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UNEARTHING RACIAL NECROGEOGRAPHIES...
savage practices varied with existing superstitions and while some savage
tribes disinterred the bodies of their dead, generally — and particularly in
enlightened eras — it has been the practice to perpetuate the right of burial by
protecting the grave from subsequent violation.” It is particularly interesting
that Jackson’s text was written at a time when Anglo-Americans and Anglo¬
Canadians were engaging in widespread and well-known disinterment of
Black people for dissection, and Indigenous people for pseudoscientific and
phrenological study.
In Canada, provincial governments have, according to section 92 (13) of
the Constitution Act, 1867, jurisdiction over “Property and Civil Rights in the
Province”, which includes cemeteries.*° Section 101.1 (7) of Ontario’s Funeral,
Burial and Cremation Services Act, for example, delegates to municipalities
(or the Crown in areas where there is no municipality) the responsibility to
protect and maintain cemeteries considered abandoned.*! For re-discovered
burial sites, Section 94 of the Act prohibits any person to “disturb or order the
disturbance of a burial site or artifacts associated with the human remains.”
The area of Aboriginal law (or American Indian law in US contexts) provides
a unique dimension to the issue of legal protections of spaces of burial. While
the US federal government passed the Native American Graves Protection and
Repatriation Act (NAGPRA) in 1990 after bitter struggles by American Indian
tribal governments, in Canada “there is no overarching federal legislation
governing the rights and issues of an Aboriginal heritage and burial site,”*?
the federal government having constitutional responsibility “for ‘Indians,
and Lands reserved for Indians’ under section 91(24) of the Constitution Act,
1867.”°3 The widespread desecration of Black community cemeteries suggests
an egregious failure on the part of municipalities in Ontario to extend their
protective responsibilities over them. And the federal government’s failure
to protect Cheslatta cemeteries and other Indigenous sites likely constitutes
a violation of its constitutional fiduciary duties towards status Indians and
their lands. The uneven application of protections points to what scholars
have termed a pattern of “inequity and the dead” that is distinguishable
along racial lines.
® Jackson, The Law of Cadavers, 101.
5° Anishinabek Nation, A Toolkit for Understanding Aboriginal Heritage & Burial Rights &
Issues, North Bay, ON, Union of Ontario Indians, 2015, 10.
51 Funeral, Burial and Cremation Services Act, 2002. S.O. 2002, Chapter 33, Section 101.1 (7).
52 Anishinaabek Nation, A Toolkit, 9.
58 Ibid.
54 Stroud, Law and the Dead Body, 122.
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