Respect for the dead at the village of Tse-whit-zen

The Washington State Department of Transportation did the right thing when it stopped construction at a site that turned out to be a massive Indian cemetery and cultural site.

As construction associated with the Hood Canal Bridge repair project commenced, the remains of people who had been at rest for hundreds of years were uncovered. The remains — just a few at first and then increasing into the hundreds — were discovered at the village of Tse-whit-zen, in Port Angeles.

The village stood for over 1,700 years, until it was destroyed in the 1920s to make way for a lumber mill.

The state has wisely walked away, despite spending a reported $58 million on the dry-dock project, because it recognized the cultural and historic importance of the site. The state also avoided the years of litigation over the alleged failure to comply with a variety of federal and state laws that protect cultural and cemetery sites.

The action manifests another step toward increased respect and cooperation toward the aboriginal people who have occupied what is now Washington state for thousands of years.

That respect was sorely lacking in the not-too-distant past.

In 1868, the U.S. surgeon general issued an order to all Army field officers to send him Indian skeletons. The order was intended to facilitate studies to compare Indian and non-Indian cranial capacity and demonstrate an assumed white superiority.

This was part of a concerted effort to justify the taking of Indian lands and to advance the anticipated disappearance of Indian nations through forced assimilation and military conquest. It kicked off an era in which the 150 million-acre base of Indian lands that had been "guaranteed" to Native American tribes was reduced by over 100 million acres.

The surgeon general's order and a general attitude that American Indians were inferior because they were not Christians, or otherwise "civilized," touched off a frenzy of grave robberies to obtain Indian artifacts for private and public collections. Over time, the notion that desecration of Indian cemeteries and remains was acceptable became morally reprehensible to Americans.

This change in mind-set is reflected in the federal Native American Graves Protection and Repatriation Act of 1990, which was designed to protect Indian cemeteries and provide for the reburial and return of stolen bodies and burial goods.

Whether or not a halt to Department of Transportation construction at the village of Tse-whit-zen was required — because of the Grave Protection Act, because of the inadequacy of studies under the National Environmental Policy Act, or because of some other law — is not certain. But what is clear is that public policy embodied in federal and state laws, along with religious stricture, demand respect for the dead at the village of Tse-whit-zen.

The days of uprooting Indian cemeteries when convenient for non-Indian society should be long past. The state Department of Transportation showed a maturity of judgment by making the decision to stop the desecration of this Indian cemetery and cultural site.

Policymakers all too often refer difficult issues to the lawyers in order to determine "what must be done" in the eyes of the law.

Rather than aspiring merely to do the absolute minimum that the law might require, the state treated this as a moral issue.

Instead of asking, "What must we do?" the state asked, "What is the right thing to do?" — and did it.

This progressive and respectful attitude stands in stark and positive contrast to the government's policies of the past.

The future of the site is not clear. It is of historical value to all people of the state of Washington, but its spiritual and cultural value make it clear that any plans for its future should be made only with concurrence of the Lower Elwha Klallam Tribe.

The state Department of Transportation has already followed this course in abandoning its construction project at Tse-whit-zen and should be commended for making the right decision to protect this culturally important site.

Robert T. Anderson is an assistant professor of law and director of the Native American Law Center at the University of Washington School of Law.