|excerpted Wrom: CJVTLBXFGGMEPYOQKEDOTWFAO
Holding States and Their Agencies Accountable under the Museum
Provisions of The Native American Graves Protection and Repatriation
Act, 71 UMKC L. Rev. 955 (Summer 2003) (131 Footnotes)
Many people can still recall the shock they felt when television
affiliates around the country reported the gruesome discovery found at a
crematorium in Walker County, Georgia, in February 2002. The crematorium
operators allegedly stored and dumped bodies throughout their property,
instead of cremating the remains, as they were obligated to do. People
were shocked at the sacrilege that took place. A local sheriff stated,
"(w)e're brought up and raised to take care of our dead . . . . We
treat them with . . . respect and dignity . . . . And to see something
like this, just a disregard for that upbringing that we've all been
accustomed to, is why people are so outraged." Why is there no
similar outrage regarding Native American dead? Many of these dead,
buried with respect and dignity by their kin and community, now have
been exhumed and stored in warehouses around the nation.
In the later half of the 19th century, the Army Surgeon General
ordered the collection of Native American remains for the Army Medical
Museum. This request was excitedly responded to by Army personnel, but
also by collectors looking to make money from the sale of remains. What
ultimately resulted was a collection of "over 4,000 heads . . .
taken from battlefields, burial grounds, POW camps, hospitals, fresh
graves, and burial scaffolds across the country."
Another gruesome example involves four Eskimo who visited the
American Museum of Natural History in 1896, and never left. An Arctic
explorer invited six Eskimo to visit New York City. World-renowned
anthropologist Franz Boas and his colleague, Ales Hrdlicka, were eager
to study them and offered them a place to stay on the museum's fifth
floor. When the Eskimo group arrived, they all had "slight
colds." In four of the Eskimo, these colds developed into
tuberculosis, something to which people indigenous to this continent had
no immunity. Eventually, the four Eskimo died. After their death,
instead of sending them back home for a decent burial, Boas and Hrdlicka
recognized an opportunity for study. "Hrdlicka directed that all
four be macerated, boiled, and reduced to skeletons at the College of
Physicians and Surgeons of Columbia University." The remains were
then sent to the museum's collection where they could be studied. Franz
Boas was noted for stating that it was "most unpleasant work to
steal bones from graves, but what is the use, someone has to do
This kind of disrespect toward the remains of Native Americans
continues today. Universities have excavated and desecrated Native
American remains in the name of science and education, stored them in
warehouses, and refused to allow Native Americans the right to rebury
them. In 1995, a professor of anthropology at the University of Missouri
in Columbia (MU), Mike O'Brien, rudely referred to the human remains
stored at MU as "critters." The statement brought a quick
response from the Iowa Tribe of Oklahoma, which had been trying, to no
avail, to have MU return the human remains from their collection for
reburial. MU's chancellor, Charles Kiesler, received a letter from the
Iowa Tribe seeking O'Brien's "removal from the University and an
apology from the University for ever having employed such a bigot."
It is probably safe to assume that many universities have more dead
Native Americans warehoused on their campuses than live Native Americans
in attendance in their classrooms.
The public's perception about Native American remains often seems as
if they do not matter and are not worthy of protection. Until recently,
tourist attractions offered families a fun-filled day of viewing dead
Native Americans in excavated mounds. Though smaller roadside
"attractions" were scattered about the Midwest, the most
notorious of these attractions were Dickson Mounds in Lewistown,
Illinois, and Wickliffe Mounds in Wickliffe, Kentucky. Both displays
eventually discontinued public viewing of human remains due to protest
by Native Americans.
Today there are collections of Native American remains all over the
country. The Smithsonian's Museum of Natural History has roughly 18,500
sets of remains and the National Parks Service has an estimated 20,000.
The number of Native American remains stored in museums, government
agencies, and universities is unknown but national estimates are between
100,000 and two million. This desecration of graves is not, however, an
occupation solely for the highly educated scientist; there is also a
problem of amateur grave robbing to sell remains and artifacts on the
black market. In fact, grave robbing is estimated to be a billion dollar
per year industry, and numerous objects stolen from graves by looters
are sold, through dealers, to collectors throughout Europe and Japan.
States eventually passed laws to protect remains from grave robbers,
and federal legislation now mandates repatriation of those remains held
by federally funded entities. One problem with states and their burial
laws is that the state may decide to keep and store the remains, or
repatriate remains to unauthorized individuals not connected with the
tribe culturally affiliated with the remains. One such incident, among
many, involves a man who had gone around the country portraying himself
to museums as a representative of various tribes;when the tribes were
contacted, they had never heard of him. In another case, Muskingum
College in Ohio, gave Adena remains and artifacts to a Lakota woman for
reburial. The problem is that Adena people were early mound builders
unrelated to the Lakota, yet Lakota people were allowed to rebury them.
There is no fundamental problem with citizens protesting and
demanding repatriation or protection of remains. However, those remains
should go to those legitimate tribes culturally affiliated with the
remains. States, state agencies, and other entities receiving federal
funding that have control or possession over remains should be required
to abide by the Native American Graves Protection and Repatriation Act (NAGPRA).
This Act forbids transfer to unauthorized people.
This Note will focus on the proposition that a state's laws may grant
control over Native American human remains to the state or its agency,
and such control converts a state or its agency into a
"museum" for the purposes of NAGPRA, which would require that
they abide by the museum provisions of the act. NAGPRA only protects
inadvertent discovery of remains discovered on federal or tribal
property, and remains and cultural items in museums. However, because of
a state's responsibility as a "museum" under NAGPRA, even
remains inadvertently discovered on state or private land may also be
covered and protected by NAGPRA. Part II of this Note will concentrate
on NAGPRA, its history, and the provisions dealing with this
proposition. Part III will focus on the history of state law protection
or lack thereof, and the current state laws that protect human remains.
Part IV will analyze the proposition that states and their agencies are
museums under NAGPRA. Finally, Part V will discuss a past lawsuit that
may have been successful had it used this proposition, and a lawsuit
adopting this proposition that was recently filed against agents of the
state of Missouri.
[a1]. J.D. Candidate, University of Missouri-Kansas City, 2004; B.S.
of Fisheries and Wildlife Management, 1999, University of