The recent decision to proceed with the trial of a prominent Blanding couple for allegedly disturbing prehistoric human remains sets the stage for a test of policies that could ban all unauthorized "pot hunting" in Utah.
Seventh District Judge Lyle R. Anderson raised that prospect in a 12-page ruling Oct. 26 that ordered Dr. James and Jeanne Redd to stand trial April 12 on a felony charge of disinterring a buried dead body without a court order and trespassing on state trust lands, a misdemeanor.The Redds are accused of unearthing at least 14 human bones while searching for artifacts - such as primitive pots - at an Anasazi ruin near Bluff in San Juan County on Jan. 6, 1996. Anderson dismissed the charges against the Redds following a preliminary hearing last year, but prosecutors refiled the case.
After a second preliminary hearing, Anderson concluded that prosecutors had established probable cause to believe the Redds had disinterred human bones "that had once been buried."
The finding that the bones had been buried is important in light of a Utah Court of Appeals ruling last year that requires prosecutors to establish that bones disturbed in such cases were "intentionally deposited in the earth for the purpose of placing them in repose."
Anderson noted that in the Redds' first preliminary hearing, state attorneys presented no evidence that the bones at the Bluff site had been intentionally buried in the midden despite the fact that the law in question required it. At the second hearing on Oct. 8, prosecutors called expert witnesses who testified that prehistoric inhabitants of the Southwest often buried their dead in middens.
But the trial of the Redds is likely to put the state law on trial as well.
According to Anderson, the state's theory in the case "effectively bars all private excavation for artifacts on federal, state or private lands anywhere in the state of Utah."
And with an estimated 250,000 archaeological sites in San Juan County alone - most of which have associated burial sites - its impact may reach private homeowners as well as pot hunters, the judge suggested.
"According to the state, everyone who excavates such a site with knowledge that human remains are likely to be buried there violates (the law) if human remains are actually disturbed," Anderson said.
The law allows disinterment with a court order but offers no guidance as to when such an order should be granted, the judge said. State attorneys suggested orders should be granted under the same rules that govern exhuming human remains from cemeteries.
"According to the state, courts should deny a request from a landowner to be permitted to remove remains uncovered while excavating a building addition," Anderson said. "Apparently, the practice of halting construction to permit governmental authorities to inventory the site and reinter or deliver the remains to actual or possible descendants is insufficient to satisfy the demands of this law."
Anderson said his reading of the legislative history of the statute makes it clear that lawmakers applied felony penalties for abuse of a dead body to deter mutilation of recently deceased persons. The Leg-is-lature had an opportunity to follow the federal lead and impose felony penalties for those who excavate prehistoric artifacts and associated human remains from state and private lands when it enacted a law on those issues in 1992.
"It chose instead to impose only misdemeanor penalties for unauthorized excavations on state lands, and no penalties for excavations on private lands," Anderson said. "This magistrate does not believe the Legislature intended (the law) to prohibit and impose felony penalties for virtually all unauthorized excavations on state and private lands."
However, it's not what the Legislature intended but rather what it said that matters, Anderson said.
"The state presents a substantial argument that the statute in question does not distinguish between bodies buried in privately and publicly owned and maintained modern cemeteries and bodies buried hundreds or thousands of years ago in unmarked graves and left behind during a mass migration not fully understood today," the judge concluded.
"For purposes of this hearing, the magistrate assumes that the statute extends its protection to all graves of every age."