Message #146
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 

Date: Mon, 20 Apr 1998
Subject: UT Appeals Court Denies Redd Case Rehearing Petition

[ AzTeC / SWA SASIG ] :

From: Kevin Jones

Saturday, April 18, 1998
Appeals Court Won't Rehear Indian Burial Case
The Utah Court of Appeals has refused to reconsider
a controversial ruling that prosecutors of grave
robbers must prove the exhumed bones were
intentionally buried in the first place. But
appellate Judges Norman Jackson, James Davis and
Judith Billings added a footnote to their order
rejecting a rehearing, saying the order does not
'preclude the State from refiling charges' against
James and Jeanne Redd of Blanding. The couple were
accused of illegally excavating human bones adjacent
to a prehistoric Indian dwelling in San Juan County
near the town of Bluff in 1996. Charges of felony
abuse and desecration of a dead human body were
brought against the Redds for the unauthorized
excavation on state lands, but last year a district
judge in Monticello dismissed the case because he
did not believe fragments of bones constituted 'a
dead human body' under state law. The Attorney
General's Office appealed, but the Court of Appeals
did not consider the issue of whether pieces of
bones are human remains. Instead, the three
appellate judges dismissed the case because 'the
State failed to introduce any competent evidence at
the preliminary hearing that the bone fragments
[the Redds] unearthed were located in a site where
the Anasazi or any other ancient people buried their
dead.' Many American Indian leaders and
archaeologists were stunned by the ruling, fearing it
sends a message that unless human remains were
interred in a traditional Anglo cemetery, they are
not protected under state law. In requesting a
rehearing before the appellate court, the Attorney
General's Office argued that an expert witness who
testified in the Redds' preliminary hearing noted
that the bones were dug from a mound called a
'midden' next to the ruins. Across the Southwest
and among researchers of pre-Columbian Indians, the
midden generally is known as the area where
Anasazi buried their dead along with prized
possessions, making middens the first place
pothunters dig. But attorneys for the Redds argued
that the state was illegally attempting to
introduce new evidence about the significance of
the midden that was not heard during the
preliminary hearing. The appeals court agreed
Thursday, denying the state's petition for a
rehearing. 'The fact that a midden area may be a
burial place for the Anasazi dead is a discrete fact
relevant only to a determination of whether [the
Redds] removed the bones after the bones had been
interred,' the justices wrote. 'A determination that
the Anasazi buried their dead in middens was not
essential to the formulation of our policy decision
in this case -- that one element of this crime is
that [the Redds] must have removed a dead body from
a place of interment.' State lawyers have pledged to
American Indian leaders that should a rehearing
attempt fail, they will try to refile charges against
the Redds and, this time, expand expert testimony to
describe Anasazi burial places and practices. If
charges cannot be refiled, as a last resort the state
will petition the Utah Supreme Court on appeal. While
the appellate court did not consider the original
issue that resulted in charges against the Redds
being dismissed -- whether bone fragments constitute
a 'dead human body' under Utah's century-old grave-
obbing statute -- the latest order from the judges
explains why. In the lengthy footnote, the appellate
judges said they considered the trial court's issue
moot when they questioned the Redds' attorney on
whether digging remains in an Anasazi burial ground
was any different than grave robbing in a Salt Lake
City cemetery. 'Because defense counsel conceded at
oral argument that the bone fragments would satisfy
the 'dead body' requirement of the statute, we deemed
it unnecessary to, and did not, discuss the meaning
of that statutory language,' wrote the three judges.

From: Anthony L. Klesert
Regarding this and the new CO Indian History bill:
Perhaps one thing they could teach future lawyers
in their classes is that the Anasazi intentionally
buried their dead in middens? ("Dunghills" my ass!)