The more global, knowledgeable, and ethically reflective we become, the more challenging it becomes to figure out how to manage access to human remains and artifacts obtained without our contemporary concept of informed consent. But some attempts to do the right thing are so extreme in terms of restrictions, scholars and educators are essentially prohibited from entire areas of research.

Following tips from faculty, our friends at FIRE recently objected to one such extraordinary case at California State University. On May 9 of this year, a draft of a new Cal State system-wide policy was released effectively banning the use of even images or replicas of Native American human remains or cultural items in research and teaching. (See p. 19 of this PDF.)

The new “guidance” would have stopped an instructor from doing so much as showing a sketch of a centuries-old Native American basket in teaching the history of the indigenous people of the area unless the instructor obtained “consent” – a process that, in practice, could be virtually impossible because of the challenge of identifying who is even authorized to give that consent.

FIRE attorney Ross Marchand explained to me in a recent phone interview that the problem arose from an overly restrictive reading of the newly updated regulations associated with the federal law known as NAGPRA (the Native American Graves Protection and Repatriation Act). NAGPRA regulates institutional treatment of human remains and artifacts, not images or replicas. After FIRE objected to the Cal State interpretation in a June 5 letter, an updated policy became effective throughout that higher ed system on July 1. That current policy does not require that informed consent be obtained for the use of images and replicas.

Instead the policy makes a recommendation: “As a best practice, it is recommended that campuses obtain free and informed consent in writing from lineal descendants, all culturally affiliated or potentially culturally affiliated federally recognized Indian Tribes or NHOs before using, reproducing, or distributing images or replicas of Human Remains or Cultural Items that are or were in campus holdings or collections.”

“The mandatory requirement became voluntary or aspirational,” Marchand observes about this line. “We maintain that this voluntary language is permissible.”

Unfortunately, the Los Rios Community College District, in the Sacramento area, is presently using the much more restrictive approach that Cal State nearly did. Marchand is working on trying to change that now. Says Marchand, the District is claiming it can’t change the policy without approval from tribal partners.

“The practical effect” of these highly restrictive policies, Marchand told me, “is to discourage professors from even bothering” to try to teach the history of Native Americans. “This is a tremendous disservice to students” and to science, he said.

The history of what happened to many Native American individuals and groups at the hands of European settlers and their descendants includes horrible slaughters like the massacre at Wounded Knee and institutions like the boarding schools designed to crush Native cultures. If you know even a small portion of this history, it’s impossible not to understand why care and sensitivity are called for.

But one unintended consequence of denying the sharing of even images of cultural artifacts can be that the history as a whole simply goes unexamined and untaught.

Marchand noted that restrictions on the use of human remains and cultural artifacts themselves are still in place at Cal State and elsewhere. “Reasonable control on artifacts is understandable,” he said. “If a museum affiliated with a university has a skull,” for example, “it makes sense to have established procedures to take out that skull and show it to students. But it’s another thing to have a prior-approval requirement for images and replicas.”

The small victory at Cal State doesn’t, of course, address the wider problem faced by physical anthropologists and archeologists trying to carry out scientific research and teaching. When I asked for a read of what had happened at Cal State, one archeologist (who asked to stay anonymous out of concerns of reprisal) raised other concerns about over-interpretations of the federal law. For example, some are choosing to read “Native American” as meaning all indigenous peoples of the western hemisphere, although NAGPRA in fact refers to peoples of what is now land of the U.S. And then there is the problem of “homogenization of individual tribal beliefs about and treatment of the dead.”

With some journal editors declaring certain images verboten, what was thought of as a scientific field has become a political minefield. “There is no doubt,” the archeologist told me,“ that legislation and misinterpretation of legislation has had an impact on physical anthropology and its ability to do paleoanthropology in the United States. Many who studied Native American human remains migrated to more acceptable and less contentious arenas such as pathology, anatomy, medically related research, or forensics.”

Anthropologist and Heterodox Academy member Elizabeth Weiss has been at the forefront of arguing for researchers’ right of access to remains and artifacts, finding that “the repatriation process has caused the cessation of human remains research at California’s public universities.” (Disclosure: Weiss’ work is published in the Journal of Controversial Ideas, on whose editorial board I serve.)

A desire to get the ethics right is driving many museum curators to shut down or selectively obscure exhibits about Native American peoples that might contain contentious artifacts. This has happened, for example, at Chicago’s Field Museum and New York’s American Museum of Natural History.

And the issue is impacting not just artifacts and remains identified as Native American but also non-Native collections in medical museums, as was explained by historian of medicine Michael Sappol in the most recent of HxA’s periodical, inquisitive. Sappol and other researchers have been denied access to specimens derived under questionable – or morally outrageous – means decades or centuries earlier.

“Museum directors and curators are walking on eggshells,” Sappol writes. “And, while all this is happening, laws that regulate medical research and records — enacted by officials who have no particular knowledge of medical history and scholarship — are also messing with the collections.”

Sappol makes a plea as an historian and an appreciator of these collections: “The objects of our legacy anatomical museums are artifacts and not just ‘human remains’ or ‘medical specimens.’ The medium is human flesh and bone. But also glass, wax, wood, preservative fluids and other materials. And some specimens are masterpieces of skilled dissection, artisanal craft, and technical ingenuity — as much a part of Enlightenment and post-Enlightenment culture as brilliant works of painting, metallurgy, and architecture — and just as worthy of preservation, display and scholarly examination.”

A recent issue of The New Yorker traced out tussles at Philadelphia’s Mütter Museum. There, the pendulum has swung from something of a free-for-all approach to extreme self-shaming. It’s lately been swinging back towards the middle.

“The way this controversy has been depicted is that you either need to commit yourself to ethics or you need to commit yourself to being a place of morbid fascination,” Sara Ray, an historian of science helping to run the Mütter, told The New Yorker. “We think there’s a secret third way, which is that you can actually do both of those things.”

Whether that is really possible remains to be seen. Part of the challenge will be deciding tricky questions of who counts as worthy of access. Specialist scholars affiliated with colleges and universities? Students in specific types of programs? Those with some biological claim to a connection? The general public?

Looking to avoid offense and further harm, some try to take the narrowest, most restrictive approach. But that doesn’t in fact quell controversy, nor does it honor the value of knowledge-seeking as a core human endeavor.

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