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

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.