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A man who lived more than 9,000 years ago along the Columbia River in what is now central Washington’s Tri-Cities area became the center of worldwide attention and heated controversy following the 1996 discovery of his nearly complete skeleton at a riverside park in Kennewick. Area Indian tribes sought to rebury the man they called the Ancient One and revered as an ancestor. The federal government agreed, but eight anthropologists and archaeologists sued for the right to study the skeleton, widely known as Kennewick Man. The case dragged on for years, attended by controversies over the handling of the bones, the burial of the discovery site, and statements by some plaintiffs, amplified and distorted in popular accounts, that appeared to suggest Kennewick Man was "Caucasian" and that Europeans may have reached America before Indians did. Scientific studies, ironically conducted by the government in an effort to support its decision to turn the remains over to the Indians rather than allow studies by the plaintiffs, showed that Kennewick Man was not like Europeans, Indians, or any modern peoples. In early 2004 an appeals court affirmed a prior decision that the plaintiff scientists would be allowed to study Kennewick Man.
The skeleton that came to be called Kennewick Man was discovered on July 28, 1996, in the Columbia River near Kennewick’s Columbia Park. Students Will Thomas and Dave Deacy found a skull while wading through the shallow water on their way to view hydroplane races. Benton County coroner Floyd Johnson, responsible for investigating human remains, thought the skull appeared unusually old. He called in his friend James Chatters, a self-employed anthropologist who had assisted him in prior investigations. Searching the riverbank and shallow water that evening and over the next few days Chatters and others located more than 350 bones and bone fragments comprising a nearly-complete skeleton.
The initial discovery received only minimal attention in the press. It was Chatters’ dramatic announcements a month later that brought worldwide attention to the remains he dubbed Kennewick Man and touched off the on-going controversy over disposition of the bones. At an August 27, 1996, press conference at Kennewick city hall Chatters reported that radiocarbon dating showed the skeleton was over 9000 years old, and described how he had found a stone spear point embedded in the man’s pelvis. While those findings were striking, most of the attention focused on Chatters’ assertion that, based on various measurements of the skull and other bones, the remains, which he described as "Caucasoid," were very different from those of modern American Indians and more closely resembled those of Europeans.
The fallout was immediate. Although Chatters went on to caution, at the press conference and afterward, that he was not saying Europeans reached the Americas before the ancestors of American Indians did, his announcement led to widespread media speculation raising precisely that possibility. Local Indian leaders expressed dismay. Handling and examination of the skeleton, especially the destruction of a small piece of bone as part of the radiocarbon dating process, violated religious beliefs that the remains of ancestors should not be viewed or disturbed.
Indians Seek the Ancient One
Armand Minthorn, a board member of the Confederated Tribes of the Umatilla Reservation, located in Oregon 40 to 50 miles southeast of Kennewick, asked "How would you feel if we came into your cemetery and dug up your ancestors?" (Dietrich). Minthorn, who became a leading figure in the struggle to rebury the man, immediately asked the U.S. Army Corps of Engineers to ensure that the ancient skeleton was not subjected to additional examination, as did representatives of the Yakama Indian Nation.
The Corps of Engineers had legal jurisdiction over the remains because it managed the federal property where they were found. Asserting its jurisdiction, three days after the press conference the Corps ordered Benton County officials to obtain the disputed remains from Chatters and turn them over to the Corps. The bones were briefly held in the county evidence locker, then Chatters and Johnson packed them for transfer to the Pacific Northwest National Laboratory in Richland, which the Corps designated to hold them until the dispute was resolved.
Within days, the Umatilla Tribes, supported by the Yakama, Wanapum, and Colville tribes from Washington and the Nez Perce from Idaho, presented a claim under the Native American Graves Protection and Repatriation Act (NAGPRA) for the Ancient One to be turned over to them for reburial. Enacted by Congress in 1990 following extensive negotiation between Indian tribes, scientists, and museums, NAGPRA requires "repatriation" to Indian tribes of some affiliated human remains and artifacts held in museum collections. It also provides that "Native American human remains" discovered on federal land belong to the Indian tribe with the closest cultural affiliation. On September 17, 1996, the Corps of Engineers published a formal "Notice of Intent to Repatriate" the Kennewick remains to the Umatilla.
Lawsuit Challenges NAGPRA
Even before his press conference, Chatters, fearing that the remains would quickly be repatriated under NAGPRA, had begun contacting anthropologists and archaeologists around the country in an effort to head off that result. Chatters found support from other scientists for his view that NAGPRA was a flawed law that gave too much control to Indian tribes and thwarted research. In particular, some prominent figures studying the first peoples to inhabit the Americas, referred to as Paleo-Indians or Paleo-Americans, saw the law as threatening their entire field. Very few "Paleo-American" remains (more than 9,000 years old) had so far been discovered, and if NAGPRA allowed tribes to prevent study of newly discovered ancient remains, they might not be able to add to this scant data. The Kennewick Man case presented an opportunity to challenge NAGPRA.
On October 16, 1996, eight scientists filed suit in federal district court in Portland, Oregon, to block repatriation and gain the right to study the skeleton. The eight plaintiffs in Bonnichsen v. United States included five physical anthropologists (C. Loring Brace, Richard Jantz, Douglas Owsley, George Gill, and D. Gentry Steele) and three archaeologists (Robson Bonnichsen, Dennis J. Stanford, and C. Vance Haynes Jr.). Owsley and Stanford were at the Smithsonian Institution and the others held university positions.
To help make their case, the plaintiff scientists, in their court pleadings and in the media, asserted the great scientific importance of the Kennewick discovery. In part, this was based on the rarity of remains that old in North America and the relative completeness of the Kennewick skeleton. However, the plaintiffs also emphasized the claim that Kennewick Man differed markedly from modern American Indians and appeared more like Europeans. Press accounts highlighted statements by various plaintiffs using the terms Caucasian and Caucasoid to describe Kennewick Man and citing theories that the first settlers of the Americas may have come from Europe.
Many area Indians found the plaintiffs’ claims and theories offensive and insulting. The suggestion that they were not related to the Ancient One and the implication that Indian peoples were relative newcomers in their homeland were direct affronts to fundamental beliefs. Minthorn, the Umatilla leader, explained:
"Our oral history goes back 10,000 years. We know how time began and how Indian people were created. They can say whatever they want, the scientists. They are being disrespectful" (Thomas, xxii).
To the scientist plaintiffs, it was Indian leaders who were trying to impose their beliefs on everyone else. Plaintiff Owsley said:
"People are free to believe what they want to believe, but I think we’re resisting the right for them to force that on others .... This is information that the American public has the right to know" (Thomas, xxvi).
In turn, some Indian leaders pointed out that the pursuit of scientific knowledge had often come at a high price for Indian people. Colville Tribe Attorney General Marla Big Boy stated:
"The ever changing scientific theories disturb the Colville Tribe because science is not always benign .... The type of scientific and professional arrogance of the Bonnichsen et al. plaintiffs is also present throughout history .... What is happening today is similar to the scientific purposes of yesterday" (Thomas, xxvi).
The Colville statement reflected the contentious and painful history between Indians and scientists that dates back to the beginnings of archaeology and anthropology in the nineteenth century. As later generations of scientists such as Stephen Jay Gould demonstrated, early anthropological classifications of people were based on overtly racist principles. White scientists of European descent used measurements of body parts, especially skulls, not only to classify humans into different races but to rank the purported "superiority" and "inferiority" of those races.
These racial classification studies required many samples to analyze, so nineteenth and early twentieth century anthropologists and archaeologists avidly sought as many skulls and skeletons as they could, depositing them in collections in major museums. While bones and body parts of all groups, including some leading white scientists who posthumously donated their own, were represented, huge numbers of Indian remains -- more than 200,000 -- ended up in museum collections. Many human remains and artifacts were excavated from Indian burial sites without permission or over the objections of living tribal members. The reaction against these practices and their results became one of the driving forces behind the passage of NAGPRA.
Although the media and the subsequent court decisions tended to portray the Kennewick Man lawsuit as a dispute between scientists and Indians or between science and religion, the reality was more complex. The scientific community itself was sharply divided by the case, which provoked spirited debate in anthropological publications. Not all anthropologists and archaeologists approved of the lawsuit and the plaintiffs’ criticism of NAGPRA. For some, NAGPRA was not anti-science, but important human rights legislation. Some anthropologists and archaeologists questioned claims for the great importance of the Kennewick find while others argued that learning to work co-operatively with Indian communities would be a more productive means of getting to study future finds.
Lawrence G. Straus, an expert in early European culture who rebutted suggestions that early inhabitants of the Americas came from that culture, said:
"Instead of trying to forge a mutual interest with Native Americans in discovering who these ancestors of us all were, we throw it in their faces that they are not the original Americans after all, when that is the one thing they have in their culture to hang on to in the face of the overwhelming dominance of ours" (Downey, 60).
Many anthropologists expressed concern that by describing Kennewick Man in racial terms, Chatters and the plaintiffs risked inadvertently resurrecting the outmoded concepts of race that had tainted early anthropological and archaeological studies. Later generations of scientists had discredited not only the idea of racial superiority but also the whole idea of races as fixed and immutable biological categories. Although racial terms such as Caucasoid are still frequently used by forensic anthropologists (like Chatters) for distinguishing among modern population groups, Chatters acknowledged in hindsight that "Caucasoid" was not a good choice of words for the ancient Kennewick remains.
In addition to angering Indians and causing concern among scientists, the pronouncements about Kennewick Man’s possible European connection made for strange bedfellows in the lawsuit. The scientist plaintiffs were soon joined by the Asatru Folk Assembly, a U.S.-based religious group that says it follows ancient European religious beliefs and which has been linked to white supremacist groups. Claiming Kennewick Man as an ancestor, Asatru intervened in the lawsuit to demand further tests and custody of the remains if those tests confirmed a "European origin," but ultimately abandoned its action.
Two 1997 decisions by Magistrate Judge John Jelderks, to whom the Kennewick Man lawsuit was assigned, did not resolve the case. Jelderks denied the government’s motions to dismiss the case but did not yet grant the plaintiff’s requests to study the remains. He faulted the way the Corps had made its decision to repatriate the remains, and ordered the agency to reopen the matter and to address a series of questions, beginning with whether NAGPRA even applied to Kennewick Man.
Soon after that order, a series of controversies erupted over the over the handling of the bones and the site where the remains were discovered. First came news that although the Corps denied the plaintiffs access to the remains for study, it had allowed Indian groups to hold ceremonies in the presence of the bones while they were stored at the Richland laboratory. The plaintiffs, Chatters, and others expressed outrage that the Indian groups had been allowed to place materials in the containers holding the bones as part of their ceremonies, fearing that the resulting contamination could hamper future studies.
Charges and counter-charges became even more heated in March 1998, when an inventory revealed that some bone pieces (sections of both femurs, the long upper leg bone) that Chatters had examined in 1996 were no longer among the remains. Chatters denounced the Corps for failing to properly preserve the bones and allowing some to be stolen, while the government began an investigation that reportedly focused on Chatters and Johnson, although no charges resulted. As it turned out, Johnson announced in June 2001, that he had found the missing femur pieces in the county evidence locker, where they had apparently remained since 1996.
The Site Controversy
The dispute over the handling of the bones overlapped with a separate controversy over the Corps’ handling of the Columbia River site where the bones had been discovered. It appeared that the remains had eroded out of the riverbank not long before being discovered. As early as 1996, the tribes expressed concern that additional erosion could result in exposure of more remains or artifacts, leading to looting by souvenir hunters. In late 1997, over the tribes’ objection, the Corps allowed a limited geologic study of the area where Kennewick Man had been found. Shortly afterward, the Corps announced that it would "armor" the bank to provide permanent protection against erosion or disturbances.
The plaintiffs, Chatters, and others protested in the media and to elected officials that the Corps' plan would bury the site and prevent further research. Both houses of Congress passed legislation, sponsored by Representative Doc Hastings (b. 1941), whose district included the Tri-Cities area, and Senator Slade Gorton (b. 1928), that would have barred the Corps from altering the site. However, the plaintiffs did not seek a court order prohibiting the action. In April, 1998, before Congress gave final approval to the legislation, the Corps, asserting it had to move quickly due to salmon-related restrictions, completed the stabilization project, placing tons of rock and dirt onto the muddy bank and topping that with dense plantings.
Even as it completed the riverbank armoring, the Corps of Engineers was turning over responsibility for the Kennewick Man case to the Department of the Interior, which was better equipped to evaluate the remains and respond to Judge Jelderks’ questions. Francis McManamon, chief archaeologist of the National Park Service, was put in charge of developing the information needed for the government to decide on a disposition of Kennewick Man. Ironically, the plan McManamon developed to do so involved many of the studies that the scientist plaintiffs advocated and the tribes opposed. However, it was not the plaintiffs, but a panel of independent scientists engaged by the government that conducted the studies in the spring of 1999 at the University of Washington’s Burke Museum in Seattle.
The remains had been transferred to the Burke when Judge Jelderks, responding to the plaintiffs’ concerns over the Corps of Engineers’ handling of the bones, ordered them moved to a secure "neutral repository." Kennewick Man’s arrival in Seattle on October 29, 1998, was marked by a public ceremony by the Asatru Folk Assembly and private observances by tribal representatives.
Not Like Anyone
The panel’s studies put to rest claims that Kennewick Man was any more "European" than he was "Indian." The remains had some features commonly found in American Indians, some found in Europeans, and some found in Asians, with the strongest resemblances to populations in Polynesia. However, considered as a whole, the remains were unlike any modern population whether Indian, European, Polynesian, or other.
These findings did not end the debate over whether Kennewick Man belonged to a population ancestral to American Indians. The government panel stressed that the lack of physical resemblance did not rule out a connection, given the amount of time involved. Some leading anthropologists agreed, pointing out that "racial" characteristics are not unchanging over time, and that changes in environment and lifestyle can lead in just a few generations to dramatic changes in the type of skull and bone features on which classifications are based. Chatters and other anthropologists, however, continued to argue that the differences between Kennewick Man (and other ancient remains) and modern Indian populations indicated several distinct waves of migration to the Americas.
While scientists sharply debated the significance of the lack of physical similarities between Kennewick Man and modern Indians, that finding became crucial in the legal battle, as the courts eventually ruled that remains are subject to NAGPRA only if there is a proven connection between them and existing Indian tribes. The Interior Department had interpreted "Native American human remains," to which NAGPRA applies, to include any remains predating the documented arrival of Europeans in 1492. Since the Kennewick remains clearly predated 1492 (as additional radiocarbon tests confirmed), this left only the question of whether the tribes claiming Kennewick Man were the most closely affiliated and thus entitled to repatriation.
The Department authorized DNA tests in an effort to learn whether genetic connections between Kennewick Man and the tribal claimants or others could be established, but no suitable DNA was found. However, after studying other evidence, in particular analyzing oral traditions, Department experts determined that Kennewick Man was culturally affiliated with the tribal claimants. On September 25, 2000, Interior Secretary Bruce Babbitt granted the tribes’ request for repatriation.
The Courts Rule
The plaintiffs returned to Magistrate Judge Jelderks, who issued his third decision in the case on August 30, 2002. Rejecting the Interior Department’s interpretation of NAGPRA, Jelderks ordered that the plaintiffs be allowed to study Kennewick Man. He concluded that because NAGPRA defines "Native American" in the present tense -- "of, or relating to, a tribe, people, or culture that is indigenous to the United States" (25 U.S.C. sec. 3001(9)) -- remains or artifacts are "Native American" only if a relation is shown between them and a present day tribe or culture. Jelderks decided that no such relation had been proven for Kennewick Man -- the scientific studies do not show a physical relation with any modern population, and Jelderks declared the evidence of oral tradition insufficient.
The government and tribes appealed, but in a decision issued February 4, 2004, a panel of the Ninth Circuit Court of Appeals agreed with Judge Jelderks that NAGPRA applies only to remains with a significant genetic or cultural connection to existing tribes or cultures. The panel also agreed that there was no evidence of such a relation between Kennewick Man and the tribes claiming the remains.
The plaintiffs praised the decision. Bonnichsen said, "This is a win for science, for openness and against an attempt at censorship" (Paulson). The tribes denounced the ruling for undermining Congress’s intent, in passing NAGPRA, to give Indians the right to protect the graves of their ancestors. Rob Roy Smith, the lawyer who argued for the tribes, said:
"What the tribes have argued all along is that NAGPRA is human rights legislation that created a presumption in favor of returning remains to the tribes. Now they’ve reversed that presumption" (Hill).
However, after the full Ninth Circuit rejected the tribes’ request to rehear the case, the tribes and the government both announced in July 2004, that they would not appeal to the Supreme Court, clearing the way for the plaintiffs to begin studying Kennewick Man. Smith and Minthorn said that instead of risking an adverse Supreme Court decision, the tribes would work to strengthen NAGPRA so that it fulfilled Congress’ intent to protect Indian burials. The tribes also planned to work to limit destructive testing on the bones and to press for reburial of the Ancient One after studies are completed. Judge Jelderks blocked those plans, at least temporarily, when he ruled on August 17, 2004, that future court proceedings would be limited to the government and the plaintiffs, excluding the tribes from further participation.
The plaintiffs hoped to begin their studies by the end of 2004. Despite the tribes’ request for reburial, the plaintiffs insisted that the remains should be stored in a museum even after their studies are completed so that other scientists can study the bones in the future. More than 9,000 years after he died and more than eight years after his bones were discovered, Kennewick Man’s ultimate fate is unresolved.
James C. Chatters, Ancient Encounters: Kennewick Man and the First Americans (New York: Simon & Schuster, 2001); Roger Downey, Riddle of the Bones: Politics, Science, Race, and the Story of Kennewick Man (New York: Copernicus, 2000); Stephen Jay Gould, The Mismeasure of Man (New York: W. W. Norton & Company, 1981), 19-112; Jonathan Marks, What It Means to Be 98% Chimpanzee: Apes, People, and Their Genes (Berkeley: University of California Press, 2002), 225-40, 251-53; David Hurst Thomas, Skull Wars: Kennewick Man, Archeology, and the Battle for Native American Identity (New York: Basic Books, 2000); Bill Dietrich, "Ancient Bones, Ancient Disputes -- Is Kennewick Skeleton ‘Asian’ or ‘European’?" The Seattle Times August 29, 1996, Website accessed February 10, 2004 (http://archives.seattletimes.nwsource.com); Jason Hagey, "Corps Starts to Cover Kennewick Man Site," Tri-City Herald, April 7 1998, in Kennewick Man Virtual Interpretive Center Website accessed September 3, 2004 (http://www.kennewick-man.com); Mike Lee, "Missing Ancient Bones Discovered," Ibid., June 22, 2001; Chris Mulick, "Court Rejects Tribes' Appeal in Kennewick Man Case," Ibid., April 21, 2004; Anna King, "Kennewick Man Appeal Unlikely," Ibid., July 17, 2004; "Justice Won't Appeal Kennewick Man Case," Ibid., July 22, 2004; Anna King, "Kennewick Man Fight Persists, Ibid., August 5, 2004; "Kennewick Man Lawsuits Will Bar Tribes, Judge Says," Ibid., August 19, 2004; Richard L. Hill, "Kennewick Man Will Go to Scientists," The Oregonian, February 5, 2004, Website accessed February 5, 2004 (http://www.oregonlive.com); Tom Paulson, "Scientists Win Kennewick Man Ruling," Seattle Post-Intelligencer, February 5, 2004, p. B-1; Bonnichsen v. United States, 217 F.Supp.2d 1116 (D. Oregon, 2002); Bonnichsen v. United States , 367 F.3d 864 (9th Cir. 2004); Native American Graves Protection and Repatriation Act, 25 U.S.C. sec. 3001 et seq.
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