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Skeletal Remains Page 1 of 16 / 3 <br />THE CONSTITUTIONAL AND LEGAL BACKGROUND FOR A NON - RACIAL HUMAN SKELETAL REMAINS <br />POLICY FOR THE UNIVERSITY OF CALIFORNIA AND OTHER CALIFORNIA AGENCIES <br />JACK D. FORBES, Ph.D. <br />July 1990 <br />I. Introduction <br />I propose to focus my discussion of the human remains issue on an analysis of the legal and ethical <br />questions involved, especially as the latter relate to the historical reality of colonialism, oppression <br />and racism in this society and to the well- documented legal powerlessness which has been ordinarily <br />imposed upon Native American communities <br />In my research I have identified the following fundamental principles based upon constitutional and <br />statutory law, principles which a "civilized" society would wish to recognize: <br />1. That no race or ethnic group be singled out for uniquely adverse treatment as regards the <br />protection and care of human remains, i.e., that all persons, regardless of race, be granted the <br />same basic minimum rights of sepulcher or disposal of loved ones, with the understanding that <br />given religious traditions may seek additional special treatment for their deceased adherents. <br />2. That scientific curiosity must, in all civil societies, be reined in by laws and customs which <br />prevent involuntary experimentation upon human beings, the murdering of persons in order to <br />obtain cadavers, the theft of burial remains, the exposure of persons or their property to undue <br />risk from the adverse effects of experiments, etc., In brief, the mere argument of scientific <br />utility cannot stand against society's search for justice, liberty, reciprocity, and order in human <br />relations and affairs. <br />3. The living continue to have a legal as well as moral interest in their dead ancestors, relatives <br />and predecessors, however defined, and in accord with the intimacy which particular cultures <br />assign to the above relationship, as well represented by long- standing laws and customs in the <br />United States designed to protect graveyards, cemeteries and burial plots from any and all <br />adverse impacts and as also commonly evidenced in the civil laws of the United Kingdom and <br />other countries of the world. <br />4. That the University of California, et cetera, morally, ethically and legally would not wish to, <br />and indeed cannot, possess human remains illegally acquired nor acquired solely because of <br />the legal disempowerment of a particular race, since any actions which are focused on a single <br />race only (or predominantly) are legally suspect in the United States as well as being morally <br />questionable. <br />Now, having laid down these fundamentals I wish to proceed to a discussion of the precise legal <br />principles involved, focusing upon those constitutional provisions and statutes which relate to the <br />issue of whether skeletal remains have been removed legally or illegally from Native American <br />sepulchers. <br />II. Federal Constitutional Provisions <br />The Constitution of the United States contains several provisions which are directly operative over the <br />issue of human remains. These include the Fifth Amendment, which provides that <br />No person shall...... be deprived of life, liberty, or property without due process of law, nor shall <br />private property be taken for public use without just compensation. <br />httn - / /nAQ jirdnviq RPmainc html R /14/1)()11) <br />/3 <br />