Chapter Ten
Wana the Bear v. Community Construction:
Taking the Dead
STOCKTON, CALIFORNIA, IS ONE PLACE WHERE conquest really did occur. Founded in 1849, the town is named for Robert F. Stockton, a naval officer who drove the Mexican forces out of California during the Mexican-American War (1846–1848) and became California’s first military governor. Stockton was a violent place during the gold rush, as miners systematically drove the Miwok Indians from their lands between 1850 and 1870, forcing them to leave their burial grounds behind.1 Before the gold rush, at least 100,000 Indians inhabited California. By 1870, some 70,000 had died from disease and homicide.2 Miwoks fled Stockton and the survivors found refuge with other bands in the region.
In 1979, bulldozers showed up at the burial ground and began clearing the land for a housing project. In the process, the remains of two hundred human beings were unearthed from the well-known Miwok graveyard.3 As the numbers mounted, one of the descendants, Wana the Bear, attempted to halt the mass grave desecration and protect remaining burials. He filed suit for an injunction under an 1854 California statute protecting cemeteries. The law stated: “Six or more human bodies buried in one place constitute a cemetery.”4 The issue to be decided was whether this statute applied to the Indian burial ground.
Thus begins the story of Wana the Bear v. Community Construction (1982), one of the ten worst Indian law cases ever decided. The California Court of Appeals held that the Miwok burial ground is not a cemetery under California statutes since it was not used continuously as a graveyard without interruption for five years. The ruling that Miwoks failed to use the burial ground for the prescribed period failed to take into the account the fact that they had been driven away by the whites, and their cessation of use was involuntary, because the Indians fled from the barrels of gold-miner guns. Accordingly, the burial ground did not qualify for protection, and the court allowed the remaining graves to be dug to make way for the housing development. The public policy of protecting “places where the dead are buried” did not apply to this burial ground or those dead according to the court.5
The decision is notable not for its narrow and arguably ethnocentric construction of a cemetery statute, but because it illustrates something larger—the failure of lawmakers and the courts, who interpret the laws, to address, incorporate, take into account, and protect indigenous interests. That failure is anathema to any legal system that must be accountable to every segment of the society it is intended to serve, even the indigenous people. It is important to understand the root causes of this shortcoming, since the law ought to be accountable to every segment of society, lest any be left in an unprotected class. In addition, the failure in Wana the Bear to take into account the forcible displacement of the Indians when interpreting the cemetery law has other far-reaching implications. Like the Miwok, many Indian tribes were removed, relocated, or driven away from their homelands and forced to leave their dead behind. Those burials became subject to protection, if at all, by incoming settlers. But their laws seldom protected Indian burials. Consequently, uncountable numbers of graveyards became subject to despoliation after the removal of the tribes. On the Great Plains, my own people suffered this fate. No sooner were the Pawnee removed from their Nebraska homeland then settlers poured into their cemeteries to dig and cart away the contents.6
Wana the Bear illustrates that the courts were ill-equipped to apply an established body of statutes and common law to the circumstances and needs of Native Americans. The result was to leave Indian burial grounds in an unprotected legal status. Some legal commentators assert that the failure of the law to take into account legitimate indigenous interests is ethnocentric or at worst discriminatory. Others, such as lawyer H. Marcus Price III, point out that indigenous interests were simply outside of the realm of non-Indian experience when statutory and common law were being developed in the eighteenth and nineteenth centuries. Indeed, most disputes between Indians and whites in that formative period were settled on battlegrounds rather than courtrooms. Price states:
At a sensitive time when American courts were developing an experience-based common law and legislators were enacting specific statutes for cemeteries and burials to account for American requirements, the courts and lawmakers were not allowed the benefit of considering practical issues related to the appropriate disposition of prehistoric aboriginal remains and grave goods or regarding the property rights of Indians to these items. Thus, when issues later surfaced in the courts, the judicial system was forced to apply an established body of statutes and common law to situations that law had not previously considered and with which it was ill suited to deal. This resulted in decisions like Carter v. City of Zanesville (Ohio, 1898), in which the court held that decomposed skeletal remains of prehistoric Indians did not constitute a body as contemplated at law, and Wana the Bear v. Community Construction, Inc. (California, 1982), in which an established Miwok traditional cemetery was held to not constitute a cemetery for purposes of the California state statute.7
According to Price, when the law is confronted with new situations that it has not previously encountered or had the opportunity to consider, “seemingly bizarre and anomalous legal resolutions can occur.”8 That may be so, but his conclusion begs the question, how could a legal system overlook the basic interests of an entire race of people in its midst during the development of the law? This is puzzling, because indigenous people were not invisible, and their issues and circumstances were known to the public, if not well understood. Wana the Bear thus illustrates either an ethnocentric judicial mind-set or some other shortcoming in the development of the law. I shall argue here that it is the product of much larger forces at work—the legacies of conquest and colonialism imprinted upon the legal system.
Regardless of the causes, the impact of the legal system’s failure to reflect or take indigenous needs into account is the same: little or no legal protection was afforded for Native American burials. The loophole in legal protections allowed hundreds of thousands of Native American dead to be dug up and carried away in disregard of the sensibilities of affected Native American communities.9 This mass appropriation amounted to a glaring double standard in the law, since non-Indian graves have never been treated in such a manner anywhere in the United States. Over time, the double standard affected every Indian tribe, Alaska Native village, and Native Hawaiian community in the nation. Each suffered an invasion of body snatchers of every description—tourists, developers, pothunters, treasure seekers, amateur or professional archaeologists, museum collecting crews, soldiers, and federal agencies—in a bizarre national pastime first set in motion by Pilgrim landing parties at Plymouth Rock in 1620. The looting continued unabated until state lawmakers began closing loopholes in the 1980s, and Congress finally put a stop to it on a national level in 1990 with the enactment of the Native American Graves Protection and Repatriation Act (NAGPRA).10
In this chapter, I will summarize the history surrounding the disturbance of Indian graves and the appropriation of cultural patrimony from tribal communities in the United States. I will probe the forces at work that explain the double standard in the law illustrated by Wana the Bear. My analysis will expose shortcomings in the legal system that allowed manifest injustice and permitted unequal treatment of Native Americans to reach massive proportions by the 1980s. Finally, I examine the national grassroots movement that arose in Indian Country to seek legislative reforms on the state and national levels. By the 1980s, shortcomings in the legal system highlighted the need for new laws.
A remarkable grassroots movement took hold in Indian Country during the 1980s. The state and federal laws passed in the ensuing years today comprise a considerable body of law that increases legal protections for Native American graves, establishes national procedures for the repatriation of Native dead, and provides guidelines for recovering other cultural items illegally taken from Indian Country during the colonization period in Manifest Destiny when staggering amounts of cultural property were taken from burial grounds, battlegrounds, and communities in one of the most massive transfers of movable property ever seen. The legislative movement culminated in 1990, with the passage of NAGPRA. This landmark human-rights law continues to be implemented almost one generation later, often over the fervent opposition of some scientists, museum workers, and universities who see themselves as the self-appointed guardians of Native American dead and cultural patrimony.
In examining these issues, it will be necessary to review the historical relationship between Native Americans, anthropologists, and museums. There has often been a fascinating love-hate relationship between these communities since the founding of anthropology and American museums in the United States. On the good side of the Indian/museum relationship, museums play an important role in educating the public about Native Americans, and they have preserved much of the cultural patrimony from earlier periods when the federal government was otherwise bent on destroying Native culture. Many close, mutually beneficial relationships have been forged in recent years between these communities, and numerous tribes own and operate their own museums. On the dark side, historical museum collection practices have often been rapacious until recent decades and included collecting human remains and other sensitive cultural material from tribal areas under dubious circumstances; and museums have been slow to return material improperly acquired when requested by the Native owners and descendants of the dead, sometimes taking as long as fifty years to decide repatriation requests. Since the passage of NAGPRA, these parties have improved their relationships during the consultation and repatriation processes. Many anthropologists devoted to the study of Native Americans are members of a discipline, which includes archaeology and physical anthropology, that has frequently exploited and harmed Native peoples in their research, collection, and publication practices in sensitive areas, by placing their professional interests over the well-being of the peoples that they study, especially when it came to the taking of the dead. In recent years, many in that profession have improved their ethics and attitudes toward the people they study. Unfortunately, some museum and anthropology workers refuse to accept the social changes mandated by NAGPRA, preferring to darken relationships with Native America for reasons of their own, which shall be examined in the postscript section of this chapter.
In examining the interplay between the sacred and the secular and the need for the law to be accountable to all social values in a community, one legal and religion scholar, Wallace H. Johnson, observed that justice can be measured by the way society mediates these diverse, sometimes competing ingredients:
All communities are defined by the values which hold that group together. A key value that defines the quality of a community, either ancient or modern, is respect and protection for the rights of all, whether in the majority or those on the fringe. A challenge for us in contemporary society is to understand that our ‘community’ includes indigenous peoples; the burial practices and ‘rites’ associated with passage to the afterlife are as important to them as the Christian beliefs of our majority population are to us. We will be judged as a culture by how we react to protecting those beliefs.11
The Spiritual Dimensions of Human Burials and the Afterlife
Up until now, our inquiry into the dark side of federal Indian law has examined how law and the courts affect mundane Indian affairs—that is, the earthly affairs of the living. Beginning with this chapter, we depart to another plane. We shall examine how the spiritual side of Native American life is impacted by the legal system. That investigation takes us into the Spirit World, a mysterious realm where immense mystical power abides and profound explanations about our place in the cosmos can be found.12 The logical starting place for this journey is that sacred moment in everyone’s life when we give up the ghost, the time when the spirit leaves the body at the cessation of life and travels to the Land of the Dead.
What happens when we die? Nobody really knows. But the question has concerned and confounded humans since the dawn of time. Myriad answers have been handed down through the ages by every culture, religion, and place where mankind has contemplated mortality and impending death. Does human consciousness end at death? Dust to dust, and nothing more? Or do we somehow pass into the mysterious beyond? The afterlife is variously described by laymen as passing through the pearly gates to a heavenly place where winged angels strum harps upon the clouds; going to the happy hunting ground, for the heartier hunter/gatherer souls among us; or sailing off into the sunset to Valhalla by Vikings and old soldiers who fade away. Many fear the prospect of afterlife in an intolerable inferno where improvident souls, wretches, and most lawyers are consigned. Or do we return to this earth—like a bad penny—reincarnated in the form of an animal, plant, or person?
Religion was founded in large part to answer these questions. One commentator observed:
After a lifetime of investigation of the origin of religious structure, the great Sir James G. Frazier concluded that awe toward the dead was probably the most powerful force in forming primitive systems for grappling with the supernatural.13
Unfortunately, world religions cannot agree on the answer. Illustrating the perplexing diversity of religious belief, one man’s article of faith seems utter folly, and perhaps rank heresy or superstition to another. Perhaps, viewed in their best light, all of the answers supplied by the world’s religions are correct, or none at all. We cannot really know if there is but one right answer, as insisted by the true believers of each faith. “There are many tickets to heaven,” explained the late Wallace Black Elk, a Lakota medicine man, when referring to the bewildering variety of churches. Besides, how can one choose, and what if the wrong choice is made? Black Elk counseled, “the safest bet is to buy all the tickets.” At the end of the day, every belief is entitled to respect. Only those completely secularized minds that have long been estranged from the magic side of human life will dismiss beliefs in life after death as barbarous superstition. Yet even secularized Americans must stop short of treading on the sacred so long as First Amendment values continue to adhere and be cherished.
Two things from world religion are clear, however. First, awe and respect toward the dead is widespread. Second, many religions and cultures do believe in an afterlife in a spiritual world (however described) as a central article of faith. Indeed, much time is spent by clergy imparting the necessary wisdom and rules for finding the path to the Spirit World and staying there. Both of these attributes of religion are common in Native America. As an example, my family got a glimpse of the afterlife from my great-grandfather Echo Hawk. It is said that in 1923, the old warrior fell ill and died, but recovered shortly thereafter and came back to life. He explained what he saw in his vision:
I was walking upon the prairie, when all at once I heard singing coming from over the next hill. When I came to the hilltop, I saw a great Pawnee earth lodge village on the other side of a river and my folks were standing on the far bank—healthy, young, and dressed in fine Indian clothes. I hurried down to the river and naturally wanted to cross to be with my family, but my relatives said, “No, my son, you cannot cross this river until you grow your hair long and in braids.”14
One year later, after Echo Hawk grew his hair into braids, he passed away. The afterlife has always been central to Pawnee belief. The existence of life after death was confirmed many times during the Ghost Dance. Adherents frequently fell into trances, went to the Spirit World, and saw visions that are memorialized in our Ghost Dance songs about the afterlife. The belief in life after death goes far back in time, to the days in Nebraska when priests sent spirits of Pawnee dead to the North Star, who placed the souls of the departed upon the Milky Way (then called the Spirit Trail) to be blown by wind to the Spirit Star in the southern sky—a celestial Spirit Chief who received the spirits and oversaw the Land of the Dead located in the heavens, below the southern horizon. Tobacco-smoke offerings are still made to those ancestors in the southern sky. Hence, the old-timers not only believed in the afterlife, but knew where it was and how to get there. Those ancient beliefs in life after death are corroborated and strengthened by the Christian churches that have sprung up in Pawnee Country and they continue to be observed today in tribal ceremonies, such as the Pawnee funeral feast.
All Native American tribes and communities have a rich variety of traditional spiritual beliefs surrounding death, the spirit, and the afterlife.15 Ceremonies have always been held to prepare the dead, consecrate their remains and make them holy, and to place sacred objects in the grave with the body to help the dead make their sacred journey to the Land of the Dead so relatives there will know that they were well-cared for on Earth. Even today, Indian “undertakers” perform vital services in their tribal communities. Respect and awe command that, once buried, the dead, their place of burial, and their burial possessions not be disturbed, as this can harm the dead, cause their spirit to wander, and even bring harm to the living who allow this to happen.16 These beliefs prohibiting disturbance of the dead are similar to rules followed by Orthodox Jews and many other peoples in all ages, cultures, and places around the world. One legal commentator on these commonly held religious beliefs has correctly observed:
The sepulture of the dead has, in all ages of the world been regarded as a religious rite. The place where the dead are deposited all civilized nations, and many barbarous ones, regard in some measure at least, as consecrated ground. In the old Saxon tongue the burial ground of the dead was “God’s acre.”17
Indeed, the laws in every state prohibit grave robbing, mutilation of and tampering with the dead, unlawful possession of human bodies and body parts, and grave desecration.18 This demonstrates that the sanctity of the dead and the sensibilities of the living are deeply ingrained in our own mainstream society, even though many consider themselves secularized folks with rational outlooks that eschew superstition and dismiss the supernatural, often even the sacred.
What do courts have to do with death and the afterlife? The law exists to serve its host society and protect the system, and it is supposed to reflect the values and ideals held by members of society. Since mankind’s beliefs surrounding death, the afterlife, and the proper treatment of the dead are embodied by every society into a set of taboos, protocols, mores, and sensibilities, it becomes the chore of law to protect that belief system. The law thus prescribes the appropriate treatment of the dead, including their human remains, burial possessions, and place of sepulture. A significant body of law exists in the United States for these purposes.19
Even though Native Americans share the same reverence, respect, and religious sensibilities concerning death, the afterlife, and the proper treatment of the dead as the rest of humanity, the law has not always protected those beliefs and practices. Since the landing of Pilgrims, who opened the first Indian graves, American history has been marked by a bizarre double standard: American law strictly protected the graves of non-Indians, while allowing, even encouraging, hundreds of thousands of Indian graves to be looted.20 Unless we deny that Indians are human beings or adopt the pretense that their religious traditions regarding death do not amount to religion, it is difficult to explain the discrepancy and impossible to justify treating dead Indians any differently from the dead of any other group. Is this a case of simple religious discrimination, or are there larger forces at work?
Factors That Spurred the Appropriation of Dead Indians and Cultural Patrimony
Much has been written about the Native American repatriation movement in recent years. A burgeoning body of literature, both here and abroad, analyzes the array of dynamic, sometimes competing, social interests at stake, such as human rights, race relations, religion, science, scientific racism, education, museums, ethics, law, and social change.21 This section focuses on the two causative factors that gave rise to the repatriation movement. They remain at the heart of the problem, as threads that tie all the issues together: the first is the double standard in law and social policy concerning treatment of the dead in the United States; and the second is the social mind-set that accompanied America’s scramble for cultural patrimony, taken from colonized Native American communities when the government’s guardianship powers over Indian wards of the government were at their zenith (circa 1880–1934). These causative factors can only be understood against the background of the twin themes studied in this book, colonialism and conquest.
Colonialism is a political and economic institution devoted to a one-way transfer of all forms of property from Native to non-Native hands. The very purpose of colonialism is to extract land, resources, and wealth from colonized lands. Those goals continued to be pursued in settler states, and in most colonies and settler states, that even included the appropriation of indigenous dead, grave contents, and other movable cultural property taken from indigenous communities. The hard evidence lies in the British Museum, Smithsonian Institution, the Louvre, and other large museums of the colonizing powers, which are filled with dead bodies and cultural patrimony seized from colonized lands.22 These pursuits in harvesting the works of Native peoples and their dead most assuredly followed the flag into Indian lands colonized at home and other possessions of the American empire in distant lands overseas. As noted by Franz Boas, an anthropologist and avid museum collector, imperialism “imposed upon our scientific institutions a duty of familiarizing the American people with the inhabitants of the countries for whose welfare we have made ourselves responsible, for whose future developments and progress we shall be held to account before the judgment of history.”23
Notions of conquest also added fuel to the one-way transfer of property. Conquerors typically view cultural property belonging to the vanquished as spoils of war, available for the taking by the conqueror. Plunder and pillage are as old as war itself, as seen in the looting of occupied lands by victorious conquerors all over the world—done by Babylonians, Romans, Vikings, Crusaders, Cortés, Pizarro, Napoleon, English shoplifters in Africa, and, most recently, in the systematic plunder of Europe by the Nazis.24 Sadly, much of the world’s art and cultural property has been displaced by war. This has created potent political issues and prompted decades of hard work since 1946 by postwar European nations to repatriate millions of objects, unfinished business that occupies those nations well into the twenty-first century.
In the United States, a similar process occurred. The Indian wars (1776–1890) took place over a vast theater of war in which untold thousands were killed and displaced. Spoils of war were taken from battlefields and burial grounds during that period, and later, more systematically, from subjugated communities.25 Despite the explicit US Army prohibitions against the looting of private property, religious objects, and works of art that were promulgated by President Abraham Lincoln in 1863 in the Lieber Code, the bluecoats amassed wagonloads of battlefield booty from Indian villages and the bodies of slain Indians.26 The Cheyenne Dog Soldier ledgerbook drawings taken from the Battle of Summit Springs, Colorado, may be one prominent example.27 That practice was followed by civilian combatants in individual acts of violence as well. The soldiers and settlers established precedent for the fervid “rip and run” operations conducted by museum collecting crews in later years when it was safe to do so. While the collectors conquered no one, they took advantage of the fortunes of war, if not the spoils.
The Role of the Scientific Community in Fomenting Appropriation of the Dead
Scientific interests played several pivotal roles in fomenting the massive transfer of dead Indians and cultural patrimony from Native communities that was set in motion by the forces of colonialism and conquest found in Manifest Destiny. The scientific community created the demand for this material, provided legitimizing rationales for the appropriation of it from tribal areas, and anesthetized the way Americans viewed Native American dead and allowed them to reconcile disparate racial treatment. Furthermore, the mantle of science is used today by some in the museum and anthropology communities to justify retention of Native American dead in the collections of museums, universities, and federal agencies. The central role of the scientific community is therefore fundamental to understanding the forces at work that led to the taking of the dead.
First of all, the early fields of phrenology, archaeology, and anthropology and the newly established American museums created an insatiable demand for dead Indians and other cultural booty.28 Scientists needed crania and other Native American body parts as specimens for their studies and experiments on race. Before the Civil War, Dr. Samuel Morton hired gravediggers to obtain hundreds of Indian skulls to support his research.29 Then the search for Indian body parts was joined by the US Army. The Surgeon General’s order of 1868 directed army personnel to procure Indian crania and other body parts for the Army Medical Museum.30 In ensuing decades, thousands of heads were taken from battlefields, burial grounds, POW camps, hospitals, fresh graves, and burial scaffolds across the country as the military decapitated Indians in haunting places and ghastly events like the Sand Creek Massacre and the Fort Robinson Breakout.31 At the end of the Indian wars, when the army ended its head-hunting policy, museum collecting crews rushed in and competed with one another to see how fast they could take bodies and cultural property from tribal areas. One skeleton collector, Franz Boas, remarked that stealing bones from Indian graves is “repugnant work” but “someone has to do it.”32 One account of robbing Blackfeet graves in 1892 is chilling.
I collected them in a way somewhat unusual: the burial place is in plain sight of many Indian houses and very near frequent roads. I had to visit the country at night when not even the dogs were stirring…after securing one [skull] I had to pass the Indian sentry at the stockade gate which I never attempted with more than one [skull], for fear of detection…On one occasion I was followed by an Indian who did not comprehend my movements, and I made a circuitous route away from the place intended and threw him off his suspicions. On stormy nights—rain, snow & bitter cold, I think I was never observed going or coming, by either Indians or dogs, but on pleasant nights—I was always seen but of course no one knew what I had in my coat…The greatest fear I had was that some Indian would miss the heads, see my tracks & ambush me, but they didn’t. I regret the lower maxillae are not on each skull, I got all I could find, and they are all detached save one. There is in the box a left radius & ulna of a woman, with the identical bracelets that were buried with her. The bones themselves are nothing, but the combination with the ornaments makes them a little noticeable.33
As late as the 1930s, one Smithsonian anthropologist, Ales Hrdlicka, traveled to Kodiak Island, Alaska, and over the objections of the Native residents, removed more than three hundred remains from a local burial site.34
Historian Douglas Cole documented the heyday of collecting in the Pacific Northwest, between 1875 and 1925, and concluded:
During the half-century or so after 1875, a staggering quantity of material, both secular and sacred—from spindle whorls to soul catchers—left the hands of their native creators and users for the private and public collections of the European world. The scramble for skulls and skeletons, for poles and paddles, for baskets and bowls, for masks and mummies, was pursued sometimes with respect, occasionally with rapacity, often with avarice. By the time it ended there was more Kwakiutl material in Milwaukee than in Mamalillikulla, more Salish pieces in Cambridge than in Comox. The city of Washington contained more Northwest Coast material than the state of Washington and New York City probably housed more British Columbia material than British Columbia herself.35
Even today, American museums, with the help of private collectors, are the major source of world demand for the cultural patrimony of indigenous peoples from other lands—causing a massive transfer of cultural heritage from the Third World to suburban living rooms and museum showcases in America.36
The scientific community toiled to legitimize the process by providing the nation with a set of very rational scientific justifications for the seemingly rapacious acts of colonialism and conquest. In a classic case of scientific racism, pseudoscientific theories generated during this period animated widespread belief in the supposed racial inferiority and lack of humanity of indigenous peoples, making it easier to stomach the unpleasant invasion of graveyards and clandestine pillaging of ceremonial houses.37 Scientific racism is a term that commonly denotes (1) obsolete scientific theories on race developed by the mainstream scientific community in the nineteenth and twentieth century, (2) contemporary racist propaganda, disseminated by governments, institutions, and individuals, disguised as scientific research or argument, and (3) politically motivated research aimed to scientifically justify racist ideology or discriminatory treatment.
When the appropriation of Native America took place in the nineteenth and twentieth centuries, scientific racism was at its zenith. It was manifested by the mainstream scientific community through the use of physical anthropology, craniometry, phrenology, eugenics, physiognomy, and other disciplines concerned with the classification of humans into distinct races and racial categories. Supposedly innate traits—such as intelligence, morals, habits, and the capacity for civilization—were assigned to the races as immutable facts discernible to scientists from the study of human body parts, mainly skulls. Their findings supported master-race ideologies, and their theories postulated notions of racial superiority. By paying close attention to race and physiological differences, these disciplines provided the world with scientific support for popular racism of the day.
The immense harm caused by this work was not limited to Native America. The scientific fodder was eagerly embraced by segregationists and supremacists, who harbored racial prejudice. The pseudoscientific theories provided support and ideological justifications that were endorsed by governments, institutions, and individuals to justify mistreatment of racial and religious groups around the world. Science was thus enlisted to uphold slavery and quell moral doubts about that institution, to anesthetize the mass removal of American Indians from their homelands, to clothe colonialism in the mantle of the white man’s burden, to numb the mind to systematic Nazi persecution and destruction of the Jews, to sustain unjust apartheid governments, and to underpin judicial doctrines that supported the foregoing activities and, in the United States, to legitimize slavery, racial segregation, and dispossession of American Indians in the courts of the conquerors.
Of most interest here, during the colonial era, researchers earnestly claimed to prove scientifically that Caucasians are superior to indigenous peoples. Though anathema today, the many books, studies, findings, and claims of scientific racism were widely endorsed in the nineteenth and twentieth centuries. They clothed simple prejudice and base racism with the imprimatur of science. That made it much easier in the minds of the conquerors and colonizers to stigmatize, marginalize, and dispossess people who inhabited the lands they invaded. Also fundamental to scientific racism during that period was the undisputed assumption from medieval times that Western culture is the pinnacle of social evolution in the entire world, an ethnocentric idea that underpinned colonization in every corner of the Earth. Though repudiated today by the mainstream scientific community, it is hard to unring the bell. Scientific racism was the undergirding for the double standard in American law and social policy that allowed the mass invasion of Indian burial grounds to be carried out by a society that would never violate the sanctity of its own graves, and it also fueled the rapacious collection of cultural patrimony documented in historian Douglas Cole’s Captured Heritage.38
The scramble for bones and patrimony in the United States mirrors European collection practices in other indigenous lands during the colonial era.39 Today, the museums of those nations are the principle holders of the cultural treasures, bones, and patrimony of the Third World primarily because of their colonial histories. In the United States, the massive transfer that stripped Native America clean was justified by museum collectors at the time by the mantra of the white man’s burden, which they said placed a duty upon the colonizers to collect as much as possible before the red man disappears into extinction. That justification proved to be incorrect. Native America did not vanish. However, it was denuded of its material culture.
Science anesthetized the way that secularized Americans view Native American dead and allowed them to treat Indian dead in ways they would never treat their own. Our dead are human beings, but their dead are specimens that should be retained for study by scholars and experiments in laboratories. This doublethink allows the public to reconcile disparate treatment in laws and policies that protect the sanctity of the dead for everyone, except Native Americans. In the scientific viewpoint, there is no evidence that Indians have a relationship to departed spirits, and tribal beliefs or experiences relating to the dead, or spirits of the dead, are mere superstition. According to the late Vine Deloria Jr., a well-known theologian, attorney, and author, the secular mind “denies the possibility or importance of the after-life and limits human responsibilities to tangible things that we can touch.”40 Yet, at one time, that attitude was not prevalent—all cultures once viewed the dead and their places of burial with great religious awe, and disturbance was strictly taboo. American law still reflects those religion-based sentiments when applied to non-Indian burials, just as strongly as it did in Pilgrim days.
The gradual elevation of science over religion in the United States produced a secularized society that can comfortably view dead Indians as specimens that rightfully belong to scientists, rather than as human beings who are dead persons entitled to rest in peace. Thus, teachers and schoolchildren could view opened Indian cemeteries in tourist attractions without batting an eye.41 Deloria traced the trend toward secularism in a series of articles that even today comprise the intellectual foundation for the Native American repatriation movement.42 That trend deserves some elucidation because it defines the current climate for considering Indian efforts to repatriate their dead, which will be examined later.
Medieval Europe once followed two traditions of thought that regarded faith and reason as “equally viable paths to truth.”43 The organized religions in that part of the world were gradually overtaken, for a variety of reasons, by secular science in demonstrating truth. By the time of the writing of the US Constitution, it was felt necessary to rein in the organized religions to curb religious abuse, conflicts, and persecution in the religion clauses of the First Amendment and to separate church from the secular affairs of the state. Even so, during early colonial times, the organized churches played a significant role in everyday life. They addressed social issues, such as education and charity for the poor, and influenced the literature and policies of the day. Over the decades, churches withdrew from active involvement in the public arena and confined themselves to weekly services, membership/fund-raising drives, and bingo. The organized churches did make occasional pronouncements on issues such as abortion, birth control, and the death penalty. Sometimes they ventured forth into political contests in the harness of right-wing candidates. But for the most part, the everyday business of education, health, welfare, culture, and government was left to others.
Deloria thus observed that a “major phenomenon of this century has been the erosion of the power and influence of organized religion in American society.”44 This demise gave birth to what he and others have described as the rise of a new “civil religion” in which organized church groups took a backseat to a melding of scientific, secular, and bureaucratic thinking by administrators and institutions that hold purely secularized views and see the world through the eyes of the hard sciences. This outlook becomes base scientism when it rejects all other sources of knowledge, as I will further discuss in chapter eleven.
The civil religion views birds, plants, and animals of the natural world and human beings predominately as phenomena that can be subjected to scientific study. Since no other values are recognized, it is easy to believe in a need “to use Indian human remains for scientific work, teaching material, and public displays” as a central article of faith.45 Hence, Native Americans were confronted with the widespread attitude of federal agencies, museums, and universities that Indian remains are “resources, comparable in most respects to timber, oil, and water, belonging to the federal agency on whose land they were found,” or in museum storage boxes.46 Indeed, the Antiquities Act of 1906 and the Archaeological Resources Protection Act of 1979 declare that dead Indians found on federal lands are “archaeological resources” belonging to the federal government, which can be excavated with permits, so long as they are permanently curated in museum or university repositories.47 Historian Robert E. Bieder observes that the human body in science has become depersonalized and desacralized: “Gradually liberated from its religious moorings, the body—according to scientists—ceased to be a temple of the soul and became data,” and any religious scruples compromised in the names of science or medicine in the acquisition, retention, and treatment of that data “proved even weaker when the bodies involved belonged to other races.”48
In this climate, Native Americans would have to justify repatriation of their dead to the new civil religion. Deloria predicted tough sledding:
The power of civil religion and the inability of organized religion to articulate a set of values superior to those of the state combine to define the present situation in the following manner: Religious behavior must be justified on secular grounds in order to be protected.49
To the high priests of civil religion in museums, repatriation of the dead was akin to book burning—that is, the unwarranted destruction of data. As stated by James Hanson, director of the Nebraska State Historical Society in 1988, “a bone is like a book…and I don’t believe in burning books.”50 He demanded proof that the soul actually uses burial offerings in the next life and challenged the Pawnee to “prove that their religion is being affected by our possession of [Pawnee dead and their burial offerings].”51
The mantle of secular science continues to be used today to justify retention of dead Indians, only the arguments are different in the postcolonial era. It is harder to defend the legacies of conquest and colonialism, because it is no longer credible or kosher to claim that Indians are savages doomed to extinction, to appeal to notions of racial or cultural superiority, or to assert a birthright to harvest dead bodies and movable cultural property from tribal areas. Those arguments are vestiges of scientific racism, repudiated at the close of the colonial era. Thus, apologists and defenders needed to produce new reasons to retain the Indian dead who have lain in their collections for over a century. This is the new white man’s burden, and one that is nearly impossible to sustain. Why? The retention of bones and cultural patrimony of other peoples can be rationalized on almost any grounds, but none can completely ignore the mode by which these things were acquired. Against the secular arguments stands the other and older pathway to truth—religion. And the validity of the sacred in this debate is buttressed by another value that is larger than the state—the human rights principle. Against these pillars, the secular arguments made from behind the curtain of science are themselves in for a rough time in the postcolonial age.
Religious Discrimination, Ethnocentricity, or Were Larger Forces at Work?
The root causes of the double standard in American law that effectuated the mass transfer of dead Indians and cultural material are clear. To be sure, lawmakers and courts were ill equipped to prevent that pattern. But it was not simply because the needs of indigenous peoples were obscure to them when formative law developed. It is hard to imagine that the legal system was altogether blind to the needs and experiences of the marginalized Native peoples living in its midst. Their needs were known or knowable, but they were simply ignored or considered unimportant out of a combination of ignorance, ethnocentricity, and, above all, the malaise commonly found in colonies and settler states during periods of colonization and conquest. This conclusion emerges as the most plausible explanation when the forces of conquest and colonization are examined.
Against the background of those forces, indigenous dead were fair game in the public mind. That mind-set also created a duty to appropriate as much Native patrimony as possible as part of the white man’s burden. These forces simply marched unopposed through loopholes created by lawmakers, who made cemetery, archaeology, and other laws pertaining to the dead that ignore or fail to consider Native American interests. In interpreting those laws, courts like the one in Wana the Bear failed to serve as a protective bulwark. A double standard emerged because the legal system would never permit the rapacious taking of non-Indian dead in the same manner and scale. It would take a sea change in public opinion to halt the destructive process set in motion by this potent combination of forces and reverse it through means of repatriation, tasks that would fall to Congress during the modern era of federal Indian law.
The lessons that can be learned from the seemingly bizarre outcome in Wana the Bear are important for those legal systems that have the complicated task of serving democratic societies composed of diverse peoples with different cultures and needs. Inequitable treatment can easily arise from the simple lack of knowledge of marginalized segments of society, as pointed out by Price. Manifest injustice can also arise from the insensitive and inflexible enforcement of policies implementing a variety of laws designed for worthwhile purposes that fail to take into account their impact upon the needs of indigenous peoples, as seen in the Indian child welfare crisis of the 1970s and the mistreatment of Indian dead from 1620 to 1990. The anomalous outcome in Wana the Bear bespeaks a pressing need for the law to be consciously responsive to every segment of society, so that it is attentive to the needs and circumstances of even the weakest and most misunderstood among us. That is the weighty responsibility of all three branches of the federal government, as well as every state: to ensure that the laws are made, administered, interpreted, and enforced in a manner that is accountable to all groups that comprise our diverse society. It is the defining role of the judicial branch and the legal profession to remain ever vigilant to ensure that this is done. Failure to achieve these goals caused unwarranted disturbance in the Land of the Dead.
The Native American Grave Protection and Repatriation Movement
As Indian tribes gradually regained control over their sovereignty and solidified their place in the American political system, they were increasingly better positioned to demand legislative attention to the mistreatment of their dead. By the 1980s, it could not be ignored since virtually every tribal community was affected and the problem began to worsen. During that decade, pothunters continued to pour into private and public lands to dig graves, discard bones, and cart away the contents to sell in art, museum, and antiquity black markets. Shocking incidents were widely publicized in the press, which plastered onto front pages across the nation photographs of hundreds of open graves on private land, strewn with bones. Reporters also caught developers digging out thousands of bodies to make way for resort hotels in Hawaii and other parts of the nation, or housing projects, as seen in the Wana the Bear litigation. The overt disregard for the dead witnessed by the public in these incidents shocked the conscience and turned the stomach of many in Indian and non-Indian communities alike.
At last, society began to rethink the treatment of Native American dead. Awakened by the startling Wana the Bear decision in 1982, California lawmakers sprang into action by passing a law to protect Indian burial grounds the same year. Price noted:
Prompted by increased looting and vandalism of Indian burials and monuments, and by the example of dramatic cases such as Wana the Bear v. Community Construction, Inc., California has enacted one of the most sweeping and severe “unmarked burial” laws in the nation.52
Other states soon fell into line as lawmakers confronted similar problems in other parts of the nation. Lawmakers quickly grasped the need for new laws after being educated about the problem by the Native American communities.53 By 1990, thirty-four states enacted similar measures in a national trend toward closing loopholes in grave protection laws, and state courts handed down decisions upholding the new laws.54 The process marked a significant social change in attitude as society began to view Native American dead in a new light, as human beings. Though some old-school archaeologists accustomed to viewing Indian graves as their personal property opposed the grave protection movement, it was by and large supported by the mainstream scientific community, although for different reasons than those of Native American communities (we want to preserve Indian graves for our studies and these “resources” should not be despoiled by common looters).
During the 1980s, concern also focused on museums as facts about their enormous collections of the dead came to light. In the mid-1980s, tribes and organizations began demanding information about those collections and filing repatriation claims. In Washington, DC, Indians learned the Smithsonian Institution alone housed over eighteen thousand Native American skeletal remains and footage of the long, green boxes stacked from floor to ceiling shocked Indian Country.55 Would those institutions give back the dead? Not without a fight.
All of Indian Country gathered for the repatriation struggle, which resulted in the passage of several groundbreaking state repatriation laws in Nebraska, Kansas, and Arizona in 1989 and 1990.56 During that movement, which eventually culminated in the enactment of NAGPRA, many current and former staff members of the Native American Rights Fund (NARF) worked alongside tribal leaders and clients, community members, and local, regional, and national Native organizations, such as the National Congress of American Indians (NCAI) and the Association of American Indian Affairs, to litigate the issues, educate the public, and lobby for new federal and state laws.57 By the end of the decade, all Indian tribes, Alaska Native communities, and the Native Hawaiian people worked together to change the way America views their dead and to make social change.
Numerous bills were introduced in Congress between 1986 and 1990. My closest associate on the national level during this pivotal time was Suzan Shown Harjo, a former NARF legislative specialist and longtime repatriation advocate, who was then serving as the executive director of NCAI. Since the 1960s, Harjo has been one of the predominant figures in Indian Affairs within the Beltway—a seasoned veteran with fingerprints on over five hundred laws passed during the modern era of federal Indian law, including the American Indian Religious Freedom Act of 1978.58 Only a handful today know from an inside perspective how the landmark laws of that era were made, and she is one of them. From our side of the table, she deftly guided the strategy for navigating NMAIA and NAGPRA through political waters in the nation’s capital, avoiding pitfalls and booby traps in the backwaters, hallways, and hearing rooms of Congress. It was an honor to work at her side during that time. I proudly call my dear friend and associate “sister.”59
The numerous federal repatriation bills did not move far in Congress over the opposition of the museum and science communities until two things happened. The first was the temporary derailing of the effort by Washington insiders to obtain the enormous Hyde collection of American Indian cultural materials and to make out of that collection a brand new museum within the Smithsonian Institution chain devoted to the American Indian. Native American repatriation activists threw a stick into those cogs, which frustrated efforts in the Senate to grease the wheels for the new museum. They demanded that the Smithsonian agree to include a repatriation requirement as part of the legislative package it so desperately wanted and needed to build the new museum as a condition for obtaining Native American support. How, in good conscience, could Native America support a new Smithsonian museum devoted to its heritage with all those skeletons in the closet? This eleventh-hour demand to address the skeletons in the nation’s attic led to a repatriation agreement finalized at the Coyote Café in Santa Fe, New Mexico, in a meeting between the Indian negotiators—Suzan Shown Harjo, executive director of the National Congress of American Indians, and myself—Bob Adams, the secretary of the Smithsonian Institution, and Senator Ben Nighthorse Campbell. The agreement was incorporated into the pending bill and signed into law as the National Museum of the American Indian Act of 1989 (NMAIA).60 This law created a federal precedent for NAGPRA, enacted a year later. NAGPRA applied the Coyote Café policy to the rest of the nation.
The second development that broke the case in the national repatriation debate was the human-rights principle agreed to by Native American, museum, and science leaders during a yearlong dialogue (1989–90) sponsored by Senator John McCain (R-AZ) at the urging of museum representatives. The dialogue centered upon the appropriate treatment of human remains, funerary objects, and cultural patrimony held by museums. The major principle agreed to by the participants was that “the process for determining the appropriate disposition and treatment of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony should be governed by respect for Native human rights.”61 The report from this dialogue was presented to Congress and became the framework for NAGPRA. The rest, as they say, is history.
Are Any Arguments for Keeping Native American Dead Valid These Days?
A final word is in order before we leave the Land of the Dead. Any major civil-rights or human-rights law takes generations to fully implement. This is true for NAGPRA, especially given the national scope of the problem and massive numbers of dead Indians involved. As the nation set about the task of repatriation, the initial step required federally funded museums, universities, and federal agencies to identify and conduct an inventory of the dead Indians, Alaska Natives, and Native Hawaiians in their collections. This took several years, but 150,887 persons were identified. (This figure does not include additional human remains held by institutions that receive no federal funding, or museums in foreign countries, because those institutions are not covered by NAGPRA.) Of these 150,887 persons, museum researchers identified the name, tribe, or cultural affiliation of 32,054 dead persons by 2008. They were duly repatriated, along with 669,997 associated funerary objects, to their kin and appropriate Native American communities under the NAGPRA process.62
However, the vast majority—118,833 individuals—had not been repatriated by 2008. Why? The museums, universities, and federal agencies are unable to ascertain their identities—that is, their cultural affiliation to particular American Indian and Native Alaskan tribes. Consequently, they are America’s unknown Native American dead. The issue now confronting the federal government is to determine the proper disposition of these unknown dead, because NAGPRA commands that a process be developed for their disposition. After years of consultation with the Native American, science, and museum communities, the secretary of the interior published a proposed rule in 2007 that would require their repatriation to specified Native American communities whenever museums, agencies, and universities cannot establish their “right to possession,” which is defined in the proposed rule as “possession obtained with the voluntary consent of an individual that had authority of alienation.”63 This disposition has generated sharp debate. On the one hand, Native America widely supports that disposition, because it comports with mainstream values in Native America and is also consistent with the laws and social policies of mainstream society that guarantee a decent burial for each person, whether or not their identities are known. On the other side of the debate, some scientists and museums would like to keep these dead, even when there is no “right to possession,” on the grounds that they are valuable scientific data. They urge that these dead are specimens that must never be buried, but should be permanently retained for future scientific studies or scholarly research.
The scientific value of most of these 118,833 dead is highly debatable. Most of these persons died in recent historical times. Unfortunately, their identities and provenance are currently unknown for a variety of reasons, such as: (1) government removal of Indian tribes from their aboriginal lands and the shuffling of Indian tribes across the country during the course of American history; (2) the loss over the years of pertinent museum records by staff or inadequate curation practices (like stuffing remains in boxes and forgetting about them for sixty or seventy years); (3) the lack of provenance information furnished by the persons who turned these dead over to museums and agencies; (4) inadequate museum consultation with Indian tribes concerning the cultural affiliation of these dead; and (5) though most are simply unknown Indians who died in recent historical times, in some instances the antiquity of some of these Native American remains makes their cultural identification difficult.
Thus, despite the much-heralded miracles of science, the finest university minds and museum professionals who have spent their entire careers studying these dead Indians now profess they do not know who they are and could only identify 20 percent of the dead Indians in their collections. This abysmal figure is puzzling. Their seeming inability to identify these dead (i.e., assign a reasonable relationship between them and appropriate Native American groups based upon a simple preponderance of the evidence) stands in stark contrast to proven ability of forensic specialists in the American military to speedily, efficiently, and accurately identify the human remains of nearly all American war dead from foreign combat zones. This is successfully done by the military under far more trying and complex circumstances: sometimes decades after the dead died in POW camps; sometimes after individuals were killed and their remains scattered on the battlefield; sometimes when commingled remains were recovered from common graves, and often with only a few body parts to work with. However, the military is highly motivated to make those identifications, for the sake of families and communities at home, whereas the academics are not. To the contrary, they resist making straightforward identifications under NAGPRA since that means those dead must be repatriated and they will lose control over their “specimens” and “data.” Thus, the reluctant scientists charged with the statutory task of identifying these dead spend more time, energy, and brainpower thinking of reasons not to repatriate them, especially ancient dead, than identifying them in a timely manner. Hamstrung by conflicts of interest, they are the last opponents of the national repatriation policy. Very much like the last Japanese soldiers to surrender years after hostilities ceased in World War II, the custodians of these 118,833 dead Indians are caretakers of one of the last vestiges of colonialism in the land and the heirs to a dubious legacy of scientific racism that underpinned that bygone era.
Given their conflict of interest, the scientists’ new justifications for permanently retaining these dead should be carefully scrutinized. Instead, they are uncritically accepted by most people, and the press, as an article of faith simply because they are pronounced by scientists from behind the cloak of science. It must be correct, if scientists say so. But once the cloak is removed, the reasons are frail and unpersuasive.
Many justifications ignore the elephant in the room and shrivel when considered in the larger social context: quite simply, the right of burial is a social norm uniformly guaranteed by mainstream society to every person who dies by the statutes in all fifty states. This extends to known and unknown dead, as well as to persons buried by their family or friends, or if none exist, by the state. It includes unclaimed dead, unknown strangers, paupers, and indigents, and even prison inmates or other institutionalized persons who die without friends, funds, or next of kin. While some laws allow medical or scientific study of the dead in narrow circumstances, they uniformly require burial in every instance within a reasonable time after study.64 In no instance does the law allow anyone to permanently withhold any human remains from burial within a reasonable time. Consequently, it would be unprecedented and highly extraordinary in mainstream society to permanently deny the burial of Indians simply because their identities are unknown. As you will see, the radical departure from this norm that is urged by the museum and science communities is simply not supported by the kind of compelling justifications that one would expect.
Why Some Museums and Scientists Want to Keep Dead Indians
The following is a list of the top ten justifications given by some museums and scientists for keeping dead Indians in the twenty-first century, with accompanying analysis.
1. Indian remains are a national resource: they have great value to science; profound and sophisticated experiments are being conducted on them with the promise of great things for Indians and all of humanity. There are three criticisms of this claim. First, where are the profound studies? Without substantiation, this justification is simply a bare appeal to science. Many tribes have been sorely disappointed in the lack of significant relevant information produced by the mass disinterment of their cemeteries. For example, after nearly a century of secretly studying thousands of dead taken from Pawnee graves, without the knowledge or consent of the Pawnee Nation and without permits normally required by state law, leading scientists proclaimed that “Pawnees ate corn.” We could have told them that. They also concluded that “Pawnee have lived in the region a long time,” but they do not know for how long, or where we came from. We could have told them we were placed in the Great Plains by the Creator during the Creation and have lived there ever since. But then, the secular mind dismisses the sacred and demands proof that religious beliefs are true. Turnabout, then, seems fair play. Can we now insist that science be made to prove its claims?
Second, the scientific community has never convincingly identified or explained the peculiar characteristics of Indian bones and body parts that make them more valuable for study than the remains of other races. What can possibly be learned about the human condition, diet, the prevalence of disease, and most other pressing subjects by the exclusive study of Indian bones that could not be gleaned just as well, if not better, from the bones of other races? Indeed, the remains of other races stand to yield better information since more is known about their identities, provenance, and circumstances. Taken to its logical conclusion, the endpoint of the argument that Indian bones can yield interesting information applies with equal force to the human remains and cemeteries of every racial, ethnic, and economic group in the nation; and this conclusion strongly suggests that they, too, should be dug up and retained for scientific study, if we are to take this argument seriously. But it is only Indians who are targeted and placed into laboratories. And the stockpiling of Indian bones seems hardly necessary to plumb reliable information about Native America, because most information on things like their diet, social and economic conditions, and history are readily available in voluminous historical accounts, ethnographies, and Bureau of Indian Affairs annual reports, and from the oral traditions of the people themselves. By contrast, the contributions to knowledge about Native America found in the conclusions, conjectures, and theories about the more distant past that is drawn from the study of bones have proven to be very speculative.
Assuming for the moment that Indian remains are a one-of-kind national resource, there still remains the thorny matter of consent to study the dead. There is no unfettered scientific right to study human body parts. Permission has always been required by science to study the dead of any other race. Scientists cannot simply appropriate and study human body parts in any nation without first securing the donor’s voluntary consent, permission from the next of kin, or otherwise complying with strictly regulated procedural safeguards in a legitimate manner. There is no question that scientific research done at the expense of human rights is inherently immoral, as seen in the German medical experiments performed upon involuntary subjects during World War II.65 Sure, interesting things were learned, but at what cost? That society cannot abide such conduct is well illustrated by the laws in all fifty states that comprehensively regulate the medical or scientific use of dead bodies. Those statutes permit such research only under socially acceptable and carefully prescribed conditions involving informed consent by the deceased, next of kin, or other authorized representative, such as those safeguards that are provided in the anatomical-gift laws and the criminal laws that prohibit grave robbing, desecration, mutilation of the dead, and the unlawful possession of dead bodies. Thus, even if the 118,833 Indian dead are important to science, this does not automatically confer an unfettered right upon scientists to retain them. Dennis Baak, a senator in the Nebraska legislature, made these observations in 1990 when supporting the repatriation and reburial of Pawnee dead, despite the avowed historical importance of those human remains:
The way I look at it, we will be burying a part of history, but we probably didn’t have the right to dig up part of Native American history to start with. I became convinced that the artifacts are such a part of their religious beliefs that we have no right to keep them. Their religious beliefs are also part of our history. By putting them back, we are honoring part of our history, rather than reburying it.66
2. The ancient past is not just the heritage of a single group—it belongs to the whole world. We are all the same species, and no one living culture, religious group, interest group, or biological population has any moral or legal right to the exclusive use of ancient skeletons. Hmmm. The “we are all one” argument is a completely different song than the one sung by scientists in the nineteenth and twentieth centuries, when scientific racism claimed that Indians and Negroes were not the same species as Caucasians—or if some relation exists, there are vast differences in the scale of intelligence, morals, habits, and capacity for civilization. Moreover, in the age of colonialism the doctrines of Manifest Destiny and the white man’s burden allowed one single group to take control of the ancient, as well as recent, remains of all colonized peoples. Leaving aside this change in tune, many today would dispute the underlying premise of this argument that there is a common humanity, saying there is no such thing due to the great diversity that splinters our species into many independent and concrete historical locations, cultural moorings, and religious outlooks. Besides, how is common humanity defined and who gets to define it? But, getting down to the nitty-gritty, the argument is flawed because (1) it is legally infirm; (2) the circular argument defies logic; and (3) it is at odds with other anthropological interests and the human rights of indigenous peoples.
First, the contention that human remains, ancient or otherwise, can be “owned” by the whole world is legally incorrect. It flies in the face of the common-law rule that dead people are not property that can be bought or sold in the marketplace as chattel.67 The common-humanity argument that bones are the cultural heritage of all of human society and cannot therefore be controlled by any one nation is at odds with the laws of every nation that strictly control the cultural heritage and cultural property found in its territory.68 Thus, the notion that cultural property and archaeological resources are the property of no one and can be controlled by no single nation or group is simply not the law. The Archaeological Resources Protection Act and the Antiquities Act vest the ownership of archaeological resources, including bones, found on federal and Indian land in the United States.
Aside from legal infirmities, the circular argument defies logic. By asserting that scientists can keep Indian bones since no one group, nation, or culture can own or control them is a transparent argument that disguises their own property ownership claims. Gee, if no one owns these things, we get to keep them. The reasoning is like the legal fiction employed by Australian colonists to appropriate aboriginal land—this is vacant land owned by no one.
Finally, the argument ignores other paramount anthropological interests entirely. The contention that no single living culture can own or control ancient human remains ignores cultural continuity to the past—the wellspring of every living culture—and the relationship between the living and the dead found in the sacred side of every indigenous culture where those remains were obtained. The ability to discard those well-known anthropological cultural interests so that the interests of physical anthropology can be served shows the lengths to which the proponents are willing to go to retain their specimens. They would throw the baby out with the bathwater. During the colonial era, the cultural interests of the indigenous peoples in their own past were subordinated. However, the United Nations Declaration on the Rights of Indigenous Peoples closed that loophole in 2007.69
The declaration protects indigenous people from the destruction of their culture and actions that deprive them of their integrity, cultural values, or ethnic identities. Importantly, it recognizes their right to maintain, protect, and develop the past, present, and future manifestations of their culture, including archaeological sites. In that regard, states are required to develop mechanisms to return property taken without their free and informed consent or in violation of their laws, traditions, and customs. In particular, Article 12 recognizes “the right to repatriation of their human remains,” and it requires states to repatriate both “ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.” The argument that indigenous dead belong to or can be controlled by no single group or culture is refuted by the declaration; and violations of the minimum standards set forth in the declarations are considered human-rights violations.
Dr. Jeanette Greenfeld, an international expert on cultural property (which includes archaeological remains) examined the “we are all one” argument in the international context and concludes:
Generally speaking it is clear that cultural property is most important to the people who created it or for whom it was created or whose particular identity and history it is bound up with. This cannot be compared with the scholastic or even inspirational influence on those who merely acquire such objects or materials. The current arguments about the retention of major objects on the grounds of scholarship are no longer tenable. In most instances the task of learning has been satisfied, as for example with the Rosetta Stone, whose hieroglyphics have already been deciphered. The Parthenon and its marbles continue their hold on the imagination but they no longer have a relevancy significant for twentieth-century Europe. The continued scholastic value of keeping the marbles in Britain is debatable…Scholasticism can be a high-sounding motive for a selfish and unrelated purpose. Museum claims of universality are also suspect because…they cannot be invoked unilaterally but must be determined by the international community…The retention of art treasures can be rationalized on almost any grounds, especially the sanctity of the ‘collection.’ However this ignores the fact that when the international collections were made, they were done at the cost of destroying the completeness of the ‘collections’ of other peoples, and it chooses to ignore completely the mode by which many treasures were acquired.70
3. We must keep Indian remains permanently for future studies, because new techniques might be developed and new questions might be asked. What can possibly justify keeping human remains for more than a century, much less forever? There comes a time when objects have been so thoroughly studied that scholars can no longer justify retaining them. This applies even to world treasures, such as the Elgin Marbles and the Rosetta Stone. Indian remains are simply not a world treasure like the Rosetta Stone; they are first and foremost human beings. Are there so many studies that scientists must keep these remains for more than a hundred years? Or are these dead being retained so each new generation of scholars can simply repeat old studies with new techniques? The laws in the United States that do allow the medical or scientific study of dead people in narrow circumstances provide guidance. They sometimes allow indigent prison inmates, paupers, or wards of state institutions who die without friends or next of kin, and who thus must be buried at state expense, to be used for medical or scientific study before burial—but they uniformly require that those remains be buried after study. In no instance do any of those laws allow scientists to keep those remains permanently. Those limits are placed out of respect for the dead and they should be adhered to in the case of the American Indians as well. If the argument of the scientists is carried to its logical conclusion, the paupers, unclaimed dead, and institutionalized persons to be buried at state expense in their labs should never be buried—because doctors and scientists can always think of more studies or new questions to ask; nor should the dead of any race be buried, because over time, their remains will become ancient—yet we never hear the voice of science crying over the burial of those dead. Nor do the scientists contribute their own dead to museums in the hope that new techniques and questions will someday in the distant future make them valuable to science.
4. Archaeologists have an ethical obligation to the past. Ancient remains cannot speak for themselves, so we have to tell their story; and our ethical obligation to do this is more important than any rights of the descendants. This appeal to high-sounding scientific ethics to subordinate conflicting indigenous interests is contrary to the Principles of Professional Responsibility of the American Anthropological Association (1971), which state: “In research, an anthropologist’s paramount responsibility is to those he studies. When there is a conflict of interest, these individuals must come first.”71 Thus, the “archaeologist’s burden” cannot justify retaining the dead when it conflicts with the expressed interests of the very indigenous peoples they study. Native America has clearly said it wants these Native American dead to receive a decent burial consistent with their mainstream cultural mores and religious sensibilities, which fall within the ambit of the United Nations Declaration on the Rights of Indigenous Peoples, as well as the policies that underlie the laws in all fifty states respecting the treatment of the dead, including unclaimed and unknown dead. Whatever obligations are assumed by archaeologists, whenever their professional or private interests conflict with the interests, rights, and well-being of the Native people they study, the interests of the Native people must come first under the controlling ethics of their own profession.
Many secular minds simply assume that this self-imposed obligation “to speak for the dead” is sacred, because it is part of the civil religion, but this scientific interest is neither sacred nor does it rise to the level of religion. What is at stake are very real religions and sacred obligations of indigenous people in the United States that extend deeply into the Land of the Dead in ways that the secular mind lost track of many generations ago. Taken to its logical conclusion, the secular interest in science can run roughshod over human rights under this argument, because the plain implication is: even if Indians may have religious connections to the dead, or to the spirits of the dead, which is doubtful to the purely scientific mind-set, the secular interests and perceived obligations of a small group of scientists and scholars take precedence. The flaws and contradictions in the crude attempts by the scientific and museum communities to dismiss Native religious interests in this fashion were soundly criticized by Deloria in 1989:
The human remains of American Indians are, to this way of thinking, an important national resource over which [scientists] alone must have custody. They do not and will not admit the proposition that Indians have any sentiments at all towards their dead. And if such a belief is true, the attitude is that it really doesn’t matter and that the secular claims of a small group of scientists and National Park Service museum directors should have precedence over the religious beliefs and practices of American Indians…The schizophrenia here is painfully clear. How can people hold these contradictory views? Either Indian religions are a real tradition to be experienced and protected and from which it is possible to learn, or they are not. If they are valuable, there should be no question that they should be protected in the fullest capacity of the law as rapidly as possible, without any debate whatsoever. If Indian religions are not valuable, then scholars and theologians and the general public should stop the traffic in Indian artifacts, cease visiting reservations for research and spiritual enlightenment, and return all of these worthless things lying around museums and art galleries to the simple people who do, in their primitive ignorance, cherish these things.72
5. Just who do these Indians represent? Since identities of these 118,833 dead are unknown, how can Indian tribes speak on their behalf, and what interest do they have concerning the disposition of these dead? It does not matter that the identities and particular cultural affiliations of these 118,833 Native American dead are unknown, because American law in most jurisdictions allows unrelated friends of the dead to undertake the responsibility for burial when the next of kin cannot be found. The law takes great pains to see that even unknown dead will receive a decent burial, if by no one else, then by the state. We need look no further to find support for this proposition than the Tomb of the Unknown Soldier in Arlington National Cemetery, where thousands assemble daily to honor unknown war dead, even though no one knows who is entombed there.
The NCAI represents over 250 tribal governments. Their position is expressed in a 2003 resolution, which states that the disposition of these unknown Native American dead “must be made by the appropriate Tribes and Native Hawaiian organizations in concert with the group’s customary traditional practices, wishes and beliefs,” and those dead should be “speedily repatriated to Native peoples in accordance with procedures to be determined by contemporary Native American groups.”73 The tribal governments assert the widespread belief in Native America that these 118,833 unknown dead are related to contemporary Native Americans as their nearest culturally connected relatives and they have undertaken the governmental responsibility for their disposition. There is nothing unusual in that at all, because governments undertake the responsibility to bury unclaimed and unknown dead every day under American statutes. There is no dispute that these are Native American dead, but the “who do you represent” argument ignores the continuity to the past maintained in traditional Native American communities and the close spiritual ties to the Land of the Dead that bind indigenous people to these dead, no matter how ancient they may be, as an important part of their histories and cultural and religious traditions—attributes of indigenous life that are recognized and protected in the United Nations Declaration on the Rights of Indigenous Peoples, the human-rights policy that underlies NAGPRA, and by the federal trust responsibility to preserve and protect the culture and traditional religious beliefs and practices of Indian tribes.
If the scientists’ concern that no one has standing to undertake the responsibility for burial of unknown dead is taken seriously, then why not let them dig older sections of American cemeteries to exhume persons without next of kin simply because their relation to any living person is unknown? This argument, if taken to its logical conclusion, would place large numbers of those dead into the keeping of scientists.
6. We spent our time and money and invested our reputations obtaining and studying these 118,833 specimens. Why should we give them to folks who made no such efforts to retrieve them? Besides, we will lose our livelihood if we return this material. This self-interest argument must be given short shrift under the conflict of interest ethical statement in the Principles of Professional Responsibility of the American Anthropological Association (1971), discussed earlier. The livelihood justification surely drives the folks who depend most heavily upon the study of Native American dead for their income, but that self-interest is not discussed much in public due to the conflict of interest prohibition that governs the study of anthropology. Native America should not be made to subsidize career choices with its dead at the cost of its cultural integrity, religious freedom, and human rights. In those instances where museums, universities, and agencies cannot establish their right to possession under the rule proposed by the Department of the Interior, the remedy for scientists with particular study interests in specific dead is to present their case for studying them to the appropriate Native American communities who are granted control over those dead by the proposed rule. If a convincing presentation is made, further study might be granted. Indian tribes are not antiscience when their human rights are not trammeled. To the contrary, they commonly employ archaeologists and work closely with anthropologists every day as part of their daily governance, and they enjoy close working relationships with scientific staff. However, the truth of the matter is that the physical anthropologists who have spent their careers in laboratories studying dead Indians, often against the wishes of their tribes of origin, are afraid to speak to living Indians in tribal communities, much less in tribal government settings.
7. It does not matter how these dead were obtained, or why Indians want them back, because the study of the bones promotes enormously important values, such as education, scholarship, and science. Let’s forget about the way the bones and patrimony were obtained—the past is ancient history and Indians cannot unring the bell. This utilitarian argument puts the proponents on dangerous moral ground, because it says theft and looting are okay so long as the end justifies the means. Even the civil religion must be accountable to morality, which is one value higher than the state itself. Study done at the expense of human rights is both immoral and illegitimate. This includes study done through the clandestine taking of the dead, as the Dr. Frankenstein literature and films lecture to us. He produced a scientific marvel, bringing life to the dead, but was still hounded and persecuted by the appalled townsfolk for his reprehensible scientific conduct. We cannot put science upon such a great pedestal that its work and interest become sacrosanct regardless of the means by which it is performed. The mass appropriation of Native American dead was unscrupulous then as it is indefensible today. This places the defenders and would-be caretakers of those dead today in a difficult moral position to justify further, much less permanent, retention of those dead. As stated by Greenfield, “The wholesale looting and plundering and (sometimes fraudulent) ‘purchasing’ of objects by dominant countries is a continuing blot on the saga of the growth of archaeological learning.”74 The ends do not justify the means, and it is impossible to ignore how these dead were obtained. Though that history of past events cannot be changed, the tide of history that previously favored taking the dead now favors repatriation, and it should not be dismissed by arguments that would have us ignore how the bones were obtained. Though some may argue that the bones were obtained legally and in accordance with society’s mores at the time they were taken, they will have a full opportunity to test that contention on a case-by-case basis under the right-of-possession standard in the proposed rule.
8. Indians are religious fundamentalists, anti-intellectuals, and antiscience. They are being unreasonable—they want to destroy collections, which are like libraries. The only good Indian is an unburied Indian. When all else fails, these name-calling arguments and personal attacks resort to rabble-rousing and making bare appeals to inflammatory prejudices to bring public sentiment and animosity against Native people. This smacks of the old-fashioned scientific racism employed by their predecessors; and it certainly has the press marching to the beat of their drums. Native Americans will survive those attacks, but they are unwarranted. Hopefully, an attack by secular science upon one of the last remaining traditional religious groups in the nation will not be supported by mainstream America.
9. We know what is best for you. Indians should spend their time on other problems. Your descendants might condemn you for burying these dead, whose remains might be of interest to them in future generations. This is a paternalistic argument. Native Americans must look to their own tribal governments and spiritual leaders to know what is best for us. Thanks anyway, but we cannot rely upon scientists in laboratories who have never spoken to living Indians or interacted with living tribal communities for guidance in our affairs.
10. Burial goods should not be returned. As a last-ditch effort, this argument says “At least let us keep the funerary objects.” In some cases, this interest in coveted grave objects of great monetary value and scholastic interest (like the peace medals interred in Pawnee graves) is a strong motivating factor in museum resistance to repatriation claims.75 Yet this argument ignores the role of funerary objects in Native American mortuary traditions, as well as the common law rule that funerary objects are not “abandoned” property available for the taking (otherwise graves would be subject to despoliation as soon as the next of kin leave town). The proposed rule should not sanction simple grave robbing by exempting associated funerary objects from repatriation along with the human remains they were interred with. It is a common practice of everyone to inter their dead with personal possessions—clothing, religious items, and mementos of every description. We do not need to prove that the dead really need any of these things or that they actually use them in the afterlife for them to be protected from looters. The living reasonably expect that once those items are placed in the grave with the dead that they shall stay with the dead. No exceptions should be made for Indians, as long as those sentiments and expectations are shared by Native Americans.
With these observations about the top ten reasons given by scientists and museums to keep dead Indians, our examination of how the law and social policy impact the Land of the Dead comes to the end of the trail. Since the days of Wana the Bear, the disturbance of that spiritual realm has been slowed by NAGPRA. Someday, all Native dead will be reburied, just like all other American dead. When the living close that double standard in the law once and for all, the dead can rest in peace.