Kennewick Man case undermines federal authority to decide who gets to dig



Whatever left “Kennewick Man” with six broken ribs, an atrophied left arm, a bum left shoulder and a stone point lodged in his hip more than 9,000 years ago is probably nothing compared to what’s happened to him in the last six years.

The discovery of the man’s skeleton on the banks of the Columbia River in southeastern Washington in July 1996 could have followed the rather routine process that occurs whenever American Indian remains are found on public lands. Under the 1990 Native American Graves Protection and Repatriation Act (NAGPRA), federal agencies are required to determine whether remains found on their lands can be linked to a living tribe. The skeletons are then returned to the appropriate tribal government for reburial.

But from the beginning, the Kennewick case was anything but routine. The first anthropologist on the scene, Dr. James Chatters, claimed the skeleton had “caucasoid” traits and was probably a European settler or trapper. When tests showed that the skeleton was 9,200 years old — the oldest-known human skeleton on the Columbia Plateau and older, by far, than any Anglo remains ever found in the Americas — excitement was palpable. Newspapers seized the story, running photos of a skull reconstruction that could have been a stunt double for “Star Trek: The Next Generation” actor Patrick Stewart, and pagan groups such as the Asatru Folk Assembly staked claims to the body.

Citing NAGPRA, Northwest tribes pleaded that the skeleton be returned to them for reburial. But archaeologists would not relinquish the chance to study the ancient remains.

“Native Americans do not appreciate our position. They say we do not respect their traditions and religions. They say we’re trying to end-run NAGPRA. That’s not the case at all,” says Dr. Richard Jantz, a professor of Physical Anthropology at the University of Tennessee. Scientists say NAGPRA does not apply to remains that are too old to be linked with a living tribe.

The debate between science and American Indian religious values has escalated, but now there’s even more at stake. A recent court decision on Kennewick Man may have far-reaching implications over who has control of human remains found on public lands.

Suits and decisions

As soon as Kennewick Man’s age was established, the Army Corps of Engineers — which controls the land where he was found — halted all scientific studies. Assuming that the remains were Native American, the Corps planned to return them to Northwest Indian tribes.

But scientists from five universities and the Smithsonian Institution sued the federal government to study the remains.

After two years of study that cost the federal government about $1 million, former Interior Secretary Bruce Babbitt concluded that the remains were Native American. Under the terms of NAGPRA, he decided Kennewick Man should be returned to a coalition of five tribes that included the Confederated Tribes of the Umatilla Indian Reservation, the Nez Perce Tribe, the Yakama Nation, the Confederated Tribes of the Colville Reservation, and the Wanapum Band.

While the tribes again planned a reburial, the scientists continued their court battle, challenging Babbitt’s decision and asserting that the federal government had violated their First Amendment rights to “freedom of speech and access to information.”

“If we do not prevail in this case, then NAGPRA could be used (by American Indians) to claim all ancient remains,” says Jantz. “All skeletons are important to us, but the really early ones (more than 9,000 years old) are particularly so. There are so few that every one is important.”

Last summer, the scientists got what they wanted. In August, U.S. District Judge John Jelderks disagreed with Babbitt’s decision and wrote that, in 20,000 pages of records, he found no evidence that proved Kennewick Man is “Native American” under the law. Therefore Kennewick Man is not subject to NAGPRA and should not be given to the American Indian tribes. Then the judge went one step further, ordering the Interior Department to give the remains to the scientists.

The privilege to study

Far from resolving the case and clarifying the law, Judge Jelderks’ decision has only set the stage for another round of debate.

Since 1979, under the Archaeological Resources Protection Act (ARPA), public-lands managers have granted or denied excavation permits based on a scientist’s education and experience. Qualified scientists are allowed to excavate archaeological resources on public lands, but under the law, all excavated materials remain the property of the federal government.

According to Sherry Hutt, a retired Arizona Superior Court judge, “There is no right to science in law.” In other words, she says, there is no reason why the scientists in the Kennewick case should be allowed to take possession of something — in this case a body — that belongs to the federal government.

By handing the skeleton over to individual scientists and issuing them a judicial ARPA permit, Hutt believes Judge Jelderks could weaken the laws that he was attempting to uphold. James Chatters, who had an ARPA permit when he first examined the remains and discovery site, is not among the scientists who sued. By issuing a court permit, rather than trusting land managers to follow federal regulations, Jelderks opens the floodgate for competing scientists — and perhaps for unqualified people — to demand the right to study and take possession of human remains.

Since Judge Jelderks’ decision, the U.S. Department of Justice has filed a notice of appeal, as have Colville, Nez Perce, Umatilla and Yakama tribes.

“Scientists, archaeologists, think it’s right to (excavate and run a battery of tests on) Indian remains, but we think it’s wrong,” says Armand Minthorn of the Confederated Tribes of the Umatilla Reservation. “The main point that the tribes have stressed throughout this, is Indian ancestral remains are not artifacts, they are sacred.”

The appeal will be heard in the 9th Circuit Court of Appeals in February. Meanwhile, Kennewick Man will stay in storage at the Burke Museum of Natural History and Culture in Seattle, in a secret, high-tech and carefully guarded facility.

Laura Paskus is an assistant editor for High Country News.



    You can ... • Read court-related and scientific documents on the case at www.cr.nps.gov/aad/ kennewick/ or www.friendsofpast.org/ kennewick-man/court/court.html; • Read Judge Jelderks August 2002 decision, www.kennewickman.com/ documents/jelderks083002.pdf.