NUNAMINGNUT UTEQIHUT THEY ARE HOME.docx

Nunamingnut Uteqihut (They Are Home): NAGPRA and The Struggle to Repatriate Native Remains Foreword My father sent for me. I saw that he was dying. I took his hand in mine. He said: “My son, my body is returning to Mother Earth, and my spirit is going very soon to see the Great Spirit Chief…. Never forget my dying words. This country holds your father’s body. Never sell the bones of your father and mother.” I pressed my father’s hand and told him I would protect his grave with my life. My father smiled and passed away to the spirit land. I buried him in that beautiful valley of winding waters. I love that land more than all the rest of the world. A man who would not love his father’s grave is worse than a wild animal. — Chief Joseph of the Nez Perce Virginia Armstrong, ed., I Have Spoken 78 (1971). A Brief History of Native Remains There is a long history in the United States, and, for that matter, throughout the world, of the exhibition of archeologically significant, ancient human remains despite religious doctrine. The museums of Cairo brim with mummified Egyptians: Ramses, Tutankhamen and more, pilfered from their tombs or excavated in the name of science before the modern political-correctness movement was born. Northern Europe displays the remains of the so-called “bog people,” sacrificed and thrown into the bogs of Manchester and Jutland during the Iron Age (2,000 years ago)—so completely preserved by the peat their facial stubble is still visible. Natalie Jane Prior, The Encyclopedia of Preserved People 24-5 (2002). More darkly, the remains of Natives have been displayed for amusement and deprecation in Paris and London. On 9 August 2002, the remains of Saarjite Baartman (also known as Sarah) were reburied in her homeland of Cape Town, South Africa. Billed as the “Hottentot Venus,” Saarjite was taken from her village in South Africa in the 1800s and displayed as a curiosity around Europe due to her pronounced buttocks (steatopygia) and labia (tablier) John R. Baker, Race 313-19 (1974)., cited as proof the native population of Africa was oversexed and inferior to Europeans. After being forced into prostitution, Baartman died at age 25 at which time her genitals were pickled and placed on display with her skeleton at the Musée de l’Homme in Paris. Baartman’s remains were removed from view in 1974. Following pleas from advocates including Nelson Mandela, her body was finally returned to her homeland for proper burial on Women’s Day 2002, 187 years after she was taken from her home. Lucille Davie, Living History: Sarah Baartman, at Rest at Last, at www.southafrica.info/women/saartjie.htm. In the United States, arctic explorer Robert Peary brought six Greenland Inuit to New York City onboard the Hope in September 1897. Peary had acted at the behest of Franz Boas of the American Museum of Natural History. The Inuit, known popularly as the “Peary Eskimos,” were a great tourist attraction; in their first two days in the city, 30,000 people paid a quarter apiece to see them on the deck of the Hope. David Hurst Thomas, Skull Wars 79 (2000). The Inuit lived in apartments above the museum and remained a popular attraction until they began to die of pneumonia and tubercular infections. The ill Inuit moved to Bellevue Hospital in the city. Within just eight months of their arrival at the Port of New York, four of the six were dead of tuberculosis. One of the survivors returned to Greenland, and the last, a six-year-old named Minik, remained with a member of Boas’ team. Minik attended the burial of his father, Qisuk, in a grave in Central Park, showing onlookers a “traditional” Inuit burial. Minik failed to realize at the time his father’s remains had been boiled, catalogued and added to the Museum collection; a log was used to fill the grave. Jane George, Americans Catch Iqaluit Historian’s Passion for Minik Tale, Nunatsiaq News, Iqualit, 28 April 2000. When 15-year-old Minik learned the truth about his father’s remains from a newspaper, he fought for the return of Qisuk’s remains. Sensationalist papers of the day ran with the melodramatic story: An upstairs room—at the museum—is his father’s last resting place. His coffin is a showcase, his shroud a piece of plate glass. No quiet of the graveyard is there; the noise of shuffling feet and the tap, tap of hammers as workmen fix up other skeletons, is ever present. And when the sunlight fades they turn on the electrical lights so that Minik’s father may not even have the pall of darkness to hide his naked bones. Thomas, supra note 5 at 82. Minik died during the great influenza epidemic of 1918. Philip John, Gebeentes van die siel, at www.upe.ac.za/afned/beenlied.htm. Recently, Minik’s story has even inspired an opera by Tapestry Opera Works of Canada entitled, Facing South. Id. The story of Minik and the other Peary Eskimos is one of the rare occasions that Native American Graves Protection and Repatriation Act (NAGPRA) 25 U.S.C.S. §§ 3001 et. seq. repatriation has directly contradicted the wishes of both the tribe and the dead in question. In August 1993, the remains of the Peary Eskimos were returned to Qaanaaq, Greenland, for reburial. Ironically, this repatriation was against the Inuit tradition and the likely wishes of those whose remains were moved: the Inuit believe the evil of a person remains in his bones, and therefore try not to associate with the remains of the dead. Corpses are believed to be shells left behind when the spirit reincarnates. Asked his feelings on the return of the remains, Minik’s last surviving relative replied, “If that’s what [the Museum people] wanted, it’s alright. And if they [the bones] had stayed where they were, that would have been alright too.” Edmund Carpenter, Dead Truth, Live Myth, at http://faculty.virginia.edu/phantom/Dead%20Truth.pdf. Minik and his companions now rest below a simple cross, bearing a plaque inscribed, “Nunamingnut Uteqihut”—They are Home. George, supra note 6 at 3. Various theories were advanced in the 19th century to explain the supposed racial inferiority of the Indigenous peoples of North America, and why they were proper subjects for zoological study and doomed to extinction. Three of the most pervasive were polygenesis, Monogenetic Evolutionism and Monogenetic Degeneration. Polygenesis is the theory that the races were the result of different acts of creation by God (in direct opposition to the version of creation offered in the Book of Genesis). American Theories of Polygenesis, at www.thoemmes.com/science/polygenesis_intro.htm. Monogenetic Evolutionism is commonly known as Social Darwinism. Despite the reference to Charles Darwin, Social Darwinism is most closely associated with the work of sociologist Herbert Spencer, who coined the term “survival of the fittest” and popularized the word “evolution.” Monogenetic Degeneration is a superiority theory based loosely on the story of Adam and Eve, claiming that Indians and blacks were “cursed” by God with darker skin for wandering away from His will. Kathleen S. Fine-Dare, Grave Injustice, 38 (2002). Whites, who had remained closer to God’s chosen path, retained the original features of their creation in His image, such as pale skin. This theory was embraced by the Church of Jesus Christ of Latter-Day Saints, who maintained that the 24 Nephites—whites—who survived savage attacks by the Lamanites (darker-skinned people) buried the tablets containing the Book of Mormon. The Book of Mormon, Mormon 6:7-15. In 1839, Samuel Morton’s Crania Americana was published using the then-popular “science” of phrenology to prove the superiority of Caucasians to Native peoples. Neil Smelser, America Becoming: Racial Trends and Their Consequences, Volume I 156 (2001). This genetic inferiority, Morton held, would manifestly lead to the extinction of the indigenous people, the “Vanishing Red Man Theory.” Renee M. Kosslak, Comment: The Native American Graves Protection and Repatriation Act: The Death Knell For Scientific Study? 24 Am. Indian L. Rev. 129 (2000). Following the opening of the Smithsonian Institution in 1846, U.S. Army Surgeon General William Hammond suggested a specialized museum be dedicated to “the study of military medicine and surgery and that the proposed museum house a collection of specimens of morbid anatomy, surgical or medical, which may be regarded as valuable; together with projectiles and foreign bodies removed.” Frequently Asked Questions, National Museum of Health and Medicine, at www.nmhm.washingtondc.museum/about/faq/index.html#2.1. As a result of this request, the Army Medical Museum was founded in 1862, and is now known as the National Museum of Health and Medicine of the Armed Forces Institute of Pathology at Walter Reed Army Medical Center. Originally located in Washington, D.C., the Medical Museum moved in 1920 to Carlisle, Pa., (home of the Carlisle Indian Industrial School) and took its current name, moving for the last time in the 1970s to Texas. http://www.wramc.amedd.army.mil/index.htm. The museum found ample fodder in the Civil War, but Hammond’s attentions then turned to Westward expansion and study of the indigenous persons whom settlers were encountering. In 1862, Hammond began what was then known as the “Indian Cranial Study,” “…in which soldiers in the field were instructed to ‘harvest’ heads from Indian graves or battle casualties.” Jim Adams, New American Indian Museum Overcame Repatriation Battle, Long Negotiations, Indian Country Today, 22 September 2004. Initially, Hammond’s stated intent was to study Indigenous peoples and their exposure to infectious diseases. Fine-Dare, supra note 14, at 33. However, later anthropologists began to study the cranial mass and phrenology of the Native people, thereby “definitively proving” the genetic superiority of the Caucasian race. Robert T. Anderson, Respect for the dead at the village of Tse-whit-zen, The Seattle Times, 9 February 2005. Work by early forensic anthropologists such as Samuel Morton of Philadelphia labored to prove racial superiority, frequently without consent of those whose family members were examined. One of Morton’s employees once noted, “[i]t is rather a perilous business to procure Indian’s skulls in this country—the Natives are so jealous of you that they watch you very closely while you are wandering near their mausoleums & instant & sanguinary vengeance would fall upon the luckless.” Roger C. and Walter R. Echo-Hawk, Battlefields and Burial Grounds: The Indian Struggle to Protect Ancestral Graves in the United States 24 (1994). In his work Red Earth, White Lies, Vine Deloria, Jr., wonders, “[i]ndeed, it may have been that Indians were unnecessarily slaughtered in battles, since it was a custom to simply ship bodies of Indians killed by the army to eastern laboratories for use in various experiments.” Vine Deloria, Jr. Red Earth, White Lies 19 (1995). Most of these remains ended up housed in the Smithsonian Institution, which has in its collection approximately 18,500 Indian remains and another 4,500 skulls obtained between 1898 and 1904; Adams, supra note 20. the Tennessee Valley Association held an estimated 10,000 skeletons. Deborah F. Buckman, Annotation, Validity, Construction, and Applicabilty of Native American Graves Protection and Repatriation Act, 173 A.L.R. Fed. 585 (2001). As of 1995, no more than 2,000 of these remains had been returned to their tribes. Peggy Thomas, Talking Bones: The Science of Forensic Anthropology 114 (1995). The osteology laboratory at the National Museum of Natural History lists 16,000 Native remains still in the collection of their museum alone. Repatriation Documentation by the Osteology Laboratory at the National Museum of Natural History Smithsonian Institution at www.nmnh.si.edu/anthro/repatriation/. Many of these remains are being transferred to the National Museum of the American Indian for further research and repatriation under the National Museum of the American Indian Act and Amendment. 20 U.S.C.S. § 80q. When Hammond was replaced by Joseph K Barnes in 1882, the specificity of these cranial studies was sharpened. On 4 April 1867, Barnes sent a memo to troops in the field requesting the following: Rare pathological specimens from animals, including monstrosities. Typical crania of Indian tribes; specimens of their arms, dress, implements, rare items of their diet, medicines, etc. Specimens of poisonous insects and reptiles, and their effects on animals. Smelser, supra note 16. With this memorandum, Barnes effectively relegated the status of indigenous peoples to that of two-headed kittens and brown recluse spiders; a dangerous specimen for study, or a monstrosity remarkable only in its perverse novelty. In September 1912, the remains of eight members of the Narragansett Indian tribe were removed from the Fort Neck Burial Ground in Charlestown, R.I., in a dig conducted by Dr. Harris Hawthorne Wilder and his team. Wilder noted, at the time of the excavation, that the remains removed dated from 1750-1840, and the identities could not be ascertained. The marked grave of George Ninigret, son of the “King of the Natives Charles Ninigret,” was empty. Sarah Schweitzer, Issues of Body, Spirit Snarl Return of Narragansett Remains, The Boston Globe, 20 December 2004 at Metro/Region A1. Wilder exhibited the remains at the Smith College Zoology Department, and they were later transferred to the University of Massachusetts at Amherst. Pursuant to NAGPRA, in October 2004 the Anthropology department at the University of Massachusetts extended an invitation to Narragansett tribal members to apply for the return of these remains. Notice of Inventory Completion: University of Massachusetts, Department of Anthropology, Amherst, MA; Department of the Interior, FR Doc. 04-25923. As of the FY04 report, the Narragansett tribe had withdrawn all requests for remains and associated funerary objects from the Peabody Museums and the Haffenreffer Museum of Brown University. The final obstacle in the repatriation of these remains is to provide a resting place. It is not entirely clear from Wilder’s records where the remains were found, but the likely location is now on private land owned by John and Patricia Dunn. The Dunns have granted permission for the remains to be returned to the burial ground; Ms. Dunn told the Globe, “It would be nice for the people to go back where they belong.” Ms. Dunn is quoted in Schweitzer, supra note 31. An indication of the exploitation of Native burial sites was the Fountain of Youth Burial Ground in St. Augustine, Fla. On 13 April 1934, workers planting oranges came across remains dating from shortly after Don Juan Ponce de Leon’s occupation in 1565. The remains, when excavated, were considered to be from the first Christian burial ground for Indians in the United States. Similar to the ruins of Pompeii, the graves were excavated and the remains left as found to be examined by tourists within the Fountain of Youth National Park. The graves remained open (complete with postcards of the skeletons for sale) until the Timucua Nation asked in 1991 that they be reburied. Mark Morhan and Mark Sceurman, Weird U.S. 49 (2004). Nearby in the Florida Everglades, North American bog people, an astonishing 7,000 years old, have been found in the wetlands near Cape Canaveral, with some pools yielding up to 160 bodies each. Prior, supra note 2. Indigenous North American burial methods are as varied as the tribes who practiced them. Remains of the Adena and Hopewell people have been found in mound-shaped burial grounds throughout the Mississippi Valley, ranging in date over approximately 1,700 years. One site in New Hampshire is estimated to contain approximately 8,000 distinct individuals. Penny Coleman, Corpses, Coffins, and Crypts: a History of Burial 97 (1997). Many Plains tribes, including the Brule Sioux, practiced scaffold burial, leaving the decedent on a platform for the animals and elements; the 1871 scaffold burial of Crow Chief Crazy Wolf was captured on film. Echo-Hawk, supra note 23 at 16. Within American museums, no culture’s remains have been so widely displayed and so openly exploited as those of the indigenous tribes of North America. Until the past 20 years, native remains would be displayed, sold, collected, and even singled out for inspection to the exclusion of other bodies in the same dig. These desecrations finally lead Congress to enact the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990, 25 U.S.C.S. §§ 3001 et. seq. allowing law enforcement agencies to control the trade in Native ritual objects and remains and providing a system for the return of traceable remains. Senator Daniel K. Inouye (D, Hawaii) noted: When human remains are displayed in museums or historical societies, it is never the bones of white soldiers or the first European settlers that came to this continent that are lying in glass cases. It is Indian remains. The message that this sends to the rest of the world is that Indians are culturally and physically different and inferior to nonindians. By any definition, this is racism. Hearing Before the Select Comm .on Indian Affairs on S.1021 and S.180, 101st Cong. 2nd Session (1990). It bears mention that this exclusive display of non-Caucasian remains is a distinctly American idiosyncrasy. All the European bog people discovered have been white. Cathedrals throughout Europe contain the relics of Catholic Saints exhibited for the veneration of pilgrims—Saint Bernadette remains incorruptible in her crystal coffin in Nevers, France; St. Valentine’s bones repose in an ossuary in a Catholic church on Whitefriar Street in Dublin, Eire. While Anglo-American legal tradition is imbued with a sense of respect for the dead, until recently this respect only extended to marked graves and zoned cemeteries. Since minorities like African-Americans and Indigenous people were often financially unable to build such tributes, or were members of cultures who practiced different burial rites, these remains were often excluded from grave protection legislation. In its 45th Session in 1994, the United Nations Economic and Social Council Commission on Human Rights drafted a bill similar to NAGPRA calling for the international return of indigenous remains and a renewed respect for native cultures, languages, and religions. Article 13 specifically states that, “States shall take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected, and protected.” 1994/45. Draft United Nations declaration on the rights of indigenous peoples at www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.SUB.2.RES.1994.45.En?OpenDocument. How the West Was “Won”: The Sand Creek and Bear River Massacres At daybreak on 29 January 1863, US Army Col. Patrick Connor lead a faction of approximately 200 Californian troops in a raid on the Shoshoni winter village at Boa Ogoi, known to the Mormon settlers in the delta area of Beaver Creek and Bear River. Beaver Creek has been called Battle Creek ever since the massacre. Connor’s actions were in retaliation for Shoshoni raids under Chief Bear Hunter on local the settlers, including the murder of prospectors who wandered near his village. North American Indians, Bear River, at www.freespiritofsweden.com/passet/kultur/native_am/battle/bearriver_eng.html. The river was heavily occupied by Shoshoni warriors; approximately 300 men were entrenched on the high embankments above Battle Creek ravine. Connor’s men rode into the ravine, firing on warriors on the bluffs. Some of the troops arrived in the village, attacking all residents without regard to age or gender. Of the 250-350 Shoshoni estimated killed during the battle, as many as 90 were women and children. Stories of atrocities committed by the troops proliferated: women whose limbs were broken so they could not resist gang rape by soldiers, children whose skulls were bashed in with axes and logs while they bled from near-fatal gunshot wounds, pregnant women eviscerated with bayonets, the fetuses displayed as trophies on the hats of the Army. According to one account, “55,000 bullets were used to kill a sleepy camp of about 300.” The Bear River Massacre, at www.lastoftheindependents.com/bearriver.htm. Both Chief Bear Hunter and sub-Chief Lehi were killed; Bear Hunter’s death followed the piercing of his eardrums with a white-hot bayonet. Id. The remains of the victims were left for the predators; 75 lodges were burned, and the horses and provisions of the Shoshoni were stolen. Bear River Massacre, Utah History to Go at historytogo.utah.gov/brmassacre.html. Compared with the systematic slaughter of Native Americans at the time, the Bear River Massacre resulted in the greatest number of victims. However, since it occurred during the height of the American Civil War, the massacre received little press coverage. Lincoln issued the Emancipation Proclamation just 28 days before the massacre; major battles were raging in Galveston and Springfield. As a result, the “Battle of Bear River” was barely publicized outside of Utah and Idaho, and as a result was quickly forgotten by many. Online Utah.Com, Bear River Massacre, Utah, at www.onlineutah.com/bearrivermassacre.shtml. Eastern news dominated the papers even in the territories; the few survivors of the massacre, left without food or shelter, were taken in by Mormon locals until they were able to join other bands. In 2003, Shoshoni tribes people were finally able to purchase back the site of the Bear River Massacre from the whites who had come to inhabit the area in the intervening 140 years. The 27 acres surrounding the massacre site was purchased from local farmers for an estimated $55,000. Kersten Swinyard, Tribe Buys Sacred Site, Deseret News (Salt Lake City) 25 March 2003, Local, B1. As tribal member Patty Timbimboo-Madsen noted, the land will now allow modern Shoshoni to “freely stand on Indian land and tell [the victims] that we won’t forget and we’re sorry that they suffered but we’re grateful to them.” Id. In 1864, Governor John Evans of Colorado suggested that all whites “take a few months off and dedicate the time to wiping out the Indians.” Thomas, supra note 5 at 52. Colonel John Chivington, a former Methodist minister, took Evan’s statement to heart. Chivington lead a band of white militia against the residents of Black Kettle, a Cheyenne settlement on the banks of the Sand Creek, despite the American flag of truce flying over the village. On the icy morning of 29 November 1864, Chivington’s militia killed at least 200 Indians; in his deposition to Congress about the massacre, Chivington himself estimated as many as 500-600 Indians were killed. Joint Committee on the Conduct of the War, Massacre of Cheyenne Indians, 38th Congress, 2nd Session (Washington, 1865), pp. 4-12, 56-59 and 101-108. Most of those killed were women, children, and the elderly. When a soldier asked why he must fire on unarmed children, Chivington is reported to have stated, “From nits come lice.” The Sand Creek Massacre at www.lastoftheindependents.com/sandcreek.htm. Chivington and his men did not content themselves to merely slaughter the innocents of Black Kettle. They savagely mutilated the remains of those they shot down. “One trooper cut off [75-year-old Cheyenne Chief] White Antelope’s testicles, bragging that he needed a new tobacco pouch. Later, nobody could remember whether White Antelope was still wearing the peace medal given to him by President Lincoln.” Thomas, supra note 5 at 53. Militiamen sported the eviscerated vaginas of Cheyenne women as hatbands. Silas Soule, present at the massacre, described the carnage in a letter a week later: I tell you Ned it was hard to see little children on their knees have their brains beat out by men professing to be civilized. One squaw was wounded and a fellow took a hatchet to finish her, and he cut one arm off, and held the other with one hand and dashed the hatchet through her brain. One squaw with her two children, were on their knees, begging for their lives of a dozen soldiers, within ten feet of them all firing - when one succeeded in hitting the squaw in the thigh, when she took a knife and cut the throats of both children and then killed herself. One Old Squaw hung herself in the lodge - there was not enough room for her to hang and she held up her knees and choked herself to death. Letter from Captain Silas Soule, US Army to “Ned” Wynkoop (14 December 1864) online at rebelcherokee.labdiva.com/souleltr.html. Chivington’s men scalped most of the dead, and a display of the scalps and the mons veneris of some of the women killed were later displayed at the Opera House in Denver. Thomas, supra note 5 at 53. Many of the corpses were boiled (to remove the flesh) and returned to the Army Museum for study. In 1993, pursuant to NAGPRA, a delegation of Cheyenne traveled to the Smithsonian Institution in Washington, D.C., and received the remains of six of the victims of the Sand Creek massacre. The Smithsonian had divided remains in their collection into five categories of Cheyenne affiliation: Definite, Probable, Possible, Uncertain, and Unknown. All remains falling within the first three of these categories were returned to the tribe, pursuant to PL 101-185. Naevahoo’ohtseme (We are going back home): Cheyenne Repatriation: The Human Remains at www.nmnh.si.edu/anthro/repatriation/cheyrep.htm. These bones—mostly skulls—were laid to rest in a ceremony in Concho, Okla. “Sand Creek Massacre”, Encyclopedia of North American Indians, at college.hmco.com/history/readerscomp/naind/html/na_034300_sandcreekmas.htm. Attempts are now being made to return a human scalp, identified as Arapahoe, taken from Sand Creek. The scalp is now within the collection of the Denver Museum of Nature & Science in Colorado, which published a NAGPRA notice in March 2004. FR Doc 04-6654, Notice of Inventory Completion: Denver Museum of Nature & Science, Denver, CO. For many years, the actual site of the massacre was lost to history. In 1998, former President Bill Clinton signed Public Law 105-243, the Sand Creek Massacre Site Study Act. The Sand Creek Massacre Site Study Act, Pub. L. No. 105-243, 112 Stat. 1579 (1998). The area was definitively identified in May 2000 following the discovery of shrapnel from a mountain Howitzer, a large caliber cannon documented as used in the massacre, but unused in the region at the time. The site is located outside the modern town of Eads, Colo. The Sand Creek Massacre Site Establishment Act of 2000 authorized purchase of this land from willing sellers for the establishment of a park and memorial. As noted by the 105th Congress in the text of the bill, “[t]ribes deserve the right of open access to visit the site and rights of cultural and historical observance at the site.” Id. The remains of those killed in these two massacres, particularly those housed in the collections of the Denver Museum and the Smithsonian Institution, are clearly within the zone of interests which NAGPRA was intended to protect. The museums have obeyed the terms of the statute by cataloging the remains and returning them to petitioning tribal members with definitive proof of ancestry. That makes the Sand Creek and Bear River Massacres both rare success stories under the Act: the right tribes with standing to petition applying for remains which were adequately inventoried and covered under the Act. The Kennewick Man In 1996, teenagers at the Tri-City Water Follies hydroplane race outside Kennewick, Wash., came upon human remains in an eroding Columbia River bank. Initially, there was no reason to believe that NAGPRA applied to the skeleton. The remains were initially believed to be those of early Caucasian settlers, since the craniofacial structure did not appear to be consistent with that of any known tribal remains. Leading American forensic anthropologist Dr. James Chatters noted, “[t]here were unusual characteristics in the skull, narrow, sloping features. And the prominent nose, distinct from the more rounded, Mongolian-type features found on early Native remains.” Jeff Benedict, No Bone Unturned 98 (2003). The decidedly Caucasoid features of Kennewick Man became a major bone of contention among anthropologists studying the remains. Chatters’ facial reconstruction from the skull yielded a profile startlingly similar to that of the British X-Men star Patrick Stewart. The New Yorker and New York Post each ran articles questioning the ethnicity of Kennewick Man based on the “Stewart Reconstruction,” implying an early Caucasoid presence in North America. Thomas, supra note 5 at xxv. However, Doug Owsley of the Smithsonian Institution noted that the remains resembled those of the Spirit Cave mummy discovered in Nevada, which was dated at approximately 10,650 years old. Benedict, supra note 60 at 105. The bones were found on federal property owned by the Army Corps of Engineers, who elected to return the bones to the Umatilla Tribe without following the standard repatriation procedures outlined in NAGPRA. Additionally, the Umatilla refused all requests by anthropologists to study the remains. The Confederated Tribes of the Colville Nation called into question the Army Corps failure to follow protocol in the case. What is the Kennewick Man Case? at www.friendsofpast.org/kennewick-man/events/summary.html. Radio-carbon dating of the metacarpal bone performed at the University of California, Riverside, sets the age of the skeleton at somewhere between 8,340 and 9,800 years old with a 95% confidence level, the oldest human remains ever uncovered in North America. Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004). CAT scans revealed an arrow-like stone projectile with a rounded base and serrated edges still imbedded within the man’s pelvis. Benedict, supra note 60 at 100. The Kennewick man also suffered from a radial head fracture, a flail chest injury, a skull fracture, and osteomyelitis of the pelvis and skull. James C. Chatters, Ancient Encounters: Kennewick Man and the First Americans 136 (2001). Known as the Kennewick Man for the site where he was unearthed, the skeleton is nearly complete despite its age—nearly 450 generations. Eight scientists filed suit in United States District Court in Portland requesting the right to examine the remains. The Kennewick Man Case, Who Owns the Past? at www.pbs.org/wotp/kennewick_man/. A memorandum arrived to the office of Doug Owsley questioning the ability of Smithsonian employees to file suit against the government: As Smithsonian employees, you are bound by the Standards of Conduct, [which] require that you refrain from any private or personal activity which might conflict, or appear to conflict, with the interests of the Institution…. An additional concern, is the existence of criminal conflict of interest statutes which prohibit employees of the United States from acting as agent or attorney for prosecuting any claim against the United States (Title 18 U.S.C. Section 205)…. Although it is not clear whether, and to what extent, this provision applies, the Department of Justice has raised this issue. They strongly oppose the presence of Smithsonian employees on the opposite side.” Benedict, supra note 60 at 160. After the case was filed, the Army Corps of Engineers, working in concert with tribes like the Umatilla, used helicopters to bury the site with landfill and planted Russian Olive Trees over the area. These maneuvers effectively cut off all further study of the area before Congress could act to protect the site. The corps spent nearly $170,000 of taxpayer money to carry out the site cover-up. Id. at 199. During the process of moving the remains, both of the femurs originally catalogued at the discovery site vanished. After the skull, femurs are the most important bones for dating and scientific purposes. A high-ranking official at the La Battelle facility apparently let members of the Umatilla tribe into the vault to perform ceremonies over the bones. These same tribal members allegedly removed the femurs and reburied them at an undisclosed location. Id. at 212. One tribal member noted: Our elders have taught us that once a body goes in the ground, it is meant to stay there until the end of time… We do not believe that our people migrated here from another continent, as the scientists do…. Some scientists say that if this individual is not studied further, we, as Indians, will be destroying evidence of our history. We already know our history. It is passed on to us through our elders and through our religious practices. Douglas Preston, The Lost Man, New Yorker, 16 June 1997, at 72. The Kennewick Man dispute initially rose through the District of Oregon, appealed to the 9th Circuit in September of 2003. Circuit Judge Ronald M. Gould wrote the Opinion of the Court affirming Oregon’s decision to bar the tribes from reburying Kennewick Man and handing the remains over to the scientists pursuant to the Archeological Resources Protection Act of 1979 (ARPA). 16 U.S.C. §§ 470aa- 470mm. After establishing the court had jurisdiction over the issue, the court ruled “that NAGPRA requires human remains to bear some relationship to a presently existing tribe, people, or culture to be considered ‘Native American.’” Bonnichsen, 367 F.3d at 879. As David Thomas notes in Skull Wars, however, from an evolutionary standpoint, “it is hardly surprising that Kennewick Man does not look like a modern American Indian. Why should he? Why should anybody who lived 10,000 years ago look like somebody living today?” Thomas, supra note 5 at 115. The climate, topography, flora and fauna of North America have all altered since Kennewick Man lived. Kennewick Man saw the end of the last great Ice Age 10,000 years ago; giant short-faced bear and mastodons still roamed North America. Many Native American scholars note that this need to classify Kennewick man within the known structures of human evolution is typical of the institutionalized patterns of discrimination against Native peoples and their history. If we surrender the old evolutionary framework of the human species, admitting that we have only small bits of bone and some flaking and chipping tools which could have been made at any time, Deloria refers to the Clovis Points, leaf-shaped stone arrowheads discovered in the remains of ice age mammals, dated to approximately 9,000 years ago. including today, we basically are dealing with the two types of modern man…we should begin our investigation…and honestly look at the actual materials we do possess so as to create a more realistic interpretation of the history and experiences of our species. Deloria, supra note 24 at 80. There is no evidence in the trial record that Kennewick Man shares any relation to modern tribes in the Washington region. Moreover, the skeleton’s features more closely resemble those of Caucasians, Pacific Islanders and Polynesians. Id. at 880. Oral histories presented by some of the tribes were dismissed by the court as being surmised later from geological and anthropological evidence. Focusing on the word “indigenous” in the statute, the scientists noted that Congress never intended in drafting the statute to encompass skeletons more than 9,000 years old; such a date was far past the intended cutoff date. Benedict, supra note 60 at 163. Under 43 CFR 10.10(g), “culturally unidentifiable human remains” must be reported, and a review committee established to suggest a plan of action for each set of remains. These reports are submitted to the Secretary of the Interior, who may recommend specific actions for culturally unidentifiable remains. National NAGPRA FY04 Final Report, National Park Service, 17 (2004). Since the court ruled the remains were not Native American, and not covered under NAGPRA, the 9th Circuit awarded them to the anthropologists under ARPA, and remanded the case to the district court. Id. at 882. Following a retrial encompassing amicus curiae briefs from five tribes, Jelderks noted in his opinion that no definitive link to any living tribe could be proven, allowing for study of Kennewick Man to proceed. Judge Gives Kennewick Man to Scientists, Who Owns the Past? at www.pbs.org/wotp/latest_news/news_items/09072002.html. “Following the 9th Circuit’s conclusion that NAGPRA does not apply, there is no basis for concluding that the tribal claimants have a legally cognizable interest which entitles them to participate as parties in any further proceedings in this court.” Robson Bonnichsen, Civil Order No. 96-1481-JE (2004). The 9th Circuit’s determination about the remains of Kennewick man is consistent with Congress’s intent in passing NAGPRA. To hold otherwise, all graves and remains of persons, predating European settlers, that are found in the United States would be ‘Native American,’ in the sense that they presumptively would be viewed as remains of a deceased from a tribe ‘indigenous’ to the United States, even if the tribe had ceased to exist thousands of years before the remains were found, and even if there was no showing of any relationship of the remains to some existing tribe… [the court] cannot conclude that Congress intended an absurd result. Bonnichsen, 367 F.3d at 878. Pedro, the Hobbits, and other Little People A shroud of mystery still surrounds another 1930s discovery. In October of 1932, two men prospecting for gold in the Pedro Mountains outside Casper, Wyo., came upon the mummified remains of what appeared to be a homunculus sitting cross legged with its arms folded and eyes closed. Bizarrely, the mummy sat only 14 inches tall, but appeared to observers to be of middle age. The cave in which he was found henceforth became known as Little Man Cave. Nicknamed “Pedro” for the mountains in which it was found, the mummy circulated in freak shows and circuses until a businessman purchased it and took it to New York City. Bonnichsen Civil Order at 86. Dr. Henry Shapiro of the American Museum of Natural History in New York examined and x-rayed Pedro, and concluded that the remains were genuine, a finding corroborated by the Anthropology Department at Harvard University. Pedro was thought to be around 65 at the time of his death. Earl Murray, Ghosts of the Old West 121 (1988). In the late 1970s, the x-rays taken by Shapiro were shown to Dr. George Gill at the University of Wyoming, who claimed Pedro is a mummified hydroencephalitic fetus of an indeterminate tribe. C.J. Cazeau, The Pedro Mountains Mummy, The Casper Star-Tribune, 22 July 1979. There are problems with the fetus theory, however. First, Pedro had well-developed upper and lower teeth, and an adult spine. Additionally, “[b]oth Basher and Goodman [former owners of the mummy] independently reported… one important piece of information that all the medical reports conveniently leave out: Pedro the Mountain Mummy has pubic hair.” Pedro the Mountain Mummy at www.biblelandstudios.com/nuke/modules.php?name=Content&pa=showpage&pid=2&page=1. However, further testing of Pedro proved impossible, as he was stolen from a Wyoming Museum of Natural History vault in 1952 and never seen again. While gone, Pedro is far from forgotten. In February 2005, a Syracuse businessman offered a reward of $10,000 for the return of Pedro’s remains for scientific study. Man Offers $10K for Pedro Mountain Mummy, The Washington Post, 2 February 2005. No rational accounts (dismissing, for the purposes of this work, the allegation Pedro is a mummified alien) dispute the fact Pedro was a member of an indigenous tribe, whether a tragically deformed fetus or an old man, when placed in that cave. However, local tribal legend seems to support the original Harvard claim regarding the mummy’s age. The Arapahoe, Lakota, and Absarokee all have archetypical legends of tiny people—averaging around 20 inches—who ate people. Absarokee Literature at www.indigenouspeople.net/crow.htm. Many tribes accepted the discovery of Pedro as physical proof of the “tiny people eaters” in their legends. In the specific case of the Crow Tribe, Joseph Medicine Crow recounts cairns at the foot of Arrow Rock (Missouri). “Here the Crows would offer rocks and beads to the mythological Little People, who had once occupied the caves here” Joseph Medicine Crow, From the Heart of the Crow Country 84 (1992). (emphasis added). Men would apparently show reverence to these cave-dwellers by firing arrows into the caves on the side of the cliff, similar to the one in which Pedro was found. These may also be the dwarfs known as awakuré who were thought to dwell in caves and possess great medical knowledge. Robert H. Lowie, Myths and Traditions of the Crow Indians 171 (1993). Furthering the case that Pedro may in fact have been a fully grown human, Hobbit-like tiny people inhabiting Indonesia have recently been deemed to be a possible missing link between apes and humans. Homo Floresiensis stood a mere one meter tall, and has recently been proven to be related to the Homo Erectus. Mike Morwood, The People Time Forgot, National Geographic, April 2005, at 5. A Florida State University professor who examined CAT scans of the Floresiensis skull stated, “I thought we were going to see a little chimpanzee-like brain and I was wrong. Nothing like this has been seen before.” Maggie Fox, Tiny Early ‘Hobbit’ Human Was Smart, Skull Shows, Yahoo News, 4 March 205. Indigenous peoples worldwide describe similar tiny people, including those in Egypt, North America, Africa, Australia, and Japan, and—possibly most famously—the Irish leprechaun. Robert Neil Boyd, Little People- A Variety of the ‘Almost Here Beings’ at www.rialian.com/rnboyd/littlepeople.htm. Pedro’s remains, if they resurface, most likely are not covered under the current NAGPRA legislation because he is so old there is no clear lineage to modern tribes. Like the Kennewick Man, Pedro would be categorized as “culturally unidentifiable remains,” allowing the Secretary of the Interior to award them as he sees fit. If Pedro was actually a senior citizen when he died, it is not clear without further genetic testing that he is directly related to modern humans at all. Without ability to prove relation to any tribe (unless mitochondrial DNA can somehow link him to the Shoshoni or Arapahoe), Pedro is not covered under NAGPRA’s provisions, and by law would be returned to science to further study this anomaly. Obviously, the theft of Pedro from the museum in the 1950s was a crime, but applying the court’s logic in the Kennewick Man case, he just isn’t genetically close enough to any modern Indian—or any living human, for that matter—to be covered by Congress’s intent. As the Ninth Circuit stated in Bonnichsen, “NAGPRA’s requirement that Native American remains bear some relationship to a presently existing tribe, people, or culture is unambiguous.” Bonnichsen, 367 F.3d at 877. Gokhlayeh, Bush, and Mangas Colorados In the century since his death, few Native figures have embodied the spirit of the Native to Anglo society like Geronimo. Born in 1829 in the territory which is now New Mexico, and originally named Gokhlayeh (“One Who Yawns”), he rose through tribal leadership, finally becoming leader of the Chiricahua Apache. Following the slaughter of his relatives by Mexicans, Gokhlayeh acquired a hatred of the Spanish, who referred to him as “Geronimo,” Spanish for Jerome. After years of evading capture and refusing to acknowledge the sovereignty of the Spanish or American governments, Gokhlayeh was forced to surrender to American troops at Skeleton Canyon in Arizona on 4 September 1886. “Geronimo” at en.wikipedia.org/wiki/Geronimo. On 17 February 1909, the Mescalero Apache Chiracahua Gokhlayeh (Geronimo) succumbed to pneumonia a day after allegedly collapsing in an alcoholic stupor during a rain storm near Lawton, Okla. Gokhlayeh was buried at Fort Sill Military Reservation, Fort Sill, Okla. “Geronimo (Goyathlay)” Encyclopedia of North American Indians, at college.hmco.com/history/readerscomp/naind/html/na_013300_geronimo.htm. Concerned about possible grave robbery, in 1928 the United States army poured concrete over Gokhlayeh’s Fort Sill grave and capped it with a stone cairn. In the years following Gokhlayeh’s death, there was an increasingly vociferous grassroots movement to return his remains from the federal Military Reservation to the Apache tribe. Following the passage of NAGPRA in 1990, one Michael Idrogo and the Americans for Repatriation of Geronimo filed suit in district court seeking the return of Geronimo’s remains. Idrogo claimed to be a direct descendent of Geronimo, and sought to establish claim to the remains through this relationship. Idrogo v. United States Army, 18 F.Supp.2d 25 (D.C. Cir. 1998). The court dismissed Mr. Idrogo’s case, citing Rule 12(b)(6): failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Examining the requirements of repatriation of remains under NAGPRA, District Court Judge Colleen Kollar-Kotelly found Idrogo had failed to claim membership to any tribe. Additionally, “[p]laintiffs cannot demonstrate that they have suffered an injury in fact that is concrete and particularized.” Idrogo, 18 F.Supp.2d at 27. The district court found Idrogo, while claiming ancestry, failed to offer concrete evidence of his relationship to the decedent, and provided no tribal membership that would validate the claim. Idrogo: “believes” that Geronimo is an ancestor of his, [he] offers nothing that remotely substantiates this claim. Specifically, he bases his claim to patrimonial ancestry on two similarities that he and Geronimo supposedly share: (1) that Geronimo, like Idrogo, could speak Spanish and (2) that both men are approximately the same height. Id. Bad facts make bad law. Kollar-Kotelly ruled the court had no ability to hear the case, and summary judgment was granted to the Army. Idrogo’s additional claim under 42 U.S.C.S. §1981 was dismissed due to the government’s sovereign immunity, since the listed defendants were the United States Army and then-President William Jefferson Clinton. Even though Gokhlayeh had been resting under concrete for nearly 60 years, for many years rumors have persisted that Gokhlayeh’s skull is no longer buried in the Fort Sill monument. In the 1980s, a rumor surfaced that young men participated in a raid on the tomb of Gokhlayeh in 1918. The story claims the men broke into the tomb and took the skull, rendering it with carbolic acid to remove the remaining flesh and hair, and then took the skull with them back to Yale University in New Haven, Conn., where it was added to the collection of the infamous Skull and Bones Society at Yale. Nanwica Kciji, Where are They Hiding Geronimo’s Skull? at www.georgewalkerbush.net/wherearetheyhidinggeronimosskull.htm. This is not the only alleged desecration attributed to the Skull and Bones. Apocrypha credit the Society’s collection as containing other famous remains and funerary objects, including the gravestone of Elihu Yale (stolen from St. Giles Churchyard, Wales) and the skull of the Mexican rebel General Francisco “Pancho” Villa, robbed in 1926 from Parral Cemetery in Mexico. What makes the Gokhlayeh case so infamous, however, is the identity of one of the alleged grave robbers in 1918: Prescott Bush, father of George Herbert Walker Bush, former president of the United States. Following the raid, the skull was returned to the “Tomb”—the Skull and Bones clubhouse at 64 High Street in New Haven—and is allegedly used in Society rituals. The issue of the alleged robbery came to a head again during the last presidential election, since, for the first time in American history, both candidates—George W. Bush and John Kerry—were members of the Society. In 1986, during the legal battle to have Gokhlayeh’s remains removed from Fort Sill (discussed above), Ned Anderson—former Apache Chief—received a letter claiming to be authored by a former Skull and Bones member. The letter detailed the 1918 grave robbery and contained a purported photo of Gokhlayeh’s skull used for rituals within the Tomb in New Haven, along with a horse bit and stirrups. Dennis Roddy, The Head Bone’s Connected to… Bush?, Pittsburgh Post-Gazette, 23 September 2000, at LOCAL C-1. Anderson made arrangements with Jonathan Bush, the president’s uncle, to retrieve the skull, but Bush arrived in New York City with the skull of a 10-year-old boy. Kim Martineau, The Skull, and Skull and Bones; Tale of a Yale Society and Geronimo Won’t Die, The Hartford Courant, 16 August 2004, at 6 Metro. Anderson refused the skull and attempted to enlist the help of the Clinton Administration and Senator John McCain of Arizona, but hit dead ends. The Skull and Bones Society officially claims no knowledge of the alleged grave robbery. The National Park Service notes there is no evidence Gokhlayeh’s grave was covered with anything other than dirt until 1928, yet the account sent to Anderson maintains the grave robbers used picks to open a “front iron door of the tomb.” Alex Brummer, Yale Key to Bush Cupboard Reveals Skull of Geronimo, The Guardian (London), 3 October 1988. Apache historian Henrietta Stockel believes the skull contained within the tomb is more likely that of Chiracahua Mangas Colorados (Red Sleeves). David Melmer, Yale Bonesmen Engaged in Macabre Business, Indian Country Today 10 October 2003, at www.indiancountry.com/content.cfm?id=1065807370. Stockel maintains that Colorados’ skull was never properly accounted for after his death. Mangas Colorados—or at least some of him—is buried outside of Silver City, N.M. Colorados was killed on 18 January 1863 by government authorities after allegedly attempting to escape from custody. Contemporary accounts, however, claim that Colorados and his men were tortured with red-hot bayonets and shot when they fled. Captain Warren, who was responsible for the execution, had the head severed from the body and a necropsy performed, at which time he claims the skull was sent to the Smithsonian Institution in Washington, D.C. Thomas Edwin Farish, History of Arizona, Volume II 144 (1915). Reports of his death clearly outline the chain of custody of the remains after his death: ...A soldier, using an axe, removed the scalp from the head of the dead Indian for a souvenir. Then the body was buried. A few days later, a surgeon for the troops exhumed the body and severed the head. The head was sent to Washington. The brain was found to weigh as much as that of Daniel Webster and the skull was larger. The skull was sent to the Smithsonian Museum and placed on exhibition. Elliott Arnold, Blood Brother 216 (1947). An inquiry sent to the Smithsonian Institution regarding Captain Warren’s claim revealed that, while there were reports in the newspapers of the time, “There is no evidence of the remains ever coming to the museum, being registered as an incoming loan or specimen for study here.” Email from David Hunt, Collections Manager, Div. of Physical Anthropology, Nat’l Museum of Natural History, to this author (19 February 2005). The National Museum of the American Indian at the Smithsonian answered a request for information with a statement that, while the Museum receives several inquiries about the Colorados skull per year, the Museum never had the skull. Bill Billeck, program manager of the Repatriation Office at the National Museum of Natural History, believes the Colorados skull may now rest in the private collection of Orson Squire Fowler, a Boston phrenologist. Fowler’s collection is believed to have been taken to London by his brother after Fowler’s death in 1889. Email from Bill Billeck, Program Manager, to this author (21 March 2005). Billeck has heard the Skull and Bones rumor but believes Colorados’ skull to be in London or unidentified in a collection near Boston. Id. Like the discussion of Pedro, if Gokhlayeh’s (or, for that matter, Colorados’) skull were stolen from its grave, that is a crime, even outside of the provisions of NAGPRA. Under New Mexico law, any interference with a marked burial ground or removal of remains constitutes a felony of the fourth degree, punishable by a fine of $5,000, 18 months in prison, or both. N.M. Stat. Ann. §30-12-12. In this particular case, the provisions of NAGPRA would not extend additional penalties, since the courts have held that the provisions do not extend to human remains found before 16 November 1990, and the alleged robbery took place around 1918. Monet v. U.S., 114 F.3d. 1195 (9th Cir. 1997). Even if his remains are still buried undisturbed at Fort Sill, Gokhlayeh may not be covered by the Act as it is currently written. Although the Apache do have a legitimate interest in wishing the return of their great historical figure, the burial site on government property does not appear to be within the range of circumstances which Congress intended to be covered by the Act. NAGPRA states that it extends to “cultural items which are excavated or discovered on Federal or tribal lands after the date of enactment of the Act.” 25 USCS §3002(a). The legislative history of NAGPRA clearly illustrates that Congress meant for this Act to cover those items and remains exhumed from graves and within the collections of museums, federal agencies, and private individuals, not those Native Americans legally buried in a culturally undesirable location. Since Gokhlayeh has been neither excavated nor discovered since 1990, unless the Skull and Bones disrupted his grave around 1920, he has remained unmolested since he was buried there. While the Apache may wish the return of his remains, NAGPRA is most likely not the correct statute under which this should be brought, even if the parties bringing the suit meet the standing requirements set forth by Congress and the Constitution. The Future of NAGPRA Scientists raise the concern that NAGPRA’s requirements will lead to the end of scientific research as we know it, requiring anthropologists to return remains before they can be studied and stalling scientific understanding of primitive cultures at the current level. As the current statute is written, however, there is a potential huge loophole within the language of the statute favoring scientific study. The section regarding repatriation created an exemption for remains “indispensable for the completion of a specific scientific study, the outcome of which would be of major benefit to the United States.” Native American Graves Protection and Repatriation Act, 25 USCS § 3005(b). Such remains must be returned within 90 days of the completion of the study. The problem lies in the fact that the act makes no attempt to define “major benefit to the United States,” and does not even specify who may make such a determination. Does reassessing the theory of man’s evolution qualify as a “major benefit to the United States”? Proving the Bering Strait theory? What about generally furthering the understanding of the earliest occupants of what is now North America? While science has a compelling interest in studying certain ancient remains and artifacts—for example, those of the Kennewick Man or Homo Floresiensis— Congress should amend this provision to provide clearer guidance to courts attempting to apply this law. “Major benefit to the United States” should be found to be unconstitutionally vague, and language substituted giving clear direction as to what is and is not an acceptable reason to withhold remains for scientific study. Also, Congress should name an Administrator of this provision, who is authorized to make case-by-case determinations about the scientific benefit, and may be held accountable to tribes for their decisions. The most obvious choice would be the Review Committee established by the Secretary of the Interior under §3006(a) of NAGPRA. 25 USC §3006. However, review of claims by the scientific community is not listed under their responsibilities, which include monitoring the inventory process and providing for future care of repatriated items. Id. at (c)(1-9). Legal scholars note that the major shortcoming of NAGPRA is Congress’s failure to take into account the age of the remains. See, e.g., Kosslak, supra note 17. While courts have ruled that the provisions of the Act do not cover contemporary remains Kickapoo Traditional Tribe of Texas v. Chacon, 46 F.Supp.2d 644 (W.D. Tex. 1999). , there is legitimate concern that failure to account for the passage of time will lead to the prohibition of scientific study on ancient remains. However, this concern is somewhat addressed by NAGPRA’s provisions on culturally unidentifiable remains, as illustrated by the decision in Bonnichsen. There is, unfortunately, no way to counteract the wrongs committed in the past. What NAGPRA seeks to do, then, is to make reparations for some of the wrongs committed, and try to prevent similar transgressions in the future. The best thing for all parties involved might be to strike a balance between the quest for scientific and sociological knowledge and the interest of the tribes. Remains and associated objects could possibly be examined by scientists after exhumation, kept under special conditions commensurate to their cultural value, and then, upon their study, could be returned to tribes for reburial as required. Skeletons could be examined on site, transported by tribes, and kept under special conditions. Remains still in the possession of museums without obvious genetic similarity to modern tribes could be kept for research and documentation purposes. Afterword To us the ashes of our ancestors are sacred and their resting place is hallowed ground. You [white Americans] wander far from the graves of your ancestors and seemingly without regret… Your dead cease to love you and the land of their nativity as soon as they pass the portals of the tomb and wander away beyond the stars. They are soon forgotten and never return. Our dead never forget the beautiful world that gave them being. They still love its verdant valleys, its murmuring rivers, its magnificent mountains, sequestered vales and verdant lined lakes and bays, and ever yearn in tender, fond affection over the lonely hearted living, and often return from the Happy Hunting Ground to visit, guide, and console and comfort them. –Chief Seattle James Riding In, Without Ethics and Morality: A Historical Overview of Imperial Archeology and American Indians, 24 ARIZ. ST. L. J. 11, 11 (1992). Nunamingnut Uteqihut Page 1 of 18