Bones of Contention: A Comparative Examination of Law Governing Human Remains from Archaeological Contexts in Formerly Colonial Countries

• Author: Ryan M. Seidemann
• Position: B.A. in anthropology from Florida State University
• Pages: 546-588

Page 546

Ryan M. Seidemann holds a B.A. in anthropology from Florida State University and a M.A. in anthropology from Louisiana State University as well as a B.C.L. and a J.D. from Louisiana State University. He is a member of the Louisiana State Bar. Numerous people have contributed time and information during the writing of this manuscript. The author wishes to thank Catherine Rogers, Neal Ferris, Rebecca Brown, Harry Allen, Judith Littleton, and Ericka Seidemann for reading and commenting on previous drafts of this manuscript. Thanks also to Lorne Holyoak, Annie Ross, Scott MacEachern, Vicki Kanai, Carmen Ch. Petrosian-Husa, Nancy J. Pollock, Timothy J. Anson, Clifford Brown, Clare Fawcett, Robert Hicks, Carole Nash, David Hayes, Kamaruddin Zakaria, Gary Heathcote, Hugh Jarvis, Roz Hunter-Anderson, Nicolas Kariouk, Claudia Delgado, Elizabeth Graham, Rae Bridgman, Terry Simmons, Matthieu Sossoyan, Mark Busse, Bruce Dahlstrom, David Pendergast, Franklin Damann, Roberto Mucaro Borrero, William Keegan, Angie Huxley, Glen Doran, Georgia Brown, and the Jamaica National Heritage Trust for supplying information and advice, even if not all of it was used or followed. Despite the extensive assistance of everyone involved in the production of this manuscript, any errors or omissions remain the sole responsibility of the author.

I Introduction

In 1990, the United States Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA).¹ This piece of legislation, which was the culmination of more than twenty years of lobbying on the part of the Native American community, set in place a mechanism for the return and reburial of Native American skeletal remains and sacred objects from museum and university collections across the United States.²

The United States has not been alone in its contentious relations with its indigenous inhabitants regarding the disposition of human skeletal remains. Canada, Australia, and New Zealand have encountered substantial opposition to the institutional excavation and retention of indigenous skeletal remains.³

Page 547

Much of the tension between indigenous peoples and the anthropological⁴ community arose during the civil rights movements of the 1960s.⁵ While the African-American civil rights protests and demonstrations dominated the news, other minority groups also began to assert their dissidence with Anglo-America. The so-called "Red Power"⁶ movement began in the mid-1960s.⁷ This was a Native American backlash against nearly five hundred years of oppression.⁸ The Native Americans quickly took aim on the anthropological community in their protestations. In 1969, Vine Deloria, Jr. published his provocative book, Custer Died for Your Sins: An Indian Manifesto,⁹ in which he berates virtually all non- Native American institutions in the United States. One entire chapter is devoted to anthropologists. While making such lighthearted jabs at the anthropological community as "Indians are certain that all societies of the Near East had anthropologists at one time because all those societies are now defunct,"¹⁰ some of Deloria's observations were acute and have become a sounding board for not only Native Americans but many indigenous populations around the globe. Deloria commented that "[a]cademia [including anthropology], and its by-products, continues to become more irrelevant to the needs of the people."¹¹ Further, and more to Page 548 the point of the current situation, Deloria characterized anthropology and Native American relations thus: a "[c]ompilation of useless knowledge 'for knowledge's sake' should be rejected by the Indian people. We should not be objects of observation for those who do nothing to help us."¹² Over the past thirty years, this attitude has developed into a general distrust of the pronouncements of academic anthropology.¹³ More specifically, indigenous religion has begun to rebuke long-held scientific truisms regarding the peopling of the New World and the Pacific.¹⁴

Generally, in the United States, Native American groups¹⁵ have begun to break free of scientifically derived notions of their migration across the Bering Strait land bridge some 13,000 years ago.¹⁶ This theory has been replaced by a creationist theory derived from oral histories, placing Native Americans in the New World Page 549 since the beginning of time.¹⁷ Such creationist approaches to peopling of particular areas have also surfaced in other regions of the world, such as among some Aboriginal groups in Australia.¹⁸

Under such impressions of the world, indigenous groups are becoming increasingly wary of scientific evidence contrary to their religious views. A considerable amount of this disputed evidence is currently coming from studies of human skeletal remains by physical anthropologists.

Much of this introduction has been dominated by a discussion of Native Americans due to the extensive scholarship on the repatriation debate in the United States. The problems being faced by Native American groups and archaeologists are also cropping up among indigenous groups and in academia the world over. This paper briefly examines the relationships of some of these debates in previously colonial nations and how the various governments have attempted to address the concerns of all involved parties through legislation. This paper also addresses questions regarding the possible role of international law in resolving disputes, nationally and internationally, regarding the repatriation debate. However, this paper is not intended to be an exhaustive analysis of the underlying policies and regulations for each of the nations' laws. Rather, the paper is a general overview of the broader laws of these nations with an eye towards how the laws operate and means by which the benefits and detriments of each of the laws can be used to assist in creating a more seamless set of international policies and laws on the repatriation issue. The paper is also intended to present suggestions for the lawmakers in the individual nations to improve on their own laws.¹⁹

Page 550

II Human Remains

A Scientific Uses of Human Skeletal Material

Human skeletal remains have been the subject of anthropological study since the dawn of the field in the mid-nineteenth century.²⁰Contrary to the claims of some authors,²¹ it should be borne in mind that indigenous populations do not constitute the entirety of curated skeletal collections.²² The uses of these remains can largely be divided into two categories: general human history and medical/forensic applications.

Generally, human skeletal remains have been used to interpret the lifeways of past peoples.²³ More broadly, skeletal remains offer a glimpse into human morphological variation across time and between groups. Who cares? The general consensus in academia regarding these types of studies, especially on ancient skeletal material is that "bones . . . offer a picture of time in our collective history."²⁴ Yet another scholar captures the collective history argument thus: "all humans are members of a single species, and ancient skeletons are the remnants of unduplicable evolutionary events which all living and future peoples have the right to know about and understand."²⁵

Page 551

On a very simple level, data gleaned from the study of human skeletal remains can provide insights into population movement and migration as well as the specific genetic composition of individual populations.²⁶ Additionally, skeletal studies provide insights into pathological conditions and their interaction with humankind.²⁷ Such studies allow for the interpretation of the interactions of humankind with various diseases and have applications to both the study of past peoples and the investigation of crime-related modern human remains. Examinations of dentition and skeletal remains have led to the reconstruction of prehistoric diets and health patterns,²⁸ a necessity to understanding the complexities of past cultures.

On a more practical level, the study of ancient human skeletal remains contributes to contemporary medical fields. An example of the relevance of studying ancient remains to current medical issues is Page 552 the use of DNA analyses of skeletal remains to provide insights into thalassemia.²⁹ Thalassemia is described as "a group of anemias caused by a variety of genetic mutations at different sites of the gene coding for the structure of the globulin chains of hemoglobin."³⁰Skeletal research on this disease, which generally affects individuals of Middle Eastern descent and results in anemic symptoms varying in severity, has been conducted by Ariela Oppenheim in Israel in the hopes of identifying data from DNA analyses that may lead to a medical cure.³¹

Perhaps an even more common use for human skeletal studies is in their forensic applications.³² Many of the techniques presently in use in the identification of war dead, victims of mass disasters,³³ and the victims of crimes were and continue to be developed on prehistoric human remains.³⁴ One example of this is a recent sexing method for skeletal remains³⁵ that...