Bone Courts: The Rights and Narrative Representation of Tribal Bones

Abstract

I SHI, THE LAST SURVIVOR of his tribe, died seventy years ago in a museum at the University of California. Alfred Kroeber was in New York at the time and wrote to the curator of the museum, If there is any talk about the interests of science, say for me that science can go to hell. propose to stand by our friends, the distinguished anthropologist continued. Besides, I cannot believe that any scientific value is materially involved. We have hundreds of Indian skeletons that nobody ever comes to study. The prime interest in this case would be of a morbid romantic nature.' Kroeber protected the remains of his tribal friend, and, in his letter to the curator, anticipated by two generations the debate over the disinterment of aboriginal bones and the reburial of tribal remains. Three hundred thousand tribal bodies have been taken from their graves to museums and laboratories, asserted a tribal advocate, If this would happen in any other segment of society there would be outrage.... Whether they were buried last year or thousands of years ago, they have the right to the sanctity of the grave.2 This is a contentious discourse on the prima facie rights of human remains, sovereign tribal bones, to be their own narrators, and a modest proposal to establish a Bone Court. This new forum would have federal judicial power to hear and decide disputes over burial sites, research on bones, reburial, and to protect the rights of tribal bones to be represented in court. The rights of bones are neither absolute nor abolished at death; bone rights are abstract, secular, and understood here in narrative and constitutional legal theories. The rights of bones to be represented in federal court is substantive; these rights are based on the premise that human rights continue at death. Most human remains were buried with ceremonial heed, an implied communal continuation of human rights; death, cremation, subaerial exposure, earth burial, and other interments, are proper courses, not the termination of human rights. The rights we hold over our bodies and organs at death are the same rights we must hold over our bones and ashes.3 Brain death, or heart death, is not a constitutional di-