Alida B. Soileau

Abstract

This Article examines the existing American frameworks for the disposition of human remains. Classified as “quasi-property,” no one can truly have an ownership interest in them. This piece proceeds by highlighting the shortcomings of the quasi-property designation. It asserts that the needs of the living, which generally trump the interests of the dead, include honoring and protecting the tangible remains of our ancestors. For this reason, the legal status of human remains must change.

Human remains are not just any kind of cultural artifacts. What were once living, breathing people are not akin to the Elgin Marbles of Greece or the Benin Bronzes of the Edo people. These regular artifacts are the mere fruits of human labor. Bones are what are left of the arms that carved the marbles and the hands that molded the bronzes. The idea that all human remains, as the most sacred form of cultural artifacts, are worthy of preservation follows from the widely accepted premise that all cultures are equally valuable. This is especially true with regard to the remains of historically disenfranchised groups, like the remains for enslaved persons in the American South, because our

This Article proposes creating “human heritage” as a new legal designation. This would confer upon all human remains the same level of protection that the Native American Graves Protection and Repatriation Act presently provides Native American remains, which are the exception to the rule that all human remains are quasi- property. Further, this Article sets forth an expansive federal framework designed to unify the existing state-by-state patchwork. These policy proposals aim to evince respect for the past while promoting more sustainable, green final dispositions for the future.

Please find a PDF copy of the article here.