All Indigenous Peoples, not just American Indians, have a troubled history with anthropologists. This is because, early on, the study of humans was the study of primitive humans, and we are always considered primitive so as to justify separating us from land and minerals. We obviously did not know how to use them.

Modern anthropology has finally taken on the study of humans in all their complexity, urban as well as rural, white as well as brown, but those of us who have always been classified as data still have some raw sores from the old days. Within my lifetime, anthropology still flirted with the socially constructed fiction of “race” as if it reflected biological reality and therefore destiny.

Repatriation represents one of the sorest of the sore spots. Physical anthropologists, who study human bones, and archaeologists, who study human artifacts, are jokingly distinguished from cultural anthropologists in that it’s said they can’t stand dealing with living human beings. I wonder about the reality underneath that joke, since the grave robbers were so unable to deal with living Indians for so long?

My academic training is focused on law, and specifically the English Common Law, which remains in force in all but one of the lower 48 United States unless it is altered by statute. Some basic principles in that tradition are:

*There is no recognized property interest in a corpse, but the next of kin has the power and the duty to supervise interment.

*Any ownership interest in grave goods is in the next of kin of the deceased person.

*A thief lacks the power to pass a legal title, even to one who did not know about the theft.

It’s fairly obvious how these principles tend to slow down study of the contents of graves, or at least graves containing white people. The Americas, having been peopled last, contain fewer human remains than Europe or Africa, where finding graves while excavating for other reasons is routine.

It’s been in the news recently that the bones of King Richard III of England were found under a parking lot. The dispute about the bones has not been over whether they will be reburied, but whether the reburial should be in Leicester or York.

Sure, the scientists will have a look-see, and a little bit of bone will be destroyed by DNA testing, but in the end, a grave is a grave even when it shows up under a parking lot.

Here in the US, a woman named Hai-Mecha Eunka, Maria Pearson in English, noticed that when a cemetery was disturbed for a highway, the white bodies went to a funeral director hired to rebury them and the Indian bodies went to the Iowa State Archeologist. When she was done raising a stink, Iowa had passed the first state level repatriation law in 1976.

Ten years later, the US Congress began a similar effort that would come to fruition when the first President Bush signed the Native American Graves Protection and Repatriation Act in 1990.

I agree with what is now a minority of the scientists that NAGPRA is preposterous, but what is preposterous about it is that Indians had to have a law to forbid disturbing our dead. I’ve been unable to find the part of the old law that said “except Indians.”

The fallback position of the community that calls itself scientific is to introduce age as a proxy for race, and there has even been a court decision denying NAGPRA protection to graves that antedate the European Invasion. I suppose the intellectual justification for this, if it has one, is that we savages had no laws and therefore did not prohibit grave robbing before white people taught us what is sacred.

This is demonstrably false. Traditional Cherokees would consider anyone who takes from a grave to be evil and demented and up to no good. This is not unusual among Indians or among humans generally. Of course, NAGPRA allows any Indian nation to consent to disturbance of their dead---just like white next of kin can consent. I don’t know what to say to those who remain offended at having to ask.

The repatriation movement has lots of heroes from the Iowa fight onwards, but it has also brought forward anthropologists at first considered turncoats by their colleagues. I will never forget the look of contempt on the face of one my scientific adversaries when I cited an article by one of the “turncoats,” Larry Zimmerman.

Another anthropologist famous for his view that Indians are human beings with interests that must be respected is Tim McKeown, who was the go-to guy in the Department of the Interior when NAGPRA was being implemented.

Last year, McKeown made a book: In the Smaller Scope of Conscience: The Struggle for National Repatriation Legislation, 1986-1990. McKeown’s book is a detailed examination of the players behind NAGPRA in and out of Congress, what they said and did over those years, and how the wording of NAGPRA came to be as it is.

Tribal representatives should keep this book around as a blueprint for action, so that when they press at the edges of the law they will be as certain as possible where the edges are. Anthropologists should be grateful that, thanks to McKeown’s work, Indians can’t claim anthropologists never did anything helpful to us. That will make it easier to ask permission to study us, if they can get used to asking.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.