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d'Errico: Kafka meets NAGPRA: When research becomes stalling

If a federally funded institution holds human remains, questions arise under the Native American Graves and Repatriation Act. If a human bone collection is found in someone’s basement, questions arise under criminal law – for grave robbing.

In the case of an ordinary (if there is such a thing) grave robber, we think of desecration and defilement. On June 10, Interior Secretary Ken Salazar announced what The New York Times reported as the “biggest ever” law enforcement operation against robbing Indian graves. A few days later, Indian Country Today reported that Utah’s two senators protested the raid as “overkill.” Apparently the senators don’t mind a little grave robbing among friends.

The acquisition and holding of human remains by a museum or academic institution is said to be different from grave robbing. Institutional grave robbing is described as scientific research.

When some Palestinians turned to robbing graves for salable artifacts as an economic survival tactic after Israel blockaded Gaza and the West Bank in 1993, the Times reported, “It is a sensitive thing, and when they find bones, they gather them up to bury them together later.” Nevertheless, the Times pointed out that, “It is blatantly illegal work.”

The acquisition and holding of human remains by a museum or academic institution is said to be different from grave robbing. Institutional grave robbing is described as scientific research. This argument goes back a long way. As David Hurst Thomas, author of “Skull Wars: Kennewick Man, Archeology, and the Battle for Native American Identity,” writes, “Thomas Jefferson, America’s first scientific archaeologist, argued that Indians could – and really should – be studied as part of the rest of nature. Jefferson defined American Indians as specimens. …”

This kind of “specimen” thinking is related to the doctrine of “Christian discovery:” the idea that non-Christian peoples are not fully human. In this view, the remains of indigenous peoples are not sacred like the remains of Christians. The historical development of academic and museum collections and research claims of “studying” Native American remains is rooted in this religious racism. Indigenous burial grounds are like rocks and ore – part of the earth, available for “discovery,” digging, collection and examination.

Sen. Dan Inouye, D-Hawaii, speaking in favor of NAGPRA’s passage in 1990, said: “When human remains are displayed in museums or historical societies, it is never the bones of white soldiers or the first European settlers that came to this continent that are lying in glass cases. It is Indian remains. … This is racism.” Tony Hillerman explored these themes in his provocative novel, “Talking God,” written as NAGPRA was becoming law.

In fact, many museums, including the Smithsonian Institution, American Museums of Natural History, Field Museum of Natural History, and Harvard University, had already agreed prior to NAGPRA to repatriate Native American remains, indicating that religious-based, scientific racism against American Indians was no longer a viable excuse for their collections.

The fact that the University of Massachusetts is now embroiled in a controversy over Indian remains is especially disturbing to me. I taught there for many years, during which I helped create a state repatriation process several years prior to NAGPRA, after the university unearthed human remains at its Nantucket ocean research station.

The fact that the University of Massachusetts is now embroiled in a controversy over Indian remains is especially disturbing to me.

Slow Turtle, supreme medicine man for the Wampanoag and related peoples along the Northeast coast and the executive director of the Massachusetts Commission on Indian Affairs, asked me to draft legislation to mandate repatriation whenever any human remains were discovered in the Commonwealth. In 1983, Massachusetts enacted “An Act Relative to Certain Skeletal Remains,” to protect American Indian graves and empower the Commission on Indian Affairs to oversee repatriation and reburial.

A basic premise of NAGPRA, like the Massachusetts statute, is that anyone, individual or institutional, holding American Indian remains should return them to “the most appropriate claimant” to effectuate repatriation. The problem is that institutions can turn this premise into an excuse for retaining possession as they research the proper “cultural affiliation.”

Let us not waste words here. When institutions engage in this stalling behavior, the result is that those with the least likely affiliation – the academic researchers – assert power not only over the remains, but also over the process of repatriation. They build elaborate trails of paper, keeping the remains ever more firmly protected – from those most “reasonably” related. A better example of the meaning of “Kafkaesque” is hard to find.

Peter d’Errico is a consulting attorney on indigenous peoples’ legal issues. He graduated from Yale Law School in 1968, was a staff attorney in the Shiprock office of Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968 – 1970, and taught Legal Studies at the University of Massachusetts, Amherst, 1970 – 2002. His Web site is www.umass.edu/legal/derrico/.