Message #71 From: AzTeC SW Archaeology SIG To: "'Matthias Giessler'" Date: Mon, 23 Feb 1998 Subject: A Practice Known As 'Moki Diggin' ?? [ AzTeC / SWA SASIG ] : From: Kevin Jones Saturday, February 21, 1998 Court Says Bones Not Always a Grave BY CHRISTOPHER SMITH THE SALT LAKE TRIBUNE Buried human bones do not always constitute a formal burial site, says the Utah Court of Appeals, which Friday upheld the dismissal of grave-robbing charges against a Blanding doctor and his wife. The decision throws into limbo a state law designed to prevent people from excavating prehistoric Indian remains from state lands, a practice known as "Moki diggin'" in the Four Corners vernacular. Although their reasoning differed, Appellate Judges Norman Jackson, James Davis and Judith Billings agreed with 7th District Judge Lyle Anderson's dismissal of felony charges of abuse or desecration of a dead human body against James and Jeanne Redd of Blanding. Anderson had dismissed the charges because he felt pieces of ancient bone were not a "dead human body" under the statute. The appellate court did not consider that question and instead upheld the dismissal because it found no evidence to prove the bones were intentionally placed as part of a ceremonial burial by pre-Columbian American Indians. "Because no evidence was presented at the preliminary hearing that the bones or bone fragments removed from the midden area were intentionally deposited there to place them in final repose, no evidence existed that could support a conclusion that there was probable cause that the bones were interred," Jackson wrote in the unanimous opinion. The Utah Attorney General's Office had argued that midden areas are places where the "Anasazi" -- a Navajo term to describe the nomadic people that populated the Four Corners area from A.D. 550 to 1300 -- buried their dead along with prized possessions. But the appellate court declined to consider the argument, saying no such testimony was presented by the local prosecutor during the preliminary hearing in March last year. Appellate judges determined the Legislature intended the grave-robbing law to prohibit disinterment "only of dead bodies shown to have been intentionally deposited in a place of repose," such as a cemetery or tomb or "clearly marked grave site." In an earlier brief with the appeals court, the Utah Attorney General's Office had argued against delineating between the burial methods and customs of the first Americans and subsequent European settlers. "Thus, those buried 'recently' in Utah -- for example, pioneers buried in established Anglo cemeteries -- would be protected, and the law would punish violators as a felony," wrote Assistant Atty. Gen. Joanne Slotnik. "In contrast, those buried 'long ago,' for example, the ancient peoples who lived here centuries ago and were buried in ways customary to their culture but foreign to modern peoples, would not be so protected." Utah Attorney General's Office lawyers received the appellate opinion Friday and had not decided whether to pursue an appeal to the state Supreme Court. The case stemmed from a Jan. 6, 1996, incident when a hiker witnessed several people digging near Bluff at a site in Cottonwood Wash near the remains of a ceremonial "kiva" structure. San Juan County sheriff's deputies investigated and found Redd and his family, who are avid collectors of early American Indian artifacts. Investigators claimed the Redds dug a trench 15 feet long and several feet deep into the midden, and had sifted the excavated dirt over a screen to collect any valuable artifacts. About 15 human bones unearthed in the process had been "tossed out," according to testimony from a Bureau of Land Management archaeologist. Controversy has surrounded the investigation, prosecution and subsequent dismissal of the charges against Redd, who is the town's only physician and runs the county health clinic. Hopi leaders have charged the Redds received preferential treatment from the local justice system; after dismissing the charges, Judge Anderson revealed Redd presided over the birth of one of his children. The Redds still face a $250,000 civil suit by the Utah School and Institutional Trust Lands Administration for allegedly destroying a prehistoric grave site listed on the National Register of Historic Places.