- · vol. 1 · no. 2 · January 2001




"What if Kennewick Man was a European wanderer and not a Native American at all? What if Kennewick Man has no descendants? What if neither blood nor culture ties him to a contemporary tribe?"

Bones of Contention
Ann Fabian

Part I | II | III

Of course, NAGPRA would affect not just "our Nation's museums," as McCain stated, but also archaeologists doing fieldwork and even little boys playing at skullduggery. Still, McCain was optimistic. And so, at least at first, were many archaeologists and museum professionals who accepted the opportunity NAGPRA offered to redefine their historically troubled relations with Native Americans. But behind many a compromise, I suspect, lurk sore losers. The story of Kennewick Man in court suggests that all were not content with the NAGPRA regulations that now governed museum holdings and archaeological digs. The law said that consultation and collaboration should precede independent inquiry, and to a few of the disgruntled, such provisions seemed to privilege Native claims over those of professional archaeologists and anthropologists.

Those determined to challenge the law recognized that among its weakest points was the assertion that what NAGPRA referred to as "cultural affiliation" would determine the disposition of a find as rare as the Kennewick skeleton. In effect, the plaintiffs' case asks whether we can use "culture" to connect the present with the very remote past. What evidence establishes a convincing case for a cultural link between present-day tribes and a prehistoric wanderer? Is "cultural affiliation" an immutable connection? Could "cultural affiliation" trump a more scientific definition of inheritance, for example? In Bonnischen, et al. v. U.S., the anthropologist-plaintiffs--who would surely under other circumstances defend the importance of culture--ask whether the modes of behavior and belief that bind human beings into communities and link those communities through memory and ritual to their pasts can reach back into "prehistory."

To counter, some, like the Denver repatriation coordinator Roger Echo-Hawk, insist that tribal memories do indeed stretch to the dawn of time. Echo-Hawk questions the assumptions that make it possible to divide history from prehistory, finding in stories told aloud and passed from generation to generation traces of cultural memories that reach further into the past than we have heretofore imagined. Traditional stories may not look like good evidence to the scientifically trained plaintiffs, but NAGPRA allows the courts to consider oral traditions and sacred beliefs as evidence of cultural affiliation. Much more than a battle over bones, then, the case amounts to nothing less than a contest between two different ways of looking at the world, two different ways of thinking about facts and evidence.

But ultimately, such competing philosophies of culture may be less important to the Kennewick case than a simple matter of law that regulates how such discoveries are to be handled. Neither Chatters nor his friend the coroner bothered to contact the tribes who might be very interested in Kennewick Man: the Confederated Tribes of the Umatilla Indian Reservation, the Yakama Indian Nation, the Nez Percé, the Wanapum band, and the Confederated Tribes of the Colville Reservation, all still resident in eastern Washington. But partly with Chatters's help, the find generated publicity. And the first printed report in the Tri-City Herald, the region's local paper, prompted a representative of the Umatilla tribe to contact federal authorities. The law was clear. The skeleton was the property of the tribes.

With Native claimants in the picture, Chatters's dream of professional good fortune evaporated. To be sure, Chatters had gotten a lot of publicity, but his luck started to turn. Much to Chatters's dismay, agents from the Army Corps of Engineers arrived at his house and took the bones. The government then set about figuring out how to return the remains to the Native claimants--the Umatilla, the Nez Percé, the Yakama, the Wanapum, and the Colville--all of whom, whether by dint of history, tradition, culture, or geography, thought they might be related to the Ancient One. In September 1996, less than two months after the boat race, the Corps of Engineers published an official "Notice of Intent to Repatriate" Kennewick Man's remains, as NAGPRA said they must. This time, it was not a contending tribal group that challenged repatriation, but a group of eight anthropologists, often identified as "eminent" or "prominent" in press reports. Under the lead of Robson Bonnichsen, head of the privately funded Center for the Study of First Americans at Oregon State University, the anthropologists sued to prevent repatriation. They contended, as Owsley would later suggest to Lesley Stahl, that the Kennewick remains were too old to belong to anyone in particular and therefore must belong to everyone. Furthermore, even if the man did have descendents among the tribes of the Columbia Plateau, the only way to find them would be through the kinds of genetic tests some of the tribal claimants sought to prevent.

It is tempting to turn the case of Kennewick Man either into a contest between selfless scientists and shortsighted Native Americans, or a struggle between selfish anthropologists and right-minded Native claimants. But both constructions risk simplifying matters that are considerably more complex. The anthropologists are perhaps right to question the assumption that we can easily trace a community's ancestry far into the past, but they should not be surprised that many will dispute their contention that they speak from neutral ground and for all humanity. The checkered history of their discipline haunts the plaintiffs' case. It is also apparent that their large claims about a noble and disinterested pursuit of truth serve the much smaller purposes of challenging NAGPRA. Antone Minthorn, Chairman of the Board of Trustees of the Confederated Tribes of the Umatilla Reservation, characterized the struggle over Kennewick Man as a struggle over the interpretation and application of NAGPRA. "It is not science versus religion," Minthorn wrote, "it is science versus the law."

While this custody fight, of sorts, continues in the U.S. District Court in Portland in the form of Bonnichsen, et al. v. U.S., the remains of Kennewick Man are locked away for safe keeping in the basement of the Thomas Burke Museum of Natural History and Culture In January 2000, U.S. magistrate John Jelderks decided that Kennewick Man was a Native American, as defined by NAGPRA. Left open, however, was how the law governing Native American remains should apply in the case. To help determine the proper "cultural affiliation" for the remains, the court ordered the genetic tests the tribes objected to in the first place.

Labs are still struggling to produce results, but the Interior Department recently determined that the bones should be turned over to the tribes. According to Secretary Bruce Babbitt, geography and oral tradition establish "a reasonable link between these remains and present-day Indian tribe claimants." "The oral tradition evidence," he writes, "reveals that the claimant Indian tribes possess similar traditional histories that relate to the Columbia Plateau's past landscape. The oral tradition evidence lacks any reference to a migration of people into or out of the Columbia Plateau." Now that the Interior Department has weighed in, accepting as good evidence the kinds of information the plaintiff-scientists surely consider suspect, the case is back in federal court.


Regardless of whether Interior Department policy, a decision in the courts, or DNA testing ultimately seals the fate of Kennewick Man, the issues raised in the battle of the bones will continue to ripple outward. The case has spilled out of the courts and into the culture at large because it forces us to think about how we sort human beings. What does it mean to label Kennewick Man a Native American? How far back in time can we trace a cultural lineage? How far into the past can we extend our contemporary racial categories? On some of these issues, the language of NAGPRA is simple enough. The law states: "'Native American' means of, or relating to, a tribe, or culture that is indigenous to the United States." In practice, any remains from the period before European contact are assumed to be Native American.

This assumption is precisely why the strange looking Kennewick Man seemed to offer such a good opportunity for discontented anthropologists to challenge the law. What if Kennewick Man was a European wanderer and not a Native American at all? What if Kennewick Man has no descendants? What if neither blood nor culture ties him to a contemporary tribe? Raising such complicated questions--questions that wreak havoc with NAGPRA's neat categories--serves the interests of the plaintiffs. Who better to claim the odd orphan, their suit suggests, than the anthropologists, who have nothing but the best interests of science, and by extension of all humanity, at heart?

And this skeleton, the plaintiffs tell us, could be really important. In the court of public opinion, the plaintiffs bolster their case by churning up renewed curiosity about the peopling of the Americas. Most of us learned in grade school that near the end of the last ice age, around twelve thousand years ago, human beings followed game from Asia into the Americas, crossing the Bering Strait on a land bridge. But recent archaeological findings suggest human habitation far older than initially suspected. A Bering land bridge and an ice-free corridor down the center of the continent may have been available more than once, and humans may have migrated in waves.


Reconstructed head of Kennewick Man. Illustration by John McCoy.

From some newer studies an even more complicated picture of multiple coastal migrations seems to be emerging. According to the innocent-sounding organization, Friends of America's Past, "Exciting new scientific theories about the peopling of the Americas are changing our understanding of the past." Kennewick Man promises to add an "important piece to this puzzle." Outraged, Friends of America's Past continue, "This unique, nearly complete skeleton was almost reburied without any study."

In fact, "Friends of America's Past: A nonprofit organization dedicated to promoting and advancing the rights of scientists and the public to learn about America's past," is an organization dedicated to raising funds to help the plaintiffs in Bonnichsen, et al., v. U.S. pursue their challenge to NAGPRA. It is hardly surprising that on their own Website they cast themselves in heroic terms, as valiant Davids struggling against the Goliath of the federal government, a far better villain for their piece than the small tribes of eastern Washington. How ironic as well that for once the government is "for" the Indians and "against" the academics. "It's time to stand up for the right to learn about the past," the Friends of America's Past write. "We all share the past--no one owns it. Imagine if a few people could decide by whom, when, and how evidence from the past can be studied. Is this the legacy we want to leave to future generations?" Of course it isn't.

What's more, in the plaintiffs' scenario, the tribes are not only religious reactionaries, they are guarding ill-gotten privileges. And the mainstream media, particularly reporters covering the story for CBS's 60 Minutes in October 1998, readily accepted the plaintiffs' portrait of their opponents. The story 60 Minutes aired underlined the plaintiffs' contentions: over images of Indian revival--a powwow and a casino--reporter Lesley Stahl repeated Chatters's suspicion that the "tribes' fight against further testing of Kennewick Man is based largely on fear, fear that if someone else was here before they were, their status as sovereign nations and all that comes with it--treaty rights and lucrative casinos, like this one on the Umatilla Reservation--could be at risk."

Of course, as Stahl herself noted, "The Indians say that's nonsense." And the Indians are right: under the law, the claim that treaty rights and casinos depend on Native American's status as "first peoples" is indeed nonsense. As the Umatillas' Minthorn put it, "The outcome of this case has no legal bearing whatsoever on tribal treaties and tribal sovereignty." His people, he explains, are not motivated by money, but rather by a desire to defend NAGPRA and by a strong belief that human remains deserve the dignity of permanent burial. Native beliefs about death, burial, and the afterlife are as diverse as the hundreds of cultural traditions they represent, but many tribes do maintain a particular respect for the remains of the dead. For once a law passed by the United States Congress gives the tribes an opportunity to act on their cultural beliefs.

Whatever the merits of the plaintiffs' case, their position is tainted by their apparent kinship with generations of greedy whites who ignored laws and treaties when laws and treaties thwarted their plans. To back their legal challenge, the plaintiffs have resuscitated some troubling arguments: they hint that Kennewick Man may have been here before the ancestors of contemporary Native Americans. Scholars aired such ideas in the early 1800s, and something pernicious lingers in the assertion that Native Americans came late to the continent. The first generation of American archaeologists who tried to solve the mysteries of the Mound Builders decided that the architectural wonders of ancient America were built by people unrelated to the Indians they knew. Early nineteenth-century scholars imagined a sophisticated and peaceful people eliminated by the violent forebears of the Indians they now fought.

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