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The consultation and decision on reburial of the Scottish Soldiers
© Durham University

The reburial and repatriation of human remains is the subject of active debate in the archaeology and museum worlds. Where the remains of indigenous communities in Australia, New Zealand and North America are held in museums, high profile cases have successfully called for repatriation to their community of origin. For archaeologists, the question of what happens to excavated human remains can only be answered by considering the circumstances of their discovery, the countries involved and their associated legislation. This varies from country to country.

People working on human remains have varying opinions about whether the remains should or should not be repatriated and reburied, ranging from no remains should ever be reburied to selective reburial. One compelling argument for retention is that if human remains are passed back for repatriation and/or reburial then new and informative data about the past is lost in the future if, or when, new techniques of analysis become available to the scientific community. This alone is considered to be sufficient justification for the retention of human remains for further study by some researchers. However, as the case of the Scottish Soldiers illustrates, there may be times and places when people feel strongly that reburial is the right thing to do.

In English law, there is no property in a corpse. In other words, a dead body has no ‘owner’. It is also not possible to assert rights of ownership over them in Scots law. Repatriating human remains from archaeological sites in England to Scotland (or to anywhere else in the world) has no legal precedent. The most widely practised solution in the UK is for reburied human remains to be interred as close as possible to where they were found and in line with the provisions set out by the original exhumation licence. This is what happened in the case of the remains of Richard III when a judicial review determined that the University of Leicester, as the exhumation licence holder, had followed due process in its decision-making about reburial and therefore there was no legal grounds for challenging its decision for local reburial.

Whatever was to happen next, it was clear that the University’s final decision on reburial needed to be ethically and morally sound, as well as legally compliant.

© Durham University
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Archaeology and the Battle of Dunbar 1650: From the Scottish Battlefield to the New World

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