Australian Indigenous Law Review
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Australian Indigenous Law Review |
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Paul Turnbull[*]
In November 2006, the Trustees of Britain’s Natural History Museum deliberated on how to respond to demands by the Tasmanian Aboriginal Centre (TAC) for the repatriation of the remains of 17 Indigenous Tasmanians held by the Museum. They decided to return the remains, but not before using them to generate data by digital imaging and molecular analysis, which is considered of value in the study of human diversity and origins - even though this was known to be against the explicit wishes of the TAC.
Since Indigenous Australians began actively seeking the return of ancestral human remains from British museums and universities in the mid-1980s, the Natural History Museum has consistently maintained that it cannot return the remains if it means that they will be lost as a potential source of scientific evidence. When confronted with evidence that Australian Indigenous remains in its custody were acquired by plundering ancestral burial places, it has argued that while items may have originally been procured by theft and looting, the Museum afterwards legally acquired them by transfer and donation. Further, the Museum argues that as the current legal possessor of the remains it must refuse repatriation until scientific tests are carried out, so as not to deny researchers the possibility of providing humanity with new and potentially beneficial historical information.
My principal concern in this article is to appraise the adequacy of the Natural History Museum’s position in negotiation: that the fate of Indigenous remains in its collections should be considered from the standpoint of the Museum having legally acquired them. While additional research needs to be undertaken, what can currently be reconstructed from surviving archival sources shows that remains were procured in contravention of the prevailing common law in respect of death and burial. Indeed, in several recorded instances it is clear that those implicated in the theft and looting of Indigenous burials were fully aware that they were breaking the law. The article then briefly examines the implications of these findings for the case argued by the TAC to secure the remains of 17 Indigenous Tasmanians held by the Museum, and draws attention to some of the legal obstacles to securing their possession for burial.
In order to evaluate the Natural History Museum’s decision to return the remains - albeit on condition that they are first subjected to scientific examination and testing - it is firstly worthwhile to place their consent in the context of other Indigenous repatriation efforts. In particular, it is worth considering contemporary responses by other museums and universities that have held Indigenous remains, as well as the reaction of the Australian Government to increasing public support for the return of remains to Indigenous communities.
The Natural History Museum’s agreement in late 2006 to explore options for repatriation was a significant change of its stance on the matter. The announcement was cautiously welcomed by Indigenous Australian communities even though it came some 15 years after the Academic Senate of the University of Edinburgh had voted in favour of repatriating what was the largest collection of Australian remains in Britain. In Edinburgh, the decision to return remains was made after weighing up scientific arguments for their continued preservation with Indigenous claims regarding the religious and cultural imperatives for repatriation. The inquiries also shed some light on the dubious historical circumstances in which the remains had been procured, leading even London’s conservative Times newspaper to observe that ‘No curator can rest easy in his mind about holding on to such items’.1 Edinburgh’s decision to repatriate its Australian collection in turn prompted a number of British museums - most recipients of occasional donations of crania during the course of the 19th century - to conclude that ethically the case for repatriation far outweighed the potential scientific value of continued possession.
Even so, during the 1990s other leading British scientific institutions with extensive collections of Australian remains - such as England’s Royal College of Surgeons, Cambridge University’s Centre for Evolutionary Studies and the Natural History Museum - remained reluctant to explore repatriation, and stressed the importance of ensuring that their collections continued to be available for the scientific study of human origins and diversity. This insistence prompted delegations comprised of senior Elders and lawmen, representatives of the TAC, and the Queensland-based Foundation for Aboriginal and Islander Research Action (FAIRA) to visit the College of Surgeons and the Natural History Museum to state their case. In particular, their submissions focused on the profound spiritual importance of returning Indigenous remains, especially for Elders obligated by ancestral law to secure the peaceful journeys of the dead to the realm of spirit. These delegations generally received sympathetic hearings. Indeed, some in the College and Museum - who initially thought that the existence of remains in scientific institutions was being exploited by radical Indigenous politicians - came to appreciate that traditional religious beliefs and customary obligations to care for the dead remained integral to the lives and wellbeing of Indigenous Australians. However, College and Museum personnel continued to stress that they, too, were bound by weighty obligations. As the Director of the Natural History Museum explained in 2000 to a UK Parliamentary Select Committee reviewing the implications of changing ethical and legal perceptions of cultural property, it was especially difficult for the Museum to consider repatriating human remains as it had:
A duty to the scientific international community to use them as a very valuable scientific resource. We would find it extremely difficult to return any such objects if there was any doubt at all about their continued safety and their accessibility.2
If reburials occurred then researchers throughout the world would be deprived of the ability to gain new understanding and insights into human evolution, the nature of prehistoric migration, and possibly the nature of various diseases.3 At stake was the possibility of destroying research that could be beneficial to all of the world’s peoples.
Since the late 1980s the Natural History Museum also argued in various forums that its ability to consider repatriation demands was greatly restricted by the provisions of its governing legislation. Specifically, the British Museum Act 1963 (UK) prohibits the de-accessioning of legally acquired objects except when keeping them is demonstrably of no scientific or intellectual value.
However, by 2000 the Natural History Museum and other British institutions opposed to the reburial of remains were conscious that the case for repatriation was gaining increasing publicity outside of scientific circles. The work of the Council for Aboriginal Reconciliation between 1991 and 2000 had contributed to a growing appreciation in the Australian community at large that for Indigenous Australians, securing the return of remains was, in the words of one prominent campaigner, ‘as important…as land rights…a much more volatile issue, closer to the heart than even getting our land back.’4 Indeed, public support for repatriation was so overwhelming that by the mid-1990s both federal and state parliaments had authorised initiatives such as funding archival research to determine the provenance of remains before returning them to communities, and the provision of support for Elders and community leaders to negotiate the return of remains from both Australia and overseas collections. Progressively, each of the Australian museums and medical schools that had held Indigenous remains implemented new or revised policies throughout the 1990s to facilitate repatriation of those remains to their appropriate cultural custodians.
In July 2000, the Australian government initiated negotiations that resulted in the British and Australian Prime Ministers issuing a joint statement endorsing ‘the repatriation of Indigenous human remains wherever possible (and appropriate) from both public and private collections’. 5
As the qualified terms ‘possible’ and ‘appropriate’ indicate, the British Government was conscious of the legal impediments to repatriation affecting institutions such as the Natural History Museum. Moreover, it was concerned that it should not dismiss the case for continued scientific preservation of remains without a comprehensive examination of the issues involved. However, the British Government was also aware of the impending publication of recommendations by the British Parliament’s Select Committee on Culture, Media and Sport to the effect that in view of the rights of Indigenous peoples to determine the fate of remains in scientific collections a working group should be created to assist British institutions conduct the process of repatriation. This group would develop a statement of principles and guidelines relating to the preservation of Indigenous remains, and would also explore legislative change that would allow the Trustees of the Natural History Museum and other national collections to pursue repatriation.
The working group was established in May 2001. In November 2003 it delivered a report making 21 recommendations; notably, that the statutes governing Britain’s national museums should be amended to empower them to relinquish human remains, and that a licensing system should be introduced to regulate continued preservation and de-accession procedures.6
The working group further recommended the creation of a national advisory panel to resolve requests for the return of remains, and that national institutions most likely to encounter such requests should consider establishing their own panels. However by early 2002 the governing body of England’s Royal College of Surgeons was already sufficiently convinced by the preliminary deliberations of the working group such that it agreed to begin considering and implementing repatriation requests. As a result, the College’s known holdings of Tasmanian and mainland Australian ancestral bodily remains were returned to Indigenous ownership and control prior to the working group delivering its final report.
As it transpired, the British Government dealt with the recommendations of the working group by including a section within the new Human Tissue Act 2004 (UK)7 to enable nine national museums to remove remains from their collections. However, there were many in government circles who shared the concern of Neil Chalmers, retiring director of the Natural History Museum, who in a lengthy dissenting statement to the working group argued that its recommendations still did not adequately balance ‘the public benefits deriving from medical, scientific and other research…and the wishes of claimant communities’.8 Rather than enacting a licensing system, the Government advised the Department for Culture, Media and Sport to undertake further consultations with museums to develop non-statutory guidelines for the management of remains. It was anticipated that such measures would ideally go some way to balancing ‘the need to respect the culture and wishes of Indigenous communities with the need for scientific research.’9
Welcoming this outcome, the Natural History Museum established its own human remains advisory panel to deal with future repatriation requests. When the TAC again requested the return of the Museum’s Tasmanian holdings in September 2005, the advisory panel embarked on research and the formulation of advice to the Museum’s Trustees in line with the guidelines. In November 2006, it advised the Trustees that the TAC was recognised by the Australian Government as the appropriate organisation to lodge the request, and that the return of remains would greatly assist Indigenous Tasmanians in bearing the social and psychological legacies of colonialism more easily. Nearly 20 years after Indigenous Tasmanians had first sought the return of these remains, the advisory panel concluded that serious consideration needed to be given to what leading Museum personnel had previously been reluctant to discuss: that the remains in the Museum’s possession had originally been procured through desecrating ancestral burial places, or possibly, in several instances, by post–mortem dissection of individuals dying in the care of colonial medical officials. In short, the panel recommended that the Museum recognise the fact that the remains in question were procured in historical circumstances that would be judged abhorrent by contemporary ethical standards governing the conduct of scientific research.
Nonetheless, the panel stressed that the scientific value of these remains was certain to increase due to the emergence of new techniques for investigating human diversity and origins, and that remains returned to Tasmanian communities would very likely be cremated. Given that the TAC was opposed to remains being retained for research, the panel’s recommendation was that the Trustees transfer them to the care of the TAC, but only after researchers associated with the Museum had subjected them to three-dimensional imaging to extract material enabling future molecular analysis. These recommendations were made in spite of the fact that the TAC had already declared that these procedures were explicitly against their wishes.10 Further, the advisory panel concluded that while there was no doubt that these remains had been procured by ‘theft and looting of the dead’, that ‘Documentation indicates that these remains were acquired legally by the NHM as donations or transfers of collections from other institutions…’11
The Museum of Natural History came to possess nearly all of the remains sought by the TAC and other Indigenous parties in 1946, 1955 and 1968. They are actually remnants of three earlier collections. The Oxford University anatomist George Rolleston (1829-1881) created one of these collections, between, roughly, 1850 and the late 1870s. The second, generally known as the Williamson Collection, was formed by the Army Medical Department between the 1820s and the late 1850s. The third is what survives of the Australian remains held by the Royal College of Surgeons, which was hit by a German aerial mine in 1941.
Archival evidence exists at Oxford, at the Library of the Royal College of Surgeons and in the Library of the Natural History Museum that affords many insights into how these remains were originally procured. At Oxford, Rolleston, the Linacre Professor of Anatomy and Physiology, oversaw the transfer during the early 1860s of about 600 ‘national crania’ from the anatomical museum of the Army Medical Department. From this source, Rolleston acquired the remains of three or possibly four Tasmanians that were ultimately presented by Oxford to the Natural History Museum in 1946.12
The Natural History Museum was also the eventual recipient of remains that Rolleston secured by two other avenues. One was through his elder brother, Christopher Rolleston (1817-1888), who was appointed as Commissioner of Crown Lands in New South Wales in 1842, and who by the late 1850s held pastoral holdings in central Queensland. Among the specimens yielded through this family connection were four skulls of Kairi people, described by the elder Rolleston as ‘Native Blacks about my station on the Comet River some 200 miles inland from Rockhampton…’13 The other means by which George Rolleston secured remains was through former students practicing medicine in the Australian colonies. In 1869, for example, he received the skull of a Wiradjuri woman from H.M. Rowland, a physician in the Bathurst district. The skull had been removed from a burial place unearthed during the clearing of scrub.14 In the same year, he received a case containing five skulls from another former pupil residing in Adelaide, who had employed a local natural history collector to secure him skulls from a traditional burial site near the Murray River entrance. Two of the skulls, belonging to a man and his wife only buried in 1862, were the last remaining at the site. Further, as the collector informed Rolleston’s former student:
If you should wish to have any more skulls I may have opportunities of obtaining some, but at present I do not know for certain of any place where I could get some. Those from freshly dead natives would of course be most valuable, & those I do not know how to get. I think I would undertake to clean them myself if I had them, as I have often prepared the skulls of lower animals.15
Around 1870, Rolleston received the complete skeleton of a man from the Port Augusta region of South Australia from another former pupil, J Marshall Stokes, who informed Rolleston that the man had died the previous year. Also in Rolleston’s hands by 1872 was a skull procured from a burial place on a sheep station (ironically named Oxford Downs), 130 kilometers west of Mackay in central Queensland. George Marten, who had been an undergraduate at Pembroke College in the early 1860s, had obtained the skull for him. In sending the skull, Marten wrote that he would be ‘glad to know if there is [sic] any special objects of interest that I might be in the way of procuring in Queensland’ and that he and his fellow colonists would be ‘glad to do anything we could in the cause of science’.16
While successful in securing remains from the Australian mainland, Rolleston was personally unable to add to the Tasmanian remains that came into his custody from the Army Medical Department, though six years after his death in 1881 a Tasmanian skull was donated to the collection he had assembled, and a second had been acquired by 1927.17
As well as receiving what subsequent Oxford anatomists preserved of Rolleston’s Australian collection,18 in 1955 the Royal College of Surgeons transferred those of its Australian remains that were not destroyed in the bombing of its premises in 1941 to the Natural History Museum. The surviving material included items acquired by the College in the early 1880s on the death of Joseph Barnard Davis (1801-1881), the most energetic collector of crania in Victorian England. Davis began enlisting the help of colonial administrators and medical practitioners in the 1850s to procure crania of European, Asian, Oceanic, and particularly mainland Australian and Tasmanian origins. As one medical colleague recalled, ‘Davis’s enthusiasm for his subject was wonderful, but sometimes it verged on the ghoulish…. [He] looked on heads simply as potential skulls’.19 Davis had no qualms about encouraging the theft of Tasmanian skulls during post-mortems or from graves in the cemetery reserves established by the colonial legislature at the settlements on Flinders Island and Oyster Cove (where Indigenous Tasmanians had been exiled after being forced from their ancestral lands during the infamous campaigns of the 1820s). As Davis informed one correspondent in 1856: ‘Were I myself in the colony, I could with very little trouble abstract skulls from dead bodies without defacing them at all, and could instruct any medical gentleman to do this’.20
By the late 1860s, Davis had acquired the remarkable number of 16 Tasmanian crania and the complete skeleton of a 30 year old Tasmanian man. He bought several skulls at sales but acquired others through contacts with colonial administrators and medical colleagues. They included Joseph Milligan (1807-1884), the superintendent and medical officer of the Flinders Island and Oyster Cove settlements between 1843 and 1855, who had kept Tasmanian remains he came across in the course of his duties. Having retired to England by the early 1860s on a meagre colonial pension, Milligan was well aware of the value placed on bones in metropolitan anatomical circles but was loath to be seen as trafficker of human remains.21 Davis regarded one of the skulls he had bought from Milligan as perhaps the finest and most perfect specimen in any museum, and ‘of great rarity and value’.22 It was from a Tasmanian man aged about 24 who had been killed in 1831 during an attack on a shepherd’s hut in Tasmania’s Surrey Hills. Several other specimens Milligan sold Davis bore testimony to the viciousness of frontier conflict in Tasmania, notably the skull of a woman Milligan secured after being told by ‘an Aboriginal lad…that his party, some years before, had been fired into by a white man, when a woman was injured, had her head chopped off and the woman was buried’.23 This skull is amongst those now in the custody of the Natural History Museum.
Davis’ quest for Tasmanian specimens also led him to cultivate the friendship of George Augustus Robinson (1791-1866), Tasmania’s first Protector of Aborigines, who by the early 1860s had retired to the English spa town of Bath. While commandant of ‘Wybalenna’, the Aboriginal settlement on Flinders Island from 1835 to 1839, Robinson supplied skulls from the many who died there for a private collection of Tasmanian ‘curios’ being assembled by Lady Jane Franklin (1791-1875), wife of John Franklin (1786-1847) the ill-fated polar explorer who was governor of Van Diemen’s Land from 1836 to 1843.24 Robinson also acquired for himself a skeleton and at least six crania, two of which were most likely procured by post-mortem dissection at the Aboriginal settlement on Flinders Island.25 Not content with receiving one skull as a gift from the elderly Robinson, Davis sought to acquire all these remains together with the protector’s copious journals after his death in 1866 - though Robinson’s family refused to part with them.26
Davis found Tasmanian remains harder to obtain as a result of the infamous affair of the post-mortem mutilation of William Lanne, allegedly the last man of the Tasmanian race. Lanne’s corpse became the focus of scientific rivalry in 1869 between the Hobart surgeon William Crowther (1817-1885), who sought to procure the skeleton for the Royal College of Surgeons in London, and leading members of the Royal Society of Tasmania. The mutilation of Lanne’s corpse by the competing camps caused widespread public outrage over the willingness of medical authorities to illegally secure anatomical specimens, regardless of race.27 The scandal meant that few amongst the colony’s elite were henceforth prepared to risk being implicated in the procurement of body parts through dissection or the exhumation of graves.
While the Lanne affair greatly restricted both inclination and opportunities to procure Tasmanian remains, Davis was fortunate that one of his Tasmanian correspondents was prepared to risk moral censure and possibly prosecution for grave robbing. This was Morton Allport (1830-1878), a Hobart lawyer and prominent member of the Royal Society of Tasmania. Davis’s connection with Allport led to his receipt of a skull and bones in May 1872 that Allport had taken ‘no small trouble to see…were disinterred from a spot where none but other Aborigines were buried’ in the cemetery of the Flinders Island settlement. The following January, Allport sent news that he had secured ‘a treasure for you in the shape of an adult male skeleton of Tasmanian native all but absolutely perfect except as to the styloid processes which always seem very fragile’.28 However, this was to be one of the last skeletons that Allport removed from Flinders Island. After remains stolen from the Flinders Island cemetery had been discovered when a packing crate of ‘geological specimens’ was opened by government authorities, Allport began to fear that the Tasmanian government was determined to enforce the law and protect the graves in the settlement’s cemetery.29
Among the skeletons that Allport stole from the Flinders Island cemetery was the near complete skeleton of a Tasmanian man that he presented to the Anthropological Society of London in 1873. The skeleton is now among the remains at the Natural History Museum sought by the TAC.
While the Natural History Museum maintains that it acquired Tasmanian and mainland Australian remains legally, surviving archival evidence reveals that they were originally procured between, roughly, 1820 and the years following the First World War, in unlawful circumstances. The English and common law prevailing in the Australian colonies when these remains were procured recognised the right of the dead to burial and protection from post-mortem violation.30 When the remains in these three collections were procured, disinterring human remains from any place of burial or denying burial without lawful authority were common law offences. So too was the supply or sale of body parts by men such as George Augustus Robinson, who were entrusted to ensure that the bodies of Tasmanians dying in government care were treated as their relatives and the law demanded.
Admittedly, the legal rights of the dead were disregarded as a result of the interplay of scientific ambition and the increasingly pervasive influence of racial ideology through the nineteenth century. However, it is important to see that even during the period itself, the erosion of colonial recognition of Indigenous people’s rights in respect of death and burial was a contested and controversial process.31
During the first half-century after the establishment of the New South Wales penal colony, European observers of Indigenous cultural practices were struck by how seriously relatives and descendants of the dead took their obligations to ensure burial within ancestral country and with the appropriate mortuary ceremonies. Indeed, many noted that while Indigenous communities lived by hunting and gathering and generally did not set aside land for the construction of permanent dwellings, they nonetheless took great care to erect substantial structures on land reserved for burial. Written and visual records of funerary structures figure prominently in the records of inland travel compiled by early surveyors and explorers.32 Admittedly, desecration of graves under the impetus of scientific curiosity began within months of the establishment of the Port Jackson settlement in 1788. However, numerous colonists in various walks of life condemned the practice, believing that Indigenous people were legally entitled to ensure the dead were decently buried and protected from violation. Sentiments identical to those of Ralph Clark, Lieutenant of Marines with the First Fleet are to be found in many sources dating from the first years of British settlement to the turn of the twentieth century. Encountering a skeleton in the upper reaches of Sydney Harbour in February 1790, he returned with the head for the purpose of determining whether it was that of a convict or Indigenous person. It was thought that it was Indigenous, and Clark was asked to give the skull to the colony’s surgeons for dispatch to London. Clark, however, declared he ‘…would not - I told the Surgeons that I should carry it back and collect the rest of the Bons [sic] and Bury them and the Head.’33
When the remains now in the custody of the Natural History Museum were originally procured, English and common law in respect of death and burial reflected the cultural primacy of Christian belief and tradition. Courts generally spoke of the right to Christian burial in a churchyard or parish cemetery.34 However, in British settler colonies native peoples were recognised as having a lawful right to bury their dead in ancestral burial places in accordance with tradition. For example, when the imperial government sought in the 1830s to define and protect Indigenous proprietary title to the soil, notably in the context of South Australian settlement, it also recognised native rights to bury the dead in accordance with tradition. The official instructions given in August 1837 to William Wyatt, on his appointment as ad interim Protector of Aborigines in South Australia, charged that:
If, on becoming acquainted with the habits and customs of the Aborigines, you should find that in any part of the country they are in the practice of making use of land for cultivation of any kind, or if they have a fixed residence on any particular spot, or if they should be found to appropriate any piece of land to funereal purposes, you are required to report such fact to the Colonial Government without loss of time, in order that means may be taken to prevent its being included in the survey for sale [my italics]. It is essentially necessary that the natives should be convinced that on all occasions they will meet with full and impartial justice. 35
As it transpired, Wyatt and his immediate successors in the office of Protector failed to report any instance of land being used by Indigenous communities for burying their dead. The hunger of newly arriving settlers for land outweighed local concern for the rights of the crown’s Indigenous subjects in this respect. Moreover, by the early 1840s imperial policy in respect of Indigenous people reflected the growing cognitive strength in both British metropolitan and colonial society of the idea that Australia’s Indigenous population was destined by virtue of biological inferiority to racial extinction. During the second half of the 19th century and early decades of the 20th century, the rights and freedoms of Indigenous Australian people were progressively curtailed by ‘protective’ policies and legislation.36 Nonetheless, a wealth of archival evidence survives from this period revealing not only did Indigenous communities seek to protect the dead from scientific grave robbers, but that opinions within settler society about the morality and legality of procuring Indigenous remains for scientific ends differed markedly.
This is vividly illustrated by correspondence in the Australian Museum, concerning an occasion in 1892 when Gundungarra people in the Wollondilly region of New South Wales sought to exercise their lawful right to protect the dead from violating conduct. In that case, Robert Etheridge (1846-1920), a paleontologist and assistant curator of Sydney’s Australian Museum, removed the remains of a Gundungarra man laid to rest some 30 years previously from an ancestral burial place in the vicinity of the Burragorang Valley. Shortly afterwards, Edward Pierson Ramsay, the curator of the Museum, learnt from H J McCooey, an amateur ethnologist and collector of artifacts living in the region that Gundungarra men had gone to see a police magistrate to reclaim the remains. McCooey was distressed that they believed he had plundered the grave. Ramsay had widely encouraged the procurement of remains for the Museum by grave robbing since his appointment as curator in 1876, but on this occasion he was sufficiently worried to alert Etheridge. Etheridge assured Ramsay that McCooey appeared ‘indignant over a very small matter…’ and that he (Etheridge) was ‘quite prepared to return to the District & investigate several other interesting occurrences known to be there’.37 This was where the affair ended. If the Gundungarra men did indeed approached the magistrate then he appears to have taken no action.38
After he succeeded Ramsay as curator in 1895, Etheridge appears to have thought it wise to warn those within the large network of the Museum’s collectors that exhuming graves was an indictable offence. However, he saw scientific procurement of remains as more important than observing the law. Indeed, he was ready to exploit the existence of the law to secure remains for the Museum. In April 1910, he received a letter from two young girls via T W Edgeworth David, Professor of Geology at Sydney University and one of the Museum’s trustees, telling of a mound grave in the Molong district which they believed to be that of a ‘king or great chief who had been buried with various artifacts’. In the letter, the girls inquired whether ‘the government would pay someone to dig them up and if so, would they let us have just one thing for our collection’.39 Etheridge annotated the letter as follows:
It will be as well if Prof. David inform his lady correspondents that ‘disinterring a dead body’ is a misdemeanor at Common Law, & punishable by fine or imprisonment, or both. It matters not whether it be an old or recent burial. The clause applies to both & I am personally acquainted with a case in which an individual was fined for disinterring aboriginal remains.40
Yet ironically, even whilst recognising the criminality of this conduct, Etheridge himself continued to have Indigenous graves exhumed for the Museum.
As is evident from the case for continued scientific preservation made by personnel of the Natural History Museum, the scientific assumptions and practices of contemporary researchers with interests in Indigenous remains are radically different from those historically implicated in the desecration of the Indigenous dead. Indeed, over the past decade or so new technologies, such as computer-based comparative examination of bone structure and DNA analysis are beginning to yield hitherto unknown facts bearing on the course of human evolution and prehistoric migration.41 As these new technologies evolve, new information about the origins and early history of humanity might well be disclosed using Indigenous Australian remains.
But the overwhelming majority of remains still held by scientific institutions in the United Kingdom, including those held by the Museum of Natural History, are those of individuals who died after 1788. Those few that are not are at most 500 years old. It is therefore difficult to understand what might be found from analysing these remains that could not be learnt from their living descendants- assuming those descendants were agreeable, and that British researchers were prepared to comply with the ethical guidelines that their Australian counterparts follow when conducting bio-medical and archaeological research in collaboration with Indigenous communities.
Even if we grant that Indigenous Australian remains held by the Natural History Museum might be used to benefit all humanity by enriching our understanding of our common history in ways that the living cannot, the cost of doing so is the devaluing of cultural practices fundamental to the Indigenous continuum of self, life in the land and eventual return to the realm of the spirit.
The TAC maintains that the National History Museum can make no legal claim of possession beyond being a mere custodian of the remains, and have found some legal support for this position. On 9 February 2007 the Tasmanian Supreme Court declared that the TAC has a legal right to possession for the purpose of decently burying remains of the 17 Indigenous people held by the Museum. Citing Williams v Williams (1882) ChD 659, the Court held that, ‘…the law in this country is clear, that after the death of a man, his executors have a right to the custody and possession of his body (although they have no property) until it is properly buried.’42 However, the problem for the TAC is whether this right extends to allowing it to repossess remains for reburial that were unlawfully exhumed but have since become scientific specimens. The question was considered in the 1906 case of Doodeward v Spence,43 where Griffith CJ observed in one of two majority judgments that there was ‘no law forbidding the mere possession of a body…for purposes other than immediate burial’44 and:
Many valuable collections of anatomical and pathological specimens or preparations formed and maintained by scientific bodies, were formed and are maintained in violation of the law….In my opinion there is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial. A fortiori such possession is not unlawful if the body possesses attributes of such a nature that its preservation may afford valuable or interesting information or instruction.45
Justice Higgins gave a dissenting judgment in the case, arguing that:
We have not been referred to any instance in which any British Court has recognized a human skeleton as property. Such traffic as there is in skulls and bones is clandestine. If they come from dissecting rooms, they come in violation of the law.46
He went on to set out that while possession of a corpse for scientific ends might not be ‘…a misdemeanour…or unlawful in the sense of being an offence’ a right to possession for purposes other than burial ‘…seems to me to be just the thing which the British law, and, therefore, the New South Wales law, declines to recognise.’47 Even so, Higgins J conceded that:
Sundry contraventions of the strict law as to dead bodies are winked at in the interests of medical science, and also for the practical reasons that no one can identify the bones or parts, and that no one is interested in putting the law in motion.48
Now concerned to ‘put the law in motion’, the TAC must confront the High Court of Australia’s finding in 1906 that:
A human body, or a portion of a human body, is capable in law of becoming the subject of property…when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it.49
The archival evidence in this paper strongly suggests that the majority of remains held by the Museum of Natural History were procured by grave robbing, and not through means of lawful acquirement. On the contrary, men such as Etheridge, Davis, Milligan, Robinson knew they were breaking the law in plundering Indigenous burial places, but did so in the belief that the acquisition of scientific knowledge justified unlawfully violating the dead - what Etheridge dismissed as ‘a very small matter.’ Moreover, despite colonial erosion of Indigenous freedoms and rights, those who procured these remains rarely treated them merely as objects or things. Rather, they continued to invest them with the identity of the people from whose bodies they been obtained, albeit one conceptualised in perniciously racialist terms.50 Finally, in the case of remains that may have been procured during post-mortems on the Flinders Island Settlement, it is questionable whether they were given attributes by ‘the lawful exercise of work or skill’ distinct from that of a body destined for burial. In most instances they were simply cleaned of dirt and decayed soft tissue, catalogued and rarely if ever examined by researchers before the 1990s.
What may add weight to the TAC’s case is that, ironically, legal recognition of property rights in the body has evolved within the common law jurisdictions of the United States and Canada in favor of executors wanting the return of remains for reburial. While not formally acknowledging property rights, a ‘quasi-property’ right to have a body reburied was recognised in a United States court decision of 1870.51 This in turn influenced the Supreme Court of Alberta’s Appellate decision in Waldman v Melville (City) to recognise a ‘pseudo-property’ right of executors extending their common law right to bury a corpse after burial, reasoning that ‘otherwise it would be an empty right and…those who oppose the executor could disinter the body as soon as it was buried’.52
It remains the case that the TAC and other Indigenous Australian claimants seeking to fulfill their obligations to the dead are greatly disadvantaged by being obliged to negotiate using a conceptual vocabulary in which, contrary to their own religious beliefs and customary law, bodily remains are construed as objects, the fate of which is best determined by judicial recourse to narrow, private law conceptions of ownership. As McEvoy and Conway have recently observed:
As an organising concept, ownership provides a familiar template around which to shape competing claims. It denotes important notions including status, possession, control, and the exercise of legitimate authority to the exclusion of all others. It facilitates a necessary process of detachment from contests which are often socially and emotionally fraught and a retreat to legal formalism traditionally associated with such private law concepts.53
While established private law constructs of ownership may be effective in resolving the kinds of disputes over human bodies commonly encountered by the courts, they are, as McEvoy and Conway rightly point out, ‘conceptually deficient’ in dealing with claims by Indigenous communities for the return of ancestral remains from museums and scientific institutions.54 What needs to be employed in resolving such cases, they argue, are broader notions of moral and cultural ownership that recognise the value of repatriation as a gesture of reconciliation on the part of states, and acknowledge the historical complicity of western sciences in colonial violence and oppression. Further, recognition is needed of the essential role that the return of ancestral remains plays in aiding Indigenous communities to overcome the social and psychic damage wrought by colonialism.55
Since the mid-1970s, the TAC and other Indigenous Australian representative bodies have argued vigorously that repatriation needs to be understood in this wider context, drawing attention to the recognition in international law and draft declarations by the United Nations of their rights to ownership and enjoyment of their culture and religion.56 The Natural History Museum for its part has come to recognise the moral weight with which the claims of Indigenous communities on remains they hold have assumed beyond the courts. However, given the prevailing legal tendency to conceptualise the fate of remains as best decided by resolving their ownership in narrowly defined terms, it would seem difficult for the TAC to prevent the remains of the 17 individuals currently held by the Museum being returned without being subjected to scientific testing, unless by mediation they are able to convince the Museum Trustees that this would be a violation of ancestral religion and law morally akin to the assumptions and practices of those who originally procured these remains.
* Paul Turnbull is a Professor of History at the Centre for Public Culture and Ideas at Griffith University.
[1] Cressida Fforde, Jane Hubert and Paul Turnbull (eds), The Dead and their Possessions: Repatriation in Principle, Policy and Practice (2nd ed, 2002) 3.
[2] Ibid.
[3] Steve Connor, ‘Alarm Raised Over Return of Human Remains’, The Independent (London), 16 May 2003, 12.
[4] Michael Mansell, interviewed by David Langsam, ‘Quest for the Missing Dead’, The Guardian (London), 24 February 1990, 23.
[5] 10 Downing Street, ‘Prime Ministerial Joint Statement on Aboriginal Remains’ (Press Release, 4 July 2000) <http://www.numberten.gov.uk/output/Page2829.asp> at 16 January 2007.
[6] Select Committee on Culture, Media and Sport, House of Commons (U.K.) Seventh Report: Cultural Property: Return and Illicit Trade (2000) [166]. <http://www.publications.parliament.uk/pa/cm199900/cmselect/cmcumeds/371/37107.htm#a23> at 16 January 2007.
[7] Human Tissue Act 2004 (UK) s 47.
[8] UK Department for Culture Media and Sport, House of Commons (U.K.), Report of the Working Group on Human Remains (2003), 220 <http://www.culture.gov.uk/NR/rdonlyres/D3CBB6E0 – 255D – 42F8 – A728 – 067CE53062EA/0/wghr_reportfeb07.pdf> at 11 April 2007.
[9] UK Department for Culture, Media and Sport, Guidance for the Care of Human Remains in Museums (2005), 5 <http://www.culture.gov.uk/NR/rdonlyres/0017476B – 3B86 – 46F3 – BAB3 – 11E5A5F7F0A1/0/GuidanceHumanRemains11Oct.pdf> at 16 January 2007.
[10] Natural History Museum, Board of Trustees, TP06/54i, Tasmanian Aboriginal Centre Submission to the Trustees of the Natural History Museum for the Repatriation of Tasmanian Aboriginal Remains, 12 October 2006, 7 <http://www.nhm.ac.uk/about – us/corporate – information/assets/nhm – hrap – tasmanian – submission.pdf> at 11 April 2007.
[11] Natural History Museum, Board of Trustees, TP 06/54, Human Remains Advisory Panel, Advice to Trustees meeting 16th November 2006, <http://www.nhm.ac.uk/about – us/corporate – information/assets/nhm – hrap – advice.pdf> at 26 March 2007.
[12] Designated by the Natural History Museum, items PA HR 332, 334, 338 and 412.
[13] George Rolleston, Papers, Ashmolean Museum, Oxford, Box 4.
[14] Ibid Box 2.
[15] Ibid Box 4.
[16] Ibid Box 4.
[17] Designated items PA HR 335 and 337 by the Natural History Museum.
[18] My conversations with a number of anatomists at Oxford in 1991 and 1997 suggested that various items in Rolleston’s collection were disposed of and destroyed between the 1890s and the 1940s.
[19] John Beddoe recounted: ‘Once when [Davis] visited us I took him to the infirmary, and showed him a Morlachian sailor from near Ragusa, whom I was trying to cure of gangrene of the lung, resulting from having been half-drowned - a fine, handsome fellow, but desperately ill. “Now,” said my friend, “you know that man can’t recover; do take care to secure his head for me when he dies, for I have no cranium from that neighbourhood.” After all, the poor Morlach made a wonderful recovery, and carried his head on his own shoulders back to the Herzegovia’. John Beddoe, Memories of Eighty Years (1910) 205.
[20] Vivien Rae Ellis, Trucanini, Queen or Traitor? (1981) 133.
[21] Joseph Barnard Davis, ‘Catalogue of Crania’, Royal College of Surgeons of England Library, London, MS 42/c/37: 1121.
[22] Ibid 1121.
[23] Ibid 1120.
[24] It seems very likely that the skull designated PA HR593 by the Natural History Museum is one of the skulls Robinson procured for Lady Franklin.
[25] George Augustus Robinson, Journals, Papers and Letters, 1788-1866, Mitchell Library, Sydney MSAA7089, vol. 68[a], f.517. See also, Joseph Barnard Davis, Thesaurus Cranorium: Catalogue of the Various Races of Man, in the Collection of Joseph Barnard Davis (1867) 270.
[26] Robinson, above n 25, vol 68[a], 583, 591, 595, 603, 607.
[27] Stefan Petrow, ‘The Last Man: the Mutilation of William Lanne in 1869 and its Aftermath’ (1998) 16 Australian Cultural History 18, 20.
[28] Morton Allport, Letter Book, 1871-4, State Library of Tasmania, Allport Library and Museum of Fine Arts, Hobart, 107.
[29] Ibid 56-57.
[30] R v Lynn [1788] EngR 257; (1788) 100 ER 394, 395 rendered the taking of a body from the grave an offence of indecency ‘…contra bonos mores; at the bare idea alone of which nature revolted.’ In R v Stewart [1840] EngR 1003; (1840) 12 AD & E 773, 113 ER 1007, 1009, the Court defined a right to burial. The theft and subsequent sale of body parts by those empowered to conduct or oversee post-mortem dissections was prohibited by the Anatomy Act 1832 (UK), which regulated the acquisition, use and disposal of cadavers in Australia until local legislation was enacted in Tasmania and other colonies from the 1860s onwards. See Helen McDonald, ‘A Scandalous Act: Regulating Anatomy in a British Settler Colony, Tasmania, 1869’ (2007) Social History of Medicine, Advance Access <http://shm.oxfordjournals.org/cgi/content/full/hkl083v1> at 11 April 2007.
[31] On this point see especially Henry Reynolds, This Whispering in Our Hearts (1998).
[32] Paul Turnbull, ‘Indigenous Australian People, Their Defence of the Dead and Native Title’, in Cressida Fforde, Jane Hubert and Paul Turnbull (eds), The Dead and their Possessions: Repatriation in Principle, Policy and Practice (2002) 63, 66-72.
[33] Ralph Clark, The Journal and Letters of Lt. Ralph Clark, 1787-1792 (1981 ed) 110.
[34] As the Court held in R v Stewart [1840] EngR 1003; (1840) 113 ER 1007, 12, 773: ‘Every person in this country has a right to a Christian burial and that implies a right to be carried from the place where the body lies to the parish cemetery…the common law casts on someone the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose. The feelings and the interests of the living require this and create the duty.’
[35] South Australian Gazette, 12 August 1837, 2.
[36] The development of this legislation is comprehensively surveyed by John McQuodale, Aborigines and the Law: a Digest (1987).
[37] Correspondence Series 9, Australian Museum Archives, Sydney, item 1892/N/42.
[38] Research in relevant files of the New South Wales Public Record Office yield no information on the incident. Nor was there comment in local or Sydney newspapers.
[39] Ibid item 1910/D/5.
[40] Ibid.
[41] See, eg, Chris Stringer, ‘Reconstructing Recent Human Evolution’ (1992) 337 Philosophical Transactions of the Royal Society of London, Series B: Biological Sciences 217; H N Poinar, ‘DNA from Fossils: the Past and the Future’ (1999) 88 Acte Paediatrica Supplement 133; M Hoss, ‘Neanderthal Population Genetics’ (2000) 404 Nature 453.
[42] Williams v Williams (1882) 20 ChD 659 citing R v Fox and others [1841] EngR 1003; (1841) 2 QB 246.
[43] Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.
[44] Ibid 414 (Griffith CJ).
[45] Ibid 413-14.
[46] Ibid 423.
[47] Ibid 424.
[48] Ibid 423.
[49] Ibid 414.
[50] On the construal of Indigenous identity of specimens see Paul Turnbull, ‘Outlawed Subjects: the Procurement and Scientific Use of Australian Aboriginal Heads, ca. 1803-1835’ (1998) 22 Eighteenth-Century Life, 163-66.
[51] Pierce v Proprietors of Swan Point Cemetery 10 RI 227 (1872), 253.
[52] Waldman v Melville (City) [1990] 2 WWR 54, 57.
[53] Kieron McEvoy and Heather Conway, ‘The Dead, the Law and the Politics of the Past’ (2004) 31 Journal of Law and Society 541.
[54] Ibid 541.
[55] Ibid 547.
[56] The TAC and other Indigenous representative organisations have repeatedly drawn attention to article 27 of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) which has been ratified by both Australia and the United Kingdom. They have also drawn attention to articles 13 and 14 of the United Nations Draft Declaration on the Rights of Indigenous Peoples, approved by the UN Human Rights Council and now before its General Assembly. See Natural History Museum, Board of Trustees, TP06/54i, above n 10. See also, Foundation for Aboriginal and Islander Research Action (FAIRA), ‘Aborigines, Archaeologists and the Rights of the Dead’ (Paper presented at the World Archaeological Congress Inter-Congress on Archaeological Ethics and the Treatment of the Dead, University of South Dakota, August 1989).
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