Message #80
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 

Date:	Mon, 02 Mar 1998 
Subject: Reaction To Redd Ruling

[ AzTeC / SWA SASIG ] :

From: Kevin Jones

Sunday, March 1, 1998
Burial Ruling Stuns Indians And Scientists
It was a 13th-century culture that left behind dazzling achievements
of architecture and mystifying panels of rock art, then did a
befuddling disappearing act. But because the pre-Columbian "Anasazi"
Indians of southeastern Utah left behind no tombstones to mark the
graves of their dead, the Utah Court of Appeals has deemed their
mortal remains are not protected under state law. In a case
involving a Blanding couple accused of desecrating a prehistoric
Indian grave while pot hunting, the Appeals Court upheld the
dismissal of felony charges on the basis that the human bones
unearthed were not in a recognized place of final repose. The Feb 20
decision has stunned scientists and researchers whose careers have
been dedicated to better understanding the first Utahns. "It’s
racist and shows Utah still has a pretty racist edge to it,"
says Duncan Metcalfe, archaeological curator of the Utah Museum
of Natural History. "f these were our ancestors, we would
provide protection for interment. It’s unbelievable." Adds Kevin
Jones, state archaeologist for the Utah Division of History:
"It is a sad commentary on Utah when the courts rule that the
very people for whom our state is named do not deserve the same
respect and protection as the alleged pioneers." The decision
also has upset American Indians, who consider the ruling by
Appellate Judges Norman Jackson, James Davis and Judith Billings
as a statement that their ancestors are not worthy of the
respect shown to Anglo dead. "I am appalled the judges would
rule this way," says Forrest Cuch, director of the Utah
Division of Indian Affairs and a member of the Ute tribe. "It
is ethnocentric, Euro-centric and confirms the perception that our
state is very backward with its views of American Indians." The
appellate court’s controversial decision comes at a time when
federal and state governments are working to improve relationships
with Western tribes, creating consultation committees under
the Native American Graves Protection and Repatriation Act(NAGPRA). 
Passed by Congress in 1990, the law provides for the mandatory
repatriation—return to Indian tribes—of museum collections
of American Indian burials, grave goods, sacred artifacts and
other objects "having ongoing historical, traditional or cultural
importance central to a Native American group or culture." A
Sacrilege: The laws signaled a general recognition that the
unearthing and displaying of such objects, while perhaps done with
the best intentions, was a sacrilegious affront to American Indian
cultures who view the dead from a different spiritual dimension
than the dominant Euro-centric belief. That feeling is especially
acute in Utah, a state whose name came from the native Ute tribe,
a word that means "people of the turquoise sky," but whose image
and political mind-set reflects a singular heritage of hardy
white Mormon pioneers of predominantly European descent. "This
decision once again reaffirms the need for monumental education
efforts throughout the state," says Cuch. "Our government and
social system do not recognize or legitimize American Indian
cultures or people as having a viable belief system, one that is
viewed in the same light as the European belief system." There
is no American Indian or person of color serving on the
seven-member Utah Court of Appeals. The appellate decision was
the latest controversy in the saga that began two years ago,
when San Juan sheriff’s Deputy Ben Naranjo received a report
from a Bluff resident that several people were digging in an
area known to contain remnants of an Anasazi dwelling. Mike
Pehrson of Bluff had been hiking with his stepson and told police
he had observed people digging in the same area on several
previous occasions. Illegal Dig? Naranjo checked with a local
landowner, Erv Guymon, who told him no one had permission to dig
on his property. When the deputy reached the scene, he found a
pickup truck with vanity license plates reading "ANASAZI" and
three children nearby, who said they were on a family outing.
Then, James Redd and his wife Jeanne—parents of the children
and owners of the truck— came running down a hill asking Naranjo
what he wanted. The Redds told the deputy they had permission
to dig on Guymon’s property and were agitated when a local
newspaper reporter showed up. Naranjo retreated without citing
the Redds, but a subsequent investigation determined James Redd
— Blanding’s only resident doctor — and his wife were digging
illegally on state land. Investigators claimed the Redds
had unearthed 13 to 15 bones or bone fragments while sifting
through dirt excavated from a “midden” or burial mound area
of a dwelling and kiva site once inhabited by so-called
"Anasazi" Indians, a race that inhabited the Four Corners
area from A.D. 550 until their unexplained disappearance in
about 1300. The Redds are avid collectors of American Indian
artifacts. Grave-Robbing Law: After San Juan County Attorney
Craig Halls declined to take the case due to his close
relationship with Redd, neighboring Grand County Attorney Bill
Benge brought felony counts against the couple. The Redds were
charged with felony counts of abuse or desecration of a dead
human body, the state’s “grave-robbing” law that first was put
on the books in 1898. But at their preliminary hearing last March,
7th District Judge Lyle Anderson dismissed the felony charges
of desecration after questioning whether pieces of bone
actually constituted a “dead human body” under the law. "If I
dismiss the charges, fail to bind over, then the state could take
an appeal, the Supreme Court can tell us what the law is on
this case and we won’t be disturbing the citizens of the county,
we won’t be putting Dr. and Mrs. Redd to the trauma of a trial
without knowing that that’s what the law is, by an authoritative
source," the judge said. Preferential Treatment ? The decision
by Anderson — who subsequently acknowledged Redd presided over
the birth of one of his children — triggered complaints from
the Hopi Indian tribe that the Redds were receiving
preferential treatment by the local justice system. The Utah
Attorney General’s Office appealed Anderson’s ruling, arguing
his interpretation was "so unworkable and so racist" that it
is contrary to a basic human policy that all human remains should
be treated with dignity and respect. State attorneys said
under Anderson’s view, "recently" buried bodies, such as those
of European settlers, are protected from desecration while bodies
interred centuries ago, such as the earliest inhabitants of Utah,
are not. During arguments in January before the Appeals Court,
the attorney for the Redds made a surprising concession in
the state’s appeal of Anderson’s ruling. Defense attorney Rod
Snow stated that digging up an ancient Indian grave near Bluff
is no different than taking a shovel to a Salt Lake City
cemetery. With agreement on that issue, Snow and Assistant
Atty. Gen. Joanne Slotnik argued what they considered the central
point of appeal: Do pieces of bone constitute a dead human body
nder the grave-robbing law? But the Appeals Court sidestepped
that question. Instead, they declared that in order to prove a
body was illegally "disinterred" or dug up, the state had to
prove it was intentionally buried in the first place. Out of
the Blue: It was a puzzling decision that came out of the blue
to many observers of the case. "There’s nothing in the statute
regarding bodies having to be intentionally deposited to place
them in final repose," says Jones, whose state agency has relied
on the desecration law to protect archaeological sites on trust
lands. "I suppose this interpretation means that it’s not
illegal to root through the bones of a murder victim or lost
hunter found out in the desert because the bones were not
intentionally deposited there for the purpose of placing them
in repose." Vital Question: Anderson’s original dismissal never
considered the issue of intentional interment and the question
was never raised in written briefs or oral arguments. But because
the appellate court saw no proof that the Anasazi Indians whose
bones were unearthed were buried in the “midden” as their final
place of repose they found a new reason to dismiss the charges.
"It is frustrating to the state that the court did not answer
the single question posed by the trial court and that the
parties each tried to answer in their own way," says Slotnik
of the Attorney General’s Office. "That the court refused to
reach that issue is very frustrating because these cases don’t
come up very often and present a really important question."
The Attorney General’s Office now has three options under
consideration: ? File a petition seeking a rehearing before
the Court of Appeals. ? Ask the Utah Supreme Court to consider
hearing the case. ? Consult with Grand County Attorney Benge
to refile criminal charges against the Redds. "The [Court of
Appeals] ruling does tell us what we have to prove in a
subsequent case," says Slotnik. However, refiling the charges
against the Redds would have to be done with Anderson’s approval.
In its decision, the appellate court did not consider Slotnik’s
references to the "midden" as the customary site where Anasazi
buried their dead. Justices said the importance of the midden
was never made clear during preliminary hearing testimony. But
among archaeologists, who can draw upon some 90 years of
research into Anasazi culture, it’s an accepted fact. Prized
Possessions: "It may be a case of not proving the obvious," says
Dale Davidson, a Bureau of Land Management archaeologist in
Monticello who testified at the preliminary hearing. "The midden
has a very high correlation to where we most frequently find
burials. Archaeologist understand that and so do vandals, which
is why they continuously dig in the midden area looking not
for human remains but funerary objects, the prized possessions."
Adds Jones of the Division of State History: "The Appeals Court
wrote they declined to take notice that midden areas are known
Anasazi burial sites, reasoning that since middens are areas
where refuse or garbage is piled, they must not be sacred
burial sites. It’s a very ethnocentric and shoddily researched
conclusion." Some observers say perhaps the Utah Legislature
should amend the state’s grave-robbing statute to make it clear
that unauthorized exhuming of American Indian remains, regardless
of their age or place of burial, is a crime. "I hope this goes
to the Supreme Court because we have to do it not just for
archaeology, but for everyone because it is such a broad issue,"
says Metcalfe of the Museum of Natural History. "No one is
producing 2,000-year-old archaeological sites anymore. This is
a good law, I just don’t understand why it’s being interpreted
like this." Loose Interpretation: Others say maybe the law is
not the problem. Maybe the trouble stems from an entrenched
mind-set that the beginning of time and culture and settlement
and belief systems started in Utah only 150 years ago. "There
is clearly an attempt to interpret this law in a loose
fashion and we would certainly recommend this decision be
appealed to the highest level and the Redds prosecuted to the
fullest extent," says Cuch of the Division of Indian Affairs.
"The timing of this couldn’t have been worse. We have the
international community looking at Utah and we’re saying all
people are welcome here, when in fact our courts are making
these kinds of decisions.”