Is it legal to buy and sell real human skulls?
DISCLAIMER: This blog post should not be considered legal advice. Please consult with an actual attorney if you need legal advice rather than relying on a blog post you found on the internet.
(This article deals only with United States law. The legality of obtaining real human skulls in Canada will be discussed in a separate blog post.)
Is it legal to buy, sell, or possess real human skulls in the United States?
Within the United States, buying, selling, and possessing real human skulls or other body parts is legal in most situations. It might be surprising that American lawmakers would choose to permit the trade in human bones. But in most cases lawmakers did not expressly decide to allow people to buy and sell real human skulls. They merely failed to pass a law prohibiting that activity.
The Legality Principle:
In the American legal system everything which is not expressly prohibited by a specific statute is allowed. No one can be punished for doing an act if the act was not prohibited on the day they did it, even if the act was morally wrong. This is known as the “Legality Principle.” Any law or governmental action which violates the Legality Principle is a violation of the US Constitution’s prohibition on ex-post-facto laws.
The Legality Principle is meant to prevent the government from attacking its enemies through the criminal justice system. It also maximizes individual liberty and provides a check on the power of police and prosecutors. Without the legality principal, anyone who did something that angered the government or law enforcement community would be at risk of arbitrary arrest and prosecution. The downside of the legality principle is that the government cannot punish every person who does some immoral thing that the government hasn’t gotten around to making illegal. The Framers of the US Constitution considered this trade-off to be worth the cost, as did the founders of most other western democracies.
So, because the U.S. Federal Government never passed a law prohibiting the purchase, sale, or possession of real human skulls, Americans can usually engage in these activities without fear of prosecution. The federal government and some state governments have passed a few laws which make buying or selling a real human skull illegal in certain situations. Some of these laws are discussed below.
Native American Graves Protection and Repatriation Act (NAGPRA)
The Native American Graves Protection and Repatriation Act of 1990 is a federal law which required museums, collectors, and other individuals in possession of Native American remains, funerary objects, and other items of cultural patrimony to return them to the relevant Native American tribe. NAGPRA also created the crime of “illegal trafficking in Native American human remains and cultural items.” The law reads:
Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession to those remains as provided in the Native American Graves Protection and Repatriation Act shall be fined in accordance with this title, or imprisoned not more than 12 months, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, or imprisoned not more than 5 years, or both.
NAGPRA covers the skulls of Native Americans, including Alaska natives, and Native Hawaiians. There have been a few instances in which people have been prosecuted for violating the NAGPRA trafficking provision.
Uniform Anatomical Gift Act (UAGA)
The Uniform Anatomical Gift Act (UAGA) is another source of confusion about the legality of owning a real human skull. Unike NAGPRA, the UAGA is not a federal law; it is a “uniform act.” Uniform acts are essentially generic state laws that are written by private organizations; they are not laws unless and until they are adopted by individual states. To understand why uniform acts exist and what they do, it’s necessary to have some background knowledge about the structure of the American government.
The American constitution divides power between a national, or “federal,” government, and the fifty state governments. The federal government is only allowed to pass laws relating to certain subjects. For example, the federal government has sole responsibility for foreign relations, interstate commerce, and post offices. Power over almost everything else, from education policy, to punishing rapists, to choosing the speed limit and the drinking age, is given to the individual states. This setup has caused some problems. The patchwork of different laws and regulations in every state are a major annoyance for businesses that want to operate nationwide. Entities doing business on a national scale would prefer to have to follow just one set of rules rather than fifty.
Business interests sometimes try to solve this problem by creating uniform acts. They write one model law on a certain subject and then try to get every state to replace their current law on that subject with the uniform act. This doesn’t always work; some states will refuse to adopt the uniform act and others will want to tweak or amend it, so their version will be slightly different. But most states tend to pass the uniform act without changing it.
Section 16 of the UAGA prohibits the buying and selling of human body parts under certain circumstances. Under the language of the model law, buying and selling real human skulls is generally legal. But not every state or territory has adopted the model code. For example, compare Massachusetts’ law on the subject, which follows the model code, to the law in Washington, D.C:
Section 16. (a) Except as otherwise provided in subsection (b), a person who for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of such part from an individual is intended to occur after the individual’s death shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $50,000 or by both such fine and imprisonment.
How does this impact the legality of buying, selling, and possessing real human skulls in Massachusetts?
Buying, selling and possessing real human skulls is legal in Massachusetts, because the law only prohibits purchase or sale if the part is for transplantation or therapy. If you just want a skull to put on your bookshelf or bolt to the front of your motorcycle, you’re not using it for transplantation or therapy. Therefore, your conduct is legal. In order for your purchase to be a crime you would need to buy the skull because you wanted to give someone a skull transplant. The transaction could also be illegal under federal law if the skull came from a Native American (see above).
(a) For the purposes of this subchapter, the term “human body parts” means any portion of a living human body, including, but not limited to, organs, tissues, eyes, bones, veins, and arteries, except that the term shall not mean hair and blood.
(b) It is unlawful for any person in the District of Columbia to buy, to offer to buy, to sell, to offer to sell, or to procure through purchase any human body part for any reason, including, but not limited to, medical and specific uses, such as transplantation, implantation, infusion, or injection.
How does this impact the legality of buying, selling, and possessing real human skulls in Washington, D.C.?
In Washington, D.C., buying or selling a real human skull is always illegal, no matter what you’re using them for. Notice that the law only criminalizes buying, selling, and offers to buy or sell. It does not prohibit possession of a real human skull, and it only applies to “person[s] in the District of Columbia.” So, if you wanted a real human skull and you live in D.C., you could fly to California, purchase a real human skull, and bring it back to D.C. without breaking any laws because you were not a “person in the District of Columbia” at the time you bought the skull. You were a person in California, where buying a real human skull is allowed. The D.C. law also says nothing about possessing human skulls or transporting them into the District.
In conclusion: Is it legal to buy, sell, or possess a real human skull in the United States?
To summarize, there are two main takeaways:
- The Uniform Anatomical Gift Act (UAGA) is not uniform, so you should always check the law in your state before you buy a real human skull.
- State laws only apply within the relevant state’s territory. If you want a skull and your state has laws against it, you will have to complete your transaction in a neighboring state.