Bad enough for Congress to meddle in adoptions in hopes of helping out Indian tribes. But…burials? My new guest column at Jurist examines the first-of-its-kind lawsuit by which some descendants of Native American sports great Jim Thorpe are trying to use the law to require the borough of Jim Thorpe, Pa. to yield up his remains for re-interment in Oklahoma. It concludes:
In a nation where people regularly fall in love across ethnic lines, laws that assign rights differentially to some members of families based on descent or tribal affiliation are especially hard to justify under US Constitution’s Equal Protection Clause. … Say what you will about the Third Circuit’s reasoning, it at least postpones the day when tribal enmities extend into our very cemeteries, and even the dead cannot escape counting based on race.
Earlier on the Mauch Chunk/Jim Thorpe controversy; on NAGPRA and science, and the Kennewick Man affair, etc.
Now this is welcome: the New York Times (via Ronald Bailey) has a column by George Johnson jumping off from the question of whether locating a giant telescope on Mauna Kea would unfairly desecrate the religious and ancestral heritage of (some) native Hawaiians. Johnson notes:
While biblical creationists opposing the teaching of evolution have been turned back in case after case, American Indian tribes have succeeded in using their own religious beliefs and a federal law called the Native American Graves Protection and Repatriation Act to empty archaeological museums of ancestral bones — including ones so ancient that they have no demonstrable connection to the tribe demanding their reburial. The most radical among them refuse to bow to a science they don’t consider their own. A few even share a disbelief in evolution, professing to take literally old myths in which the first people crawled out of a hole in the ground.
In this turn back toward the dark ages, it is not just skeletal remains that are being surrendered. Under the federal law, many ceremonial artifacts are also up for grabs. While some archaeologists lament the loss of scientific information, Indian creationism is tolerated out of a sense of guilt over past wrongdoings.
Even some scientists bow and go along in the spirit of reparations, while admitting the loss to human inquiry and future knowledge. Earlier on NAGPRA and the Kennewick Man controversy here, here, etc.
The U.S. government was intent on “repatriating” the ancient remains of Kennewick Man for burial to Indian tribes in compliance with the perceived spirit of the Native American Graves Protection and Repatriation Act (NAGPRA), though any relation between those remains and current tribes is at best notional. The U.S. Department of Justice and Army Corps of Engineers had thrown their full weight on the side of immediate burial, even threatening criminal charges against individual scientists who insisted on litigating the case. “If it weren’t for a harrowing round of panicky last-minute maneuvering worthy of a legal thriller, the remains might have been buried and lost to science forever.” Fortunately, scientists won in the end, leaving the “most important human skeleton ever found in North America” finally free to disclose his secrets. [Smithsonian, earlier]
P.S. Welcome Popehat readers (“Science in the Hands of Angry Liberal Arts Majors”). And as several commenters point out, my summary above overstates the extent to which scientists actually prevailed, since the U.S. government continues to fight tenaciously to prevent further testing of the remains, and reportedly dumped a thousand tons of fill on the discovery site early on in case it hadn’t made its stance clear.
Last month I wrote about a strangely aggressive FBI raid on the rural Indiana home of a retiree locally famous for collecting artifacts and curios from around the world. In a piece written then but overlooked by me at the time, Radley Balko puts this in the context of equally aggressive armed enforcement raids on Indian artifact collectors in Florida and Utah, resulting in ruin for many defendants and, according to the reporting, at least four suicides of persons under investigation. Balko:
I remember collecting arrowheads as a kid. Depending on the state and the land on which you’re finding them, that in itself may or may not be legal today. Some states began banning the practice decades ago. But the laws were rarely enforced, and when they were, authorities targeted people stealing from preserved sites or tribal lands, or selling high-dollar artifacts.
No more. Under the phalanx of state, federal, and tribal laws, it may be a felony not only to buy and sell some manmade artifacts, but also to remove them from the bottoms of creek beds or dig them from the dirt. Most of the people busted in the Florida raids were hobbyists. And it’s conceivable that some of them had no idea they were breaking the law — though it also seems likely that some probably did.
I’ve got a write-up at Cato at Liberty about the federal government’s massive, SWAT-like occupation of the rural Indiana property of Don Miller, a celebrated 91-year-old local collector who has traveled the globe and whose impressive collection of world and Indian artifacts “was featured in a four part series in the Rushville Republican.” Under various treaties and federal laws, mostly dating to relatively recent times, the federal government now deems ownership of many antiquities and Native American artifacts to be unlawful even if collectors acquired them in good faith before laws changed. [WISH (TV), Indianapolis Star, The Blaze.] More: coverage in two more outlets with a flavor very different from each other, Shelby County News (FBI source stresses Miller’s cooperativeness and suggests federal actions were wtih his consent or even at his behest) and National Public Radio (“seized,” “confiscated”)
Related: Richard Epstein at Hoover on Obama Administration plans to prohibit selling your family’s vintage piano or moving it across a state line. And aside from ivory chess sets, the nascent War on Antiques might take a toll of replica firearms [Washington Times]
“Why America’s ivory ban won’t help elephants” — and will invite criminal elements further into the antique business [Spectator (U.K.) editorial; Doug Bandow, Cato Institute]
Priceless Mayan-inspired mystical totem, or late Nineteenth Century German artifact aimed at the tourist trade? In “Indiana Jones and the Bogus Lawsuit,” Kevin at Lowering the Bar goes on the authentication trail.
It’s another big step forward for the notion of “cultural patrimony,” in this case humoring the whims of foreign governments that wish to suppress private ownership of long-collected everyday antiquities. [Peter Tompa/Cultural Property Observer; my take]
As I note at Cato, antiquities law has been expanding to restrict private ownership of more and more ancient artifacts. The latest targets are numismatists; more on that in an op-ed that I published last week in the Examiner.
Great WSJ article on the unending proliferation of federal crimes, with appearances by a family that ran into a law making it a felony to dig for arrowheads on federal land, Bobby Unser and his snowmobile-astray ordeal, and a man effectively ruined by the $860,000+ cost of successfully defending himself against a federal charge of violating Russian hunting regulations.
“Most people think criminal law is for bad people,” says Timothy Lynch of Cato Institute, a libertarian think tank. People don’t realize “they’re one misstep away from the nightmare of a federal indictment.”
More: from Tim Lynch, and (via PoL) Josh Blackman, William Anderson/Regulation mag.
“English Heritage claims it owns every single image of Stonehenge, ever” [Cory Doctorow, BoingBoing, TechDirt]
John Tierney at the Times makes the case against heritage repatriation laws.
Why does the idea of cultural property have so many advocates? “It seems to establish a bulwark against the plunder of antiquities.” And yet how quickly it’s turned into a way of looting premodern artifacts from Western owners whose claim of title is stronger than that of foreign governments or indigenous/Indian tribes. “But if cultural property really did exist, the Enlightenment museum would be an example of it: an institution that evolved, almost uniquely, out of Western civilization. And the cultural property movement could be seen as a persistent attempt to undermine it. And take illicit possession.” (Edward Rothstein, “Antiquities, the World Is Your Homeland”, New York Times, May 27).
About time someone stood up to the demands against Western museums and collectors for repatriation of “cultural patrimony” lawfully obtained at the time (Eric Ormsby, “Treasures on Trial” (review of new James Cuno book), WSJ, Apr. 26; Kerry Howley, Reason “Hit and Run”, Apr. 24; earlier coverage).
Under the proposed law, backed by Supreme Council of Antiquities chief Zahi Hawass, persons around the world would be forbidden to make copies, even for private use, of the country’s famous monuments, scarabs and other Pharaonic survivals. “His comments came only a few days after an Egyptian opposition newspaper, Al-Wafd, published a report complaining that many more tourists each year travelled to the pyramid-shaped Luxor hotel in Las Vegas than to Luxor itself. The newspaper proposed that the US hotel should pay some of its profits to Luxor city.” However, Hawass said that copies of pyramids and other objects that were less than “exact” might escape a royalty obligation, which might get the back of the U.S. one dollar bill off the hook. (Rory McCarthy, “Egypt to copyright the pyramids and antiquities”, Guardian, Dec. 27; “Egypt to copyright pyramids”, AFP/Google, Dec. 26; AP/IHT). More: Coleman.
The brutalist-modern Third Church of Christ Scientist is one of the most widely disliked buildings in Washington, D.C., not least by its own congregation, which groans at the impracticalities of maintaining the concrete monstrosity: “According to one church official, you’ve got to build scaffolding just to reach some of the [light] bulbs [to change them].” But Washington’s local architectural-preservation authorities forbid the congregants from replacing the building, which dates all the way back to 1971. (Charles Paul Freund, “A Brutalist Bargain”, American Spectator, Dec. 18).