Watson, Nicole --- "The Repatriation of Indigenous Remains in the United States of America and Australia: A Comparative Analysis " [2003] AUIndigLawRpr 2; (2003) 8(1) Australian Indigenous Law Reporter 33
Commentary
The Repatriation of Indigenous Remains in the United
States of America and Australia:
A Comparative Analysis
Nicole Watson[*]
Introduction
Arguably, the scientific analysis of Indigenous remains was just as critical to the colonisation of the United States of America (‘US’) and Australia, as was the musket. Social Darwinism and phrenology; the theory that linked mental capacity to the shape of the skull, denounced Indigenous people as brutish and primitive races doomed to extinction. Such theories jettisoned the horrors of dispossession and genocide, by stripping Indigenous people of their humanity, and holding them captive under the lens of science. For so long as Indigenous people were reduced to museum curiosities, exhibited next to the pickled remains of other extinct species, they could never be viewed as impoverished refugees suffering the brunt of European occupation.
Phrenology facilitated European land theft by not only anaesthetising the settlers to the suffering of the colonised, but also by inflicting fatal wounds on the Indigenous psyche. Indigenous communities suffered immense grief from the callous violations of their dead. European contempt for the sanctity of Indigenous dead also affirmed the omnipotence of the invaders, and cast a perpetual shadow of defeat over the colonised.
Today, nineteenth century science continues to shape relationships between the colonisers and the colonised through it most chilling legacies; the human remains housed in museum collections. The repatriation of those remains is a critical human rights issue for Indigenous people, who continue to suffer inequality while their ancestors are denied the same reverence as the dead of the colonisers. For the governments of the US and Australia, repatriation is an opportunity to atone for past atrocities and mortar for reconciliation.
When considered in isolation, the moral imperative to repatriate the victims of colonisation hardly appears contentious. However, when combined with other colonial legacies, the repatriation of ancestral remains gathers complexity. Entrenched economic disadvantage has deprived many communities of the resources necessary for repatriation, and forced removals of the past continue to find resonance in intra-Indigenous disputes.
This paper will argue that despite the diverse needs of Indigenous groups, the common ingredient of all successful repatriations will be the removal of historical power imbalances between collecting institutions and Indigenous communities. This goal cannot be attained in the absence of a holistic legal and policy approach, that neither the US nor Australia has achieved.[1]
In the US, the legislative framework for repatriation is the Native American Graves Protection and Repatriation Act Pub L No 101-106, (1990) (the ‘NAGPRA’). The NAGPRA recognises the rights of Native Americans to their ancestral remains, and compels certain institutions to disclose information about their collections to Indian and Hawaiian groups. While the NAGPRA goes some way towards removing the historical shackles, it has been compromised by a lack of government commitment to implementation, and judicial reluctance to place traditional knowledge on a par with science.
In Australia there is no legislation analogous to the NAGPRA, and repatriation is undertaken as a matter of policy. Arguably, the lack of teeth in Australian museum policies reinforces rather than removes historical power imbalances. However, the creation of statutory rights similar to those in the NAGPRA would not be a panacea in itself. In the absence of political bipartisanship and commitment to implementation, legislation may be a hollow remedy.
This paper will be divided into two parts. Part 1 will discuss the background to the NAGPRA and analyse its effectiveness in facilitating the repatriation of Native American remains. Part 2 will compare Australian repatriation policies with the NAGPRA model. It will be argued that neither approach has been entirely successful in removing entrenched Indigenous disadvantage vis-a-vis the museum and scientific fraternities.
Part 1: The Repatriation of Indigenous Remains in the United States of America
The Disinterment and Study of Native American Remains
European indifference to the sanctity of Indigenous dead has been a constant feature of US history. As early as 1620 the Pilgrims were reported to have plundered Indian graves, stealing corn and other funereal objects.[2] A century later, Thomas Jefferson excavated Indian burial mounds on his property, Monticello, earning him the title ‘Father of American Archaeology’.[3] However, it was not until the nineteenth century that scientific fascination with Native American remains provided the stimulus for widespread grave robbery.
In the 1840s scientists such as Samuel Morton, the ‘Father of American Physical Anthropology’, measured Indian skulls in support of their theory of an inferior race destined to die out.[4] This macabre science motivated the 1868 Order of the United States Surgeon General for the seizure of Indian craniums. The Order crystallised in the taking of some 4000 Indian skulls by army personnel from battlefields and fresh graves.[5]
Many of the bodies collected during this gruesome era ended up in museum collections. Although it is impossible to determine the precise number of remains held by US museums, it has been estimated to be as high as 600,000.[6]
Scientific advances of the twentieth century deprived phrenology of much of its credence, and with the violent subjugation of Indigenous peoples complete, phrenology also lost its utility. However, scientific fixation with Native American remains did not wane, and museums clung onto their shameful spoils of war.
Much of the continuing fascination with Native American remains can be explained by European pre-occupation with the origins of Homo sapiens. Archaeologists subscribe to the view that Native Americans are descended from the Paleo-Indians, a migratory people who landed in America during the Ice Age.[7] According to many in the scientific community, the study of Native American remains has the potential to unveil much of the mystery that currently shrouds the evolution of humanity. There is also a fear that the reburial of disinterred remains could preclude future discoveries made possible by ever increasing technological advances.
However, for the adherents of Native American religions the consequences of the mass looting of their burial sites were often catastrophic. For the Kumeyaay Indians, disinterment brought the spirit back to earth from the afterlife, causing immense anguish for both the dead and the living.[8] Although not all Native American religions subscribe to this view, the failure of the Europeans to respect their dead was nonetheless a painful degradation.
Furthermore, most Native Americans do not believe that their ancestors migrated to what is now the US. Rather, oral traditions locate their ancestors on their traditional lands at the dawn of time.[9] Scientific theories of ancestral migrations are not only intrusive but also offend deeply held religious beliefs.
The continued singling out of Indian remains for scientific study is also instructive of the racial oppression that has gripped Native Americans since the onslaught of colonisation. Some 99 percent of human remains held by scientific institutions are those of Indigenous peoples.[10] Proponents of science lose their credibility when one considers that it is never their ancestors who languish in cardboard boxes in museum basements.
The Legal Status of Native American Remains
In common with Indian religions, respect for the dead is at the cornerstone of American society and is reflected in its legal system. The US common law does not recognise proprietary rights to a body. However, direct descendants may have certain rights at law, such as a right to prevent the wrongful exhumation of a body and an easement over the burial plot, regardless of who owns the land.[11] The protection at common law has been buttressed by legislation in all states that criminalises grave desecration.[12]
Despite such measures the law’s compass was usually far too narrow to accommodate the cultural and historical experiences of Native Americans. As much of the early state legislation did not apply to unmarked graves, Native American graves remained vulnerable to excavations.[13] As recently as 1965, the lack of markings on an Indian grave enabled a college student, who had deliberately removed the skull, to avoid liability.[14]
The same unwillingness of the courts to accommodate physical differences between Judeo-Christian and Indian graves also applied to Indian conceptions of family that extend to ancestors long dead. While Europeans enjoyed standing to enforce quasi-property rights to the bodies of their lineal ancestors, the cultural affinity between Native Americans and their deceased countrymen was an insufficient nexus.[15]
The ethnocentric legal system was as indifferent to the colonisation of Native Americans and the violent seizure of their lands, as it was to their cultural beliefs. For example, evidence of forced removals was construed as proof of abandonment of burial sites, thus precluding legal protection. In Wana the Bear v Community Construction[16] the plaintiff, a Miwok Indian sought to restrain further excavations of a burial ground. Since 1979 the defendant developer had disinterred the skeletons of 200 Miwok people from the site.[17] The remains of at least 6 individuals were still buried there.
The crux of the action was whether the burial ground was a ‘public cemetery’ within the meaning of an 1872 cemetery law. Under the statute a public cemetery could be created by either dedication or prescriptive use. The land had not been dedicated as a public cemetery. In order to satisfy the requirement of prescriptive use, the land had to be used as a public cemetery for a continuous period of at least five years.[18]
In this case there was no evidence of continuous use because the Miwok people had been driven out of the area by 1870, and hence before the statute commenced operation. The Court conceded that the excavations caused ‘anguish’ for the Miwok people, but considered that there was ‘no succor for these profound sensitivities in the law to which the plaintiff appeals, the sepulchral confines of the California cemetery law’.[19]
Just as the judiciary concealed its antipathy to Native Americans with black-letter legal reasoning, the federal legislature attempted to legitimise the discriminatory treatment of Native American remains under the cloak of science. At the turn of the twentieth century the federal legislature enacted the Antiquities Preservation Act that deemed Native American remains to be ‘objects of antiquity’, and consequently, federal property.[20] Permits were required for the excavation of such objects.[21] Once excavated remains were to be preserved and studied in public museums.[22]
Throughout the twentieth century scientific preoccupation with Native American remains continued to receive legislative backing. This was evidenced by the definition of ‘archaeological resources’ in the Archaeological Resource Protection Act of 1979 (the ‘ARPA’) that includes human remains.[23] Under the ARPA, permits to excavate archaeological resources on Indian lands cannot be granted without the consent of Indian tribes.[24] However, in the case of non-Indian federal lands, Indian tribes have only a right to comment on the grant of an ARPA permit.[25] Once excavated the remains must be preserved by scientific or educational institutions.[26]
Given the legislature’s characterisation of Indian remains as objects of scientific curiosity, and judicial unwillingness to recognise the unique cultural and historical circumstances of Native Americans, it is not surprising that repatriation emerged as one of the cogs of the Indian civil rights movement. The struggle to repatriate their ancestors gained momentum in 1986, when Native American leaders discovered that some 18,500 remains were housed in the Smithsonian Institution.[27]
The gruesome discovery spawned a national campaign that crystallised into the enactment of the National Museum of the American Indian Act.[28] The National Museum of the American Indian Act compelled the Smithsonian Institution to inventory its human remains and funerary objects and to repatriate where it was possible to identify the origins of the items.[29] It also became the prototype for the NAGPRA that was enacted a year later.
The Native American Graves Protection and Repatriation Act
The human rights flavour of the NAGPRA can be gleaned from the comments of Senator Daniel Inouye:
[T]he bill before us is not about the validity of museums or the value of scientific inquiry. Rather, it is about human rights.... For museums that have dealt honestly and in good faith with native Americans, this legislation will have little effect. For museums and institutions which have consistently ignored the requests of native Americans, this legislation will give native Americans greater ability to negotiate.[30]
The NAGPRA is administered by the Secretary of the Interior, and applies to federal agencies[31] and museums that are recipients of federal funds.[32] The NAGPRA requires such institutions to make inventories of Native American human remains and associated funerary objects within their collections.[33]
The inventories must be completed in consultation with Indian and Native Hawaiian groups,[34] within five years of the Act’s commencement.[35] An institution must notify lineal descendants or Indigenous tribes who have a cultural affiliation with particular remains or objects, not later than six months after the completion of its inventory.[36] Upon the request of a lineal descendant or tribe, the institution must make arrangements for the expeditious return of the items.[37]
Section 3001(2)(2) NAGPRA defines ‘cultural affiliation’ as a ‘relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organisation and an identifiable earlier group’. Cultural affiliation is established for the purposes of the Act when the ‘preponderance of the evidence’ based on geographical, kinship, biological, archaeological, oral tradition or other expert opinion, ‘reasonably leads to such a conclusion’.[38]
Institutions are not obliged to repatriate all remains. Human remains and other cultural items that are ‘indispensable for the completion of a specific scientific study’, that will reap a ‘major benefit’ to the US, may be retained.[39] Such items must be repatriated no later than 90 days after the completion of the study.[40]
The Act makes some important distinctions between museums and federal agencies. While museums that fail to comply with the NAGPRA may be subject to a civil penalty,[41] there are no adverse consequences for recalcitrant federal agencies. The time limit for the completion of inventories may be extended for a museum where it has demonstrated a ‘good faith effort’ to comply,[42] but it cannot be similarly extended for a federal agency.
The NAGPRA has also created rights of ownership to remains that are discovered on federal and tribal lands,[43] post commencement.[44] Ownership of human remains is vested in the lineal descendants.[45] In the absence of lineal descendants, ownership of remains found on tribal land is vested in the Indian tribe, and in the case of federal lands the group that has the closest cultural affiliation with the remains.[46] Human remains cannot be intentionally excavated from federal lands without at least prior consultation with Indian groups,[47] and in the case of tribal lands, the consent of the tribe.[48]
The NAGPRA has also established a review committee consisting of equal representation of Native Americans, and museum and scientific organisations.[49] The tasks of the committee include monitoring and reviewing the inventory process, facilitating the resolution of disputes between relevant parties, compiling an inventory of unidentifiable human remains, and recommending actions for the disposition of such remains.[50]
The Effectiveness of the NAGPRA
The NAGPRA has achieved some success in removing historical inequities between Native Americans and collecting institutions. Since its enactment in 1990, some 20,000 remains have been identified and offered to Indian groups for repatriation.[51] There have been reports that the Act has increased understanding within scientific organisations and museums of Native American perspectives, and inspired the renewal of traditional Indian religions.[52] However, legislation is only ever as effective as is government commitment to its administration. Since the NAGPRA’s inception it has been marred by a lack of resources dedicated to implementation.
In order to consider the impact that resource deficiencies may have on the ability of Native Americans to exercise their rights under the NAGPRA, it is necessary to understand that repatriation often involves far more than a phone call followed by a prompt reburial. In between the phone call and reburial there may be complex negotiations that are both time consuming and resource intensive.
This conclusion finds support in representations made on behalf of the National Congress of American Indians to the Senate Committee on Indian Affairs in 1999. Mr Ernie Stevens Jr, the First Vice President of the Congress, testified that a major concern for tribes was to develop effective programs for the implementation of the NAGPRA. Such programs included the following:
- The provision of an authoritative source of tribal law and customs;
- Requisite expertise to analyse museum summaries and inventories;
- Facilitating the involvement of traditional religious leaders;
- Convening consultations with federal agencies and museums;
- Conducting independent investigations;
- Resolving inter-tribal disputes; and
- Determining the proper treatment of repatriated items.[53]
Tribes that had the resources to develop such programs were able to implement the NAGPRA. However, Mr Stevens testified that many tribes were still ‘finding themselves with very little resources and limited staff’ necessary to achieve compliance with the Act.[54] The NAGPRA Review Committee expressed similar concerns in its 1998 Report to Congress, in which it strongly recommended that the allocation of repatriation grants to tribes and museums be doubled to $5 million.[55]
The work of the NAGPRA Review Committee itself has been hampered by insufficient funds. In 1998 the Committee reported that it had reviewed only half of the 700 inventories received from museums and federal agencies, because of inadequate resources.[56] Similarly, civil penalties for museums that failed to comply with the Act could not be enforced because there were no resources allocated for enforcement.[57]
Just as the objective of legislation may be undermined by governmental apathy, it may also be diminished by narrow judicial interpretation. The bar for Native Americans to repatriate prehistoric ancestral remains was raised so high by the recent decision of Bonnichsen v United States[58] (the ‘Kennewick Man Case’), that the success of such claims may now be remote.
The Kennewick Man case concerned skeletal remains that were discovered in federal land in Kennewick, Washington, in 1996. Scientific analysis determined that the remains were between 7600 and 9000 years old. The land was under the management of the United States Army Corps of Engineers (the ‘Corps’). Pursuant to s 3002(3)(a)(2)(B) NAGPRA, the Corps returned the remains to a coalition of tribal groups for reburial.
The plaintiffs were highly esteemed scientists who wished to study the remains. According to one of the plaintiffs, Dr Douglas Owsley of the Smithsonian Institution,
...well-preserved Paleo-American remains are extremely rare. The Kennewick Man skeleton represents an irreplaceable source of information about early New World populations, and as much data should be obtained from it as possible.[59]
The tribal claimants however, were opposed to any scientific testing of the remains and demanded reburial. Their concerns were grounded in the belief that,
when remains are disturbed and remain above the ground, their spirits are at unrest... To put these spirits at ease, the remains must be returned to the ground as soon as possible.[60]
In response to suggestions that further analysis could reveal information about their history, the tribal claimants relied upon statements by the Confederated Tribes of the Umatilla:
From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated from another continent, as the scientists do.[61]
The plaintiffs sought judicial review of the decision to award the remains to the tribal claimants on a number of grounds, including bias. Of relevance to this paper was the Court’s reading down of the definition of ‘Native American’, and its rejection of the oral histories of the tribal claimants advanced in support of their alleged cultural affiliation with the remains.
The NAGPRA defines ‘Native American’ as ‘of relating to, a tribe, people, or culture that is Indigenous to the United States.’[62] The Secretary of the Interior, the defendant in the action, interpreted ‘Native American’ to include all remains that existed in what is now the US before 1492, and on that basis concluded that the Kennewick man was a Native American.[63] The Court held that there was no evidence to support such a finding.
Magistrate Judge Jelderks considered that the word ‘relating’ in the definition of ‘Native American’ required a relationship between the remains and a present-day people.[64] In his opinion there was no evidence of the existence of a cultural relationship between the remains and the tribal claimants.[65] The cranial features of the Kennewick Man were distinct from any modern group, his culture was unknown, and there was no evidence that the ancestors of the Native Americans were the sole inhabitants of the area in prehistoric times.[66]
Magistrate Judge Jelderks stated that the purpose of the NAGPRA was to:
...reunite tribes with remains or cultural items whose affiliation was known, or could be reasonably ascertained. At best, we can only speculate as to the possible group affiliation of the Kennewick Man, whether his group even survived for very long after his death, and whether that group is related to any of the Tribal claimants.[67]
Implicit from the judgment is that the only evidence that was capable of being accepted by the Court would be that derived from a conventional European discipline. The beliefs of the tribal claimants would never be sufficient on their own to establish the requisite relationship with prehistoric remains.
It is submitted that such an approach is underpinned by the same ethnocentric attitudes that dogged earlier attempts to protect Native American graves, as exemplified by Wana the Bear v Community Construction. A probable result of Judge Magistrate Jelderk’s reasoning is that Native Americans may have to wait for scientists to confirm what they have known for generations, before their religious beliefs will sustain a claim under what is supposed to be human rights legislation.
The Court also overlooked the remedial intent of the NAGPRA when it later rejected the tribal claimants’ oral narratives that located their people in the Kennewick area since the dawn of creation. One such narrative was about the change in the flow of the Columbia River, an event believed to have taken place some 10, 000 years ago.[68] Another concerned the claimants’ ancestors surviving great floods by climbing onto mountaintops. Such floods were believed to have taken place between 12,800 and 15,000 years ago.[69]
The Court considered that because of the adaptability and ‘political utility’ of oral narratives, they were of ‘limited reliability in attempting to determine truly ancient events’.[70] According to Judge Magistrate Jelderks, it was impossible to determine with precision the origin of the narratives or the specific events that they related to. Even if the narratives were accepted, they did not prove that the claimants’ ancestors resided in the area, let alone the existence of a cultural affiliation with the Kennewick Man.[71]
As the archaeological and linguistic evidence was inconclusive, the claimants failed to establish a cultural affiliation by a preponderance of the evidence, and the scientists were permitted to study the remains.
It is submitted that the decision in the Kennewick Man Case may have a number of by-products antithetical to the NAGPRA’s original remedial purpose. One possible result is exposure of the religious beliefs of Native Americans to excessive scrutiny. By their nature oral narratives are likely to be just as much a part of the ancient cultural patrimony of Native Americans, as are the physical items protected by the NAGPRA.
The interrogation of those narratives is analogous to requiring Catholics to prove the veracity of each miracle performed at Lourdes in order to preserve the integrity of their sacred spring. There are some things in this world that simply cannot be authenticated by science, but the absence of scientific proof does not automatically sound in a lack of bona fides. Another possible by-product of the decision is that the ability of Native Americans to withstand scientific scrutiny will become the all consuming litmus test of cultural affiliation, and deeply held cultural beliefs will be relegated to the status of mere corroborative evidence.
A final shortcoming of the NAGPRA is that it applies only to museums in receipt of federal funds. Private museums may still exhibit Native American remains, and in the absence of state legislation are under no compulsion to repatriate. A case in point was the Dickson Mounds Museum in Illinois, a privately owned institution. Up until the early 1990’s the museum exhibited excavated graves containing the skeletons of 200 people.[72]
Despite the outcry of Native Americans, the museum refused to close the exhibit, claiming that the remains belonged to ancient Mississippians unrelated to any present day tribes.[73] In the end a political response rather than the law brought about a resolution. In 1992 the bodies were reburied and the museum was given funds to make new acquisitions.[74]
In summary, the NAGPRA represents an important step forward in redressing the long history of human rights violations against Native Americans. However, it is only the first step of the journey towards empowering Native Americans in their negotiations with museums and scientific institutions. In the absence of adequate resources for implementation, an effective political response to the judicial chiseling down of the Act’s remedial intent, and regulation of private collections, the NAGPRA resembles a partly built house, consisting of concrete foundations and a frame, but lacking bricks and mortar.
Part 2: The Repatriation of Indigenous Remains in Australia
Historical Background
The seizure and study of Aboriginal remains in Australia mirrors the American experience. In Australia as in the US, science facilitated colonisation through its dehumanisation of Aboriginal people. By reducing Aboriginal people to wretched and doomed creatures, science wiped the European slate clean of culpability for genocide, and justified invasion.
Akin to their US counterparts, Australian phrenologists believed that by measuring skulls they could prove that Aboriginal people were subhuman. In the words of Barron Field, the first Supreme Court Judge of New South Wales and an ardent phrenologist, ‘The skull, the genius, the habits, of the Australians... have, in all of them, the degenerate Ethiopian character...’[75]. According to Field, this ‘degenerate’ character precluded the civilisation of Aboriginal people, and confirmed the inevitability of their extinction.[76]
As in the US, scientific fixation with Aboriginal remains spawned a lucrative trade that so completely debased the humanity of Aboriginal people that their craniums were reduced to mere ornaments. In 1838 George Augustus Robinson, the ‘Protector of Aborigines’ in Tasmania, recorded receiving requests from the Governor and the Governor’s secretary for Aboriginal skulls. Robinson obliged by ordering his surgeon to sever the head of one Mitaluraparitja from his corpse, the day after his death.[77]
Today, the legacies of this heinous trade, some 7000 human remains, are scattered amongst institutions throughout the country.[78] Like their American colleagues, some Australian academics find nothing offensive in the notion that such remains are inherently of greater value to science, than are the remains of Europeans. According to renowned archaeologist, John Mulvaney, Aboriginal people hold ‘potential clues to many issues common to all races’,[79] and study is ‘significant for Aboriginal self-knowledge of their origins and cultural development.’[80]
However, for some Aboriginal people such analysis involves unmasking and dissecting their collective psyche, and thus perpetuating the degradations inflicted by the phrenologists. As stated by Weatherall,
Your science, your findings and interpretations which are rooted in your own belief systems, constantly challenge our beliefs in our origins. Our beliefs become ridiculed, our confidence becomes undermined as a result of this cultural terrorism. Our people suffer from those who assume the power and the right to perpetrate the ultimate indignity – to interpret us to ourselves.[81]
Like America, repatriation in Australia was similarly propelled into the political arena by the emergence of the Aboriginal civil rights movement in the 1970s. It has remained in the political arena as the nation attempts to move beyond its violent past. Repatriation is likely to stay in the political arena because like its US counterpart, the Australian legal system has no remedy to offer to Aboriginal families desirous of restoring dignity to their dead.
The Legal Status of Indigenous Remains
State Legislation
In the latter part of the twentieth century, most States enacted legislation that vested property in Indigenous human remains in the Crown. Under such legislation the repatriation of human remains and protection of Indigenous graves, were matters for ministerial discretion. In states that had no commitment to Aboriginal heritage protection, such legislation was little more than a token gesture.
It is beyond the scope of this paper to examine all of the various State and Territory regimes. However, reference will be made to the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld) (the ‘CRA’), because in the writer’s opinion, it is the personification of government indifference to Indigenous self-determination.
When the CRA was enacted in 1987 its underlying objective was to provide a ‘one-stop shop’ for all of the State’s cultural patrimony.[82] The Act applies to the ‘Queensland Estate’ and ‘Landscapes Queensland’. The CRA’s vacuous definition of ‘Queensland Estate’ includes things that are evidence of human occupation, and are at least 30 years old, but expressly excludes facsimile transmissions and things lacking prehistoric or historic significance.[83] The definition of ‘Landscapes Queensland’ is similarly vague, and includes areas or features that have been affected by humans.[84]
Subsection 33(1) CRA vests property in all parts of the Queensland Estate that constitute evidence of occupation by Indigenous persons, in the Crown. By implication s 33(1) applies to Indigenous human remains. Indigenous ownership of human remains is recognised only where the Minister is satisfied that a familial or traditional link exists between the remains and an Indigenous group.[85]
The Governor in Council is empowered to declare sites in need of protection to be designated landscape areas.[86] Such areas may be protected through the restriction of public access,[87] and the appointment of protectors.[88] If the Governor in Council determined that an Aboriginal burial ground was in need of protection, the CRA would be the appropriate legislative tool. However, this point is completely academic because the Governor in Council has never declared a single designated landscape area under the CRA.[89]
The CRA is utilised primarily by individuals who wish to conduct cultural heritage surveys. Surveys may be required as part of the approval process for large-scale developments such as mining projects. Those who wish to undertake field exploration in order to establish the existence of items of the Queensland estate must obtain a permit under the CRA.[90] In determining whether to grant a permit the Minister must consider whether sufficient consultation has been undertaken with all persons who might be affected by the survey.[91] As distinct from the ARPA there is no provision for Aboriginal people to resist the grant of a permit over Aboriginal lands. As distinct from the NAGPRA there is no presumption deeming newly disinterred remains to be the property of Aboriginal groups. A person who uncovers Indigenous burial remains is obliged to notify only the Minister of their discovery.[92]
Indigenous people have no enforceable rights under the CRA. The only mechanism for them to play a formal role in the administration of the Act is through the appointment of advisory committees.[93] However, in the lifetime of the Act only one Indigenous advisory committee was ever appointed, and that was over a decade ago.[94] With such little commitment to implementation, it is no wonder that there has never been a successful prosecution for the vandalism of Indigenous cultural heritage in Queensland.
Commonwealth Legislation
As distinct from the US, Australia has no federal repatriation legislation. The only Commonwealth Act that may possibly support a claim to the repatriation of ancestral remains is the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the ‘ATSIHPA’). However, the ATSIHPA is intended to operate in tandem with state legislation, and is considered to be an option of final resort.[95] Furthermore, protection under the Act is a matter for ministerial discretion, and therefore, decisions may be tempered by the political hue of state and commonwealth governments.
Common Law
After the High Court delivered its watershed decision in Mabo v Queensland,[96] some commentators were hopeful that native title could be used as leverage for the repatriation of ancestral remains.[97] However, in light of the recent decision of the High Court in Western Australia v Ward[98] (the ‘Ward Case’), it is highly unlikely that Indigenous people could claim a native title right to human remains.
The Ward case concerned the native title determination application of the Miriuwung and Gajerrong people over lands in Western Australia and the Northern Territory. The case dealt with a number of complex issues, including extinguishment.
Of relevance to this paper was the majority’s interpretation of the definition of native title in s 223 Native Title Act 1993 (Cth) (the ‘NTA’). The majority interpreted s 223 as confined to rights and interests in lands and waters, and doubted whether native title included rights to cultural knowledge.[99]
Although the case did not deal with ancestral remains, in light of the majority’s restriction of native title to rights to lands and waters, it is unlikely that a native title claim to human remains in a museum would be successful. However, it is possible that native title rights may exist over a burial ground, as this would presumably be a right to land within the meaning of s 223 NTA, and in appropriate cases equitable remedies such as injunctive relief may be available to restrain excavations.
Museum Policies for the Repatriation of Aboriginal Remains
Akin to the US, the repatriation movement in Australia has achieved a groundswell of public support in the past decade. While the US responded to the call of Indian activists by enacting federal regulatory legislation, the Australian response was the voluntary adoption by museums of policies in favour of repatriation.
In 1993 Museums Australia delivered its ‘Previous Possessions, New Obligations’ policy (the ‘PPNO’). The PPNO has taken a holistic approach to relationships between museums and Indigenous communities. It goes beyond the custody of human remains and artefacts to Indigenous employment, input into policy formulation and representation on museum boards. Although adoption of the PPNO has not been universal, its principles have been endorsed by most museums.[100]
The PPNO explicitly acknowledges the rights of Indigenous people to self-determination in respect of their cultural heritage.[101] It obliges museums to clearly inform Indigenous communities about the items in their collections.[102] Under the policy the remains of individuals who have perished since the commencement of European settlement, must be dealt with according to the wishes of their families.[103] Conditions are not to be attached to the repatriation of remains.[104] Should a museum wish to retain human remains for the purpose of research, the museum must first prove its claim to the relevant Indigenous community, and the results of the research must be shared with that community.[105]
The implementation of polices such as the PPNO has been funded through the Return of Indigenous Cultural Property Program (the ‘RICP’), a joint initiative of the Commonwealth and the States. The Federal Government has committed $1.5 million to the program, a figure that is to be matched by the collective contributions of the States and Territories.[106]
The Effectiveness of Museum Policies
As distinct from the rights-based approach of the NAGPRA, the PPNO attempts to lay the foundations for meaningful relationships between museums and Indigenous people. While this may be more conducive to repatriation in the long-term through the fostering of partnerships and greater flexibility, it is by no means adequate on its own.
Akin to the US experience, meagre resources have hampered the repatriation of skeletal remains in Australia. Despite the existence of the RICP, there is anecdotal evidence that many communities lack the resources to take advantage of policies such as the PPNO. The costs of internal consultation prior to repatriation and reburial are beyond the capacity of some groups.[107]
Although the PPNO breaks new ground in recognising the right of Indigenous people to self-determination in respect of their cultural heritage, it is not enforceable. In the absence of legally binding obligations, repatriation may get lost in the quagmire of demands placed on museums to stretch limited funds across a number of competing priorities.
Unlike the NAGPRA model, there is no provision for an independent review committee to monitor museum compliance with the PPNO, and to resolve disputes between museums and Indigenous groups, and intra-Indigenous conflicts. Arguably, the history of Indigenous disadvantage vis-a-vis museums requires an independent umpire. This argument grows stronger when one considers the absence of legal redress available to Indigenous groups who dispute museum decisions.
Lastly, Indigenous groups who are desirous of accessing information and repatriating remains from institutions that have not adopted the principles of the PPNO are still left without a remedy. A case in point concerned the recent handing over by the Melbourne University and the Freemasons Lodge Society of hundreds of Aboriginal remains to the Melbourne Museum. The remains were sent without information about their origins.[108] In the absence of any legal requirement for the Melbourne University and the Freemasons Lodge Society to provide access to their archives, the identification of the appropriate custodians will be impossible.
Conclusion
In conclusion, while both the US and Australian repatriation models have positive attributes, neither is a satisfactory accommodation of Indigenous aspirations. The NAGPRA attempts to empower Indian communities in their negotiations with museums, through the creation of legally enforceable rights to repatriation. Such rights are compromised by the absence of adequate resources committed to implementation.
The PPNO is similarly significant in its recognition of Indigenous cultural rights but is flawed through its lack of teeth. Neither model is applicable to collections held by private institutions.
However, the NAGPRA and the PPNO should not be perceived as the be all and end all of repatriation. Rather, they should be viewed as the first steps in the long but essential journey towards restoring the dignity of Indigenous peoples.
[*] Nicole Watson LLB LLM is the editor of the Indigenous Law Bulletin
[1] The writer acknowledges that the repatriation of human remains from overseas institutions is a pressing concern for Indigenous communities in the US and Australia. However, a comprehensive analysis of this issue is beyond the scope of this paper. Consequently, this paper will focus solely on the repatriation of human remains from domestic institutions.
[2] Trope J F, Echo-Hawk W R ‘The Native American Graves Protection and Repatriation Act: Background and legislative history’ (1992) 24 Arizona State Law Journal 35 at 40.
[3] De Meo A M ‘More effective protection for Native American cultural property through regulation of export’ (1994) 19 American Indian Law Review 1 at 12.
[4] Above note 2 at 40.
[5] Camille J, Raines B ‘One is missing: Native American Graves Protection and Repatriation Act: An overview and analysis’ (1992) 17(2) American Indian Law Review 639 at 643.
[6] Above.
[7] Kosslack R ‘The Native American Graves Protection and Repatriation Act: The death knell for scientific study?’ 24 American Indian Law Review 129 at 143.
[8] Bowman M B ‘The reburial of Native American skeletal remains: Approaches to the resolution of a conflict’ (1989) 13 Harvard Environmental Law Review 147 at 149.
[9] Above at 143.
[10]Above at 149.
[11] Above at 167.
[12] Above note 2 at 39.
[13] Above note 7 at 133.
[14] Newman v State 174 So. 2d 479 (Fla. Dist. Ct. App. 1965).
[15] Bailey v Miller 143 N.Y.S. 2D 122 (1955).
[16] 180 Cal. Rptr. 423 (1982).
[17] Above at 424.
[18] Above at 426.
[19] Above at 424.
[20] Hibbert M ‘Galileos or grave robbers? Science, the Native American Graves Protection and Repatriation Act, and the First Amendment’ 23(2) American Indian Law Review 425, 427.
[21] Above at 428.
[22] Above.
[23] 16 USC (1982).
[24] Above note 8 at 187.
[25] Above.
[26] Above at 188.
[27] Above note 2 at 54.
[28] 20 U.S.C.A. 80q - 80q -15 (West 1990).
[29] Above note 2 at 56.
[30] Above note 2 at 59.
[31] See NAGPRA s 3001(2)(4) for definition of ‘federal agency’.
[32] See above at s 3001(2)(8) for definition of ‘museum’.
[33] See above at s 3001 (2)(3)(A) for definition of ‘associated funerary objects’.
[34] Above at s 3003(5)(b)(1)(A).
[35] Above at s 3003 (5)(b)(1)(B).
[36] Above at s 3003(5)(d).
[37] Above at s 3005(7)(a).
[38] NAGPRA Regulations s 10.2(e) 1 USC (1999)
[39] NAGPRA s 3005(7)(b).
[40] NAGPRA Regulations s 10.10(c)(1) 1 USC (1999).
[41] NAGPRA s 3007(9)(a).
[42] Above at s 3003(5)(c).
[43] See above at s 3001(2)(5) for the definition of ‘federal lands’, and s 3001(2)(15) for the definition of ‘tribal lands’.
[44] Above at s 3002(3)(a).
[45] Above at s 3002(3)(a)(1) & (2).
[46] Above.
[47] Above at s 3002(3)(c).
[48] Above at s 3002(3)(C)(2).
[49] Above at s 3006(8).
[50] Above at s 3006(8)(C).
[51] FAIRA ‘Ancestral remains – the issues and reality of DNA testing’ Land Rights Queensland February 2000 .
[52] NAGPRA Review Committee ‘Report to Congress on 1998 Activities’ (1999) August <http://www.cast.uark.edu/other/nps/nagpra/DOCS/rcrtcg98.html> 7.
[53] Stevens E Jnr, First Vice President National Congress of American Indians ‘Testimony on the Implementation of the Native American Graves Protection and Repatriation Act (NAGPRA) before the Senate Committee on Indian Affairs’ (1999) April 20 <http://www.ncai.org/main/pages/issues/documents/testimony4.20.99.html> .
[54] Above.
[55] NAGPRA Review Committee ‘Report to Congress on 1998 Activities’ August 1999 <http://www.cast.uark.edu/other/nps/nagpra/DOCS/rcrtcg98.html> 3
[56] Above.
[57] Above at note 4.
[58] The Kennewick Man Case (unreported, United States District Court, Magistrate Judge Jelderks, 30 August 2002).
[59] Above at 4.
[60] Above at 5.
[61] Above.
[62] NAGPRA s 3001(9).
[63] Above note 58 at 25.
[64] Above at 27.
[65] Above at 30.
[66] Above at 31.
[67] Above at 43.
[68] Above at 53.
[69] Above at 54.
[70] Above at 53.
[71] Above at 54.
[72] Aftandilian D ‘The life and afterlife of burial mounds in Illinois’ Conscious Choice November 2000 <http://www.consciouschoice.com/culture/burialmounds1311.html> .
[73] Above note 5 at 663.
[74] Above note 72.
[75] Turnbull P ‘Rare work amongst the professors: the capture of indigenous skulls within phrenological knowledge in early colonial Australia’ in Creed B, Hoorn J (eds) Body Trade 2001 at 16.
[76] Above.
[77] United Kingdom ‘Report of the Select Committee on Culture, Media and Sport’ Report No 8, Appendix 58, Memorandum submitted by the Tasmanian Aboriginal Legal Centre Inc <http://www.publications.parliament.uk/pa/cm199900/cmselect/cmcumeds/371/371ap68.html> .
[78] ATSIC ‘The other bringing them home’ September 2000 <http://www.atsic.gov.au/News_Room/ATSIC_News/September.../bringing_them_home.as> .
[79] Above.
[80] Above.
[81] Weatherall B ‘Aborigines, archaeologists and the rights of the dead’ Land Rights Queensland February 2000.
[82] Watson N, Black R ‘New cultural heritage legislation: One small step for Murris, one giant leap forward for the Queensland Government’ [2001] IndigLawB 78; (2001) 5(13) Indigenous Law Bulletin 8.
[83] CRA s 5.
[84] Above.
[85] Above at s 34.
[86] Above at s 17(1).
[87] Above.
[88] Above at s 21(1).
[89] Above note 82 at 9.
[90] CRA s 27(2).
[91] Above at s 27(4)(d).
[92] Above at s 35(2).
[93] Above at s 12.
[94] Above note 82 at 9.
[95] Tehan M ‘To be or not to be (property) Anglo-Australian law and the search for protection of Indigenous cultural heritage’ [1996] UTasLawRw 11; (1996) 15(2) University of Tasmania Law Review 267 at 286.
[96] [1992] HCA 23; (1992) 175 CLR 1.
[97] See Ormond-Parker L ‘A Commonwealth Repatriation Odyssey’ (1997) 3(90) Indigenous Law Bulletin 9.
[98] (unreported, High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ, 8 August 2002).
[99] Above at [468] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
[100] Pickering M ‘Repatriation, rhetoric, and reality: The repatriation of Australian Indigenous human remains and sacred objects’ (June 2002) 41 Journal of the Australian Registrar’s Committee.
[101] Museums Australia ‘Previous Possessions, New Obligations: A plain English summary of policies for museums in Australia and Aboriginal and Torres Strait Islander Peoples’ (1993) 3.
[102] Above at 3.
[103] Above at 4.
[104] Above at 4.
[105] Above at 6.
[106] Department of Communications, Information Technology and the Arts ‘Return of Indigenous Cultural Property (RCIP) Program’ <http://www.dcita.gov.au/Article/0,,0_1-2_1-4_103542,00.html> .
[107] Above note 100.
[108] The World Today Broadcast ‘Prosecution over Aboriginal remains’ 17 October 2002 <http://www.abc.net.au/worldtoday/s704000.htm> .