recently has
the Repatriation Office begun to compile a list of the thou-
sands of publications that have made use of the Native
American physical anthropology collections of the NMNH
and the specific individuals studied.
The lack of continuity and communication on the part of
scientists who researched the collections frustrates Native
American groups who desire quick repatriations. After all,
if the remains have been in the museum for over 60 years,
hasn’t all research been done that could have been done?
Physical anthropologists recognize that, over the years,
new techniques emerge, old techniques change, and
restudy produces new information (Buikstra and Gordon,
1981). The data that curators Aleš Hrdlička and T. Dale
Stewart collected were and are still valuable, but are often
insufficient for answering new questions. New analytical
methods are required, because cultural affiliation has
rarely been an explicit goal, much less in terms of a pre-
ponderance of evidence; rather, it was simply accepted, at
times incorrectly, in characterizing skeletal variation.
Recently, upon request, Charles Utermohle made avail-
able craniometric data he had collected for his dissertation
(Utermohle, 1984) that proved essential for assessing the
cultural affiliation of remains from Point Barrow, Alaska
(Hollinger et al., 2004), using new statistical methods
such as R-matrix analysis (Relethford and Blangero,
1990). Utermohle’s craniometric data were significant be-
cause they included remains from other institutions and
from remains that had been repatriated.
Before repatriation legislation, most skeletal data were
recorded by anthropologists in idiosyncratic formats with
little hope of consolidation due to a lack of standards,
unlike molecular anthropologists, who have cooperatively
helped build extensive databases through publishing their
data and contributing to an online database such as Gen-
Bank (Kaestle and Horsburgh, 2002). Standards for Data
17
Collection from Human Skeletal Remains (Buikstra and
Ubelaker, 1994) was written in response to the NAGPRA,
to minimize the loss of information and maximize the com-
parable information collected after the repatriation of
Native American remains. The Standards is the basis for
documentation in the ROL. Though there is no destructive
sampling by the ROL, other methodological improvements
have been developed by the ROL in response to new re-
search results, challenges, and opportunities (Ousley and
Billeck, 2001; Ousley and McKeown, 2001).
While specialized data can be used to answer specific
questions, the value of large-scale comparisons of standar-
dized data cannot be overstated, and is well-illustrated in
The Backbone of History (Steckel and Rose, 2002). In it,
several authors compared health indices across middle-
class 18th century Canadians, 19th century almshouse
inhabitants, South Carolina slaves, and Native Americans
from various time periods. While some of their results
were unexpected and need verification, their results can
be fine-tuned to best measure health through osteological
indicators. Alternatively, some assumptions about the
socioeconomic status of some samples may need to be re-
vised (Muller et al., 2002; Steckel et al., 2002). Other data-
bases, such as the Boas Anthropometric Database (Jantz,
1995, 2003), provide an outstanding basis for the study of
Native American variation. The Standardized Osteologi-
cal Database (SOD) computer program, funded by the
National Science Foundation, was an effort to computerize
the Standards by enabling the entry of data into a stand-
ardized database format (Rose et al., 1996). However, the
program is DOS-based, and not particularly user-friendly.
A lack of additional funding prevented further develop-
ment and updates to the SOD program (J.C. Rose, per-
sonal communication). Early on, however, the ROL had a
clear need to produce a similar computer program, and it
has been evolving for over 10 years. The current version is
Windows-based, with extensive error-checking procedures
and numerous enhancements. The staff of the ROL hopes
to make the data-entry system available to all researchers
by early 2006, and it will be available at no cost. This pro-
gram may finally allow the collection and integration of
osteological data from repatriation, archaeological, and
forensic contexts into a common format.
The data-entry system in the ROL runs on networked
PCs, and the data are stored on a file server. Using a PC
has numerous benefits for data entry. Catalog-number
entry errors are minimized, because the catalog number is
verified and automatically entered in each data table; data
values are checked as they are entered to prevent common
errors; pathology data entry is expedited because when
entering complicated data, full-text terms are used with
check boxes and radio buttons, rather than writing trino-
mial codes onto a paper form, as in the Standards (Fig. 1);
a comments field is present in each data table for descrip-
tion and further details of anything notable. Certain data-
base information, however, such as burning patterns and
cut-mark locations and orientations, is quite variable in
terms of what is recorded, and is not easily amenable to
comprehensive database formatting and scoring, and is
supplemented using descriptions, illustrations, and photo-
graphs. Additionally, the ROL staff has electronic access
to information from other data tables, such as coarse-level
inventory information, provenience information, and
scanned catalog cards. The entered data are part of a rela-
tional database system for comparisons of observations at
any scale of analysis.
18 S.D. OUSLEY ET AL.

Fig. 1. Pathology data-entry screen of Repatriation Osteology Laboratory data-entry program.

As part of a standard protocol, the staff of the ROL con- TABLE 1. Counts to date of documentation records
ducts a thorough skeletal and dental inventory, scores age in the Repatriation Osteology Laboratory database
and sex indicators and estimates of age and sex, describes Data type Count
skeletal pathological lesions, collects taphonomic observa-
tions, records nonmetric traits, and collects cranial and Skeletal inventory 11,200
Age and sex 9,500
postcranial measurements. Radiographs and photographs
Cranial measurements 4,600
are taken of all crania and significant pathological Digitized: 2,800
changes as part of the permanent record. Table 1 shows Postcranial measurements 3,200
the different data types collected and the number of data Dental inventory 6,400
records entered to date in each. Dental morphology 3,800
The sequence of skeletal analysis in the ROL parallels Pathology 28,100
the sequence of other forensic anthropology investiga- Taphonomy 8,500
tions. The first task of the ROL is to verify that the Nonmetric information 6,100
remains present for the catalog number are human. Next, Color slides 42,400
Radiographs 38,400
the question is whether the remains are Native American
or not. There are general morphological traits that can aid
in determining probable Native American ancestry, as
well as archaeological and archival data. More reliable identification. Any \positive" identification would involve
determinations involve statistical analyses, as mentioned. weighing the preponderance of evidence from several
Many museums with large skeletal collections have some sources, one of which would be skeletal data. Often, deter-
remains with poor provenience information that are mining cultural affiliation depends on integrating and rec-
assumed to be Native American, an assumption that may onciling biological information with other lines of evi-
be incorrect (Pickering and Jantz, 1994). dence, most often the archaeological and archival docu-
If the remains are Native American, a tribal assessment mentation. The holistic approach to collections research
is made, using all relevant information. Any of the vari- also necessitates that physical anthropologists and ar-
eties of data collected from remains has the potential to be chaeologists work together to understand archaeological
used to establish cultural affiliation. In possible individual sites and remains. Additional information in repatriation
identification cases, the skeletal information is judged to reports comes from other experts such as linguists, cul-
be either consistent with, or not consistent with a possible tural anthropologists, tribal historians, religious leaders,
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
and academics from other institutions. The culmination is
the integration of biological, temporal, cultural, and spa-
tial contexts as they relate to remains.
Skeletal inventory. The skeletal inventory is the first
and most basic step in the documentation protocol. The
bone-specific information in inventories is used to esti-
mate the number of individuals who are present from a
site or in each catalog number. A complete inventory of
each catalog number is necessary, because a catalog num-
ber does not always represent a discrete individual. In
examining well-represented individuals from sites with
numerous remains, bones from one catalog number have
often been commingled with bones from another individ-
ual from the same site. Sometimes these commingled ele-
ments have another catalog number written on them,
meaning that they were correctly assigned when acces-
sioned, and were subsequently separated inadvertently;
sometimes they have the incorrect catalog number written
on them, meaning that they were commingled upon
arrival at the museum. Commingling of remains can be
due to burial practices (ossuaries or intrusive burials),
natural processes (taphonomic disturbances), collection
practices (selective collecting of certain elements, most
often the cranium), collection management procedures
(numbering of bones, or consolidation of catalog numbers
by bone), or the inadvertent mixing of bones by museum
staff or visiting researchers after analysis. On the whole,
the catalog numbering mistakes have been relatively few,
considering that the catalog number and site name were
written in ink on virtually every bone during cataloging.
Animal bones were not always recognized during the orig-
inal cataloging process, and are sometimes found stored
with human remains.
The skeletal inventory has proved to be essential for
several reasons. First, the coarse-level inventories (cra-
nium, mandible, and postcrania) and storage location
information in the departmental database are updated.
Occasionally, catalog numbers have more or fewer skeletal
elements than they are supposed to have, or the recorded
age group is incorrect. These mistakes are often confirmed
as data-entry errors when compared to the catalog card
information, but apparently missing elements require fur-
ther searching through collection storage areas. In some
cases, during documentation, remains of one individual
are found in several catalog numbers, and in others, mul-
tiple well-delineated individuals are present in a single
catalog number. The minimum number of individuals
(MNI) and estimated number of individuals by element
and age group (ENI) are also calculated for each catalog
number. The hands-on examination of remains has
enabled better estimates of the number of individuals
present and from where they came.
Age and sex. Age and sex estimates are conducted using
methods outlined in the Standards, with the recent addi-
tion of sternal rib end stage. Age in subadults is estimated
using dental development, epiphyseal union, and union of
primary ossification centers. Age in adults is estimated
using pubic symphysis and auricular surface changes if
present, tooth wear, and cranial suture closure. All age
indicators are recorded as well as the age estimate. Sex
determination in adults is primarily based on the pelvis
when available, and postcranial and cranial robusticity
observations. Age and sex estimates are useful for anthro-
pologists, especially in paleodemography. Sex determina-
tion can be especially important when assessing cultural
affiliation using metric methods. Sex-specific analyses are
19
generally more accurate, and an incorrect sex estimate
can lead to incorrect results when the level of sexual
dimorphism is high. Native representatives often want to
know the sex and age group (adults vs. nonadults) of re-
mains, because differing mortuary rites often depend on
age and/or sex. Age estimates often help in the inventory
process by discovering commingled remains and improv-
ing the chances to find a match to an orphaned bone,
using age estimates from other remains. On large sites,
accessing inventory and age-estimate information from
other remains is indispensable in reassociating remains.
Demographic or age and sex profiles are also used in for-
ensic anthropology to test whether a positive identifica-
tion is possible. One possible individual identification at
the NMNH involved certain remains thought to be of a
specific male chief from a battlefield, but the remains in
the collection were found to be too young, and of a female
(Hollinger and Botic, 2005).
Taphonomy. At times, taphonomic observations provide
the most important information, yet they are also some of
the more challenging data to record. In addition to bone
color and weathering stage, the taphonomic data collected
are shown in Table 2. The categories were modified and
considerably expanded from the Standards, which concen-
trates on human-induced taphonomic observations such
as cut marks and burning. Burned bone has been rare in
the NMNH collections documented so far, while the vari-
ety of interment environments in the collections is consid-
erable. The NMNH collections include remains of individ-
uals collected a matter of days after death to several thou-
sand years. Taphonomic observations have proven essential
in helping to verify written documentation and in determin-
ing cultural affiliation. For instance, remains from a scaffold
interment will often show sun-bleaching. Lichens are seen
opposite the sun-bleached side of many Alaskan remains
that were exposed to the elements. Buried remains, which
are the most common type of interment, show traces of soil
even after previous cleaning by field crews and museum
staff. Fly larva and pupa casings, often observed in the nasal
aperture, combined with a lack of sun-bleaching, are seen in
surface and shallow-container interments when the con-
tainer was not completely sealed. Green staining due to con-
tact with copper or brass can help establish a postcontact
date for remains. Because mortuary treatments change over
time, they can be used to roughly date the remains, which
also aids in determining possible cultural affiliations. In one
case of a possible identification at the NMNH, the remains of
a specific individual were reported as having been retrieved
immediately after a battle, but the taphonomic observations
indicated that the individual in the collections had been
buried for a time and had extensively decomposed.
Dental observations. The ROL records dental inventory,
development, pathology, wear, modifications, and mor-
phology. As mentioned, dental development is the primary
basis for estimating age in subadults. Dental health, espe-
cially expressed in the number of retained teeth and the
number of lesions, is a very good indicator of overall
health since childhood (Kelley and Larsen, 1991). Enamel
hypoplasia, expressed in number and location, indicates
the number and timing of developmental insults. The
overall dental picture reflects diet and subsistence, which
can help determine cultural affiliation. Dental modifica-
tions include cultural activities such as filing, chipping,
and labret wear among certain Northwest Coast groups,
20 S.D. OUSLEY ET AL.
TABLE 2. Taphonomic categories of observations recorded at NMNH
Staining Adherent materials Cultural modifications
Green (copper) Dried body fluids Perimortem cut marks
Green (algae) Desiccated tissue Perimortem/postmortem
fracture
Red (ocher, cinnabar, Hair Postmortem
or vermillion) drilling/cutting
Iron/ferrous metal Insect debris/ Burning
larvae/pupae
Black Lichens
Soil Soil
Roots/rootlets Textile/textile
impressions
Mottled?
especially among Aleuts, Eskimos, and Koniags. Also,
dental fillings have been used to indicate probable non-
Native American ancestry. Because the use of labrets is a
relatively recent development in the Point Barrow area,
the presence of labret wear helped indicate that remains
of some individuals were historic rather than prehistoric
(Hollinger et al., 2004). Dental morphology (the Turner
system) and dental wear also help identify Native Ameri-
can individuals, and some anthropologists have used them
to discriminate between certain groups (Turner and Ute-
rmohle, 1990). The potential for tribal identification has
not been investigated yet in a discriminant framework,
though recent results indicate that the traits are useful in
determining ancestry in other groups (Edgar, 2002). A
high degree of dental wear can be an indicator that
remains are probably Native American, but wear reduces
the number of dental morphology traits that could be used
for cultural affiliation. Dental metrics were taken for a
time in the ROL, but excessive interobserver differences
stopped further collection.
Craniometrics. For the last 6 years in the ROL, crania
and mandibles have been digitized using a three-dimen-
sional digitizer. Traditional craniometrics are calculated
from the x, y, and z landmark coordinate data collected
from the skull. Specialized software saves the craniomet-
rics (including calculated subtenses and angles) and land-
mark coordinates in separate data tables. The main
advantages of using a digitizer are that it eliminates
many sources of error, saves time, and produces a better
morphological archive of the skull (Ousley and McKeown,
2001). Traditional craniometrics are important for com-
patibility with other databases, such as those of Howells
(1973, 1996). Traditional and nontraditional craniometrics
(interlandmark distances) have been used extensively to
measure group variability, find morphological outliers,
estimate sex, and investigate possible affiliations (Mann
and Ousley, 2000; Ousley and Billeck, 2001). Mandibular
measurements and cranial angles have also proven useful
in determining cultural affiliation on a number of occa-
sions. Our evaluations of cultural affiliation usually em-
phasize craniometrics because of several statistical advan-
tages, such as providing posterior and typicality probabil-
ities (Jantz, 1993; Billeck et al., 1995; Ousley and Billeck,
2001; Ousley et al., 2003; Hollinger et al., 2004). Discrimi-
nant function analysis involves certain statistical assump-
tions which can be tested, and has statistical caveats that
must be considered, especially related to group sample
Surface damage Curation modifications
Sun-bleaching Excavation damage
Plant root damage Laboratory cut marks
Rodent tooth marks Bleaching/cleaning
Carnivore tooth Coatings/glue
marks/damage
Scratches/abrasions Plaster/epoxy/
reconstruction
materials
Warping due to Sampling
ground pressure
Contact erosion (coffin wear) Cut marks
Repairs
sizes and the number of estimated parameters, but as
mentioned above, other statistical techniques are avail-
able with fewer restrictive requirements (Huberty, 1994;
Krzanowski, 2000; Ousley and McKeown, 2003).
Postcranial metrics. Measurements of postcrania in the
ROL follow the Standards and are primarily used in age
estimation in subadults, and in sex and stature estimation
in adults. Stature is a measure of overall health, and is
especially valuable when compared within groups. Post-
cranial measurements can also be analyzed statistically to
determine Native American vs. non-Native American
ancestry (Ousley and Berger, 2000) and cultural affiliation
when there are postcranial differences among groups.
Further, a stature estimate for an individual, when com-
pared to historic stature records from tribes (such as from
the Boas anthropometric data; Jantz, 1995), can contrib-
ute to a preponderance of evidence for cultural affiliation.
In the ROL, an effort is made to reunite remains of the
same person that were separated in the field or while in
the museum. Age estimation is especially important in
reuniting subadult remains. In one case at the NMNH,
postcranial metrics were useful in reuniting the remains
of a child. The crania and mandibles of two children
(P365907 and P365908) from a house pit at the Birnirk
Site in Alaska were analyzed in the ROL (Hollinger et al.,
2004). The postcranial bones of a child (P365901), lacking
the atlas and axis, were found adjacent to the crania. The
postcrania very likely belonged with one of the two crania,
but the field notes and a photograph of the remains in situ
were ambiguous as to which cranium the postcrania
belonged. P365907 had an estimated dental age of 11–13
years, and P365908 had an estimated dental age of 6–7
years. Merchant and Ubelaker (1977) calculated age esti-
mates for long bone lengths, based on dental development
in the Arikara. Using the long bone length standards of
Merchant and Ubelaker (1977), the postcrania should be
from a child approximately 6 years old. However, because
adult Eskimo groups are much shorter than adult Ari-
kara, a sample of Eskimo children was used in compari-
sons of femur and humerus lengths. Using bootstrapped
long bone lengths in comparison to dental development, the
postcrania are much more likely to come from the 11–13-
year-old (P ¼ 0.29) than from the 6–7-year-old (P < 0.0002),
so they were reassociated with P365907 (Ousley and Bill-
eck, 2003). The estimated age of the Eskimo remains was
actually 5 years younger using the Arikara sample than
when using Eskimo samples. Of course, group-specific age
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
estimates are only possible after many remains have been
skeletally documented. The Aleuts appear to be even
shorter than the Eskimo, and they have the shortest legs in
proportion to stature of any Native American groups based
on data in the Boas Anthropometric Database. Clearly, sub-
adult age estimations using population-specific long bone
lengths estimate age more accurately.
Pathology. Pathological observations follow the descrip-
tive format of the Standards, and, as mentioned, full-text
terms are used for data entry. Anomalies (especially verte-
bral anomalies, e.g., cranial/caudal shift, lumbar ribs) are
entered similarly. Comments can be entered for further
description and diagnosis, but the emphasis is on stand-
ardization.
One commonly overlooked aspect of pathology is related
to the standardized collection of multiple data types. Dis-
ease load and nutritional deficiencies can affect growth
rates and adult stature, and long bone lengths recorded
without pathological observations can give a skewed pic-
ture of normal growth in stressed populations. Compari-
sons of disease rates and expression in adults who sur-
vived childhood stressors, and children who did not, can
be informative.
Cranial modification or reshaping. The presence of
marked cranial modification serves as an unambiguous
indicator of Native American ancestry, because no other
North American ethnic groups practiced intentional cra-
nial modification. The antiquity of modification in areas
that show it historically is not well-documented, however,
and the lack of cranial modification is seen in remains
from earlier time periods. Cranial modification is recorded
similarly to the Standards, but with additional informa-
tion. The different kinds of modification seen in the ROL
are not fully accounted for in the Standards, so they were
extended somewhat. For instance, we score the relative
degrees of modification for both anterior and posterior
aspects of the cranium, which vary widely, and have also
noted that the frontal bone can exhibit tabular or circum-
ferential modification independent of the kind of posterior
cranial modification. If adequately described and
recorded, cranial modification can be used to assess cul-
tural affiliation. Additional documentation of cranial mod-
ification is accomplished through digitizing the cranium,
because coordinates of the frontal, parietal, and occipital
arcs are recorded.
Nonmetric traits. Nonmetric, discrete, or epigenetic
traits of the cranium and postcrania are collected in the
ROL, and include traits listed in the Standards and in
Hauser and De Stefano (1989). Thus far, the traits have
merely been recorded and not statistically analyzed in the
ROL. The ROL is investigating the utility of these traits
and other morphological traits that were shown to vary
among other groups (Edgar, 2002; Hefner et al., 2004;
Ousley and Hefner, 2005).
Radiography. Radiographs are essential in noninva-
sively determining tooth development, and thus in esti-
mating age in subadults. They are also useful for analyz-
ing pathology. Radiographs of each skeleton are taken,
largely following Standards guidelines. Three views of the
cranium and mandible are taken (anterior-posterior,
mediolateral, and superior-inferior), as are oblique shots
of the maxilla and mandible, to better record tooth devel-
opment. Anterior-posterior radiographs of the humerus,
femur, and tibia are taken, as are views of any pathologi-
cal bones. A thorough description of radiographic proce-
21
Fig. 2. Superior view of glass beads in second permanent
molar crypt of 6-year-old child (P363545). Inset: Lingual view.
dures is found in Bruwelheide et al. (2001). Radiographs
can also identify gunshot wounds due to the presence of
lead traces, which can establish a time period and possibly
aid in identifying an individual if the circumstances of
death are known. Radiographs have been used on occasion
to indirectly assess affiliation, or at least time depth, due
to the inadvertent discovery of glass beads inside bony
cavities. In one instance, the mandible of a child approxi-
mately 6 years old (P363545) showed radiodense objects
inside the second molar tooth crypt (Fig. 2). The objects
turned out to be glass beads that helped verify the date of
the remains as postcontact.
Photography. Photographing remains serves several
documentation purposes. It forms part of a permanent
record, records the general condition of the bones, and is
especially useful in cases of unusual taphonomic condi-
tions. Additionally, patterns of bone color are recorded.
Photography also objectively documents cranial deforma-
tion better than descriptions or databases, and can be con-
sulted as new methods of classification develop. Each shot
is taken with color slide film and black and white film.
Photographs are taken of nearly all crania from six sides
in standard orientations, and occlusal views of the man-
dibular dentition are also photographed. Photographs of
many pathological conditions are also taken. The photo-
graphic documentation in the ROL is in some ways not as
extensive as recommended in the Standards, which, for
instance, specifies photographing all age indicators, but is
more comprehensive in photographing incomplete crania.
Case studies in cultural affiliation
Several examples illustrate the challenge of assessing
cultural affiliation and the critical role that information
from physical anthropology played in evaluating cultural
affiliation.
The \Sioux" \Giant". In 1882, the AMM acquired the
skeleton of a \gigantic Indian" at least 7 feet tall, maybe
even 8 feet tall. The NMNH catalog card is shown in Fig-
ure 3. According to accession records, Dr. William Collins
(of Madison, IN) procured the skeleton, and claimed that
22 S.D. OUSLEY ET AL.
Fig. 3. Catalog card for P227508.
it was the skeleton of a full-blood Sioux and the largest
skeleton in America (Collins, 1882). The skeleton was
transferred to the Smithsonian in 1904, and was assigned
catalog number P227508.
In examining the remains for a repatriation claim from
the Sioux, the analysis revealed that the individual was a
male aged 30–40 years old. Several features stood out,
indicating probable European ancestry, among which
were a relatively narrow cranium, narrow bizygomatic
breadth, narrow nasal aperture, narrow interorbital dis-
tance, gracile zygomatics, and a narrow and deep V-
shaped palate. Additionally, his teeth showed far less wear
when compared to Plains Indians of the same age range.
Research into the acquisition had located a newspaper
article that indicated that the nickname of this \giant"
was \Big Injun Joe," who passed himself off as an \Indian
doctor and chief" who had died in Madison, Indiana in
1878 (Evening Courier, Madison, Indiana, July 5, 1882).
A discriminant function analysis was performed using
13 craniometrics recorded from 19th century Euro-Ameri-
cans and Plains Indians. The function assigned 93% of the
297 Indians and 83 Euro-Americans correctly cross-vali-
dated, and classified him as Euro-American, with a poste-
rior probability of 0.96 (Fig. 4). Because of the large size of
the cranium, possibly due to acromegaly (Ortner, 2002),
shape variables (Darroch and Mosimann, 1985) were used
in another discriminant function, and the posterior proba-
bility for Euro-American membership was 0.998. This per-
son was clearly Euro-American biologically. The lower
amount of tooth wear also suggests that this person was
Euro-American culturally. The preponderance of evidence
indicates that these remains are not of a Native American.
His alleged stature of 8 feet, like his ethnicity, is also inac-
curate. Using the method of Fully (1956) for stature recon-
struction (see also Lundy, 1988), his estimated stature
was approximately 6 feet, 2 inches (Ousley et al., 2000).
The \Kiowa horse thief". In 1870, a partial cranium
was collected by a US Army surgeon and donated to the
AMM (Ousley et al., 2000). The remains were accompa-
nied by a brief description of the context: \the skull of a
Kiowa Indian killed near [Lampassas, Texas] in December
1869, while stealing horses" and \found . . . near scene of
an Indian foray" (Notson, 1870). The cranium was trans-
ferred to the Smithsonian in 1898, and was assigned cata-
log number P243491.
Analysis of the remains indicated a male aged 15–17,
with extensive perimortem trauma. The parietals show
depressed fractures of the outer table, sharp-force trauma
involving the inner table as well, and radiating fractures.
Both temporals are only partially represented, and there
are additional radiating fractures into the parietals. The
nasal bones were broken perimortem, and the alveolar
bone of the first and second right maxillary incisors shows
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
Fig. 4. Discriminant function results for P227508 and P243491.
avulsion fractures. The observed pattern of trauma is con-
sistent with someone who was beaten to death.
However, morphological observations of the cranium,
including a narrow nose with a sharp inferior nasal mar-
gin, a short facial height, a V-shaped palate, and a rela-
tively high cranial vault, indicated European ancestry. He
also showed tooth wear consistent with other Plains Indi-
ans, in contrast to the \Sioux Giant." A discriminant func-
tion using 19th century whites and Plains Indians was
undertaken to determine if European ancestry were indi-
cated. The function assigned 93% of the 297 Indians and
83 Euro-Americans correctly cross-validated, and classi-
fied this individual as Euro-American, with a posterior
probability of 1.0 (Fig. 4). The preponderance of evidence
indicates that these remains are not of a Native American.
The \Kiowa" on a scaffold. As mentioned, individuals
with known affiliations are essential to affiliating the
remains of earlier groups. However, even \known" affilia-
tions are worthy of further examination, once enough
reference data are collected. Craniometric analysis can
then be used as a check of archival records, especially
when original documents are written in script and must
be interpreted, or when the wording is ambiguous. For
example, one cranium (P243914) was originally acces-
sioned by the AMM with a \Kiowa" affiliation, based on
the letter of 1874 from the donor, Acting Assistant Sur-
geon A.I. Comfort (Fig. 5). Examination of the original
documents revealed a mistranscription of \a known
Indian" as \a Kiowa Indian" (see catalog card in Fig. 6),
thus requiring a reassessment of cultural affiliation (Bill-
eck et al., 2005). Also, Army personnel recovered the cra-
nium from a scaffold, a form of interment inconsistent
with Kiowa mortuary practices (Grayson, 1889). The
remains were found in a region that the Kiowa did not fre-
quent at the time. The donor reported that Indian scouts
23
had told him that the cranium came from a \Ree" (Ari-
kara) Indian. The Arikara did not live in the area at that
time, and did not scaffold their dead. However, the Sioux
were living in the area at the time, and the Sioux did scaf-
fold their dead. In the ROL, the sex was estimated mor-
phologically and metrically to be female. Discriminant
functions involving multiple groups indicated that the
most similar groups were the Sioux and the Arikara. A
stepwise discriminant analysis for Arikara and Sioux
females indicated the seven best measurements. The dis-
criminant function using the seven measurements was
correct for 87% of 45 Arikara females and 86% of 36 Sioux
females cross-validated, and classified P243914 as Sioux,
with a 0.96 posterior probability. The preponderance of
evidence indicates that the individual was Sioux.
The trophy skull. Trophy skulls have been found in
Plains sites, and present a challenge for assessing tribal
affiliation (Ousley and Billeck, 2001). At the Sully Site
(39SL4), a historic Arikara site excavated in the 1960s,
one set of remains (P388379) consists of a partial cranium
and partial mandible of a male. The remains were exca-
vated from a cemetery, but not from a grave pit (Ousley
and Billeck, 2001; Billeck et al., 2005), and show different
taphonomic characteristics (color and soil staining) from
the rest of the remains recovered from the site. Before the
remains were buried, the cranial base was removed, and
holes were drilled through the right temporal bone and
zygomatic arch. The cranium may have been hung upside
down as a war trophy, with the holes used for hanging it
upside down by a cord (Owsley et al., 1994). Douglas Ows-
ley, a curator of physical anthropology at the NMNH,
assessed the sex as male and remarked on the Sioux-like
morphology.
Morphological and craniometric analyses confirmed
Owsley’s sex estimate. A two-way discriminant function of
24 S.D. OUSLEY ET AL.
Fig. 5. Letter from A.I. Comfort to Surgeon General regard-
ing P243914.
Fig. 6. Catalog card for P243914.
Arikara and Sioux males, using conventional measure-
ments, was initially limited to the 24 measurements avail-
able from P388379, and stepwise selection of variables
indicated a subset of 16 variables to be used. The discrimi-
nant classified P388379 as Sioux, with a 0.75 posterior
probability, and was correct for 78% of 54 Arikara males
and 76% of 41 Sioux males. Because 42 landmarks were
available for digitization, up to 861 interlandmark distan-
ces (ILDs) could be calculated and used in a discriminant
function. Using stepwise discrimination, 11 ILDs were
TABLE 3. Comparisons of Army Medical Museum crania and
the unknown cranium from the Bureau of Indian Affairs
AMM AMM BIA unknown
Measurement 7042 7023 skull
GOL 184 182 182
XCB 142 140 140 (broken parietals)
BBH — 136 133/134 (basion damaged)
Opisthion to 362 362 363
Nasion Arc
Circumference 520 515 515
ZYB 139 143 143 (estimated, left
zygomatic missing)
All measurements are in mm. Three letter measurement abbre-
viations follow Howells (1973).
selected, only two of which were the equivalent of conven-
tional measurements. Using the ILDs, the discriminant
function classified 81% of 64 Arikara males and 86% of 21
Sioux males correctly, and P388379 was classified as
Sioux, with a posterior probability of 0.99. Additional dis-
criminant functions using ILDs were run using different
combinations of variables, and P388379 was consistently
classified as Sioux, with posterior probabilities of at least
0.92. The cultural affiliation of P388379 was determined
to be Sioux. The ILD results were significant because of
their higher accuracy (though using fewer variables) and
stronger indication of affinity. The remains were much
more likely from a Sioux individual, but the NAGPRA
treats remains that are made into objects as objects, to be
offered to the tribe that modified the remains. The Ari-
kara were informed that the remains are quite likely bio-
logically Sioux, and their disposition is controlled legally
by the Arikara.
Confirming the identity of an Army Medical Museum
skull. One \positive" identification came through an
examination requested by Cheyenne representatives
(Ousley and Billeck, 2003). A skull with a gunshot wound
was turned over to the Bureau of Indian Affairs in Okla-
homa by a private citizen whose father had worked years
before at the AMM. Accompanying the skull was a small
piece of paper with the number 7023 on it and a descrip-
tion of the skull, which noted that it was a Cheyenne skull
collected in 1879. The osteological analysis indicated that
the remains were from a male aged 25–30 years. AMM
7023 was indeed still missing from the AMM collections,
but so were two other skulls that were also Cheyenne.
AMM 6966 was too young to be this individual. AMM
7042 had no age estimate, and also had a recorded gun-
shot wound. The remains were accessioned too late for
inclusion in an AMM collection publication (Otis, 1880).
Fortunately, measurements had been taken from both cra-
nia by Otis after publication of the book, and had been
written in his personal copy of the book, now in the library
of the Museum of Health and Medicine at the Armed
Forces Institute of Pathology in Washington, DC. A com-
parison of cranial measurements (Table 3) excluded AMM
7042, and showed a very high probability that the cra-
nium was AMM 7023. All measurements are the same or
within 1 mm, except for basion-bregma height, probably
due to damage to the cranial base. As a result of metric
comparisons, the remains were offered to the Cheyenne
by the Bureau of Indian Affairs, and were reburied in
March 2005.
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
Fig. 7. Discriminant function analysis of Karluk remains. All seven groups in discriminant function are labeled by geographical origin.
The Karluk fish cannery. One case of determining
group affiliation comes from Kodiak Island, Alaska. Based
on archival records, the 88 individuals from the Karluk
fish cannery are Chinese cannery workers buried in a
nearby cemetery. Laura Jones, the cannery owner’s wife,
had met the world-famous Aleš Hrdlička and volunteered
to excavate the remains and ship them to the museum in
1931. There was a chance that the remains were Native
American, and thus needed evaluation. In a discriminant
analysis of Alaskan and Asian groups (Fig. 7), the Karluk
cannery individuals clustered with the Chinese and Japa-
nese individuals in the museum’s collections and were dis-
tinct from Native Alaskans, including Aleut, Eskimo,
Indian, and Koniag groups. The remains from Karluk are
far more likely Chinese than Native American. The dis-
criminant function in this case is 95% correct, cross-vali-
dated, between continents, so it is easy to distinguish East
Asians from Native Americans using craniometrics. These
results stand in contrast to the traditional physical
anthropology grouping of Asians and Native Americans
under the \Mongoloid" heading (Ousley et al., 2003), and
illustrate the importance of having data from suitable
reference groups to help determine ancestry at the appro-
priate level.
The Birnirk site. Another case of group affiliation comes
from northern Alaska. In a recent analysis (Hollinger
et al., 2004), the key question was whether ancient
25
remains from Birnirk culture sites near Point Barrow,
Alaska, were affiliated with historic Barrow residents.
Figure 8 is a dendrogram of all groups in the analysis,
including ancient remains from Ipiutak and Tigara, and
historic-era remains from Greenland and Labrador
(GreenLab), the MacKenzie Delta, and Point Hope. The
Birnirk group shows large morphological differences from
the historic Barrow group, indicating a doubtful affilia-
tion. Other prehistoric groups (Tigara and Ipiutak) are
indicated as more likely ancestors of the historic Barrow
group. The results indicate a close relationship of the Bir-
nirk group to Greenland individuals, providing biological
evidence that the Thule migration involved people as well
as technology. An R-matrix analysis (Relethford and Blan-
gero, 1990) was also used to test an alternate hypothesis
for the observed relationships among the groups, i.e., that
the historic Barrow group had received genes from many
immigrant groups, therefore making them inappropriate
representatives of earlier Barrow residents. However, it
was the Birnirk group that showed far higher than
expected variation, and the historic Barrow group showed
lower than expected variation, indicating that the rela-
tionship of the historic Barrow group to the other groups
was not due to recent gene flow (Fig. 9). Figure 10 gives a
composite view of among-group relationships and within-
group variability. There are three general clusters in Fig-
ure 10, each with a prehistoric and a historic group, sug-
gesting biological continuity in each region, except for
26 S.D. OUSLEY ET AL.

Fig. 8. Northern Arctic dendogram. GreenLab, Greenland and Labrador.

Fig. 9. R-matrix analysis of Northern Arctic groups. Line shows expected level of variation.
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
Fig. 10. Northern Arctic group centroids and 95% confidence
ellipses for centroids. GreenLab, Greenland and Labrador.
Fig. 11. Catalog card for P243156.
27
Barrow. The historic Barrow remains have been offered
for repatriation, but not the Birnirk remains. Also, in this
analysis, we were able to use data collected over 20 years
ago by another researcher, Charles Utermohle. Tests of
interobserver differences in 19 craniometrics revealed
only one measurement (nasal breadth) with a mean differ-
ence of at least 0.5 mm (Hollinger et al., 2004).
A \Negro" in the Tillar Mound. Some diseases, syn-
dromes, or anomalous conditions can affect assessments of
cultural affiliation, because cranial or postcranial meas-
urements are affected. One example (P243156) comes
from an excavated skull from the Tillar Mound in Arkan-
sas. Morphologically, the cranial vault is very long and
narrow (scaphocephalic), high, and keeled because the
sagittal suture had fused prematurely (craniosynsostosis).
The cranium was labeled \Negro" at some time, probably
by Hrdlička, but is listed in the departmental database as
Indian. The catalog card (Fig. 11), appended by Charles
Utermohle, noted that Hrdlička believed the remains
were of a black person, i.e., an intrusive burial with other
Native Americans, while T.D. Stewart believed the
remains to be a scaphocephalic Indian. The cranial vault
shape was somewhat suggestive of African ancestry, but
the projecting zygomatics were more typical of individuals
with Native American ancestry.
28 S.D. OUSLEY ET AL.
In the initial discriminant function analysis of 18 cra-
nial measurements from W.W. Howells’ worldwide male
groups and the other Indian males from Arkansas, the
skull was most similar to South Japan males, with a pos-
terior probability of 0.508 and highest typicality probabil-
ity of 0.003. As mentioned, when typicality probabilities
are very low for all groups, the classification is virtually
meaningless. The low typicality probabilities were due to
the pervasively distorting effects of extreme scaphoce-
phaly. Cranial breadth was quite low and cranial length
was quite high compared to all groups, but many variables
were affected. A second analysis, with affected variables
removed, resulted in classification into the male Arkansas
Indian sample, with a posterior probability of 0.499 and
typicality probability of 0.231. Because so many affected
variables were removed, very few of the Howells groups
could be excluded based on typicality probabilities. The
preponderance of evidence indicates that the remains are
from a Native American, and the cultural affiliation will
be evaluated. This case illustrates the importance of
reevaluating remains even when there is a previous
expert opinion on cultural affiliation from a well-qualified
anthropologist.
An African from Quarai. Another example of how
pathology can affect the evaluation of cultural affiliation
comes from the Quarai Site in New Mexico. The cranium
of a female (P381243) approximately 16 years old exhib-
ited gross morphological features consistent with African
ancestry, including a rounded, wide nasal aperture with
no nasal spine, and prognathism. Her incisors and canines
exhibit slight shoveling, suggesting Native American an-
cestry. Premature fusion of the sagittal suture is present,
but the cranium is not elongated as in P243156. There is
slight posterior flattening on the left side, likely due to
cradle-boarding.
A discriminant function analysis using 20 cranial meas-
urements from W.W. Howells’ worldwide groups strongly
classified P381243 as Dogon (West African), with a poste-
rior probability of 0.710 and typicality probability of 0.054
using all measurements. After eliminating midfacial
measurements, especially the midfacial radii, which were
especially low relative to the other measurements, the
remains were most similar to Santa Cruz females (poste-
rior probability, 0.319; typicality probability, 0.980). The
features associated with underdevelopment of the midface
observed in this skeleton are consistent with Binder syn-
drome, or maxillonasal dysplasia. In a separate analysis
(Mulhern, 2002), cranial measurements of P381243 were
compared with published clinical data for Binder syn-
drome patients and normal control groups. The results of
this analysis provide further evidence that Binder syn-
drome is the appropriate diagnosis for the unusual fea-
tures observed in this skull. The underdevelopment of the
midface in Binder syndrome gives the appearance of prog-
nathism, when in fact the prosthion radius is in the nor-
mal range. The preponderance of evidence indicates that
P381243 is Native American, and has been offered for
repatriation.
Summary. These cases illustrate the value of holistic doc-
umentation of remains, including comprehensive skeletal
documentation and archaeological evaluation. In order to
accurately evaluate remains, skeletal biology and ar-
chaeological context must be scrutinized together in a
truly holistic and multidisciplinary approach. Unusual
morphologies may be due to pathological conditions. Well-
affiliated remains form reference samples that provide
various data useful in evaluating cultural affiliation.
CONCLUSIONS
There is a wide diversity of opinion within the inter-
ested parties as to how repatriation should proceed and
how far the process should be carried. Federal repatria-
tion legislation, as intended, functions well as a compro-
mise, and has, in many ways, improved relationships
between Native Americans and physical anthropologists
and museums. Repatriations will continue, and because
both Native Americans and physical anthropologists now
have a better understanding of what human remains are
held in institutions around the US, they have a better
foundation for cooperatively exploring their interests in
the disposition of remains and what may be learned from
them. In this sense, repatriation is, and will continue to
be, one of the contexts in which physical anthropology is
practiced.
Cultural affiliation, the legislative term for the ances-
tor-descendant relationship, although not always determi-
nable, is a reasonable and workable standard for the iden-
tification of ancestry. When demonstrated through a pre-
ponderance of evidence, it indicates which parties may
receive remains under the laws. Physical anthropology,
which is applied anthropology and forensic anthropology
when employed in the repatriation process, is an indispen-
sable part of an overall examination of evidence for a par-
ticular cultural affiliation. Unfortunately, as a line of evi-
dence, physical anthropology has generally been underu-
tilized across the country.
As demonstrated by the experiences of the NMNH,
holistic physical anthropological documentation of human
remains under the repatriation process produces a wealth
of data of interest to Native Americans and anthropolo-
gists. Sixteen years of documenting remains under the
NMAIA, with the emphasis on responding to claims from
Native American tribes, has produced a large number of
affiliated remains. The data from well-established affilia-
tions have been used to assess cultural affiliations of
remains with previously uncertain affiliation. The compi-
lation of standardized physical anthropology data at the
NMNH shows tremendous promise for assisting Native
Americans and museums in their efforts to assess cultural
affiliations of remains outside the holdings of the NMNH,
as well as for large-scale studies of diet, health, and other
facets of skeletal biology.
The analysis of affiliated remains will also aid in evalu-
ating remains that will inevitably be discovered in the
future. Human remains will continue to appear due to ille-
gal sales, relocation of cemeteries, construction, planned
excavations, site erosion, and other inadvertent discov-
eries. Native American remains will continue to be un-
earthed, and previously exhumed remains will continue to
be disclosed in public and private collections. The accurate
identification of Native American remains will require
communication with, consultation with, and the coopera-
tion of Native Americans. Given these realities, physical
anthropologists and Native Americans will have to work
together for the benefit of each. One major area where
physical anthropologists and Native Americans can work
together is in expanding efforts to establish the cultural
affiliation of the large number of remains that are pres-
ently listed as unaffiliated.
 REPATRIATION LEGISLATION AND PHYSICAL ANTHROPOLOGY
ACKNOWLEDGMENTS
The authors are grateful to John Byrd for information
about the Federal Rules of Evidence. We are also grateful
for discussion and comments on the manuscript by Lauren
Guttenplan, Douglas Ubelaker, Erica Jones, Cynthia Wilc-
zak, and Dawn Mulhern. Also, Sara Stinson and three
anonymous reviewers provided valuable feedback and
suggestions.
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