Scientific Theft of Remains in Colonial Australia
Paul Turnbull*
I Introduction Indigenous burials were fully aware that they were breaking the law. The article then briefly examines the implications of In November 2006, the Trustees of Britain’s Natural History these findings for the case argued by the TAC to secure the Museum deliberated on how to respond to demands by the remains of 17 Indigenous Tasmanians held by the Museum, Tasmanian Aboriginal Centre (TAC) for the repatriation of the and draws attention to some of the legal obstacles to securing remains of 17 Indigenous Tasmanians held by the Museum. their possession for burial. They decided to return the remains, but not before using them to generate data by digital imaging and molecular analysis, In order to evaluate the Natural History Museum’s decision which is considered of value in the study of human diversity to return the remains - albeit on condition that they are first and origins - even though this was known to be against the subjected to scientific examination and testing - it is firstly explicit wishes of the TAC. worthwhile to place their consent in the context of other Indigenous repatriation efforts. In particular, it is worth Since Indigenous Australians began actively seeking the considering contemporary responses by other museums return of ancestral human remains from British museums and universities that have held Indigenous remains, as well and universities in the mid-1980s, the Natural History as the reaction of the Australian Government to increasing Museum has consistently maintained that it cannot return public support for the return of remains to Indigenous the remains if it means that they will be lost as a potential communities. source of scientific evidence. When confronted with evidence that Australian Indigenous remains in its custody were II Repatriation Since the Late 1980s acquired by plundering ancestral burial places, it has argued that while items may have originally been procured by theft The Natural History Museum’s agreement in late 2006 to and looting, the Museum afterwards legally acquired them explore options for repatriation was a significant change of by transfer and donation. Further, the Museum argues that its stance on the matter. The announcement was cautiously as the current legal possessor of the remains it must refuse welcomed by Indigenous Australian communities even repatriation until scientific tests are carried out, so as not to though it came some 15 years after the Academic Senate of the deny researchers the possibility of providing humanity with University of Edinburgh had voted in favour of repatriating new and potentially beneficial historical information. what was the largest collection of Australian remains in Britain. In Edinburgh, the decision to return remains My principal concern in this article is to appraise the adequacy was made after weighing up scientific arguments for their of the Natural History Museum’s position in negotiation: continued preservation with Indigenous claims regarding that the fate of Indigenous remains in its collections should the religious and cultural imperatives for repatriation. The be considered from the standpoint of the Museum having inquiries also shed some light on the dubious historical legally acquired them. While additional research needs to circumstances in which the remains had been procured, be undertaken, what can currently be reconstructed from leading even London’s conservative Times newspaper to surviving archival sources shows that remains were procured observe that ‘No curator can rest easy in his mind about in contravention of the prevailing common law in respect holding on to such items’.1 Edinburgh’s decision to repatriate of death and burial. Indeed, in several recorded instances its Australian collection in turn prompted a number of it is clear that those implicated in the theft and looting of British museums - most recipients of occasional donations of
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crania during the course of the 19th century - to conclude Since the late 1980s the Natural History Museum also argued that ethically the case for repatriation far outweighed the in various forums that its ability to consider repatriation potential scientific value of continued possession. demands was greatly restricted by the provisions of its governing legislation. Specifically, the British Museum Act Even so, during the 1990s other leading British scientific 1963 (UK) prohibits the de-accessioning of legally acquired institutions with extensive collections of Australian remains objects except when keeping them is demonstrably of no - such as England’s Royal College of Surgeons, Cambridge scientific or intellectual value. University’s Centre for Evolutionary Studies and the Natural History Museum - remained reluctant to explore repatriation, However, by 2000 the Natural History Museum and other and stressed the importance of ensuring that their collections British institutions opposed to the reburial of remains continued to be available for the scientific study of human were conscious that the case for repatriation was gaining origins and diversity. This insistence prompted delegations increasing publicity outside of scientific circles. The work comprised of senior Elders and lawmen, representatives of the Council for Aboriginal Reconciliation between 1991 of the TAC, and the Queensland-based Foundation for and 2000 had contributed to a growing appreciation in Aboriginal and Islander Research Action (FAIRA) to visit the Australian community at large that for Indigenous the College of Surgeons and the Natural History Museum to Australians, securing the return of remains was, in the state their case. In particular, their submissions focused on words of one prominent campaigner, ‘as important…as the profound spiritual importance of returning Indigenous land rights…a much more volatile issue, closer to the heart remains, especially for Elders obligated by ancestral law than even getting our land back.’4 Indeed, public support to secure the peaceful journeys of the dead to the realm of for repatriation was so overwhelming that by the mid- spirit. These delegations generally received sympathetic 1990s both federal and state parliaments had authorised hearings. Indeed, some in the College and Museum - who initiatives such as funding archival research to determine initially thought that the existence of remains in scientific the provenance of remains before returning them to institutions was being exploited by radical Indigenous communities, and the provision of support for Elders and politicians - came to appreciate that traditional religious community leaders to negotiate the return of remains from beliefs and customary obligations to care for the dead both Australia and overseas collections. Progressively, each remained integral to the lives and wellbeing of Indigenous of the Australian museums and medical schools that had Australians. However, College and Museum personnel held Indigenous remains implemented new or revised continued to stress that they, too, were bound by weighty policies throughout the 1990s to facilitate repatriation of obligations. As the Director of the Natural History Museum those remains to their appropriate cultural custodians. explained in 2000 to a UK Parliamentary Select Committee reviewing the implications of changing ethical and legal In July 2000, the Australian government initiated perceptions of cultural property, it was especially difficult negotiations that resulted in the British and Australian for the Museum to consider repatriating human remains as Prime Ministers issuing a joint statement endorsing ‘the it had: repatriation of Indigenous human remains wherever possible (and appropriate) from both public and private A duty to the scientific international community to use collections’. 5 them as a very valuable scientific resource. We would find it extremely difficult to return any such objects if there As the qualified terms ‘possible’ and ‘appropriate’ was any doubt at all about their continued safety and their indicate, the British Government was conscious of the accessibility.2 legal impediments to repatriation affecting institutions such as the Natural History Museum. Moreover, it was If reburials occurred then researchers throughout the world concerned that it should not dismiss the case for continued would be deprived of the ability to gain new understanding scientific preservation of remains without a comprehensive and insights into human evolution, the nature of prehistoric examination of the issues involved. However, the British migration, and possibly the nature of various diseases.3 At Government was also aware of the impending publication stake was the possibility of destroying research that could of recommendations by the British Parliament’s Select be beneficial to all of the world’s peoples. Committee on Culture, Media and Sport to the effect that
(2007) 11(1) AILR 93 in view of the rights of Indigenous peoples to determine way to balancing ‘the need to respect the culture and wishes the fate of remains in scientific collections a working of Indigenous communities with the need for scientific group should be created to assist British institutions research.’9 conduct the process of repatriation. This group would develop a statement of principles and guidelines relating Welcoming this outcome, the Natural History Museum to the preservation of Indigenous remains, and would also established its own human remains advisory panel to deal explore legislative change that would allow the Trustees of with future repatriation requests. When the TAC again the Natural History Museum and other national collections requested the return of the Museum’s Tasmanian holdings to pursue repatriation. in September 2005, the advisory panel embarked on research and the formulation of advice to the Museum’s Trustees in The working group was established in May 2001. line with the guidelines. In November 2006, it advised the In November 2003 it delivered a report making 21 Trustees that the TAC was recognised by the Australian recommendations; notably, that the statutes governing Government as the appropriate organisation to lodge Britain’s national museums should be amended to empower the request, and that the return of remains would greatly them to relinquish human remains, and that a licensing assist Indigenous Tasmanians in bearing the social and system should be introduced to regulate continued psychological legacies of colonialism more easily. Nearly preservation and de-accession procedures.6 20 years after Indigenous Tasmanians had first sought the return of these remains, the advisory panel concluded that The working group further recommended the creation of serious consideration needed to be given to what leading a national advisory panel to resolve requests for the return Museum personnel had previously been reluctant to discuss: of remains, and that national institutions most likely to that the remains in the Museum’s possession had originally encounter such requests should consider establishing been procured through desecrating ancestral burial places, their own panels. However by early 2002 the governing or possibly, in several instances, by post–mortem dissection body of England’s Royal College of Surgeons was already of individuals dying in the care of colonial medical officials. sufficiently convinced by the preliminary deliberations of In short, the panel recommended that the Museum recognise the working group such that it agreed to begin considering the fact that the remains in question were procured in and implementing repatriation requests. As a result, the historical circumstances that would be judged abhorrent by College’s known holdings of Tasmanian and mainland contemporary ethical standards governing the conduct of Australian ancestral bodily remains were returned to scientific research. Indigenous ownership and control prior to the working group delivering its final report. Nonetheless, the panel stressed that the scientific value of these remains was certain to increase due to the emergence As it transpired, the British Government dealt with the of new techniques for investigating human diversity recommendations of the working group by including and origins, and that remains returned to Tasmanian a section within the new Human Tissue Act 2004 (UK)7 to communities would very likely be cremated. Given that the enable nine national museums to remove remains from TAC was opposed to remains being retained for research, their collections. However, there were many in government the panel’s recommendation was that the Trustees transfer circles who shared the concern of Neil Chalmers, retiring them to the care of the TAC, but only after researchers director of the Natural History Museum, who in a lengthy associated with the Museum had subjected them to three- dissenting statement to the working group argued that dimensional imaging to extract material enabling future its recommendations still did not adequately balance ‘the molecular analysis. These recommendations were made in public benefits deriving from medical, scientific and other spite of the fact that the TAC had already declared that these research…and the wishes of claimant communities’.8 procedures were explicitly against their wishes.10 Further, Rather than enacting a licensing system, the Government the advisory panel concluded that while there was no doubt advised the Department for Culture, Media and Sport to that these remains had been procured by ‘theft and looting undertake further consultations with museums to develop of the dead’, that ‘Documentation indicates that these non-statutory guidelines for the management of remains. It remains were acquired legally by the NHM as donations or was anticipated that such measures would ideally go some transfers of collections from other institutions…’11
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III How Australian Ancestral Remains were in 1862, were the last remaining at the site. Further, as the Originally Procured collector informed Rolleston’s former student:
The Museum of Natural History came to possess nearly all of If you should wish to have any more skulls I may have the remains sought by the TAC and other Indigenous parties opportunities of obtaining some, but at present I do not in 1946, 1955 and 1968. They are actually remnants of three know for certain of any place where I could get some. Those earlier collections. The Oxford University anatomist George from freshly dead natives would of course be most valuable, Rolleston (1829-1881) created one of these collections, & those I do not know how to get. I think I would undertake between, roughly, 1850 and the late 1870s. The second, to clean them myself if I had them, as I have often prepared generally known as the Williamson Collection, was formed the skulls of lower animals.15 by the Army Medical Department between the 1820s and the late 1850s. The third is what survives of the Australian Around 1870, Rolleston received the complete skeleton of a remains held by the Royal College of Surgeons, which was man from the Port Augusta region of South Australia from hit by a German aerial mine in 1941. another former pupil, J Marshall Stokes, who informed Rolleston that the man had died the previous year. Also in Archival evidence exists at Oxford, at the Library of the Rolleston’s hands by 1872 was a skull procured from a burial Royal College of Surgeons and in the Library of the Natural place on a sheep station (ironically named Oxford Downs), History Museum that affords many insights into how these 130 kilometers west of Mackay in central Queensland. George remains were originally procured. At Oxford, Rolleston, Marten, who had been an undergraduate at Pembroke the Linacre Professor of Anatomy and Physiology, oversaw College in the early 1860s, had obtained the skull for him. the transfer during the early 1860s of about 600 ‘national In sending the skull, Marten wrote that he would be ‘glad crania’ from the anatomical museum of the Army Medical to know if there is [sic] any special objects of interest that I Department. From this source, Rolleston acquired the might be in the way of procuring in Queensland’ and that he remains of three or possibly four Tasmanians that were and his fellow colonists would be ‘glad to do anything we ultimately presented by Oxford to the Natural History could in the cause of science’.16 Museum in 1946.12 While successful in securing remains from the Australian The Natural History Museum was also the eventual recipient mainland, Rolleston was personally unable to add to the of remains that Rolleston secured by two other avenues. Tasmanian remains that came into his custody from the One was through his elder brother, Christopher Rolleston Army Medical Department, though six years after his death (1817-1888), who was appointed as Commissioner of Crown in 1881 a Tasmanian skull was donated to the collection he Lands in New South Wales in 1842, and who by the late had assembled, and a second had been acquired by 1927.17 1850s held pastoral holdings in central Queensland. Among the specimens yielded through this family connection were As well as receiving what subsequent Oxford anatomists four skulls of Kairi people, described by the elder Rolleston preserved of Rolleston’s Australian collection,18 in 1955 the as ‘Native Blacks about my station on the Comet River some Royal College of Surgeons transferred those of its Australian 200 miles inland from Rockhampton…’13 The other means remains that were not destroyed in the bombing of its premises by which George Rolleston secured remains was through in 1941 to the Natural History Museum. The surviving former students practicing medicine in the Australian material included items acquired by the College in the early colonies. In 1869, for example, he received the skull of a 1880s on the death of Joseph Barnard Davis (1801-1881), Wiradjuri woman from H.M. Rowland, a physician in the the most energetic collector of crania in Victorian England. Bathurst district. The skull had been removed from a burial Davis began enlisting the help of colonial administrators place unearthed during the clearing of scrub.14 In the same and medical practitioners in the 1850s to procure crania year, he received a case containing five skulls from another of European, Asian, Oceanic, and particularly mainland former pupil residing in Adelaide, who had employed a Australian and Tasmanian origins. As one medical colleague local natural history collector to secure him skulls from a recalled, ‘Davis’s enthusiasm for his subject was wonderful, traditional burial site near the Murray River entrance. Two but sometimes it verged on the ghoulish…. [He] looked on of the skulls, belonging to a man and his wife only buried heads simply as potential skulls’.19 Davis had no qualms
(2007) 11(1) AILR 95 about encouraging the theft of Tasmanian skulls during post- and at least six crania, two of which were most likely procured mortems or from graves in the cemetery reserves established by post-mortem dissection at the Aboriginal settlement on by the colonial legislature at the settlements on Flinders Flinders Island.25 Not content with receiving one skull as a Island and Oyster Cove (where Indigenous Tasmanians had gift from the elderly Robinson, Davis sought to acquire all been exiled after being forced from their ancestral lands these remains together with the protector’s copious journals during the infamous campaigns of the 1820s). As Davis after his death in 1866 - though Robinson’s family refused to informed one correspondent in 1856: ‘Were I myself in the part with them.26 colony, I could with very little trouble abstract skulls from dead bodies without defacing them at all, and could instruct Davis found Tasmanian remains harder to obtain as a result any medical gentleman to do this’.20 of the infamous affair of the post-mortem mutilation of William Lanne, allegedly the last man of the Tasmanian race. By the late 1860s, Davis had acquired the remarkable Lanne’s corpse became the focus of scientific rivalry in 1869 number of 16 Tasmanian crania and the complete skeleton between the Hobart surgeon William Crowther (1817-1885), of a 30 year old Tasmanian man. He bought several skulls who sought to procure the skeleton for the Royal College at sales but acquired others through contacts with colonial of Surgeons in London, and leading members of the Royal administrators and medical colleagues. They included Joseph Society of Tasmania. The mutilation of Lanne’s corpse by Milligan (1807-1884), the superintendent and medical officer the competing camps caused widespread public outrage of the Flinders Island and Oyster Cove settlements between over the willingness of medical authorities to illegally secure 1843 and 1855, who had kept Tasmanian remains he came anatomical specimens, regardless of race.27 The scandal across in the course of his duties. Having retired to England meant that few amongst the colony’s elite were henceforth by the early 1860s on a meagre colonial pension, Milligan prepared to risk being implicated in the procurement of body was well aware of the value placed on bones in metropolitan parts through dissection or the exhumation of graves. anatomical circles but was loath to be seen as trafficker of human remains.21 Davis regarded one of the skulls he While the Lanne affair greatly restricted both inclination had bought from Milligan as perhaps the finest and most and opportunities to procure Tasmanian remains, Davis perfect specimen in any museum, and ‘of great rarity and was fortunate that one of his Tasmanian correspondents was value’.22 It was from a Tasmanian man aged about 24 who prepared to risk moral censure and possibly prosecution had been killed in 1831 during an attack on a shepherd’s hut for grave robbing. This was Morton Allport (1830-1878), a in Tasmania’s Surrey Hills. Several other specimens Milligan Hobart lawyer and prominent member of the Royal Society of sold Davis bore testimony to the viciousness of frontier Tasmania. Davis’s connection with Allport led to his receipt of conflict in Tasmania, notably the skull of a woman Milligan a skull and bones in May 1872 that Allport had taken ‘no small secured after being told by ‘an Aboriginal lad…that his party, trouble to see…were disinterred from a spot where none but some years before, had been fired into by a white man, when other Aborigines were buried’ in the cemetery of the Flinders a woman was injured, had her head chopped off and the Island settlement. The following January, Allport sent news woman was buried’.23 This skull is amongst those now in the that he had secured ‘a treasure for you in the shape of an custody of the Natural History Museum. adult male skeleton of Tasmanian native all but absolutely perfect except as to the styloid processes which always Davis’ quest for Tasmanian specimens also led him to seem very fragile’.28 However, this was to be one of the last cultivate the friendship of George Augustus Robinson (1791- skeletons that Allport removed from Flinders Island. After 1866), Tasmania’s first Protector of Aborigines, who by the remains stolen from the Flinders Island cemetery had been early 1860s had retired to the English spa town of Bath. While discovered when a packing crate of ‘geological specimens’ commandant of ‘Wybalenna’, the Aboriginal settlement on was opened by government authorities, Allport began to fear Flinders Island from 1835 to 1839, Robinson supplied skulls that the Tasmanian government was determined to enforce from the many who died there for a private collection of the law and protect the graves in the settlement’s cemetery.29 Tasmanian ‘curios’ being assembled by Lady Jane Franklin (1791-1875), wife of John Franklin (1786-1847) the ill-fated Among the skeletons that Allport stole from the Flinders polar explorer who was governor of Van Diemen’s Land from Island cemetery was the near complete skeleton of a 1836 to 1843.24 Robinson also acquired for himself a skeleton Tasmanian man that he presented to the Anthropological
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Society of London in 1873. The skeleton is now among the and protected from violation. Sentiments identical to those of remains at the Natural History Museum sought by the TAC. Ralph Clark, Lieutenant of Marines with the First Fleet are to be found in many sources dating from the first years of British IV Legal Rights and Social Attitudes of the Period settlement to the turn of the twentieth century. Encountering a skeleton in the upper reaches of Sydney Harbour in While the Natural History Museum maintains that it February 1790, he returned with the head for the purpose of acquired Tasmanian and mainland Australian remains determining whether it was that of a convict or Indigenous legally, surviving archival evidence reveals that they were person. It was thought that it was Indigenous, and Clark was originally procured between, roughly, 1820 and the years asked to give the skull to the colony’s surgeons for dispatch following the First World War, in unlawful circumstances. to London. Clark, however, declared he ‘…would not - I told The English and common law prevailing in the Australian the Surgeons that I should carry it back and collect the rest of colonies when these remains were procured recognised the the Bons [sic] and Bury them and the Head.’33 right of the dead to burial and protection from post-mortem violation.30 When the remains in these three collections When the remains now in the custody of the Natural History were procured, disinterring human remains from any place Museum were originally procured, English and common law of burial or denying burial without lawful authority were in respect of death and burial reflected the cultural primacy common law offences. So too was the supply or sale of body of Christian belief and tradition. Courts generally spoke parts by men such as George Augustus Robinson, who were of the right to Christian burial in a churchyard or parish entrusted to ensure that the bodies of Tasmanians dying in cemetery.34 However, in British settler colonies native peoples government care were treated as their relatives and the law were recognised as having a lawful right to bury their dead demanded. in ancestral burial places in accordance with tradition. For example, when the imperial government sought in the 1830s Admittedly, the legal rights of the dead were disregarded to define and protect Indigenous proprietary title to the soil, as a result of the interplay of scientific ambition and the notably in the context of South Australian settlement, it also increasingly pervasive influence of racial ideology through recognised native rights to bury the dead in accordance with the nineteenth century. However, it is important to see tradition. The official instructions given in August 1837 to that even during the period itself, the erosion of colonial William Wyatt, on his appointment as ad interim Protector of recognition of Indigenous people’s rights in respect of death Aborigines in South Australia, charged that: and burial was a contested and controversial process.31 If, on becoming acquainted with the habits and customs During the first half-century after the establishment of the of the Aborigines, you should find that in any part of the New South Wales penal colony, European observers of country they are in the practice of making use of land for Indigenous cultural practices were struck by how seriously cultivation of any kind, or if they have a fixed residence on relatives and descendants of the dead took their obligations any particular spot, or if they should be found to appropriate to ensure burial within ancestral country and with the any piece of land to funereal purposes, you are required to report appropriate mortuary ceremonies. Indeed, many noted such fact to the Colonial Government without loss of time, in that while Indigenous communities lived by hunting and order that means may be taken to prevent its being included gathering and generally did not set aside land for the con in the survey for sale [my italics]. It is essentially necessary struction of permanent dwellings, they nonetheless took that the natives should be convinced that on all occasions great care to erect substantial structures on land reserved they will meet with full and impartial justice. 35 for burial. Written and visual records of funerary structures figure prominently in the records of inland travel compiled As it transpired, Wyatt and his immediate successors in the by early surveyors and explorers.32 Admittedly, desecration of office of Protector failed to report any instance of land being graves under the impetus of scientific curiosity began within used by Indigenous communities for burying their dead. The months of the establishment of the Port Jackson settlement in hunger of newly arriving settlers for land outweighed local 1788. However, numerous colonists in various walks of life concern for the rights of the crown’s Indigenous subjects in condemned the practice, believing that Indigenous people this respect. Moreover, by the early 1840s imperial policy in were legally entitled to ensure the dead were decently buried respect of Indigenous people reflected the growing cognitive
(2007) 11(1) AILR 97 strength in both British metropolitan and colonial society of Molong district which they believed to be that of a ‘king or the idea that Australia’s Indigenous population was destined great chief who had been buried with various artifacts’. In by virtue of biological inferiority to racial extinction. During the letter, the girls inquired whether ‘the government would the second half of the 19th century and early decades of the pay someone to dig them up and if so, would they let us have 20th century, the rights and freedoms of Indigenous Australian just one thing for our collection’.39 Etheridge annotated the people were progressively curtailed by ‘protective’ policies letter as follows: and legislation.36 Nonetheless, a wealth of archival evidence survives from this period revealing not only did Indigenous It will be as well if Prof. David inform his lady correspondents communities seek to protect the dead from scientific grave that ‘disinterring a dead body’ is a misdemeanor at Common robbers, but that opinions within settler society about the Law, & punishable by fine or imprisonment, or both. It morality and legality of procuring Indigenous remains for matters not whether it be an old or recent burial. The clause scientific ends differed markedly. applies to both & I am personally acquainted with a case in which an individual was fined for disinterring aboriginal This is vividly illustrated by correspondence in the Australian remains.40 Museum, concerning an occasion in 1892 when Gundungarra people in the Wollondilly region of New South Wales sought Yet ironically, even whilst recognising the criminality of this to exercise their lawful right to protect the dead from conduct, Etheridge himself continued to have Indigenous violating conduct. In that case, Robert Etheridge (1846-1920), graves exhumed for the Museum. 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 V The Conceptual Limitations of Legally Treating in the vicinity of the Burragorang Valley. Shortly afterwards, Indigenous Ancestral Remains Merely as Edward Pierson Ramsay, the curator of the Museum, learnt Objects from H J McCooey, an amateur ethnologist and collector of artifacts living in the region that Gundungarra men had gone As is evident from the case for continued scientific preservation to see a police magistrate to reclaim the remains. McCooey made by personnel of the Natural History Museum, the was distressed that they believed he had plundered the grave. scientific assumptions and practices of contemporary Ramsay had widely encouraged the procurement of remains researchers with interests in Indigenous remains are radically for the Museum by grave robbing since his appointment different from those historically implicated in the desecration as curator in 1876, but on this occasion he was sufficiently of the Indigenous dead. Indeed, over the past decade or so worried to alert Etheridge. Etheridge assured Ramsay that new technologies, such as computer-based comparative McCooey appeared ‘indignant over a very small matter…’ examination of bone structure and DNA analysis are and that he (Etheridge) was ‘quite prepared to return to the beginning to yield hitherto unknown facts bearing on the District & investigate several other interesting occurrences course of human evolution and prehistoric migration.41 As known to be there’.37 This was where the affair ended. If the these new technologies evolve, new information about the Gundungarra men did indeed approached the magistrate origins and early history of humanity might well be disclosed then he appears to have taken no action.38 using Indigenous Australian remains.
After he succeeded Ramsay as curator in 1895, Etheridge But the overwhelming majority of remains still held by appears to have thought it wise to warn those within the scientific institutions in the United Kingdom, including large network of the Museum’s collectors that exhuming those held by the Museum of Natural History, are those of graves was an indictable offence. However, he saw scientific individuals who died after 1788. Those few that are not are procurement of remains as more important than observing at most 500 years old. It is therefore difficult to understand the law. Indeed, he was ready to exploit the existence of the what might be found from analysing these remains that could law to secure remains for the Museum. In April 1910, he not be learnt from their living descendants- assuming those received a letter from two young girls via T W Edgeworth descendants were agreeable, and that British researchers David, Professor of Geology at Sydney University and one were prepared to comply with the ethical guidelines that of the Museum’s trustees, telling of a mound grave in the their Australian counterparts follow when conducting bio-
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medical and archaeological research in collaboration with they come from dissecting rooms, they come in violation of Indigenous communities. the law.46
Even if we grant that Indigenous Australian remains held He went on to set out that while possession of a corpse for by the Natural History Museum might be used to benefit all scientific ends might not be ‘…a misdemeanour…or unlawful humanity by enriching our understanding of our common in the sense of being an offence’ a right to possession for history in ways that the living cannot, the cost of doing so purposes other than burial ‘…seems to me to be just the thing is the devaluing of cultural practices fundamental to the which the British law, and, therefore, the New South Wales Indigenous continuum of self, life in the land and eventual law, declines to recognise.’47 Even so, Higgins J conceded return to the realm of the spirit. that:
The TAC maintains that the National History Museum can Sundry contraventions of the strict law as to dead bodies are make no legal claim of possession beyond being a mere winked at in the interests of medical science, and also for the custodian of the remains, and have found some legal support practical reasons that no one can identify the bones or parts, for this position. On 9 February 2007 the Tasmanian Supreme and that no one is interested in putting the law in motion.48 Court declared that the TAC has a legal right to possession for the purpose of decently burying remains of the 17 Now concerned to ‘put the law in motion’, the TAC must Indigenous people held by the Museum. Citing Williams confront the High Court of Australia’s finding in 1906 that: v Williams (1882) ChD 659, the Court held that, ‘…the law in this country is clear, that after the death of a man, his A human body, or a portion of a human body, is capable in executors have a right to the custody and possession of his law of becoming the subject of property…when a person has body (although they have no property) until it is properly by the lawful exercise of work or skill so dealt with a human buried.’42 However, the problem for the TAC is whether body or part of a human body in his lawful possession this right extends to allowing it to repossess remains for that it has acquired some attributes differentiating it from reburial that were unlawfully exhumed but have since a mere corpse awaiting burial, he acquires a right to retain become scientific specimens. The question was considered possession of it.49 in the 1906 case of Doodeward v Spence,43 where Griffith CJ observed in one of two majority judgments that there was ‘no The archival evidence in this paper strongly suggests that the law forbidding the mere possession of a body…for purposes majority of remains held by the Museum of Natural History other than immediate burial’44 and: were procured by grave robbing, and not through means of lawful acquirement. On the contrary, men such as Etheridge, Many valuable collections of anatomical and pathological Davis, Milligan, Robinson knew they were breaking the law specimens or preparations formed and maintained by in plundering Indigenous burial places, but did so in the scientific bodies, were formed and are maintained in violation belief that the acquisition of scientific knowledge justified of the law….In my opinion there is no law forbidding the unlawfully violating the dead - what Etheridge dismissed as mere possession of a human body, whether born alive or ‘a very small matter.’ Moreover, despite colonial erosion of dead, for purposes other than immediate burial. A fortiori Indigenous freedoms and rights, those who procured these such possession is not unlawful if the body possesses remains rarely treated them merely as objects or things. attributes of such a nature that its preservation may afford Rather, they continued to invest them with the identity of valuable or interesting information or instruction.45 the people from whose bodies they been obtained, albeit one conceptualised in perniciously racialist terms.50 Finally, in the Justice Higgins gave a dissenting judgment in the case, case of remains that may have been procured during post- arguing that: mortems on the Flinders Island Settlement, it is questionable whether they were given attributes by ‘the lawful exercise of We have not been referred to any instance in which any work or skill’ distinct from that of a body destined for burial. British Court has recognized a human skeleton as property. In most instances they were simply cleaned of dirt and Such traffic as there is in skulls and bones is clandestine. If decayed soft tissue, catalogued and rarely if ever examined by researchers before the 1990s.
(2007) 11(1) AILR 99 What may add weight to the TAC’s case is that, ironically, aiding Indigenous communities to overcome the social and legal recognition of property rights in the body has evolved psychic damage wrought by colonialism.55 within the common law jurisdictions of the United States and Canada in favor of executors wanting the return of remains Since the mid-1970s, the TAC and other Indigenous for reburial. While not formally acknowledging property Australian representative bodies have argued vigorously rights, a ‘quasi-property’ right to have a body reburied was that repatriation needs to be understood in this wider recognised in a United States court decision of 1870.51 This context, drawing attention to the recognition in international in turn influenced the Supreme Court of Alberta’s Appellate law and draft declarations by the United Nations of their decision in Waldman v Melville (City) to recognise a ‘pseudo- rights to ownership and enjoyment of their culture and property’ right of executors extending their common law religion.56 The Natural History Museum for its part has right to bury a corpse after burial, reasoning that ‘otherwise come to recognise the moral weight with which the claims it would be an empty right and…those who oppose the of Indigenous communities on remains they hold have executor could disinter the body as soon as it was buried’.52 assumed beyond the courts. However, given the prevailing legal tendency to conceptualise the fate of remains as best VI Conclusion decided by resolving their ownership in narrowly defined terms, it would seem difficult for the TAC to prevent the It remains the case that the TAC and other Indigenous remains of the 17 individuals currently held by the Museum Australian claimants seeking to fulfill their obligations being returned without being subjected to scientific testing, to the dead are greatly disadvantaged by being obliged to unless by mediation they are able to convince the Museum negotiate using a conceptual vocabulary in which, contrary Trustees that this would be a violation of ancestral religion to their own religious beliefs and customary law, bodily and law morally akin to the assumptions and practices of remains are construed as objects, the fate of which is best those who originally procured these remains. determined by judicial recourse to narrow, private law conceptions of ownership. As McEvoy and Conway have Endnotes recently observed: * Paul Turnbull is a Professor of History at the Centre for Public As an organising concept, ownership provides a familiar Culture and Ideas at Griffith University. template around which to shape competing claims. It denotes 1 Cressida Fforde, Jane Hubert and Paul Turnbull (eds), The Dead important notions including status, possession, control, and and their Possessions: Repatriation in Principle, Policy and the exercise of legitimate authority to the exclusion of all Practice (2nd ed, 2002) 3. others. It facilitates a necessary process of detachment from 2 Ibid. contests which are often socially and emotionally fraught 3 Steve Connor, ‘Alarm Raised Over Return of Human Remains’, and a retreat to legal formalism traditionally associated with The Independent (London), 16 May 2003, 12. such private law concepts.53 4 Michael Mansell, interviewed by David Langsam, ‘Quest for the Missing Dead’, The Guardian (London), 24 February 1990, 23. While established private law constructs of ownership may be 5 10 Downing Street, ‘Prime Ministerial Joint Statement on effective in resolving the kinds of disputes over human bodies Aboriginal Remains’ (Press Release, 4 July 2000) 100 Vol 11 No 1, 2007 S c i e n t i f i c T h e f t o f R e m a i n s i n C o l o n i a l a U s t r a l i a 42F8–A728–067CE53062EA/0/wghr_reportfeb07.pdf> at 11 April 1866, Mitchell Library, Sydney MSAA7089, vol. 68[a], f.517. See 2007. also, Joseph Barnard Davis, Thesaurus Cranorium: Catalogue of 9 UK Department for Culture, Media and Sport, Guidance for the the Various Races of Man, in the Collection of Joseph Barnard Care of Human Remains in Museums (2005), 5 (2007) 11(1) AILR 101 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) 2 QB 246. 43 Doodeward v Spence (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). 102 Vol 11 No 1, 2007 COUR T A N D T RI B UNAL DECISIONS