December 10, 2016 Urban Lawyer

Sacred in the City: The Huron Indian Cemetery & the Preservation Laws

by John W. Ragsdale, Jr.

John W. Ragsdale, Jr. is a William P. Borland Professor of Law, University of Missouri - Kansas City School of Law; B.A. Middlebury College, 1966; J.D. University of Colorado, 1969; L.L.M. University of Missouri - Kansas City, 1972; S.J.D. Northwestern University, 1985. The author would like to dedicate this article to Janith English, principal chief of the Wyandot Nation of Kansas, who furnished inspiration and much help. Any and all mistakes are those of the author. The author would also like to thank Susie Bryan, Gloria Herron, Brad Allen and Lauren Wagner for help in the preparation of this article.

I.  Introduction

The Huron Indian Cemetery1 sits on a hill above the confluence of the Missouri and Kansas Rivers. It is several acres of predominant green, with grass, mature trees, and modest, weathered gravestones, surrounded by the sterile concrete of a struggling Midwestern city. Desultory businesses, colorless governmental offices, a casino, and strong evidence of poverty and vandalism lap at the shores of the small sanctuary. Yet despite the drabness and essential joylessness of the encircling faded modernity, the cemetery holds a surprising sense of peace and even timelessness.2 The serenity may seem incongruous, not only because of the tawdry surroundings, but also because of the cemetery’s chaotic history as a center of numerous legal and economic conflicts.

Perhaps the quiet dignity of the place may have been the source of the strength that enabled survival. It may have been a force that emanated outward and simultaneously drew energy and passion within.

This article will focus on the story of endurance and on the reciprocating feelings inspired by and invested in this unique burial place. It will deal with the general, perhaps inevitable, tension between the sacred and the profane3 — the clash between the emotion, solemnity, and repose of a spiritual site, the transformative calculations of economic and political expediency, and the law that may bridge that gap. It’s perhaps useful — or even necessary — to have some working conception of the sacred, especially if it is to be pitted against — or acknowledged within — the persuasive, dollar-based, cost-benefit analysis used by businesspeople, legislators, and courts. It is essential to have discourse or dialogue that advocates directly for the sacred rather than attempting to operate behind an opaque veil of unexplained and unchallengeable faith or emotion.4 It is also imperative for real discussion that economic realists avoid cynically or condescendingly questioning the relevance of all emotion or belief in intangibles. Thus, each side of the debate must avoid assertions for total definitional domination if compromise rather than capitulation is desired.5

One way to begin a discourse on the sacred is to acknowledge the absolute unfathomability of infinity, eternity, being, and nothingness.6 Science cannot explain nor, in all honesty, can our minds even comprehend space without end, the essence of timelessness, or creation emergent out of a void. We can profess an understanding of the abstract concepts but attempts at explanation chase a horizon line that always retreats beyond our grasp.7 Thus we are doomed to live on an island of tentative reality rather than one of absolute, discernible truth; although we may successfully attempt to ignore the infinite night that surrounds, it is still — always — there. It would seem that even the most fervent of realists, or brilliant of physicists, or dedicated deniers of God must contemplate the darkness beyond the light.8 There are, as they say, no atheists in foxholes.

Anglo-Americans and their European predecessors have tended to go aggressively about the business of living. They brought with them a focus on property, efficiency, and profit that exploded beyond community and custom and became a central personal and societal quest.9 This obsession led to a commodification of land and resources, a reduction of natural worth to monetary pricing, and a flattening of quality into quantitative and linear measurements.10 In short, exponential economic growth became the secular religion of the new nation.11 Formal religion was conscripted into the cause of authorizing the subjugation of the natural; the sacred was confined behind the walls of the churches, and within the prayers for eternal salvation after death.12 Eventually the United States Constitution would enshrine this secular religion, though the Declaration of Independence would link it to God’s will.13 The Constitution itself would forbid (1) the government’s  establishment of religion; (2) the interference with its free exercise; (3) the retroactive impairment of contract; and (4) the taking of private property for public use without the payment of just compensation.14

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