Monday, April 6, 2015

Children of Anubis

The following article was published in two parts in the January/February and March/April 2015 issues of PetsNews.  I had wanted to update the original blog, posted in May 2012, so Eytan Hendel's request to publish a Hebrew version gave me an opportunity to add new material that had come to my attention in the intervening years. 

In Oklahoma City there is a memorial to those who died on April 19, 1995.  On the south side of the park are the remains of the entrance plaza to the Alfred P. Murrah Federal Building destroyed by the explosion.  In the center of the park is a long rectangular pool, beside which is a lawn with 168 glass and bronze sculptured chairs representing the people who died there that day.             

Figure 1. Anubis embalming Sennedjem
Visiting the city in April 2012, I took Chloe for a walk to the memorial as dawn was breaking one morning.  We had been told at the hotel that there was always a ranger on duty, though we did not see one. We saw no one once we entered the area.  We walked beside the pool and read some names, found the five chairs of those who had died outside the building.  We looked at the walls, the square arches that give the area the feel of a temple, an ancient temple, almost Egyptian, and I felt tears coming for people I had never known, felt the weight of the loss that was not mine, but was.  It was near the entrance arch that I felt something else, something cold. It was as if the earth had begun to shift from the spirits beneath, as if the chairs would speak.  I was suddenly afraid, yet ashamed of this senseless fear. 

It was then that Chloe began running, thrashing in desperate, frantic circles as some fear gripped her entire being.  A bee sting, the shadow of a bird overhead?  Perhaps, but I did not think of such possibilities until I began to tell others about what happened and needed to assure them of my sanity.  I knew then, though it makes no sense now—the irrational is always lost to any real description after the brief moment of its existence—that Chloe felt the same air I had, the same wisp of death, the same imminence of something not to be encountered above the earth, as if she had seen Anubis himself standing at the end of the pool, arms aloft, summoning a modern acolyte to her ancient duties. 

Graveyards and Battlefields

Almost all cultures—ancient, modern, eastern, western, Native American—make associations of dogs and other canids with death.  As observed by Roscher (1896), the presence of howling dogs where corpses are placed is particularly frightful in the night, as if the animals are powers from the underworld who can pull us across the boundary between life and death.  As translated by Kershaw, Roscher says that “wolf and dog have the same significance precisely in the cult and myth of the underworld demons but are otherwise strictly distinguished from one another.”

That this is the one realm where myth, and perhaps our unconscious, collective or otherwise, does not distinguish the domesticated from the wild canid is an important observation.  Kershaw elaborates:

“The connections of Canis with Death are manifold.  Dogs, or certain behaviors of dogs, presage death.  Dogs, especially large black dogs, are incarnations of death-spirits, or death-demons appear as dogs or are dog-headed; the same demons, e.g. Hekate, can appear as wolves.  Dogs are psychopompoi.  Fearsome dogs, such as Garmr and Kerberos, guard the realms of death.  All this is true of Indo-Europa, but identical conceptions are found worldwide.” 

Figure 2. Two human-fox burials of the Epipaleolithic Period
The association of the Canidae with death in “the cult and myth of underworld demons,” again borrowing from Roscher, may extend further even than dogs, wolves, and jackals.  Maher et al. (2011) report on fox-human burials at upper Paleolithic sites in Jordan.  Arguing that if “the earliest domestic dogs in the Near East are small, it is not much of a stretch to think that similarly-sized foxes could have been considered as potential domesticates to prehistoric people.”  Maher et al. speculate that “the burial of a fox with a human might have had the same social, ideological or symbolic significance as that of a human with a dog.”  There was, they argue, a “special relationship (i.e., companion) to the humans in these graves.” 

(The subject of abandoned domestication efforts could be an entire treatise in itself.  Dinell (1992; see also Jarman, 1972) cites several examples, including that red deer were “husbanded and perhaps herded in the Mesolithic,” only to be “discarded in favor of sheep.”  South American canids that had been at least partially domesticated lost favor among native groups to European dogs after the conquistadors arrived.) 

The difficulty of differentiating the canids in the graveyards extends to images, such as the early depictions of Anubis which, as Osborn and Osbornova (1998) observe, could have the head of a dog or jackal, but ears more fox-like, the tail bushy and short like a jackal.  “The black color is typical of Anubis statues and paintings, although black canines were rarely seen in Egypt.”

Even at the beginning of historical times, dogs were coupled with death by Homer, where many references describe them feeding on the slain.  “Nay of a surety many a one of the Trojans shall glut the dogs and birds with his fat and flesh, when he is fallen at the ships of the Achaeans  (ή τις Τρωων κορεει κυνας ήδ’ οιωνους δημω και σαρκεσσι, πεσων επι νηυσιν Αχαιων).” (Iliad, VIII.379-80, Murray translation, 1928)  Lilja (1976) cites strands of Homeric scholarship suggesting that this would have been expected from wild or half-wild pariah dogs supplementing the food they took from dunghills.

Figure 3. Wall painting in tomb of Inerkhau
Funerary Rituals

Herodotus wrote that a Persian’s corpse is not buried until it has been mauled by birds or dogs (ὡς οὐ πρότερον θάπτεται ἀνδρὸς Πέρσεω ὁ νέκυς πρὶν ἂν ὑπ᾽ ὄρνιθος ἢ κυνὸς ἑλκυσθῇ, Histories 1.140).  Writing of the Bactrians east of Persia, Strabo (Geography 11.11.3) describes dogs known as “undertakers,” perhaps better translated as “entombers,” as suggested by Mair (2007):

“Now in early times the Sogdians and Bactrians did not differ much from the nomads in their modes of life and customs, although the Bactrians were a little more civilised; however, of these, as of the others, Onesicritus does not report their best traits, saying, for instance, that those who have become helpless because of old age or sickness are thrown out alive to dogs kept expressly for this purpose, which in their native tongue are called "undertakers," [ἐνταφιαστάς] and that while the land outside the walls of the metropolis of the Bactrians looks clean, yet most of the land inside the walls is full of human bones, but that Alexander broke up the custom.”

Devotion unto Death

Pliny the Elder in the first century CE (Natural History VIII.lx.143) recorded instances where dogs preferred to die with their masters:

“When Jason of Lycia had been murdered his dog refused to take food and starved to death. But a dog the name of which Duris gives as Hyrcanus when King Lysimachus's pyre was set alight threw itself into the flame, and similarly at the funeral of King Hiero.” 

Stories of dogs protecting their masters’ graves can be found even in places where dogs are not favored animals.  In the 10th century Arabic manuscript, The Book of The Superiority of Dogs over Many of Those Who Wear Clothes, Ibn al-Marzuban says:

“A certain story teller said: al-Rabi' b. Badr had a dog he had reared himself. When al-Rabi' died and was buried, the dog kept on throwing himself against the grave until he himself died. He also said:  ʼAmir b. ʼAntarah had both hounds and guard dogs for his flocks and treated them well when they were with him. When ʼAmir died the dogs remained by his grave until they died there, though his family and relatives had already left him.”

Societies often go through periods where dogs will be sacrificed and buried with their masters.  Rice notes that this was most prevalent in the Old Kingdom in Egypt, with dogs often buried at the threshold of the tomb just as they guarded the master’s house in life.   The practice was known among Native American tribes, as recorded by Pettit (1950) and Gifford (1955). Barnett (1939) writes of the Gulf of Georgia Salish that dogs could be killed at the owner’s death and buried with him.

Dogs and Ghosts

Dogs are said to sense ghosts.  Pythagoras would hold a dog to the mouth of a dead disciple to receive the departing spirit (Ash 1927, at 41).  Dogs might even stand in for those who have died in certain practices.  In describing Russian celebrations of the dead, Georgi (1780) reported:

“On the Thursday in passion-week every father of a family places certain eatables in the yard of his house, with a lighted torch near them, to the memory of each person that has died out of his house.  The dogs, as proxies for the dead, regale themselves on this provision.”

Figure 4. Water ghost with canid figures
In a rock art panel near Dinwoody, Wyoming exaggerated hands stretch from a water ghost, with canid figures below (Francis and Loendorf 2004).  In the Ghost Dance, a Native American religious movement with significant political overtones, as described by duBois (1939), Gayton (1948), and Mooney (1896), Native Americans killed dogs because the ghosts, fearing them, would not come to life if they were present. 

Guides to the Underworld

One of the broadest associations of dogs with death is the belief that they lead the dead to the next world, just as in life they led hunters to game.  How did dogs become psychopompoi, guides for the dead?   Michael Rice, in Swifter than the Arrow, sees this as part of the canine association with graveyards:

“[T]he wild dog or jackal stalking through a graveyard on the edge of a Neolithic or late predynastic settlement could in another dimension of existence become the divine entity which led the justified dead to the Afterlife or, by extension, vigilantly guarded the place of communal burial.” 

Browne (1896) describes an Irish legend:

“On the road between Ballycroy and Bangor, Erris, a phantom dog sometimes appears, as does a white cow, whose appearance is looked on as a death-warning. Several of the lakes are thought to be inhabited by ‘water horses,’ which sometimes come on land and endeavor to coax unwary people to mount them, and then, having got them mounted, carry them off into the water. They are believed to be seen once in every seven years.”

It is with Anubis that the function of guiding souls reached its most beautiful statement.

Anubis

Figure 5. Jackal-headed dancer, Predynastic Period
Anubis was first represented as a jackal or a therianthrope, a beast-man with the head of a jackal.  Prehistoric rock art from North Africa shows dog-headed men when Libya was fertile enough for the rhinoceros to thrive, though the deistic significance of the therianthropes is uncertain (Coulson and Campbell 2001).  An image on a predynastic palette shows a jackal-headed dancer playing a pipe.  Budge (1920) provides the hieroglyphics for Anubis (a later pronunciation), showing configurations that could be applied to the god from predynastic times into the Coptic period. 

Breasted (1912) describes Anubis as a mortuary god, a god that presided over funeral ceremonies, including mummification. The coffin of Henui from the Middle Kingdom describes the beginning of Anubis’s function on earth as an embalmer:

“Anubis … lord of the Nether World, to whom the westerners (the dead) give praise … him who was in the middle of the mid-heaven, fourth of the sons of Re, who was made to descend from the sky to embalm Osiris, because he was so very worthy in the heart of Re.” 

Anubis, or a priest of the god, was often shown with the pharaoh, whose afterlife would be in the presence of the gods (Borchardt, 1907). Breasted notes that in the Old Kingdom it was not unusual for a coffin to depict the deceased with a jackal’s face, as if jackals were indeed spirits of the dead.

The Book of the Dead, a category of funerary texts, gives additional functions to Anubis in the afterlife, including weighing the heart or soul of the deceased (“weigher of righteousness”). See the vignette from Spell 125, Papyrus London BM EA 9901,3 (Stadler, 2012). That this depiction was standard is demonstrated by extraordinarily similar shroud from the Staatliche Museen in Berlin (Walker 2000, p. 96).

Figure 6. Anubis weighing a soul
Anubis Comes out of Egypt

Plutarch, a Greek philosopher of the second century, sought to make the canine-headed god intelligible to an audience that increasingly required religion and myth to be consistent with philosophy and natural history.  Anubis guarded the gods as dogs do men (τους θεους Φρουρειν ωσπερ οι κυνες τους ανθρωπους). He was a son of Nephthys: 

“And when Nephthys was delivered of Anubis, Isis owned the child. For Nephthys is that part of the world which is below the earth, and invisible to us; and Isis that which is above the earth, and visible. But that which touches upon both these, and is called the horizon (or bounding circle) and is common to them both, is called Anubis, and resembles in shape the dog, because the dog makes use of his sight by night as well as by day (γαρ ό κυων χρηται τη οψει νυκτος τε και ημερας ομοιως). And therefore Anubis seems to me to have a power among the Egyptians much like to that of Hecate among the Grecians, he being as well terrestrial as Olympic. Some again think Anubis to be Saturn; wherefore, they say, because he produces all things out of himself and breeds them in himself. He had the name of Kyon (which signifies in Greek both a dog and a breeder).  Moreover, those that worship the dog have a certain secret meaning that must not be here revealed. And in the more remote and ancient times, the dog had the highest honor paid him in Egypt (παλαι μεν τας μεγιστας εν Αίγυπτω τιμας ό κυων εσχεν); but after that Cambyses had slain the Apis and thrown him away contemptuously like a carrion, no animal came near to him except the dog only (ουδεν προσηλθεν ουδ’ εγευσατο τον σωματος αλλ’ η μονος ό κυων).”

If the worship of Anubis “must not be here revealed,” the authorities of the mysteries were still to be respected, even feared, just as if in recent times the rites of a private club that includes some of the most important men of a community were so protected that political and legal repression could result from writing about them. 

Figure 7. Anubis mask, Ptolemaic Period
The Emperor Tiberius, learning that a woman had been seduced in the temple of Isis in Rome by a man claiming to be Anubis, destroyed the temple and banished the goddess Isis from Rome (Josephus, Antiquities, XVIII. 65-80)  The imposter may have been wearing a mask and it is not certain how deceived the woman actually was.  A number of Anubis masks survive. Yet worship of the Egyptian deities soon returned to Rome.  Anubis could be depicted wearing the uniform of a Roman soldier, as is seen in a statue on the side of a tomb at Kom El Shukafa where Anubis wears a cuirass (dated to the late first or early second century AD by Michalowski, 1968).

In late antiquity, an apocryphal work preserved in Arabic, The Acts of Andrew and Bartholomew, with place names that would be in modern Tunisia and Libya, a fearsome dog-headed man becomes a follower of the two apostles and helps them convert a hostile city to Christianity.  Although named only “Dog’s Head,” the character in the dream-like drama would have been understood in the pre-Moslem and pre-Christian mythology of the area as having divine elements:

“Dog's Head arose, and went to where the disciples were, rejoicing and glad, in the knowledge of the right faith. And his appearance was fearful exceedingly; his height was four cubits; his face was like the face of a large dog, and his eyes like lamps of burning fire, and his back teeth like the tusks of the wild boar; and his [front] teeth like the teeth of a lion ; and the nails of his feet like a curved scythe; and the nails of his hands like the claws of a lion, and his whole appearance frightful, terrifying.” (Lewis 1904)

Seznec (1953) describes depictions of Anubis in the Renaissance, including on a gem worn by Catherine de’ Medici. The last plate shows Anubis as drawn by Petro Stephanonio in his book, published in 1627, on ancient sculptured gems.

Cerberus

Figure 8. Heracles and Cerberus, late 6th century BCE
The great canine archetype of Greek art and poetry was Cerberus (Κερβερος), which Hesiod in the 8th century BCE described as having 50 heads, though later writers usually settled on three, and in vase paintings often just two.  Lilja summarizes early poetic references:

“The original concept of Cerberus … must have been that of a watchdog: a dog was imagined as guarding the palace of Hades in the same way as dogs used to guard houses and palaces in this life.  It was, I think, only gradually that “the devouring aspect of death began to be embodied in Cerberus so that, finally, the watchdog of Hades was identified with death. Not until the final identification with death could Cerberus be imagined as welcoming visitors, the voracity of death being expressed in that the dog devoured those who tried to escape.” 

The twelfth labor of Herakles involved bringing Cerberus up from the underworld. Apollodorus of Athens in the second century CE, says “Cerberus had three heads of dogs, the tail of a dragon, and on his back the heads of all sorts of snakes.”  Herakles, going to the land of the dead, wishes to be initiated into the mysteries at Eleusis first, and this takes some time because of his foreign status and his slaughter of the centaurs. After a few other misadventures, Herakles gets to the underworld.  Pluto allows Herakles to take Cerberus from Hades providing he masters the dog without weapons.  Herakles flings his arms around the dog and holds on despite the bites of the dragon in its tail.  Ascending from Hades at Troezen on the eastern Peloponessus, Herakles leads the beast to Eurystheus, who had commanded the labor, then carries him back to Hades. 

Figure 9. Statue of Cerberus, c. 180 CE
Unlike Anubis, Cerberus remains a dog, though a fearsome and mysterious one with multiple heads and sometimes appendages of other beasts.  Something of a guard dog, Herakles leads him like a war dog, and his functions can be understood as belonging to the more vicious functions dogs can perform. 

Archetypes of the Collective Unconscious

Two great canine archetypes have been created by the western imagination, Anubis and Cerberus.  Each has become eternal, if not as gods or beings of the underworld, at least in myth, poetry, painting, sculpture, recently in film, and always in the unconscious.  One is the majestic guide who leads the procession down the dark path to the river, the other a guardian at the river, on one side or both, keeping the spirits from returning to trouble the living and preventing the living from disturbing the rest of the dead.  Both help us when our earthly presence is beyond help.  Neither is a common dog, one being part man, the other usually having three heads, yet despite or perhaps because of this psychotic shift away from reality we cannot dream without them, cannot depict death without thinking of them and wanting them to be real, regardless of how advanced and abstract our theologies.     

Again I must defer to Michael Rice:

“Anubis is indeed one of the greatest of the archetypes: he is the Night Lord, Grave-Watcher, Soul-Guide, a being who bridges the worlds of the seen and unseen.  In this he is one of the most fully realised of all the animal divinities, brought out of the collective unconscious of the early inhabitants of the Nile Valley, who give meaning and explanation to the entire community of animal-human conflations.  The theriomorphic archetypes of Egypt are the first to be recognised and recorded by any complex society; in this lies their power, for the arcehtype only requires recognition to assume an independent existence.”

As David Gordon White (1991) proved, dog-headed men and gods can be found across civilizations in every part of the globe, often associated with death, whereas Cerberus exists only in those belief systems that have roots in Attic Greek thought and art.  Cerberus is not as generic as Anubis because Cerberus is limited to those peoples who accept a specific geography for the afterlife. Cerberus guards a river of  forgetfulness, or the boundaries of hell but seldom leaves his post, while Anubis is as broad and deep as death itself. 

Conclusion

Figure 10. Anubis Cynocephalus, 1627 CE
Could it be that canids entered the human collective unconscious before they filled any function for our survival?  Did it happen among a group of hunter gatherers in China or Mongolia, in the Middle East, Europe, Africa, or several of these at once? (“Once” is a relative term here since thousands of years could separate events without now being detectible to us looking backward.  It may have even happened in some early societies and been lost where partial domestications began but did not continue.)  The jackal was never domesticated, though some may have been tamed, but if they are the origin of Anubis it is from their habitation of graveyards that this must take its origin, at the place where the dead were separated from the living and left to make their own way to the next world.  Who will lead them if not the denizens of those places?  Is this part of our relationship one with canids, both those that were later domesticated and those that were not?  Their association with death may even precede their association with us as helpers in living.

I am suggesting that our recognition of a species that would share space with us may have begun in part in funerary ritual, stories told around fires about the animals scavenging nearby, in human dream life. Was the fixing of the archetype in fact one of the first steps towards domestication, rather than a later result of it? Is Anubis so strong because the archetype, the dream figure, has never been separated from benefits that dogs provide for us at home and work?

A history of the society of dogs and men cannot be complete without considering the irrational in our relationship.  We must account for what Rudolf Otto called the numinous. (I avoid the term “spiritual” as it connotes belief systems in which I do not participate—worse, while doing so differently for different people—and is in any case unnecessary for my argument.)  Other animals than dogs appear in dreams and visions, and in dreams and visions of death, but those animals tend more often to be figures on the landscape, not nearly so interactive with us as are our dogs.  In dreams and visions dogs look at us, do things for us, understand us, expect and demand things from us, and obey or ignore our commands, just as they do in waking life.  Their thoughts and expressions may come with words, which does not happen in waking life, but given speech their nature is brought closer to ours in the irrational than in the rational.  Our relationship is that of a combined society in which dogs are not completely separate from us by being part of the "other."  They have become part of us as we are part of them, as Anubis combines the canine with the human. We are both children of Anubis.

Was Chloe afraid for herself that morning in Oklahoma City, or for both of us?  A question from an irrational moment cannot receive a rational answer, but there will come that day when I shall know. 
 
Figure Sources and Permissions

Figure 1: Anubis Embalming an Official, Sennedjem courtesy Dahl and Wikimedia:  for the specific locus in the tomb, see photograph NB 1973.2313 by J.-Fr. Gout on the website of the Institut Francais d'Archeologie Orientale. The original tomb excavation and photographs of the walls were made by Bernard Bruyere (1959). Figure 2: Two Human-Fox Burials, Epipaleolithic Period.  Maher et al.  License for general use. Figure 3: Wall Painting in Tomb of Inerkhau.© Thierry Benderitter.  Permission granted by Dr. Benderitter, Toulon, France, member of the International Association of Egyptologists. For further information as well as photos showing the location of the image in the tomb of Inherkhaouy, see Bruyere (1930). Figure 4: Water Ghost with Canine Figures. Permission to use granted by University of Utah Press, November 24, 2014. Figure 5. Jackal-Headed Dancer, Quibell and Green, 1902, Plate 28, source outside of copyright. Figure 6. Anubis Weighting the Soul of a Decedent, courtesy Jeff Dahl and Wikimedia Commons. Figure 7. Anubis Mask, Roemer-Pelizaeus Museum Hildesheim, courtesy Einsamer Schutze, Wikimedia. Figure 8. Heracles and Cerberus, Louvre F204, courtesy Bibi Saint-Pol and Wikimedia. Figure 9. Statue of Three-Headed Cerberus, Heraklion Museum, courtesy Tom Oates, Wikimedia Commons.  Figure 10. Anubis Cynocephalus, Stephanonio, 1627, source outside of copyright.

References:
  1. Apollodorus. The Library (1921, Frazer, J.G., translator). Loeb Classical Library, vols. 121-2. Harvard University Press, Cambridge.
  2. Ash, E.C. (1927). Dogs: Their History and Development. Ernst Benn Ltd., London.
  3. Barnett, H.G. (1939). Culture Element Distributions; IX: Gulf of Georgia Salish. Berkeley Anthropological Records, 1(5).
  4. Borchardt, L. (1907). Das Grabdenkmal des Königs Ne-User-Re.  Leipzig.
  5. Breasted, J.H. (1912). Development of Religion and Thought in Ancient Egypt. Charles Scribner’s Sons, New York.
  6. Brewer, D.J., Phillips, A.A., and Clark, T. (2002). Dogs in Antiquity: Anubis to Cerberus.  Aris & Phillips. 
  7. Browne, C.R. (1896). The Ethnography of Ballycroy, County Mayo.  Proceedings of the Royal Irish Academy, series 3, vol. 4. Dublin.
  8. Bruyere, B. (1930). Rapport sur les Fouilles de Deir el Medineh, FIFAO 8. Cairo: Institut Francais d’Archeologie Orientale.  
  9. Bruyere, B. (1959). La tombe n° 1 de Den-nedjem à Deir el Médineh. Mémoires publiés par les membres de l'Institut français d'archéologie orientale du Caire 88.  Cairo: Institut Francais d’Archeologie Orientale. 
  10. Budge, E.A.W. (1895). The Book of the Dead: The Papyrus of Ani. The Medici Society, Ltd. New York.
  11. Budge, E.A.W. (1920). Egyptian Hieroglyphic Dictionary, vol. 1. John Murray, London.
    Entry on Anubis, Budge (1920)
  12. Coulson (2001). African Rock Art: Paintings and Engravings on Stone.  Harry N. Abrams, New York.
  13. du Bois, C. (1939). The 1870 Ghost Dance. Berkeley Anthropological Records, 3(1).
  14. Francis, J.E., and Loendorf, L.L. (2004). Ancient Visions: Petroglyphs and Pictographs of the Wind River and Bighorn Country, Wyoming and Montana. University of Utah Press. Salt Lake City.
  15. Gayton, A.H. (1948). Yokuts and Western Mono Ethnography; II: Northern Foothill Yokuts and Western Mono. Berkeley Anthropological Records, 10f(1) and (2).
  16. Georgi, J.G. (1780). Russia: or, A Compleat Historical Account of All the Nations Which Compose That Empire, vol. I. London.
  17. Gifford, E.W. (1955). Central Miwok Ceremonies. Berkeley Anthropological Records, 14(4).
  18. Herodotus (2007 translation). The Landmark Herodotus: The Histories (ed. Strassler, R.K.). Pantheon Books, New York.
  19. Homer. The Iliad vol. 1(1928, Marray, A.T., translator and editor). William Heinemann Ltd., New York.
  20. Jarman, M.R. (1972).  European Deer Economies and the Advent of the Neolithic.  In Papers in Economic Prehistory (Higgs, E.S., ed.). Cambridge University Press. ("[W]e should not overlook the possibility that deer may have been herded and husbanded  in the past.  Although it is usual to consider the deer as essentially a wild animal, there is no reason to believe that this was necessarily always so; indeed, there is much evidence to the contrary.")
  21. Josephus, Jewish Antiquities, vol. 9 (Feldman, L.H., translator). Loeb Classical Library, Cambridge, Massachusetts.
  22. LaFaye, G. (1884).  Histoire du Culte Des Divinites D’Alexandrie.  Paris: Ernest Thorin.
  23. Lewis, A.S. (1904). The Mythological Acts of the Apostles.  Horae Semiticae No. IV. C.J. Clay and Sons, London.
  24. Lilja, N. (1976). Dogs in Ancient Greek Poetry.  Commentationes Humanarum Litterarum. Societas Scientiarum Fennica. Helsinki.
  25. Lupo, K.D. (2011).  A Dog Is for Hunting.  In Ethnozooarchaeology (Albarella, U., and Trentacoste, A., eds.).  Oxford: Oxbow Press.  Karen Lupo, studying the use of dogs for hunting by Central African foragers, noting that “foragers and villagers believe that dogs and other animals possess spirits and can haunt the living.  Dogs are also viewed as a common physical form taken by sorcerers and witches.”  Burials of dogs near humans should not be taken as indicative of a close relationship: “people lack formalized cemeteries and the dead are often interred behind huts or living areas; dogs are often buried in the same general location resulting in close spatial proximity between dog and human graves. However, it is important to note that in this context the proximity of burial location to the house and other family members does not refl ect a similarly close position of the dog within the family.”
  26. Maher, L.A., Stock, J.T., Finney, S., Heywood, J.J.N., Miracle, P.T., and Banning, E.B. (2011).  A Unique Human-Fox Burial from a Pre-Natufian Cemetery in the Levant (Jordan).  PLoS One, 6(1), e15815, doi:10.1371/journal.pone.0015815. 
  27. Mairs, R.M. (2007).  Ethnicity and Funerary Practice in Hellenistic Bactria. In Crossing Frontiers: The Opportunities and Challenges of Interdisciplinary Approaches to Archaeology (Schroeder, H., Bray, P., Gardner, P, Jefferson, V., and Macaulay, E., eds.). Oxford: School of Archaeology, 111- 124.
  28. Marzuban, I. (1978). The Superiority of Dogs Over Many of Those Who Wear Clothes (Smith, G.R., and Haleem, M.A.A., translators). Aris & Phillips, Westminster, England.
  29. Michalowski, J.M.K. (1968).  L'Art de l'ancienne Egypte. L. Mazenod, Paris.
  30. Mooney, J. (1896). The Ghost Dance Religion and the Sioux Outbreak of 1890.  Extract from the 14th Annual Report of the Bureau of Ethnology, Government Printing Office, Washington, D.C.
  31. Morey, D.F. (2006).  Burying Key Evidence: The Social Bond Between Dogs and People.  Journal of Archaeological Science, 33(2), 158-175.
  32. Osborn, D.J., and Osbornova, J. (1998).  The Mammals of Ancient Egypt.  Warminster, England: Aris & Phillips Ltd.
  33. Otto, R. (1961). The Idea of the Holy: An Inquiry into the Non-factor in the Idea of the Divine and Its Relation to the Rational.  Oxford University Press, London.
  34. Pettit, G.A. (1950). The Quileute of La Push, 1775-1945. Berkeley Anthropological Records, 14(1).
  35. Quibell, J.E., and Green, F.W. (1902). Hierakonpolis, Part II. Bernard Quaritch, London.
  36. Rice, M. (2006). Swifter than the Arrow: The Golden Hunting Hounds of Ancient Egypt. I.B. Tauris & Co., London.
  37. Roscher, W.H. (1896). Das Von Der “Kynanthropie” Handelnde Fragment. Leipzig: Bei S. Hirzel.
  38. Russell, N. (2012). Social Zooarchaeology: Humans and Animals in Prehistory.  New York: Cambridge University Press (see particularly the discussion of shamanism at pp. 236-7, and symbolism at pp. 291-4).
  39. Seznec, J. (1953). The Survival of the Pagan Gods.  Princeton University Press.
  40. Stadler, M.A.  (2012).  Thoth, in UCLA Encyclopedia of Egyptology.  Los Angeles. 
  41. Steindorff, G. (1896). Grabfunde des Mittleren Reichs des Königlichen Museen zu Berlin, vol II. Berlin.
  42. Stephanonio, Petro (1627).  Gemmae Antiquitus Sculptae.  Rome:
  43. Walker, S. (2000). Ancient Faces: Mummy Portraits from Roman Egypt. Metropolitan Museum of Art, New York. (In addition to the reference in the text, see the plates on pages 130 and 134.)
  44. White, D.G. (1991). Myths of the Dog-Man.  University of Chicago Press, Chicago.

Wednesday, February 18, 2015

School Board Cannot Require Insurance, Extra Shots, or Separate Handler for Service Dog of Special Needs Child

Some schools have opposed special needs children coming to classes with service dogs, as noted here before, but courts have been generally unsympathetic to such efforts to exclude service dogs.  A recent case from Florida concerns a school that did not prevent a child’s use of a service dog and even allowed the child to come to school with the dog without all of the school’s requirements being satisfied.  The legal dispute arose over whether the school could require that the child’s family provide a handler for the dog when the child was in school, purchase liability insurance for the dog, and obtain more shots than are required under state law for dogs before they can enter a school.  Similar issues are likely to come up in other school districts as the number of service dogs for children with disabilities increases, so the order of the court is an important development in service dog law.

The U.S. Department of Justice filed a Statement of Interest in the matter, responding to an argument that its Title II ADA regulations exceeded the Department’s authority.  Many of the cases and legislative history cited in the DOJ Statement appeared in the Florida federal district court’s order in Alboniga v. School Board of Broward County, Florida, No. 14-cv-60085 (January 14, 20014).

Seizure Alert and Response Dog for Child in Florida

A.M., whose full name has been revealed in press reports, a six-year-old, lives with his mother, Monica Alboniga, in Broward County, Florida.  A.M. suffers from multiple disabilities, including cerebral palsy, spastic quadriparesis, and a seizure disorder.  He is nonverbal and uses a wheelchair and, according to an order on cross motions for summary judgment issued by the federal district court for the Southern District of Florida, “needs care and support for all aspects of daily living and education.” 

Broward County Service Animal Request, page 1.
In 2013, Monica Alboniga determined that her son required a seizure alert and response dog and obtained a medium-sized terrier named Stevie.  Stevie is tethered to A.M. when they are at home or in public places, and Stevie is able to go outside to urinate even when tethered to A.M.  According to the court’s statement of the facts, Stevie alerts 30 to 45 minutes in advance of a seizure and is trained to step onto A.M.’s wheelchair and lay across his lap in the event of a seizure, a task called “Cover” that keeps A.M.’s head up to “prevent airway distraction or choking on saliva during a seizure episode.”  Cover also helps calm A.M. during outbursts and helps disrupt abnormal behaviors or movements and provides A.M. with a tactile presence that can help bring A.M. out of an episode. The court states that "[c]urrently, A.M. has seizures every other night" but notes that "[n]o school staff at A.M.'s school has observed this behavior from the service dog."

Stevie is also trained to alert human responders if A.M. begins experiencing a medical crisis: 

“This [alerting] includes activating a sensor mat by stepping, jumping on or passing across the mat which sets off an alarm; going for help, physically alerting a human responder, and then returning to and staying with A.M.; or otherwise acting in a way to bring attention to the medical situation…. Stevie was also equipped with a special vest which carried pertinent medical supplies and information important for the care of A.M. in an emergency.”

Uncontroverted documentation was presented to the court indicating that separating Stevie from A.M. would be detrimental to Stevie’s effectiveness, “reducing the animal’s ability to respond and perform tasks for its target, and disrupting the animal-target bond that is important to the effective working connection between members of the service dog team.”  Such negative effects from separation would “carry over even when the service dog team is reconnected.”

Ms. Alboniga spoke to the Education Opportunity Office of the School Board of Broward County regarding her son being allowed to be accompanied by a service dog to school during the 2013/14 school year, and filled out a form labeled Request for Use of Service Animal in School District Facilities (a copy of which is included in the Broward County’s posted Proposal to Adopt a New School Board Policy “Use of Service Animals in School District Facilities” (4001.2)).  The School Board requested information on liability insurance for the service animal that was not provided by Ms. Alboniga.  Also, the vaccinations of the service dog listed in the information she provided did not correspond with those vaccinations required by the School Board.  The two pages of the request form that are to be filled out by an applicant are reproduced in plates here.

Vaccination, Insurance and Handler Requirements

The School Board required vaccinations for distemper, hepatitis, leptospirosis, parainfluenza, parvovirus, bordetella, roundworms, hookworms, and rabies, which are the vaccinations required of a dog transported or offered for sale under Florida Statutes 829.29.  The federal district court noted that owners of dogs are, under Florida Statutes 828.30, only specifically required to obtain rabies vaccinations for their dogs, which is the sanitation standard for K-12 private schools under Florida Administrative Code 6A-2.00400.  In a later letter, the Board also required that Stevie be vaccinated against coronavirus, a vaccine that is not generally recommended by veterinarians. 

The School Board informed Ms. Alboniga that she would need to obtain liability insurance for a professionally trained service animal in an amount determined by the School District’s Risk Management Department. The School District was to be listed as an additional insured in the policy.  Finally, the School Board informed Ms. Alboniga that she would need to provide a handler for the dog. 

School Begins

A.M. began school in August 2013 and was accompanied by Stevie and his mother, who served as the dog’s handler.  She was not paid by the school and did not assist with any care or activities regarding A.M. in the classroom.  The School Board maintained that it was not responsible for the care or supervision of Stevie, but in November 2013 the Board made an administrative decision to provide an employee to serve as the handler for Stevie, who happened to be the school’s custodian.  The custodian received training from the same individual who initially trained Stevie.  According to the federal district court:

“The ‘handler’s’ only responsibilities in school are the following: to walk Stevie alongside A.M. with a leash instead of allowing Stevie to be attached to A.M.’s wheelchair via a tether; to take Stevie outside of the school premises to urinate; and to ensure that other people do not approach, pet or play with Stevie while he is working as a service dog.”

Issues Presented

The Court considered and resolved a number of issues, including whether:

  1. The case should be dismissed for Alboniga’s failure to exhaust administrative remedies.
  2. The matter is moot because A.M. had been coming to school with A.M. and the school has never tried to stop this. 
  3. The School Board is not obligated to adhere to the service animal regulations of the Department of Justice because those regulations exceed the Department’s authority. 
  4. The school is not obligated to allow A.M. to come to school with Stevie given that school staff members were trained to provide seizure care measures sufficient for A.M.’s needs.
  5. The school could require that Alboniga obtain liability coverage on Stevie.
  6. The school could require that Stevie receive vaccinations beyond those required in the Florida administrative code for other animals entering schools, i.e., beyond rabies.
  7. The responsibilities the school has undertaken with respect to Stevie—particularly the accompaniment of a staff member with A.M. and Stevie when the dog needed to go outside to urinate—meant that the school was providing care and maintenance to the service dog.  
  8. The school could require that Alboniga either serve as or obtain a handler to be with Stevie while A.M. was in school. 
As will be seen below, the court decided all of these issues in a manner favorable to Alboniga and A.M. 

Exhaustion of Administrative Remedies

Failure of students and parents to exhaust administrative remedies has at times led to dismissal of actions regarding the refusal of a school board to allow use of a service dog, as discussed here in a prior blog and in Service and Therapy Dogs in American Society, pp. 180, 182. The Florida federal district court cited with approval, however, prior cases in which exhaustion was not required, including Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947 (ED Cal. 1990), where the federal district court for the Eastern District of California determined that the student was not claiming that the education plan for her was inadequate but rather that the school had “discriminated against her on the basis of her handicap by arbitrarily refusing her access if she is accompanied by her service dog.”  The Florida district court followed the same logic with regard to A.M.’s situation:

“Plaintiff does not claim that A.M. has been denied a free and appropriate public education. Plaintiff does not claim that A.M.’s IEP [Individualized Education Plan] is in any way deficient. Plaintiff does not claim that A.M.’s service animal is educationally necessary, or that the School Board’s provision of A.M.’s education would be impacted by the presence of the service animal. Defendant, in point of fact, agrees. Elsewhere in its submissions, Defendant argues that the service animal is not necessary for or relevant to A.M.’s educational experience – that the services provided by the animal are performed through other means by school staff in order to provide A.M. a FAPE [free and appropriate public education] in accordance with his IEP…. Plaintiff asserts claims for violation of the ADA and Section 504 regardless of Defendant’s compliance with the IDEA [Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.]. The IDEA and its administrative scheme are simply not implicated by Plaintiff’s claims here.  As such, exhaustion of those procedures is not a prerequisite to this action.”

Mootness

Broward County Service Animal Request, page 2.
The School Board argued that summary judgment should be granted because the case is moot as the school has always allowed, and continues to allow, A.M. to come to school with Stevie.  The district court notes, however, that voluntary cessation of allegedly illegal conduct does not deprive it of the power to hear and determine a case.  If the threat of the lawsuit were to be removed, there would be nothing to stop the School Board from enforcing its policy in a manner detrimental to A.M. and Alboniga’s interests. 

Americans with Disabilities Act Regulations Apply

After noting the substantial overlap between the Rehabilitation Act and the Americans with Disabilities Act, and the regulations under the latter that cover, among other entities, public schools, the federal district court focused on the regulations that apply to service animals, specifically 28 CFR 35.136.  The School Board argued that this regulation exceeded the statutory authority of the Department of Justice, but the court held it valid, enforceable, entitled to deference, and a permissible interpretation of the ADA.  

Seizure Detection and Care Measures for A.M.

Accepting that the school might be able to provide seizure detection and care similar to what A.M. receives from Stevie, the court said this was not up to the School Board to insist upon as it would be “akin to allowing a public entity to dictate the type of services a disabled person needs in contravention of that person’s own decisions regarding his own life and care.” 

The court saw an analogy to a housing case it decided recently, Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fischer, 6 F.Supp.3d 1272 (SD Fla. 2014), where a condo association refused a reasonable accommodation request under the Fair Housing Act made by a resident.  The association said the resident had not substantiated her need for a service dog, and even if a dog was reasonable or necessary to secure for the resident an equal opportunity to use and enjoy her dwelling, a dog over 20 pounds, such as the resident used, was not reasonable or necessary.  The court said that it was not up to the association to determine what size of dog the resident needed:

“[T]he most fundamental problem with the argument that a dog over 20 pounds was not necessary is that it gets the law wrong. [The association]’s implied argument – that even if a dog is reasonable or necessary for [plaintiff], a dog 20 pounds or under would suffice – is akin to an argument that an alternative accommodation (here, a dog under 20 pounds), would be equally effective in meeting [plaintiff]’s disability-related needs as a dog over 20 pounds. . . .  Since a dog over 20 pounds is a reasonable accommodation, [plaintiff’s] (commonsense) belief that a dog over 20 pounds – in particular, a dog of [her dog’s] size – is better able to assist her renders the need to evaluate alternative accommodations unnecessary as a matter of law. That a blind person may already have a cane or that he or she could use a cane instead of a dog in no way prevents the blind person from also obtaining a seeing-eye dog as a reasonable accommodation under the FHA. A contrary result is absurd.”

Judge Bloom also notes that the Ninth Circuit, in Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir. 2004), had rejected an argument by the defendant arts center that it could provide an able-bodied specially-trained companion for the plaintiff that would obviate her need for her service dog.  

Insurance Is Impermissible Surcharge

As to the requirement that Ms. Alboniga maintain liability insurance for Stevie, the court stated:

“The School Board’s requirement that Plaintiff maintain liability insurance for A.M.’s service animal and procure vaccinations in excess of the requirements under Florida law is a surcharge prohibited by 28 C.F.R. § 35.136(h). The School Board’s policies require what amounts to an extra upfront fee charged to Plaintiff in order for A.M. to use his service animal at school. The insurance costs are over and above what other students are required to expend in order to attend school.”

Requiring Additional Vaccinations Is Discriminatory Practice

The court determined that requiring more vaccinations than are ordinarily required under Florida law, including those required for animals entering schools, constitutes an “impermissible discriminatory practice.” Again, this is the correct conclusion under the relevant law.

In 2000, the Association for Professionals in Infection Control and Epidemiology, Inc. (“APIC”) issued an APIC State-of-the-Art Report: The Health Implications of Service Animals in Health Care Settings, published in the American Journal of Infection Control, 28, 170-180. In listing possible zoonotic risks of dogs, this report specifies rabies and indicates that proof of rabies vaccination may be appropriate “in an area with a high prevalence of dog rabies,” but mentions no other vaccination requirement.  The Centers for Disease Control's Guidelines for Environmental Infection Control in Health-Care Facilities cite the APIC Report in its brief mention of service dogs, and observes that “[n]o reports have been published regarding infectious disease that affects humans originating in service dogs.”

The veterans administration, however, recently proposed rules regarding animals on VA property, 79 Fed. Reg. 69379 (November 21, 2014), which would require more shots than just the rabies vaccine for service dogs in certain situations:

"The individual with a disability must provide VA with documentation that the service animal has had a comprehensive physical exam performed by a licensed veterinarian within the last 12 moths that confirms immunizations with the core canine vaccines distemper, parvovirus, and adenovirus-2, and that confirms screening for and treatment of internal and external parasites as well as control of such parasites...."  Proposed 38 CFR 1.218(a)(11)(vii)(B).

A major organization I contacted in researching this blog indicated that it does not place dogs without an assurance that the dogs will continue to receive a "full array of vaccinations, including canine influenza," and will consider decertifying a team that does not follow this requirement.

A possible area of concern is bordetella.  In 1999, Dworkin et al. identified nine HIV-positive individuals with Bordetella bronchiseptica infections, sometimes verified as coming from household dogs or cats. In 2008, Rath et al. reported on a recurrent bordetella infection in an infant who did not have HIV and was considered immunocompetent.  The initial hospitalization, when the infant was six weeks old, occurred only days after the household dog received an intranasal vaccination with an attenuated live vaccine, but genetic comparison established that the source of the infant's infection was not from the vaccine, though it could have been from a slightly different strain of bordetella that the dog may have passed. The patient was admitted to emergency rooms at four and six months and treated for presumed pertussis with azithromycin by doctors who did not know about the previous bordetella infection.  At eight months, a culture identified that the child was again positive for bordetella and received imipenem therapy and remained symptom-free after that.  In 2014, Yacoub et al. described serious bordetella infections in immunosuppressed patients and stated that such patients should be strongly cautioned "to minimize contact with animals when they are ill." Such reports should receive the attention of medical authorities advising schools regarding the presence of animals with children. Certainly, if any of the children in a school have compromised immune systems, an argument could be made that a dog coming into the school should have previously been vaccinated against bordetella.

It is the author's opinion that vaccination requirements for pet dogs as well as dogs that enter educational, medical, and other facilities should on occasion be reevaluated by medical and veterinary professionals to determine what vaccinations are appropriate. Taylor et al. (2001) noted that 61% of pathogen species causing disease in humans are zoonotic, and 75% of emerging pathogens are zoonotic, indicating that diseases not formerly transmitted across species lines may yet do so in the future.  Nevertheless, unless such modifications are made under Florida law as to all dogs entering schools, no additional vaccination requirement should be asked of A.M.'s service dog. 

School’s Responsibilities Do Not Amount to Care and Supervision of Service Dog

Under 28 CFR 35.136(e), a “public entity is not responsible for the care or supervision of a service animal,” but the School Board contended that leading Stevie outside to urinate constitutes care or supervision.  According to the court’s reading of language in the preamble to the final regulations (75 Fed. Reg. 56197, September 15, 2010, 3rd column under Responsibility for supervision and care of a service animal), care or supervision refers to routine animal care, “such as feeding, watering, walking or washing the animal.”

Florida Statutes 413.08(3)(d) similarly define "care or supervision of a service animal" as "the responsibility of the individual owner. A public accommodation is not required to provide care or food or a special location for the service animal or assistance with removing animal excrement.” The Florida Department of Education (District Implementation Guide for Section 504, p. 106) states that a school board is not responsible for “training, daily care, or healthcare of service animals.” 

The question then becomes, according to the court, whether assisting A.M. to lead his dog outside the school to relieve itself is part of the “routine overall maintenance” of the dog.  The court concludes it is not, reasoning as follows:

“The School Board is not being asked to provide an employee to walk Stevie. Rather, the School Board is being asked to help A.M. do so. That is, the School Board is being asked to accommodate A.M., not to accommodate, or care for, Stevie.”

The court finds such assistance provided to A.M. to be similar to that provided other children: 

“In the same way a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog—the accommodations here are reasonable.” 

The court finds that it does not need to go as far as the California district court in C.C. v. Cypress School District, discussed in a prior blog, which had held that requiring a school to provide an aide to “hold the dog’s leash when navigating campus, provide Eddy with water, and tether and untether him throughout the day” did not fundamentally alter the school’s educational program, necessarily impose an unreasonable accommodation, or amount to the school providing care and supervision for Eddy.  (The Department of Justice also filed a Statement of Interest in that case.)  The aide's responsibilities in that case amounted to at least temporary handling, which touches on the remaining issue considered by the Florida district court.  

No Obligation on Family to Provide Handler

Under 28 CFR 35.136(d), a “service animal shall be under the control of its handler.” The School Board argued that it was not obligated to provide a handler for Stevie, but that one is necessary because “A.M., due to his disabilities, cannot act as the dog’s handler.”  (A prior blog describes how the regulations were amended by the Department of Justice to take into account the fact that the individual with the disability may not always be the handler of a service dog for that individual.)  

The court disagreed with the School Board, stating that “normally, tethering a service animal to the wheelchair of a disabled person constitutes ‘control’ over the animal by the disabled person, acting as the animal’s ‘handler.’ And, even absent tethering, voice controls or signals between the animal and the disabled ‘handler’ can constitute ‘control.’”  The court concludes that given "the specific facts here, having Stevie tethered to A.M. in school would constitute control by A.M. over his service animal as the animal's handler" under the federal regulations, including 28 CFR 36.302(c)(4), which provides:

"A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).”  

In seeking feedback on an earlier draft of this blog I spoke with a number of individuals involved in the training and operation of service animals with special needs children. Several emphasized that a handler should always be present in class when a child with disabilities similar to those described for A.M. is accompanied by a service dog. One major organization that provides service dogs for severely disabled individuals does so by requiring that there be a team consisting of a “Facilitator,” who is the handler, and the “Skilled Companion,” the service dog.  The disabled individual, child or otherwise, is never permitted to handle the Skilled Companion in public, only the Facilitator.  Individuals receiving service dogs are told they must attend school without the dog unless the Facilitator is able to be present in the classroom. Facilitators are often family members.  

Under a two-leash system sometimes used with autistic and other children, described in Service and Therapy Dogs in American Society, pp. 80-82, a service dog is tethered to the child with one leash while a second leash is held by a parent or other handler.  Insofar as I have been in communication with parents using such systems, they generally do not refer to the child as a handler, but only themselves. This is, of course, not a perspective derived from legal analysis.     

The Florida federal district court, however, found the arrangement with the custodian satisfactory under the facts presented. I believe that there could be other situations, however, where more handling by someone other than the individual with the disability would be required, as appears to have been true in CC Cypress. Some minimal handling should be permitted without making the accommodation unreasonable or amounting to impermissible care and supervision. Cases in the future will likely define the limits of a school's responsibilities here.        

Conclusion

The comment of Patty Dobbs Gross below, which came in after this blog was posted, raises important issues with regard to considering special needs children to be handlers.  Ms. Gross is the founder of North Star Foundation and the author of The Golden Bridge: A Guide to Assistance Dogs.  There are gaps between what the law requires and what many service dog organizations consider to be best practice. (When I come to revising Service and Therapy Dogs in American Society, I will deal with such gaps more comprehensively than was done in the first edition.)
 
Nevertheless, I believe that the court's order is correct on the law as it stands. The case is scheduled to have a settlement conference by March 17, when, presumably, remaining issues will be resolved. 

This blog was written with the assistance of Leigh Anne Novak, Veronica Morris, Brad Morris, John Moon, and others who prefer to remain in the background. The opinions expressed in this blog, however, are not necessarily those of these individuals who generously gave me time and help.