[Aztlan] Geronimo Skull

Thu May 18 00:57:06 CDT 2006

Susan, Sam, and Listeros,

  I don't think it matters whether the skull that was stolen belongs to Geronimo or not.  If such a skull exists, and it was stolen from a grave site, isn't it grave desecration just the same?  Those bones must belong to somebody, and taking them without permission is technically theft.  Theft is a crime, whether or not the remains were taken from federal property or any other property. 

  Reading the article submitted by Susan, I was surprised to learn that an editor of the Yale alumni magazine had said:  "They may have robbed a grave, but it's not at all clear it was Geronimo's grave."  Also, in the Yale alumni magazine this month, a history professor from Oklahoma is quoted as saying:  "My assumption is that they did dig up somebody at Fort Sill.  It could have been an Indian, but it probably wasn't Geronimo."

  Even if the remains did not belong to a historical figure, isn't there an equal obligation to return those remains?

  And if they are Indian remains, shouldn't they be returned to their tribe of origin or to their original burial site?  (I think the latter would be a point of contention because the chair of the San Carlos Apache Tribe in Arizona campaigned unsuccessfully in the late 1980's to have Geronimo's remains moved from Fort Sill, Oklahoma -- where he died a prisoner of war in 1909 -- to Apache land in Arizona.)   

  I suppose one could make a similar argument with respect to mummies and other human remains unearthed or retrieved for scientific study; however, this case is different in that the remains (if they, in fact, exist) are being used solely for entertainment purposes, and not for scientific inquiry.

  I concur with Sam in that If the situation were reversed and a skull believed to be that of a historical figure, such as George Washington, were taken by a Native American Tribe, the public outcry would never cease and every measure would be taken to assure its return. 

  Here's a link to an article about the "Geronimo" Skull in the Yale alumni magazine, May/June 2006 issue: 

  http://www.yalealumnimagazine.com/issues/2006_05/notebook.html

  Best regards,

  Margarita

Susan Gilchrist <gilchrist.susan at gmail.com> wrote:
  There's a story in the news today that seems as though it 
would involve similar issues if it were a legal case, which 
it isn't. It seems like a question of whether 1) there's a skull
in the Yale fraternity, 2) it's an old guy, and 3) it's Harlan 
Geronimo's relative. It seems quite different than Kennewick
in the sense that it could be a matter of establishing 
paternity, not descent from long-ago Europeans or Ainu.
That's if the question is just whose skull if anybody's is 
still in the fraternity. Scientists aren't the only ones who 
collect other people's bones. (It's apparently not NAGPRA
since the fraternity is a private organization.)
Noninvasive testing seems like a possibiity since there are many 
photographs of Geronimo and there's software for 
comparing ID photos.
Below are links to news accounts including two different 
Apache views, in the Hartford Courant and on Associated 
Press.
Susan Gilchrist 

Yale's Tale Of Skull Gets New Backing (The Hartford Courant 5/9)
Username: indianz at indianz.com, Password: indianzcom 
http://www.courant.com/news/local/hc-skullbones0509.artmay09,0,3995631.story

http://news.yahoo.com/s/ap/geronimo_s_bones

  On 5/9/06, Margarita B. Marin-Dale <inka1box at yahoo.com> wrote:   Bertram is absolutely right.  A federal appellate court will decide only what's before the court and cannot render an advisory opinion. Everything else will have to wait until there's another case and controversy.  Let's hope that whatever case appears next is a better test case for the NAGPR. 

  Still, I would like for us to consider the issue which I raised in my previous posting about balance and honoring the religious traditions of Native Americans.  I find that we are predisposed in our society to view law, policy, and sociocultural and economic issues from a rational, scientific, and Western European perspective.  In the foreign policy arena, in particular, this rigidity leads to conflict and a great deal of cultural misunderstanding.  However, in my view, there are other perspectives that are equally valid and worthy of consideration, even if they are very different than our own.  How we honor those perspectives is still a subject of much debate, but I think it starts with having an open mind and acknowledging that there are many different ways to view the world.  Ours is but one way, and not always the "right" way.  I don't wish to get off topic, so I'll just leave this as food for thought  . . . 

  Thanks to everyone who replied to my postings on and off the list.

Huq p'unchaukama (Quechua: "until another day"),

  Margarita

Bertram Perkel < bperkel29 at comcast.net> wrote:
  In view of the apparent interest of the List in the Kennewick case, I
think it might helpful in looking at what the Court of Appeals did in
that case, to understand what it did not do and would not do. As Miles 
Davis would note, one should also listen to the "music" between the
notes as well as the notes themselves to fully understand and
appreciate the piece.
As a matter of traditional appellate jurisprudence, a court will go 
to great lengths to decide only what is specifically before it and even
then, further limit themselves by speaking only to the particular
question whose answer is required for the decision. While there are
exceptions to this basic appellate practice, they generally relate to 
important matters which can reasonably expected to arise in the
immediate near term or deal with issues of profound public importance.
Neither of these conditions appear to be extant in the Kennewick case.
This principal can be summed up under the rubric that a federal court 
"does not render advisory opinions" and will allow the 'law" in a
particular area to develop case by case. This is why so he Kennewick
case does not satisfy the understandable wish for guidance as to what 
the NAPGR means or how it may be applied or construed in the future.
All we have are some broad hints and knowledge that the extremes are
not acceptable. Everything else is left to reasoned speculation until
some future parties are once again in conflict as to the application of
this statute in a particular case and that conflict is again brought to
the courts to resolve.
Bertram Perkel
On May 7, 2006, at 1:36 AM, Margarita B. Marin-Dale wrote: 

> Listeros,
>
> Notwithstanding the merits of the Kennewick Man case, this seems to
> be a case of faulty reasoning and bad lawyering on the part of the DOI
> and the U.S. Army Corps of Engineers. As Bertram pointed out, the DOI 
> took the extreme position, in contravention with the direct language
> of the NAPGR, that human remains are presumptively Native American if
> proper age and geography are established, "and, irrespective of 
> whether some or all of these groups were or were not culturally
> affiliated or biologically related to present-day Indian Tribes."
> (Lower Court Opinion, 25).
>
> Yet, under the meaning of the Act, at a minimum, a Native American 
> must show a cultural relationship between the remains in question and
> a present-day tribe, people, or culture indigenous to the U.S. (LCO,
> 30). Proving the latter appears to be multi-faceted. Cliff has 
> previously pointed out that the statute permits the introduction of
> all kinds of evidence to prove cultural relationship. Regulations
> promulgated by the DOI clarify that cultural affiliation must be 
> established by a "preponderance of the evidence" (a lower standard
> than the appellate court had proposed) through the following forms of
> evidence: geographical, kinship, biological, archaeological, 
> linguistic, folklore, oral tradition, historical evidence, and/or
> other information or expert opinion. (LCO, 30). So, in response to
> Marcelo's original question, biological, and presumably genetic, 
> evidence may be introduced to prove cultural affiliation under the
> meaning of the Act.
>
> As Bertram stated, courts generally defer to agency findings unless
> the agency has acted in an arbitrary and capricious manner. In this 
> case, there was ample evidence of arbitrary behavior: the DOI had
> unilateral communications with other agencies and the Tribal
> Claimants, and had given the Tribal Claimants advance copies of key
> reports without providing copies or notifying the scientists; the
> Secretary had not been a neutral and unbiased party, and had prevented
> the scientists from meaningfully participating in the decision-making 
> process; and so forth. Similarly, the Army Corps of Engineers had
> apparently buried the discovery site under two million pounds of
> rubble and dirt (!) to prevent further study of the site. It had also 
> contributed to the deterioration of the remains by not implementing
> proper environmental control measures to preserve Kennewick Man's
> "potential scientific value." (LCO, 8). Additionally, it had
> permitted the Tribal Claimants to visit the
> remains and conduct religious ceremonies without notifying the
> scientists or the court. The latter actually hurt their case, because
> the labs were unable to isolate uncontaminated DNA within the time 
> frame allotted by the court (?) and the DOI. (LCO, 16) The Corps
> apparently also failed to adequately safeguard the remains. Two femur
> bones were stolen from Kennewick Man and were not recovered until 5 
> years later (!).
>
> These actions alone were probably enough to set aside the action of
> the DOI, but the court went ahead and decided the case on the merits!
>
> As to the standard of proof, it still seems very nebulous. The 
> language of the NAGPR says the claimant must prove cultural
> affiliation by a "preponderance of the evidence"; the lower court
> states "some relationship," and the appellate court "substantial
> relationship." So, which is it? 
>
> Moreover, as an "indigenista" at heart, I must ask how the
> requirements of the NAGPR can protect the burial rites of Native
> Americans if, as in this case, non-invasive evidence is insufficient. 
> For obvious reasons, Kennewick Man is probably not a good test case.
> But, assuming some remote, yet tenuous, cultural affiliation, how do
> we balance scientific study with the claims of many Native Americans 
> that handling, viewing, or even photographing the remains is invasive
> on religious grounds?
>
> Clearly, these court decisions, and even our own discussions, are
> tipped in favor of science and proving evidentiary connections; yet, 
> where is there a place in this process for honoring indigenous
> practices and cultural affiliations that cannot be scientifically
> proven (at least not from our Western perspective)? More important – 
> what happens to Kennewick man after the scientists are done? Will the
> Tribal Claimants who allege kinship with him be allowed to bury him in
> accordance with their burial customs?
>
> Saludos, 
>
> Margarita
>
>
>
>
>
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