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Robert Travis Willingham

excerpted From: 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 it."

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 Missouri-Columbia;