THE CONSTITUTIONAL AND LEGAL BACKGROUND FOR A NON-RACIAL HUMAN SKELETAL REMAINS POLICY FOR THE UNIVERSITY OF CALIFORNIA AND OTHER CALIFORNIA AGENCIES
JACK D. FORBES, Ph.D.
I propose to focus my discussion of the human remains issue on an analysis of the legal and ethical questions involved, especially as the latter relate to the historical reality of colonialism, oppression and racism in this society and to the well-documented legal powerlessness which has been ordinarily imposed upon Native American communities
In my research I have identified the following fundamental principles based upon constitutional and statutory law, principles which a "civilized" society would wish to recognize:
1. That no race or ethnic group be singled out for uniquely adverse treatment as regards the protection and care of human remains, i.e., that all persons, regardless of race, be granted the same basic minimum rights of sepulcher or disposal of loved ones, with the understanding that given religious traditions may seek additional special treatment for their deceased adherents.
2. That scientific curiosity must, in all civil societies, be reined in by laws and customs which prevent involuntary experimentation upon human beings, the murdering of persons in order to obtain cadavers, the theft of burial remains, the exposure of persons or their property to undue risk from the adverse effects of experiments, etc., In brief, the mere argument of scientific utility cannot stand against society's search for justice, liberty, reciprocity, and order in human relations and affairs.
3. The living continue to have a legal as well as moral interest in their dead ancestors, relatives and predecessors, however defined, and in accord with the intimacy which particular cultures assign to the above relationship, as well represented by long-standing laws and customs in the United States designed to protect graveyards, cemeteries and burial plots from any and all adverse impacts and as also commonly evidenced in the civil laws of the United Kingdom and other countries of the world.
4. That the University of California, et cetera, morally, ethically and legally would not wish to, and indeed cannot, possess human remains illegally acquired nor acquired solely because of the legal disempowerment of a particular race, since any actions which are focused on a single race only (or predominantly) are legally suspect in the United States as well as being morally questionable.
Now, having laid down these fundamentals I wish to proceed to a discussion of the precise legal principles involved, focusing upon those constitutional provisions and statutes which relate to the issue of whether skeletal remains have been removed legally or illegally from Native American sepulchers.
II. Federal Constitutional Provisions
The Constitution of the United States contains several provisions which are directly operative over the issue of human remains. These include the Fifth Amendment, which provides that
No person shall...... be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation.
In interpreting the above we must bear in mind that the term "person" has been interpreted by the U.S. Supreme Court as including both natural persons and artificial persons, i.e. bodies corporate.1 Thus, Native American tribes, governments, organized communities and nations are legal persons and cannot be deprived of property by seizure or any other means which fail to adhere to "due process" and "just compensation.2
As we shall see, graveyards or burial plots are usually regarded as "property" which exist as ease-ments even when not mentioned in deeds of transfer. We can suggest, then, that Native American cemeteries also exist as easements to the fee, especially when land was taken without a "due process" recognition of the cemeteries' existence. This will be discussed further below. Here I merely wish to point out that the Fifth Amendment prohibits the "public use" of Native American property without "just compensation." Since the University of California is a public agency and since its collections are put to "public use," it is very likely that the University will have to pay compensation for human remains and other property acquired without proper documents of transfer and evidence of the payment of "just compensation."
The First Amendment of the Constitution of the United States also is directly operative over cemeteries, especially in so far as the latter are part of the religious complex of any particular cultural tradition. One cannot, for example simply build a highway through a dedicated Roman Catholic cemetery nor can bodies be removed for study without due process of law.
The First Amendment states that "no law respecting the establishment of religion" shall ever be legal. Clearly then, Native American sanctified cemeteries and burials must be accorded exactly the same legal protection as are accorded white Christian cemeteries or white Jewish cemeteries. Moreover, it would seem clear that the "taking" of religious places of worship and sanctified cemeteries requires a special form of due process in order to meet First Amendment requirements.3
The Fourth Amendment provides protection for graves against searches and seizures without a warrant:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but on probable cause.
It would seem patently clear that any exhumation of a grave for purposes of study or removal and study constitutes a "search." It would also constitute a "seizure" in the event that the persons with vital interest in the grave were not contacted and did not grant permission. We can be sure that, in most cases, Native American graves were so intimately associated with the "persons [and] houses" of "the people" as to clearly constitute part of their "effects" if not of the houses and persons themselves.
We can imagine a warrant being issued to exhume a grave where there was "probable cause" of foul play but it is very difficult to imagine a warrant being issued because of a mere suspicion of scientific utility or because the grave constituted an inconvenience to some current owner of the surface.
It must be recalled that "tribe," "village" or "community" can be substituted for "persons" in the above Amendment.
Other provisions of the Federal Constitution also apply to human remains and cemeteries, including especially the Fourteenth Amendment. This amendment requires that from July 28, 1868, forwards:
No state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Thus the State of California, during virtually the entire existence of the University, has been required to guarantee the "equal protection of the laws" to Native Americans and to not abridge their "privileges and immunities." What does this mean? Specifically it means that state agencies cannot protect white 49er and "pioneer" human remains while allowing Native remains to be removed for study. It means that state agencies cannot protect white Roman Catholic missionary and colonial military remains while allowing Indian remains of the same time period (1769-1840s) to be disinterred for storage and possible research.
"Equal protection," it is true, may not apply to the dead, as such. But "equal protection" certainly applies to the living and it is the living whose rights are being violated when ancestors or predecessors are disinterred without permission being granted or even asked for and when cemeteries are not protected.
"Equal protection" requires a non-racial and non-class based human remains policy, one which applies equally to Spanish governor's bodies and to Indian villagers' remains, to Father Junipero Serra's remains and to an Indian neophyte's body, to Mexican soldier-settlers' graves and to Native American graves, to the burials of California's black pioneers as well as to the burials of white 49ers and Jewish immigrants.
All of the above human remains are equally worthy of potential scientific study. All must be accorded "equal protection" as regards their remains being made available for such study.
III. Federal Treaties
Treaties duly executed by the United States take precedence over state law, unless in conflict perhaps with basic federal constitutional rights. The Treaty of Guadalupe Hidalgo of 1848 is still a legally-binding treaty which the State of California and the University of California are obligated to obey. Both the California constitutions of 1849 and 1879 make specific reference to some provisions of the treaty.
The Treaty, in Article VIII, states:
Mexicans now established in territories previously belonging to Mexico and which remain for the future within the limits of the United States..... shall be free to continue where they now reside, ......, retaining the property which they possess in the said territories... (Italics added)
Article IX states:
The Mexicans who in the territories aforesaid, shall not preserve the character of citizens of the Mexican Republic...... shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction. (Italics added)4
The Papago-Apache Treaty of 1853 (Treaty of Mesilla or Gadsden Treaty) refers back to the above, incorporating therein, "all the rights of persons and property, both civil and ecclesiastical," found in the Treaty of Guadalupe Hidalgo. Thus we can be sure that the California Indians (who were legally citizens of Mexico at the time) were accorded full protection, "both civil and ecclesiastical" as well as of liberty, property, and free exercise of their religion without restriction.
Now how does the taking of human remains from graves, without due process, accord with the provisions of the Treaty? Such a taking would seem to be in direct violation of the Treaty since it would violate Native American religious rights as well as civil and property rights.5
IV. California Constitutional Law
The Constitution of the State of California embraces several provisions which directly reinforce the above federal constitutional and treaty law. To begin with, the Constitution of 1879 (our present constitution) incorporated the provisions of the Treaty of Guadalupe Hidalgo, to wit:
Every native citizen of the United States of America, every person who shall have acquired the rights of citizenship under and by virtue of the Treaty of Queretaro [Guadalupe Hidalgo], and every naturalized citizen thereof.......
California Indians, as Mexican citizens who elected to remain in the United States, were among those referred to above. However, the main point is that the California Constitutional Convention of 1879 acknowledged the binding character of the Treaty.
More significantly, the California Constitution contained the following guarantee from 1879 through 1974:
The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this state.
This means that it is specific state law to protect religious profession and worship without discrimination or preference forever. Now it certainly cannot be argued that Roman Catholics, Protestants, Jews and Mormons are to be protected while Native Americans are not. And, because of the phrase "profession and worship" we can be sure that cemeteries and sepulchers would be included under the guarantee of protection, since overwhelming evidence can be collected to show that the disposal of one's relations is ordinarily a part of religious "profession" certainly, if not "worship."
In 1974 the Constitution was amended to substitute "religion" for "religious profession and worship," thus making the protective language even more general and all-encompassing.
An 1861 court decision asserts that:
This section prohibits all legislation which invidiously discriminates in favor of or against any religious system.
A 1921 decision noted that:
It is not necessary that a person be a member of any church or of any religious society in order that his beliefs be guaranteed by the Constitution.6
Thus the legislature never could have adopted a valid law treating Native American cemeteries differently from Christian, Jewish or other cemeteries or for allowing the seizure for study of Native American remains without also allowing the seizure, under the same terms, of white remains, and, further, it does not matter that California Natives did not have formally-incorporated religious organizations.
In Section 11 the California Constitution asserts that "all laws of a general nature shall have a uniform operation." This means that all laws relating to cemeteries or to human remains must have a uniform operation, not favoring or disadvantaging any region or sector of the population.
This is strongly reinforced by Section 21 which states:
No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.7
Quite clearly then, the wealthy cannot be accorded protection of their dead which is denied the poor, nor can white people be accorded protections for their departed which are not available to Native Americans. Needless to state, human remains which have been removed from their sepulchers cannot be treated variously by race, class, sex, or religious profession.
It should also be noted that archaeologists, amateur or professional, probably cannot be granted immunity from the state's burial protection statutes simply because of an alleged scientific interest in Indians since this provision of the state Constitution takes precedence over any statutes to the contrary and since the same privilege has not been extended to the study of non-Indian burials.
The California Constitution from 1879 to 1974 specifically incorporated the "due process" language of the U.S. Constitution. Since 1974 this language (now Article I, Section 7) reads:
A person may not be deprived of life, liberty, or property without due process of law or denied the equal protection of the laws.....
Thus "equal protection" and "due process" are both part of California's fundamental law.
Old Section 14, until 1974, stated that:
Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner.... [provided, that in any proceeding in imminent domain brought by the state or a subdivision, a delayed payment of just compensation, under court supervision, may be made].
Since 1974 this provision has read:
Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court, for the owner.8
Thus, the University of California, the State, and their agents, cannot take or damage Indian property without providing just compensation in advance or arranging for the due process payment of just compensation.
V. California Constitutional Law: Privacy and Protection Against Seizure of Effects.
The California Constitution has contained, since 1879, a specific guarantee against the warrantless seizure or searching of effects. From 1879 to 1974 the language stated that the "right of the people...... shall not be violated" while since 1974 "may not be violated" is used.
My discussion of the above protection under the U.S. Constitution should be applicable here as well. Let me simply reiterate the question: does the seizure of, or search of, one's ancestors' or relatives' skeleton or a part thereof without a warrant constitute an invasion of one's person?
From 1972 to 1974 the right to privacy found in the California Constitution was strengthened by the adoption of the following amendment:
All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy.
A similar right had already been established by court decision.
The adoption of the voters in 1972 of the amendment .... explicitly establishing the right as an inalienable right, was intended to strengthen the right of privacy which had already been established by court decisions.... an incursion into individual privacy must be justified by a compelling interest. Central Valley Chapter of 7th STEP foundation, Inc., v. Younger (1979) 95 CA 3d 212, 157 Cal Reporter 117.
The concept of privacy applies to a broad range of subjects.
Although the "principal mischief" at which the constitutional right to privacy..... was directed were the uncontrolled collection and use of personal information......, the right to privacy has been held to protect a diverse range of personal freedoms. Robbins v. Superior Court (1985) 38 Cal 3d 199, 211 Cal Reporter 398, 695 P2d 695.9
I would argue that the vast majority of persons consider the tombs of their loved ones to be extremely private places, and this extends to the assumption of privacy "forever." People commonly place highly personal and evocative objects in the grave which they expect, and have a right to expect, will remain with the human remains without being taken, removed, disturbed, studied, or displayed. I believe this certainly has been true of all or most Native Americans, as well as of many non-Natives.
I would aver that our own bodies, either as cadavers or as skeletal remains, are extremely private parts of our personalities, and that few of us would want them taken for study, dismemberment, or display without our explicit permission. The same would be true of our ancestor's remains.
The "privacy of the grave," it seems to me, is also a privacy which cannot be abridged on account of race, class, or economic status.
VI. California Constitution: Burial Protection
The Constitution, since 1926, has also specifically recognized the importance of the protection of burials, as follows:
All property used or held exclusively for the burial or other permanent deposit of the human dead or for the care, maintenance or upkeep of such property or such dead, except as used or held for profit, shall be free from taxation and local assessment.10
Although this language dates only from 1926 it should be noted that Native American burials and cemeteries possessed other forms of protection in state law, including a state act of 1854 which provided that
where the bodies of six or more persons are buried such place is a public graveyard
with title remaining in the owner of the land but subject to use as a cemetery so long as it was not abandoned (see my discussion of "abandonment" in a later section). In 1859 the Legislature made "all cemeteries" exempt from public taxes and protected from adverse uses such as public works (roads, highways).11
It would seem quite certain that Native American cemeteries qualified for the above protection in 1854 and 1859 since no reference is made to "white bodies" or to "Christian bodies" or to "places where the white dead are buried," etc., language which would have limited the acts to white Christian cemeteries.
In fact, Indian cemeteries may have been protected more than non-Indian cemeteries because of a provision of the Act of April 22, 1850, which still reportedly formed a part of the state code into the 1930s. This provision states that:
Persons and proprietors of land on which Indians are residing, shall permit such Indians peaceably to reside on such lands, unmolested in the pursuit of their usual avocations for the maintenance of themselves and families. (Italics added)
Thus the legislature incorporated, in effect, a principal from prior Mexican law which recognized Native residential and usufructary rights even on lands specifically granted to a non-Indian (as, for example, in a rancho grant). The significance of the California state law of 1850 is that it, in principle, protected every single Native American village or residential site in the entire state from any adverse interest subject to state jurisdiction. Since most cemeteries and burials are closely associated with a village or residence, we can be absolutely certain that the cemeteries remain an easement on the fee and that it was the State of California's intent to protect such a significant part of the "maintenance of themselves and families."
The Act of April 22, 1850, also provided that:
the white person or proprietor in possession of lands [inhabited by Indians] may apply to a Justice of the Peace in the Township where the Indians reside, to set off to such Indians a certain amount of land, and, on such application, the Justice shall set off a sufficient amount of land for the necessary wants of such Indians, include the site of their village or residence, if they so prefer it; and in no case shall such selection be made to the prejudice of such Indians, nor shall they be forced to abandon their homes or villages where they have resided for a number of years; and either party feeling themselves aggrieved, can appeal to the County Court from the decision of the Justice: and then divided, a record shall be made of the lands so set off in the court so dividing them, and the Indians shall be permitted to remain thereon until otherwise provided for.12
As one can clearly see, it was the legal intention of the State of California from 1850 on to protect Native villages, residences, and associated cemeteries from adverse possession. The existence of a protected easement seems certain, supplemented by the constitution provision of 1926 (above). Needless to state, the Act of 1850 also gives partial expression to the "due process" provisions of the state and federal constitutions.
VII. Residual Native American Property Rights
California Indian burials have also been protected from disinterment by virtue of the original "Indian title" to the greater part of the State of California, an original title which was not extinguished by treaty or other legal conveyance until the two California Indian claims cases of this century (1920s-1960s). It is very doubtful, however, that California Indians received any compensation for cemeteries as such and thus such sites probably continue to remain as easements on the fee of all land held by federal, state and private parties.13
A portion of the state of California, especially those areas lying along the coast between Solano and Sonoma Counties and San Diego, were partially covered by rancho grants to private citizens or to corporate bodies made by the Mexican government. These grant areas were excluded from the California Indian claims cases and thus any residual Indian title still remains totally intact.
The ex-Mission grants made to the Roman Catholic Church were probably made only as trustee for the ex-neophytes and thus an Indian equity in mission property still must exist.
As regards private rancho grants, Dr. Donald C. Cutter, a noted scholar of the Spanish-Mexican eras, has stated:
It was clear that Indians still resided on some of the areas [rancho grants] which during the years of prior sovereignty [pre-1848] has been distributed as private land grants to individuals. Investigation showed that in a substantial number of cases there was a "reserve clause" which indicated that the person receiving the usufruct to the land obtained under the burden that the Indians were not to be disturbed in their continued occupancy of the land which they had utilized up to that time.14
In other words, the Mexican rancho grants usually (if not always) protected the prior occupancy rights of Native Americans. These residual property rights have to this day never been quieted by compensation, thus adding an additional layer of security to all Indian burials located on former rancho grants.
It must be stressed, of course, that an unextinguished Native American property right or equitable interest is not essential for the protection of Native cemeteries. However, it does complicate matters for any party or agency seeking to remove or possess Native human remains or grave goods since I would argue that the non-Indian holder of the fee cannot dispose of such property unilaterally. By their very nature graves exist in perpetuity in an undivided form (until total disappearance) and cannot be disposed of as if they were simply an incidental appurtenance to real property. Moreover, the statute of limitations does not apply to Indian property interests, principally because of the federal trust responsibility, i.e., the removal of Indian bodies and goods is as if Federal Government property were removed (unless one can show that Congress has specifically and unambiguously removed California Indian cemeteries from federal trust protection).
VIII. "Equal Protection" and Cemetery Law in California Prior to the 1970s
The "equal protection" clauses in the U.S. and California Constitutions require that cemeteries be protected equally for all races and classes of persons. Let us therefore, examine what kinds of protection existed as of the early 1970s, based largely upon an opinion of Attorney General Evelle J. Younger in 1974. We may assume that the vast majority of human remains now possessed in storage by the University of California or other public agencies were acquired before 1971. Therefore, whether such remains are in legal or illegal possession will be largely determined by the law applicable prior to 1971.
In 1971 the California government adopted as a statute Chapter 827, Sections 5097.9 to 5097.96 of the Public Resources Code. This statute gave recognition (belatedly) to the abuse being experienced by Native American communities as regards the protection of graves. The Act (Section 5097.03) provided (1971-1976):
It is the intent of the Legislature that there shall be a moratorium on the disturbance of native California Indian burial sites abandoned less than 200 years.....
This would mean that villages still in existence in 1771 (which would include the vast majority of native California villages existing at initial European invasion), with their associated cemeteries and burials, would all be protected, along with any pre-1771 villages whose cemeteries were not "abandoned" in 1771 in the legal sense.
It is significant that in Attorney-General Younger's analysis of Chapter 827 (1974), the term "disturbance" is taken to include "archaeological excavation" as in the second subordinate sentence:
No state agency shall permit archaeological excavation in any native California Indian burial site abandoned less than 200 years during the period of such moratorium.
Younger concluded that:
Public Resources Code section 50-97.93 has created an obligatory delay or temporary ban applicable to both public and private lands.... It follows, therefore, that the Attorney General
is authorized to commence civil actions to prevent the disturbance of native California Indian burial sites in violation of Chapter 827....
It is our opinion that the moratorium is an essential part of the responsibility given to the Resources Agency to seek long-term solutions to the problem of disappearance of California's native Indian burial sites.15
Thus the "disappearance" of Native American burial sites was seen as a problem to be resolved.
The above 1971 statute utilized the term "abandonment." Therefore, it is necessary to introduce evidence relating to that concept. The Attorney General asserted that
In California "abandonment" has been defined as "the voluntary giving up of a thing by the owner because he no longer desires to possess it or to assert any right or dominion over it and is entirely indifferent as to what may become of it or who may thereafter possess it." Martin v. Cassidy, 149 Cal. App. 2d 106, 110 (1957).
This is very significant, since it is well-known that California Indians did not voluntarily abandon their former villages, residences, sacred areas, and burial sites. Rather, these places were taken by force, no doubt in the majority of cases.
The general rule on the non-statutory abandonment of cemeteries is to favor the protection of the cemetery as long as "the spot awakens sacred memories in living persons....." In the case of Weisenberg v. Truman, 58 Cal. 63, 69 (1881) it was noted that a cemetery with bodies still interred "is not necessarily abandoned because it is no longer used for interment purposes."
Attorney General Younger cites the following as reflecting the general rule:
However, as long as a cemetery is kept and preserved as a resting place for the dead with anything to indicate the existence of graves, it is not abandoned. Thus, where the bodies interred in a cemetery remain therein and the spot awakens sacred memories in living persons, the fact that for some years no new interments have been neglected does not operate as an abandonment and authorize the desecration of the graves. (14 Am. Jur. 2d. Cemeteries, 21, p. 726, 1964.) [Italics added]
The above rule is supported by cases in Georgia, Illinois, Missouri and Texas, while cases in other states support a more rigid rule "that requires the authorized removal of bodies interred therein to work an abandonment." [Italics added]
Attorney General Younger goes on to find that:
Either rule, if applied to the statute at hand  would seem to except the vast majority, if not all, the native California Indian burial sites from the operation of the moratorium either because the sites are still sacred to native California Indians or because bodies are still interred therein.
In other words, the moratorium was not necessary at law because the vast majority of Indian cemeteries were already protected from excavation, according to Younger.
While I agree with the Attorney General on the above point, I must disagree with the reasoning which follows. Younger argues that the Legislature must have meant by "abandonment" not a standard definition as above, but rather a special unstated type of abandonment peculiar to the Legislature's knowledge about Indians, i.e.,
we are of the opinion that the word "abandonment" is used in an archaeological sense and refers to the discontinued use of a site as a habitation.
But here, Mr. Younger forgot about "equal protection." One cannot use a so-called "archaeological" definition for one race if that same "archaeological" definition is not also used for all other races.
In other words, "abandonment" must be defined in the same manner for Native American and white cemeteries, except that the identifying markings for the several cultures may differ due to different interment practices and customs. Moreover, it must also be noted that many Indians may have had to hide the evidence of burials during the past century in order to prevent grave robbing.
Mr. Younger misreads the Legislature, in my opinion. The moratorium had to be adopted because Native American cemeteries were not being protected, laws to the contrary notwithstanding. That was the compelling issue, not a desire to invent a special meeting for "abandonment."16
As strongly indicated by Attorney General Younger, Native American cemeteries have long been protected by statutes other than the 1971 moratorium. The state began protecting cemeteries in 1859 from adverse uses and exempted them from public taxes. This protective attitude was reinforced by other statutes in 1911, 1931 and 1939, as well as by a constitutional amendment (cited earlier) in 1926.
At this point it is worth noting that the current State Health and Safety Code contains provisions, adopted in 1939, which may be applicable to some Native American cemeteries. The code defines "human remains" as "the body of a deceased person, and includes the body in any stage of decomposition and cremated remains." Thus skeletal remains are clearly covered.
Section 7051 provides that:
Every person who removes any part of any human remains from any place where it has been interred, ...., with intent to sell it or to dissect it, without authority of law, or from malice or wantonness, is punishable by imprisonment in the State prison for not more than five years.
Section 7052 provides that
Every person who mutilates, disinters or removes from the place of interment any human remains without authority of law, is guilty of felony. This section does not apply to any person who removes the remains of a relative or friend for reinterment.
This provision, which existed prior to 1939 as State Penal Code, Section 290, refers to "interment" which, in the Act, means "the disposition of human remains" in a "burial park," which is
a tract of land for the burial of human remains in the ground, used or intended to be used, and dedicated, for cemetery purposes.17
Whether Native American pre-1939 cemeteries could be considered as "dedicated" is a question I won't explore here, however, the language cannot be retroactive and, therefore, cannot "de-dedicate" older Indian cemeteries which were without a doubt originally "dedicated" to cemetery purposes.
In any event, the California state policy towards cemeteries is summarized in Eden Memorial Park Association v. Superior Court of Los Angeles County, 189 Cal. App. 2d 421, 424-425 (1961), a case which holds that a cemetery is not subject to condemnation for highway purposes:
It has long been the policy of this state that places where the dead are buried shall be protected and preserved against interference, molestation or desecration....[Italics added]
Attorney General Younger notes that this protective state policy long preceded the 1931 Act which set up the first Health and Safety Code provisions applying to formally dedicated cemeteries, and "that those policies are applicable to all 'places where the dead are buried.'" I would stress again that the cemetery protective legislation since 1859 is color-blind in language.
Statutes have been adopted which provide criminal sanctions for the desecration of human remains" (Health and Safety Code section 7052) as well as for the "theft of valuables therefrom" (Penal Code section 642), as well as the "desecration of grave sites or cemeteries where six or more people are buried (Health and Safety Code Sections 8100 and 8101). These statutes have been seldom enforced by county District Attorneys, however, because of a popular white prejudice in favor of viewing Indians as "objects" rather than as "subjects," in my opinion. Once Indians are objectified they cease to have the attributes of people or persons and can then be more easily treated as natural phenomena or non-human "specimens."
Nonetheless, general cemetery protective policy is directly applicable to Native American graves. Still further, Younger asserts that Indian descendants or heirs may well have an easement or property interest in cemeteries located on tracts controlled by non-Indians.
Assuming that a native California Indian burial site is situated on land once owned by the families of those interred therein and that it is marked well enough to provide notice of its existence, it may be that the descendants or heirs of those interred within the burial site have retained a property interest in the burial site. Even if another party has a deed showing title to the land in question, there are authorities holding that title to land devoted to burial purposes passes with an easement against the fee. [Italics added]
Younger then cites Heiligman v. Chambers, 338 p. 2d 144 (Oklahoma, 1959) to illustrate a case where a family burial plot became an easement against the fee.
The easement is in favor of the person creating and establishing the burial plot and the right inherent in such person descends to his heirs.
Younger then concludes his analysis as follows:
we are of the view that the courts of this state, following the strong policy of protecting places where the dead are buried.... would, under similar circumstances follow the rule adopted by Oklahoma in Heiligman v. Chambers... and that, under similar circumstances, the holder of such a deed would have no right to disturb the burial sites insofar as such disturbances are incompatible with the rights of the descendants of those buried therein. [Italics added]18
In 1991 the California legislature approved and the governor signed into law a bill (AB 12) which added a new section (5097.991) to the Public Resources Code. This new section reads:
It is the policy of the state that Native American remains and associated grave artifacts shall be repatriated.
This policy refers specifically to
agencies and organizations of the state, as well as private museums and universities, [which] have in their possession the skeletal remains and associated grave artifacts of Native Americans.
The legislative council's digest of AB 12 states that:
Existing law contains provisions for the protection of Native American burial sites and skeletal remains, including criminal mentalities for unauthorized possession, obtaining, or removal of artifacts or remains.
This viewpoint reinforces our argument that Native American cemeteries are protected under California law.19 It also relates to the discussion below.
IX. Reasons for Discussing Native Cemetery and Property Rights in Relation to Human Remains
I have had to extensively examine Native American cemetery and relevant property rights because the human remains now in the possession of museums and other institutions were acquired either legally or illegally.
The determination of whether such human remains belong, in fact, to an institution cannot be made without reference to the mode of acquisition, to the legal procedures followed in acquisition, to the permissions obtained, to the compensation paid, and, ultimately, to the legal status of the Native American cemeteries from whence came the bulk of the skeletons.
State agencies must obey state and federal law. They must obey the constitutions of the United States and of the State of California. State agencies cannot plead "statute of limitations" when violating state and federal law. Objects and remains from graves acquired illegally remain in illegal possession because of the unique status of cemeteries, human corpses, remains of corpses, the religious beliefs relating to them, and the resulting state protective law.
A key point regarding the desecration of burials is that the act of excavation and removal from a sepulcher only initiates the violation of rights. The violation continues as long as the remains are not reburied or disposed of to the satisfaction of the offended parties. In short, there is no "statute of limitations" operative here, since removal is a continuing offense until resolution occurs.
For these and other reasons we must look at the implications of federal and state law for the University of California and other state agencies. More especially, we must attempt to determine what kinds of records one must expect to find to support a claim for legal possession of remains derived from a cemetery or burial site.
X. Implications for Institutions Possessing Human Remains
If, as argued above, it is true that Native American burial sites and sepulchers are protected from disturbance, desecration, or other adverse usage in the same manner as are non-Indian grave sites, then it follows axiomatically that all human remains obtained from graves are prima facie suspect as to their legal status.
Given the general and probably universal policy of protecting cemeteries, legally speaking, and given the cited constitutional requirements for religious freedom, equal protection, privacy and due process, we can argue that the vast majority of human skeletons of whatever race should now be in the ground in their designated sepulchers or otherwise disposed of if cremation or some other form of funerary rite was observed.
Every skeleton or human remain which now exists in any museum, storage area, or laboratory must, therefore, be viewed as an exception to the general, universal rule of respect for the dead. The "probable cause" also exists that they are illegal acquisitions, unless proven otherwise.
It is, therefore, incumbent upon each and every holder of such human remains to be able to document the following:
1. that the constitutions and laws of the United States and the State of California were not violated in obtaining the said human remains; and
2. that the institution was not involved in any illegal acts in the disinterment of any body nor was any agent of the institution so involved.
One would expect then, that each skeleton would be treated exactly the same as a human cadaver obtained for study or teaching purposes or for organ transplant use. That is, each cadaver should have, I would think, a paper trail of documentation including documents which certify to the informed consent of the donor or perhaps of the public agency in custody of the cadaver (in the case of unidentified persons).
How can an institution establish that it possesses a skeleton which has not been illegally removed from a protected cemetery? In other words, how can it establish that the religious, civil, or property rights of living heirs of the deceased have not been violated, or that U.S. and California law have not been violated?
First, there should be evidence that a legal notice was filed in Indian publications as well as in a newspaper of local general circulation, more or less as follows: the Regents of the University of California or their authorized agents hereby give notice that they intend to excavate a site which is suspected of containing graves or burials. The said site is located in __________ at _________ and near _____________ (description must be vague enough to deter relic collectors and grave robbers) It is suspected of being a site of the Patwin Indians dating c. 1600 A.D. Any and all persons who possess any knowledge of said site or of any graves located therein, or who claim descent or relationship to any persons who may be buried therein are hereby requested to contact _____________ at ________________ within ____ days.
Such a legal notice is provided here only as an example. What is absolutely necessary is evidence to show that a good faith effort was made to locate the Indian holders of the easement who would be, at the same time, the only persons capable of granting permission for excavation to continue.
We can be very suspicious of the legal status of skeletons which were obtained without actively seeking the permission of the descendants, relatives, or other interested parties for excavation, removal and study.
Moreover, we should want to have evidence that any skeletons of a modern date (post-1540, let us say), are accompanied by a sign-off sheet wherein the appropriate descendants, relatives or other legally entitled parties actually gave permission to the institution for particular usages, such as disinterment, storage, dismemberment, partial destruction, display and study.
It can never be assumed that permission to merely take, or to store, or to display, or to study, would include all of these uses, since display, dismemberment or destruction might be (for example) considered to be ethically much less acceptable than, say "storage," a vague word, in and of itself.
The institution must also show that the holder of the deed to the land granted permission for the excavation of the burial as well as for general trespass. In a great many cases the federal government will be the holder of the title and permission would have to be granted by a high-level official with the authority over trespass on federal property.20
We can assume that some of the skeletons in institutional collections were acquired on lands set aside for Indian use, either as 1850 state-protected villages or as federally-recognized reservations, including rancherias and colonies. In these cases, the sign-off must include Native American tribal officials, religious elders, or other appropriate officials, as well as federal agency officials in the case of reservations.
For example, skeletons derived from Round Valley Indian Reservation or from the Hoopa Reservation must be accompanied by the signatures of local Indian officials as well as Federal agents. This will be in addition to next-of kin of the deceased.
One must be absolutely clear on this point: that the sign-off by tribal or other government-level officials, or by holders of the fee in the case of private property, does not in any way release an institution from the burden of obtaining the consent of appropriate descendants of the deceased.
We must also stress here that lands formerly set aside as reservations, but now sold or otherwise changed in status by action of the federal government, must also be treated in a special way in the records. For example, skeletons derived from the former Mendocino Indian Reservation or from the former Nomelaki Reservation would have to have sign-offs by the same kind of persons as if they were still reservations, since the Indian intent to abandon cemeteries cannot be inferred from federal government closure of the reservation.
The inability to identify descendants today may as well be a direct result of the removal of the human remains from their sepulchers without an adequate record being made and certainly without an adequate effort to locate relatives, heirs, or knowledgeable tribal members. In short, the onus for a lack of identification of descendants must fall upon the institutional possessor of such human remains, in the case of modern remains (post-1540) and, moreover, it can perhaps be inferred that disinterment was surreptitious in those cases where no evidence of working with local Indian people emerges from the record. That is, it may be that no attempt was made to locate local Indian people to obtain adequate identification, permission, etc., precisely because it was intended that local Indians not be made aware that human remains were being removed.
XI. The Racial Composition of Collections
It cannot seriously be argued that only Native American skeletons are useful for scientific study and, therefore, any collections based upon the purposes of science must be racially heterogeneous.
Non-Indians have been present as permanent settlers in California since 1769, in Baja California for a century longer, and in Mexico since the 1520s. Non Indians have, indeed, been a majority of the population of California since 1849. The building up of collections of human skeletons did not commence until long after white persons constituted a majority. Moreover, many groups of non-Native people would constitute far more interesting targets of scientific inquiry than would most Indians because non-Indian groups can be specifically identified in advance of excavation as having scientific utility.
For example, little is known conclusively about the racial and physical characteristics of the Spanish and Mexican priests, soldiers, servants and settlers of the 1769-1848 period (or of the previous century in Baja California). Scientific examination of the human remains now deposited in Roman Catholic cemeteries at the various missions, presidios, and pueblos could be expected to yield very interesting data. To be more specific, it has been reported that certain priests and military personnel or settlers were syphilitic and that they introduced syphilis to the Native Californians. An examination of their bones might well reveal signs of syphilis (or other diseases or physical disabilities), thus settling some unresolved questions.
Similarly, large numbers of persons of African ancestry are reported to have been present within the Hispano-Mexican population. An examination of Catholic cemetery remains might shed light upon whether this is correct.
Finally, little is known about the characteristics of the foreigners who reached California after 1800, including:
1. The Russian-Kodiak-Aleut-Siberian persons who settled at Fort Ross and Bodega Bay. What were their physical and racial characteristics, height, weight, diseases, dietary character, etc.?
2. The pre-1848 Anglo-Saxon settlers and 49ers, the gold miners of the 1849-1860 period. What were their physical characteristics, dietary patterns, health characteristics, etc.? How do the 49ers differ from more sedentary whites who did not join the Gold Rush?
3. The Chinese gold miners and railroad workers of the 1849-1860s period. What were their physical characteristics, dietary patterns, health characteristics, as above?
One could go on, but the above examples should illustrate one thing; if a non-racial policy had been followed by an institution we would expect that the majority of post-1769 skeletons would be of non-Native American race.
If, on the other hand, one finds that virtually all, or the vast majority, of the post 1769 skeletons are of Native American race, then a prima facie case exists that a purely racial policy of collecting human remains has existed and that the constitutions and laws of the United States and of the State of California have been consistently and continuously violated.
Needless to state, this state of affairs (if true) arises not out of science but out of an unequal position of powerlessness and directly out of the conquest of one race by another.
I personally would not necessarily advocate that our museums vaults be full of skeletons of Spaniards, Anglo-Americans, or Russians, but I believe that such would be the case of white persons' bodies had not been protected by law enforcement officials while Native Americans' bodies largely went unprotected until recently.
In other words, the existence of the issue of the reburial of Native American remains arises directly out of racism and a lack of "equal protection," not out of any issues of science per se.
XII. "Just Compensation" and Other Issues
I believe a strong case can be made that California Indians are entitled to compensation for bodies removed from graves in defiance of federal and state constitutional and statutory protections. But I am not going to attempt to guess what dollar amounts would be involved, because I believe it is far better that the University of California and other state agencies grasp the initiative and begin the process of reinterment voluntarily.
Several other concluding points need to be made:
1. Archaeology has contributed a great deal to the better understanding of the Native American peoples and will continue to do so, even without the removal from graves of human remains. Many areas of California possess no pre-1769 graves because cremation was the dominant practice, and yet archaeologists have still been able to make strong contributions to knowledge in those areas.
2. Archaeology is also being used for the study of white history. As a field, it cannot seek the permanent removal and study of Native American remains while yet not seeking the permanent removal and study of white remains. A completely non-racial policy must be adhered to, following the law, of course.
3. Questions of scientific utility must be set aside until the fundamental humanity of Native Americans is recognized fully and the "laws of the land" are complied with.
In short, the constitutions and statutes of the United States and California require us to return all human remains to the earth, excepting perhaps only skeletons which can be shown to have been never buried or perhaps ones of very ancient age. The Law is vague as to the latter cases and I am not going to speculate on them.
We must obey the law. We must respect the fundamental rights of all human beings without regard to color, class, or previous condition. After we have done all of those things, then, and only then, can we begin to discuss how best to be able to scientifically study modern human remains and under what procedures and circumstances, equally for all races and religious creeds, without prejudice.
1Forbes, Jack D., The Papago-Apache Treaty of 1853: Property Rights and Religious Liberties (Davis, Native American Studies, 1979) p 11
2Forbes, The Papago-Apache Treaty of 1853, p 10 especially
3Forbes, Religious Freedom and the Protection of Native American Places of Worship and Cemeteries, (Davis: Native American Studies, 1977) pp. 1ff
4Forbes, The Papago-Apache Treaty of 1853, pp. 1-2.
5Forbes, The Papago-Apache Treaty of 1853, pp 4-5, for a discussion of Native Americans as Mexican citizens. Also see Forbes, Religious Freedom, pp. 2-3.
6Constitution of the State of California, Article I, Section 4 pre-1974; Constitution of the State of California Annotated: Deering's California Code (San Francisco: Bancroft-Whitney Co, 1974) p. 12; (to be cited as Cal. Const. A., 1974, etc.) Cal. Const. A. (1981) p. 20.
7Constitution of the State of California, Article I, Sections 11 and 21, pre-1974; In 1974 Article I, Section 21 became Article I, Section 7 and reads, "A citizen or class of citizen may not be granted privileges or immunities not granted on the same terms to all citizens." Cal. Const. A. (1981) p. 26
8Cal. Const. A. (1974); Cal. Const. A. (1981), 25, 135.
9Cal. Const. A. (1981), pp. 2, 5, 59, Cal. Const. A. (1990) p. 7.
10Constitution of the State of California, Article XIII, Section 1b, as amended November 2, 1926; Cal. Const. A. (1981) p. 363.
11New California Digest, 4B, 523 (San Francisco: Bancroft-Whitney Company, 1964); Evelle J. Younger, March 19, 1974, p. 20, as reproduced in Forbes, Religious Freedom, p. 20.
12Chapter 133, Statutes of California, an Act for Government and Protection of Indians, as quoted in Robert F. Heizer and Alan Almquist, The Other Californians, (Berkeley, University of California Press, 1971) p. 212. See also Forbes, Religious Freedom, pp. 4-5.
13Forbes, The Papago-Apache Treaty of 1853, especially pp 10ff and also Nevada State Bar Journal 30 (3), July 1965, pp 16-47.
14Donald C. Cutter, "Clio and the California Indian Claims,"Journal of the West, 14(4), October 1975, p. 39
15Opinion of Evelle J. Younger, Attorney General, State of California, March 19, 1974, as reproduced in Forbes, Religious Freedom, pp. 15-17. California Public Resources Code Annotated (Deering's), 1976, pp. 148-149.16Evelle J. Younger, March 19, 1974, in Forbes, Religious Freedom, pp 18-19.
17California Health and Safety Code Annotated (Deering's), 1975, pp. 512-522; Also see California Penal Code Annotated, 1983, p. 11.
18Evelle J. Younger, March 19, 1974, in Forbes, Religious Freedom, pp. 20, 22-24.
19Display 1991-1992 Bill Text, Bill Number AB 12, California Secretary of State, pp. 1-2.
20Since 1990, with the passage of Public Law 101-601, Native American cemeteries located on federal or "tribal" lands have additional protections. All excavations require a permit issued under the provisions of 93 State. 721; 16 U.S.C. 470aa et seq. (Archaeological Resources Protection Act of 1979) and, in addition, require "consultation" with Indian tribes or Native Hawaiian organizations if on federal land or "consent" if on Native American land. Proof of consultation and/or consent must be shown. See H.R. 5237, Public Law 101-601, 101st. Congress, Second Session, Jan. 23, 1990, p. 4, Sub-section (c).