The NAGPRA Law, and the Kennewick Man Controversy. Includes an article in September 2014 Smithsonian Magazine summarizing the Kennewick case and what was discovered.

NAGPRA has many problems. Below is an analysis of a few of the conceptual or moral problems with NAGPRA, and how those general problems have been manifested in Hawai'i. Following the overview are two sets of clickable links: (1) Links to the actual text of the NAGPRA law as originally enacted and in its revised form in 1999, links to webpages about other NAGPRA controversies outside Hawai'i, and links to webpages about laws similar to NAGPRA in other nations; (2) Links to webpages about the Kennewick Man controversy including full text of the federal court decision of August 30, 2002 declaring that scientists have a right to perform tests on the bones in the interest of all the people of America. At the bottom of this webpage is an article from a British perspective, describing how Prime Minister Tony Blair appointed a committee in 2000 to begin developing the equivalent of a NAGPRA law; the article specifically comments on the American experience with NAGPRA and the Kennewick controversy, and suggests it would be unwise for Britain to follow the American example.

THE IDEALISTIC PURPOSE OF NAGPRA: SPIRITUALITY, DECENCY, RACIAL EQUALITY

Until recent years archeologists, anthropoligists, and other scientists have felt no moral guilt and have received very little social criticism when digging up ancient gravesites and removing bones and artifacts to museums and laboratories for display and study. Such study might include relatively passive activities such as measurements of bones or X-ray studies of mummies. Such study might also include intrusive, destructive procedures such as removing parts of bones and crushing or burning them to do radiocarbon dating, drilling into bones to remove DNA for testing, or dissecting ancient mummies or more recent preserved specimens to study the kinds of food people ate, or the comparative history of diseases in different cultures. In some cultures there was never much opposition to these activities. For example, it has been reported that in the late 1800s and early 1900s in Egypt, there were tens of thousands of 3000-year-old human mummies that were stacked like cordwood and were routinely burned for fuel in trains and electric power plants.

Common sense suggests that different cultures, even today, have different expectations and different moral standards for the treatment of human remains and funerary artifacts. Some cultures and religions have taboos regarding the treatment of dead bodies, requiring that they not be cut open and must be buried within a day after death. Such cultures and religions often fail to provide cadavers for use in medical schools, and also fail to provide corneas, kidneys, livers, and hearts for transplantation into sick people who will die unless they get an organ donation from very-recently deceased people of the same racial group who are biologically compatible with them. Common sense also suggests that some cultural or ethnic groups feel superior to others, and will treat dead bodies of "inferior" groups with much less respect than they would treat their own group. Thus white American scientists in the 1800's did not hesitate to "harvest" and study bodies of Indians who might have died only recently and whose parents, children or grandchildren were still living nearby. It can sometimes be hard to distinguish between archeology and graverobbing, especially when commercially valuable artifacts buried with a body are donated to far-away museums as curiosities, or sold to collectors.

Common sense also suggests that the strength of emotional or spiritual connectedness between living people and their ancestors varies inversely as the number of generations that have passed. That is, people might regularly visit the graves of their spouses or parents and remember them in daily prayers, might occasionally visit the graves or say a prayer for grandparents, might rarely remember great-grandparents, and often do not know the names, achievements, or gravesites of generations farther back than that. When very old cemeteries in urban areas must be condemned for public highway construction, it is often impossible, for many of the burials, to find living descendants who know their ancestors are there. This raises the question whether there is truly a spiritual connection between a living person and the bones of an ancestor of ten or twenty generations ago whose burial place, name, and accomplishments have been forgotten for many generations. Indeed, in the Kennewick Man controversy, the bones are about 9,000 years old, which would be about 450 generations! Performing scientific study of those bones surely could not be as spiritually distressing to alleged descendants as performing scientific study of the bones definitely known to be of one's own parents or grandparents.

However Eddie Ayau, leader of Hui Malama I Na Kupuna O Hawai'i Nei, a Hawaiian reburial activist group, claims that all the bones of all the ancestors, no matter how many generations have gone by, have an intimate spiritual relationship with the land and with the currently living descendants. His writing is emotionally compelling. See his article "Rooted in Native Soil" at:
http://huimalama.tripod.com/rooted.htm

As American Indian tribes became more politically active throughout the 20th Century, they began demanding that Indian burials should no longer be disturbed. They also began demanding that Indian bodies, skeletons, and artifacts held in museums should be returned to the living descendants if such descendants could be found, or else be returned to the tribes to which they "rightfully" belonged. The handling of bones and artifacts thus repatriated varied greatly from family to family, and from tribe to tribe. In some cases bones and artifacts were given reverential treatment and were reburied or otherwise disposed of with accompanying religious ceremonies, much as the bodies and personal possessions of U.S. soldiers missing in Viet Nam are now handled when found and returned to families forty years later. In some cases funerary and cultural artifacts repatriated to Indian tribes have not been buried but have been placed on display in tribal museums which might charge admission fees. Thus, ceremonial masks, beadwork, or cloaks might be removed from the Smithsonian Museum (open free to the public), under NAGPRA, and sent to a tribal museum (admission charged).

As seen from the above discussion, NAGPRA is usually defended on the grounds of decency, spirituality, and racial equality. Every racial, cultural, or tribal group is entitled to equal treatment under the law. Everyone is entitled to be treated with common decency, which includes treating dead people and their possessions in accord with the customs and expectations of their own families and groups. There are many spiritual beliefs regarding the afterlife, the ongoing relationship between living people and their ancestors, and the ongoing relationship between a soul and the bones and artifacts from which it departed or in which the spirit may continue to reside.

There can be sharp disagreements within a tribe or culture regarding whether spirits remain attached to bones or artifacts. Some members may also feel strongly that bones and artifacts are a cultural patrimony belonging to the entire group, and that it is important to keep such things easily accessible to current and future generations so that knowledge and inspiration can be passed down effectively. In some tribes, ancient customs, crafts and religious practices were almost completely forgotten until burials or artifacts were discovered that made it possible to rediscover ancient lore. If all the burial masks or feathered capes are removed from museums, reburied, and left to rot and disintegrate, how can future generations be educated to and document their heritage?

On June 2, 2000, during the period of high publicity after Bishop Museum turned over 83 priceless Forbes Cave artifacts to Hui Malama for reburial, a highly respected ethnic Hawaiian, who had been Director at ‘Iolani Palace, attended an important meeting where he explained one reason why the NAGPRA law is inappropriate in Hawai’i. Jim Bartels explained that in the continental 48 states Indian bones and artifacts had been stolen by scientists and graverobbers and were given to museums which held them against the wishes of the Indian tribes; but that in Hawai’i the ethnic Hawaiians had always regarded Bishop Museum as their friend, and high-ranking native families had eagerly given bones and artifacts to Bishop Museum for safekeeping. Thus the adversarial relationship between museums and Indians on the continent necessitated the NAGPRA law to repatriate tribal property and ensure respectful handling of remains in keeping with cultural customs; whereas in Hawai’i such repatriation is usually not desired by ethnic Hawaiian families. Although Mr. Bartels does not say so explicitly, his article leaves the impression that radical re-burial groups like Hui Malama, pursuing a political agenda, do not represent the wishes of most identifiable lineal descendants and certainly do not represent the wishes of ethnic Hawaiians and the general population to preserve the heritage of Hawai’i’s core culture. Mr. Bartels died on April 20, 2003, but his voice continues to speak wisdom from this article:

http://starbulletin.com/2000/06/02/news/story10.html

Honolulu Star-Bulletin, June 2, 2000
By Burl Burlingame

Preservation act harmful to Hawaii, panelists say

Even though the moderator sternly warned against discussing the Bishop Museum missing-artifacts scandal, panelists at a historic-preservation conference yesterday couldn't help themselves.

"NAGPRA -- I hate it! Hate it!" museum director Jim Bartels cried out at one point, referring to the topic du jour, the Native American Graves Preservation and Repatriation Act of 1990.

Moderated by Lani Ma'a Lapilo of the Judiciary History Center, the panel for Historic Hawaii Foundation's Preservation Conference included Bartels -- former director of Iolani Palace -- science-education consultant Anita Manning, Ka'iana Markell of the Department of Land and Natural Resources, Marie Solomon of the Big Island Burial Council and June Cleghorn, Marine Corps archaeologist.

One of the traps organizations such as Bishop Museum fell into were multiple and vague interpretations of the law, participants said. The problem with enforcing NAGPRA in the islands, Markell said, is that the law was written to suit the cultures and practices of mainland Indian tribes. "For example, our meaning of 'lineal descendant' is much different, so we have to play it broad and loose in our definition."

NAGPRA, continued Bartels, is a "miserable bit of imposed, non-Hawaiian legislation made to address Native American issues. It has caused us misery, and set us one against the other. "Museum traditions developed differently here. They were not imposed upon the native community like the rest of the United States. No. They came out of us -- the museums of Hawaii are extensions of traditional caring for the cultural patrimony. Museums represent continuity in a world that doesn't care. And NAGPRA presumes that museums are villains. It was done with the best intentions elsewhere, but here in Hawaii -- it's causing dissension in our community and breaking up natural alliances between museums and native peoples."

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NAGPRA AS A WAY OF ENFORCING PROPERTY RIGHTS

Although NAGPRA is usually defended on grounds of spirituality or decency, it is also sometimes defended as a way of enforcing property rights. Under longstanding laws of all the states, the body of a dead person is regarded as the property of the next of kin or the property of whomever it may have been willed to. A surviving spouse can insist on immediately cremating the body with organs intact (after autopsy if ordered by the authorities), even though the person who died might have had an "organ donor" stamp on the driver's license. Thus, human remains and artifacts are considered the property of the lineal descendants if they can be found, or of the tribe. The logical extension of regarding bones and artifacts as property is this: a tribe has a right to repatriate bones and artifacts from laboratories, museums, or commercial establishments, and the tribe may then exhibit or even sell the bones or artifacts if it chooses. As indicated earlier, there is also a conflict between the property rights of an individual or family to rebury bones and artifacts, and the (greater?) property rights of a tribe and its future generations to preserve cultural objects for education and inspiration.

NAGPRA AS A WAY OF ASSERTING POLITICAL POWER OR GETTING RETRIBUTION

Some Native Americans today are understandably angry about the way they and their ancestors were treated by the U.S. government, the state governments, and by white people. NAGPRA can be used as a vehicle for venting that anger and "getting even." NAGPRA gives real power to individual Indians and to tribes, allowing them to sue government and private institutions (especially museums) and to take back what was previously stolen from their ancestors (including the ancestors themselves!). NAGPRA can be a way for people who were previously powerless underdogs to attack, defeat, and humiliate those they perceive as oppressors. Thus, some Indian groups might occasionally take actions which seem irrational or unproductive, but can be thought of as displays of power or "flexing the muscles."

Next of kin, or closely-related family members, should clearly get priority for receiving bones and artifacts. If family members cannot be found, or bodily remains are so badly damaged they cannot be identified, then the tribe should receive them. But it is often difficult to know who are the family members, or even which tribe is involved. Making an identification might require invasive or destructive testing of bones to do radioisotope dating or DNA analysis. But some families or tribes might have strong spiritual or cultural objections to such testing. Perhaps they believe the spirit still lives in the bones. Perhaps they believe it is a desecration to do anything destructive to the bones, or to touch the bones, or even to expose the bones to the light of day. So how is a dispute to be resolved when competing individuals or groups claim a right to possess the bones, and some or all of the claimants demand that no testing can be done?

Testing, to prove racial affiliation, was the major issue in the Kennewick Man controversy. Indian tribes claimed that a 9,000 year old skeleton was Indian and therefore the bones could not be tested without desecration; scientists claimed that the skeleton was not Indian but European and that testing must be done to prove racial affiliation. The Indians wanted to bury the skeleton with no testing; the scientists claimed the Indians were making that demand in order to prevent finding evidence that would prove that whites had been the "first people" on the land, before the Indians. Thus the scientists were saying the Indians were using spiritual arguments cynically, as political weapons to protect their claim to special political rights given to "indigenous" people. And the Indians were saying the scientists have no standing to force the desecration of bones that are "clearly Indian because of their age").

SOME GENERAL CONCEPTUAL DIFFICULTIES WITH NAGPRA, AS SEEN IN HAWAI'I

As noted above, Jim Bartels and other ethnic Hawaiian cultural experts have said that NAGPRA may be appropriate for the adversarial relationship between Indian tribes and museums in the continental 48 states, but is not appropriate in Hawai’i where high-ranking ethnic Hawaiian families have eagerly given bones and extremely valuable artifacts to Bishop Museum for safekeeping, to preserve cultural patrimony for future generations (indeed, Bishop Museum was created by the husband of royal Princess Bernice Pauahi Bishop in honor of her memory).
http://starbulletin.com/2000/06/02/news/story10.html

In Hawai'i, it is reasonable to assume that any bones or artifacts older than 1778 cannot be attributed to Europeans, Americans, or Asians and must be attributed to Polynesians. But it is unclear that all bones from before 1778 are "Native Hawaiian." Scientists are not at all clear on the history of migrations to Hawai'i. It is generally assumed that there were Menehune or "little people" who were in Hawai'i first (and did a lot of construction work!), followed by peaceful immigrants from Marquesas, followed centuries later by a wave of warrior invaders from Tahiti who established the ali'i caste system, warfare as a way of life, and human sacrifice. It is unclear whether the Marquesans wiped out the Menehune, and whether the Tahitians wiped out the Marquesans. Thus, it is unclear whether today's "Native Hawaiians" are truly descendants of Hawai'i's first people; and it is also unclear whether ancient bones and artifacts belong to ancestors of today's "Native Hawaiians."

If bones were buried in a cave or sand dune and long since forgotten, there is something rather odd about suddenly stumbling over them and claiming a NAGPRA right to regard them as ancestors and to treat them in a culturally appropriate manner even when no lineal descent can be proved. The oddness is magnified when racial mixing through intermarriage and cultural mixing through immigration are taken into account. If a skeleton is found in a sand dune and it is determined to be 150 years old and of Euro-American ancestry, would it be appropriate for an Irish-American burial society to step forward and demand possession of the skeleton? Why should special group rights under NAGPRA be given only to Indian tribes or Native Hawaiians but not to other ethnic groups?

Most Indian tribes originated from a small geographic area, had small populations, little intermarriage with other tribes or with Europeans, and a homogeneous culture. Therefore it is reasonable to assume that chiefs or tribal councils can speak on behalf of the entire group. But in Hawai'i there were numerous warring chiefs on different islands or even on the same island in different mountain valleys. Hawaiian language had many dialects, and cultural practices differed. As soon as European contact occurred, there was extensive intermarriage and large-scale adoption of European cultural practices and religion. Today there are more than 400,000 "Native Hawaiians" thoroughly assimilated and intermarried, who work, play, and pray side by side with the non-Hawaiian majority. The ethnic Hawaiian population is widely dispersed, with a wide variation of income and status, and no tribal government exercises any authority over its members. Thus, nobody can speak on behalf of the entire group. It is wrong for NAGPRA to be applied to "Native Hawaiians" as though they were a homogeneous group comparable to an Indian tribe, where a generic tribal council can speak on behalf of all members. In Hawai'i, the rights of lineal descendants to claim bones or artifacts should be respected, if they can prove they are lineal descendants. But there should be no group right for "Native Hawaiians" as a group to claim bones or artifacts that are simply "Native Hawaiian" with no traceable connection to particular living descendants. It is especially reprehensible when organizations like Hui Malama claim to speak on behalf of all "Native Hawaiians" and engage in legal contests against individuals or families seeking to prove lineal descent and to claim specific bones or artifacts.

Even if it is assumed that all bones and artifacts from before 1778 were "Native Hawaiian," it is still a problem to determine who are the lineal descendants of particular bones, or who is the rightful claimant to particular artifacts. In the Forbes Cave and Mokapu controversies, there are competing claimants. The Hui Malama webpage on the Mokapu controversy provides a list of the names of some individual claimants who demand DNA testing of bones to determine who is the rightful claimant; while cultural organizations like Hui Malama, certified under NAGPRA as having authority to speak on behalf of the entire Native Hawaiian "tribe," refuse to "desecrate" the bones by allowing DNA testing. Hui Malama seems to be saying that the "tribe" as a whole takes priority over individuals, so that any individual claimant asserting a claim to be a lineal descendant must give way to the larger interests of the entire "tribe" as represented by a generic Hui Malama, especially when individual demands for DNA testing would violate the general cultural/spiritual doctrines of most members of the group.

The quotes in the following two paragraphs are taken from the Hui Malama webpage on Mokapu at:
http://huimalama.tripod.com/mokapu.html

First, Hui Malama tries to embarrass the five individual claimants demanding DNA analysis, by naming them and pointing out how DNA analysis would violate the group prohibition on desecrating bones of the ancestors: "The five individuals opposing repatriation are demanding that the ancestral remains be subject to DNA analysis in order to clarify family lines, that they be granted unrestricted access to the base, surfing spots, and other conditions. These individuals include Rubellite Johnson, Sam Monet, Frank Nobriga, Carlos Mahi Manuel and Eric Po`ohina. The difficulty with the position to subject the Mokapu ancestors to DNA analysis for purposes of possibly clarifying lineal descent amongst the claimants is that the process is irreversible. Should the five claimants turn out not to be family to these ancestors, the desecration would have to occur first, in order for the issue to possibly be clarified. This implication renders the demand for DNA unacceptable. Scientists may argue the process is non-intrusive, however, from the cultural perspective, to delve into the very origins of these ancestors is nothing but an intrusion of their being, and an escalation of their shame and anguish. The price to be paid by the five opponents for being wrong is much too high. Attempts over a two year period to reconcile differences with these five claimants have proven unsuccessful. All were repeatedly invited to join the majority to present a single unified claim on behalf of the ancestral and living families. All five have refused."

Then, Hui Malama makes a clear attempt to convert a spiritual belief into a basis for claiming political sovereignty; and additionally makes a claim that the needs of "Native Hawaiians" as a group (the "Lahui") must take priority over the wishes of the individual, and that Hui Malama is the voice of the group. This is especially troubling, because the "tribe" of "Native Hawaiians" has more than 400,000 members, and most of them have non-Hawaiians as most of their ancestors. Hui Malama says [Square brackets indicate translations or comments by editor of this website, Ken Conklin]: "The question remains -- how do Native Hawaiians obtain justice for transgressions of the kanawai [law], such as the removal of hundreds of burials without the consent of the living families and the examination and photography of these ancestors, again without consent? The answer must be ea [sovereignty]:
Imua na poki`i a inu i ka wai `awa`awa, a`ohe hope e ho`i mai ai
Forward my children and drink the bitter waters, there is no turning back.
[this was the war cry of Kamehameha the Great as he rallied his troops in the bloody battle of Kepaniwai in Iao Valley, Maui. The clear implication of quoting that war cry here is that we are in a war, and we must move forward and vanquish the enemy]
Hui Malama I Na Kupuna O Hawai`i Nei believes that in order for Native Hawaiians to firmly and with focused movement (`onipa`a), realize their future, we must amongst other responsibilities, take appropriate care of the past by reestablishing and strengthening the ancestral foundation. It is through this important foundation, that our house (our future) will be built. Lãhui [the nation; understood as the race as in "La Raza"] means all of us, especially the original citizens of our great nation. Together with the other claimants, Hui Malama I Na Kupuna O Hawai`i Nei has forcefully advocated for the repatriation and reinterment of these 1,600 ancestors."

It is unclear whether reverence for bones as repositories of the spirit was actually an ancient belief universally practiced in Hawai'i, or whether it was a belief practiced only on some islands or among some social classes, or whether it is a romanticized recent fantasy invented by modern-day Hawaiians. Eddie Ayau, leader of Hui Malama I Na Kupuna O Hawai'i Nei, a Hawaiian reburial activist group, claims that all the bones of all the ancestors, no matter how many generations have gone by, have an intimate spiritual relationship with the land and with the currently living descendants. See his article "Rooted in Native Soil" at:
http://huimalama.tripod.com/rooted.htm

But Eddie Ayau's emotionally compelling romanticism that the bones of the ancestors must be returned to the ground is contradicted by others. There are stories about chiefs who won a major battle carving the bones of their defeated enemies into ornaments or fishooks as a way of desecrating their vanquished enemies. There are also stories about a family in which the father was an expert fisherman and when he dies his son respectfully carves the father's bones into fishooks so the son can be successful and feed the surviving family with father's spirit helping to make the catch bountiful. In the same way, the long bones from a powerful warrior might be carved into spear points so that the son could be helped in battle by his father's spirit. Today's Hawaiian activists say that in ancient times human bones would never be allowed to lie out in the open or to have sunlight fall on them. However, Mark Twain published an article entitled "Leahi" in The Sacramento Daily Union, April 24, 1866 describing a horseback ride he and some friends took through Diamond Head crater, in which they encountered an open field with thousands of human bones lying all around, so thickly spaced that the horses' hooves were constantly crunching them; and the bones had been thoroughly bleached by the sun and weathered for many years. So it would appear that Hawaiians of 150-200 years ago (or at least a substantial number of them in some geographic areas) did not have any taboo regarding bones being left out in the open in bright sunlight for many years. Mark Twain's article "Leahi" can be read at:
http://www.twainquotes.com/18660424u.html

There is an excellent summary of sacred burial practices in old Hawai'i, by Betty Fullard-Leo. The article describes the ka'ai, and the difference between alii' and maka'ainana burial practices. Sometimes bones were hidden in caves, sometimes thrown into the volcano, sometimes thrown to the sharks, and sometimes buried in the back yard or even inside the house. There are quotations from a book by missionary William Ellis describing what he saw in the early 1820s, including an 1821 visit to the Hale 'Iwi at Honaunau. See:
http://www.coffeetimes.com/feb98.htm

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THE NAGPRA LAW (Internet Links)

PBS TV has an excellent webpage on NAGPRA: "Who Owns The Past?" providing an overview of major issues and links to other websites:
http://www.pbs.org/wotp/nagpra/

General website for the National Park Service NAGPRA program:
http://www.cr.nps.gov/nagpra/

Text of the NAGPRA law, and later revisions, and the legislative history, can be found through clickable links provided at:
http://www.cr.nps.gov/nagpra/MANDATES/INDEX.HTM

104 STAT. 3048 PUBLIC LAW 101-601--NOV. 16, 1990. To provide for the protection of Native American graves, and for other purposes. NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT of 1990, as found in the Congressional Record:
http://www.usbr.gov/nagpra/naglaw.htm

Code of Federal Regulations, Title 43, Volume 1, Parts 1 to 999 Revised as of October 1, 1999 From the U.S. Government Printing Office via GPO Access. CITE: 43CFR10
http://www.cast.uark.edu/other/nps/nagpra/nagpra.dat/lgmc08.html

NAGPRA on the web -- clickable links to broad topics:
http://www.sfsu.edu/~nagpra/web.htm

Definitions of terms used in NAGPRA:
http://www.sfsu.edu/~nagpra/defs.htm

NAGPRA Review Committee website (this is the nationwide review committee dealing with the Forbes Cave controversy in St. Paul, Minnesota May 9-11, 2002):
http://www.cr.nps.gov/nagpra/review/

June 23 1999 Federal Register notice soliciting comment on "Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Remains"
http://www.cast.uark.edu/other/nps/nagpra/nagpra.dat/rcrec003.html
Here is a comment letter from Tim White, Curator of Biological Anthropology, P.A. Hearst Museum of Anthropology. This letter shows some of the difficulties of interpreting the NAGPRA law, even nine years after it was enacted.
http://www.bioanth.org/NAGPRA/t-white.htm
And here is another comment letter by Jeffrey H. Schwartz, Professor, Department of Anthropology, University of Pittsburgh:
http://www.bioanth.org/NAGPRA/j-schwartz.htm

A large webpage hosted on the University of Iowa Anthropology Dept. website, that includes information about NAGPRA in general, plus clickable links to articles about specific controversial cases. Also includes links to essays about similar laws in other nations.
http://www.uiowa.edu/~anthro/reburial/repat.htm

See also an article describing how British Prime Minister Tony Blair set up a government committee in 2000 to begin developing the British equivalent of NAGPRA. When a society has not yet developed a bureaucracy and set of laws for dealing with a controversial topic, the issues can often be set forth with great clarity unmuddied by legal technicalities and bureaucratic turf battles. The article specifically discusses NAGPRA and the Kennewick controversy as a path the British might not want to follow. The article is copied in full at the bottom of this webpage.
http://www.butterfliesandwheels.com/articleprint.php?num=15

Here are the official findings and recommendations of the NAGPRA National Review Committee from the May 9-11 meeting in St. Paul, MN.; released August 20, 2003. Also included are the complete official minutes from that meeting, which allows readers to see the bureaucratic processes whereby NAGPRA is implemented:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpranatlmtngmay2003.html

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THE KENNEWICK MAN CASE, INCLUDING DECISION OF THE 9TH CIRCUIT COURT OF APPEALS ON FEBRUARY 4, 2004 AND A WRAPUP OF THE HISTORY PUBLISHED IN THE SMITHSONIAN MAGAZINE IN SEPTEMBER 2014. (Internet Links)

The Tri-City Herald newspaper is the local newspaper in Washington state that covered the Kennewick Man controversy from the day the skull was originally discovered.
http://www.kennewick-man.com/
A good place to begin is the timeline at:
http://www.kennewick-man.com/timeline.html
For a more detailed timeline (broken into events before the August 30, 2002 decision and events after that) see:
http://www.friendsofpast.org/kennewick-man/events/events.html

On August 30, 2002 United States Magistrate John Jelderks of the U.S. District Court in Portland, Oregon handed down a lengthy decision in the Kennewick Man case, ordering the bones to be turned over to the scientists, and severely reprimanding the U.S. Army Corps of Engineers for their destruction of evidence and for attempting to make it impossible for scientists to return to the source of the bones to look for additional bones or artifacts. A summary of the decision and its significance is at:
http://www.pbs.org/wotp/latest_news/news_items/09072002.html
Here is the full text of the decision:
http://www.friendsofpast.org/pdf/decision-020830.pdf

Friends of America's Past is a non-profit organization dedicated to promoting and advancing the rights of scientists and the public to learn about America's past. They are obviously pleased with the Kennewick Man decision. Here is their website:
http://www.friendsofpast.org/

On February 4, 2004 the U.S. 9th Circuit Court of Appeals unanimously upheld the district court decision that the NAGPRA law does not apply to the Kennewick Man remains, and that the scientists should be allowed to study them. One of the main reasons for the decision is that it is not possible to establish any connection between any modern Indian tribes and the Kennewick Man remains. The entire decision, 30 pages in pdf format, can be downloaded. While there are some technical legal issues, most of the decision can easily be read and understood by non-lawyers; and it includes interesting historical information. To download the decision, click here:
https://www.angelfire.com/hi5/bigfiles/Kennewick9thCir020404.pdf

When a normal 3-judge panel has rendered a decision at a Circuit Court of Appeals, the loser has a right to request an appeal before an en banc panel of 11 Circuit Court judges (as the final step before seeking an appeal to the U.S. Supreme Court).

On April 19, 2004 the 9th Circuit Court of Appeals decided NOT to grant certiorari for an en banc appeal.

http://msnbc.msn.com/id/4787844/

MSNBC News. 4/20/04. SAN FRANCISCO - A federal appeals court declined Monday to reconsider its February decision allowing scientists to resume testing on a 9,000-year-old skeleton — called “Kennewick Man” — despite protests from American Indian tribes. ... in a ruling against the tribes and the federal government, which had sided with the Indians, a three-judge panel of the 9th Circuit Court of Appeals in San Francisco rejected the request in February. On Monday, the court declined to ask an 11-judge panel to reconsider the February ruling.

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On Friday October 1, 2004 the Seattle Post-Intelligencer reported that a bill introduced in the Senate by Ben Nighthorse Campbell would change the NAGPRA law to allow federally recognized tribes to claim ancient remains even if they cannot prove a link to a current tribe. Such a change in the law might allow the tribes to overturn the 9th Circuit ruling in the Kennewick Man case. Senator Campbell has an obvious conflict of interest in introducing such legislation since he is a member of one of the tribes in that lawsuit!

http://seattlepi.nwsource.com/local/193311_kennewick01.html
Seattle Post-Intelligencer, Friday, October 1, 2004

Measure could block Kennewick Man study
By MATTHEW DALY
THE ASSOCIATED PRESS

WASHINGTON -- Scientists hoping to study the ancient skeleton known as Kennewick Man are protesting a bill by Colorado Sen. Ben Nighthorse Campbell that they say could block their efforts.

A two-word amendment would change an Indian graves-protection law to allow federally recognized tribes to claim ancient remains even if they cannot prove a link to a current tribe.

Scientists say the bill, if enacted, could have the effect of overturning a federal appeals court ruling that allowed them to study the 9,300-year- old bones.

The skeleton was discovered in 1996 along the Columbia River near Kennewick and has been the focus of an eight-year fight. Four Northwest tribes claimed that they were entitled to the bones under the Native American Graves Protection and Repatriation Act. The tribes wanted to have the bones reburied without any scientific studies.

The tribes -- the Umatilla, the Yakama, the Nez Perce and the Colville -- dropped their court fight this summer after the 9th U.S. Circuit Court of Appeals ruled that no direct link exists between them and the skeleton.

But scientists said yesterday that the bill introduced by Campbell would, in effect, nullify the appeals court ruling. "It's a real sneaky way to amend" the Indian graves law, said Alan Schneider, an attorney for the scientists.

Campbell, a Republican and a member of the Northern Cheyenne tribe, chairs the Senate Indian Affairs Committee, which approved the bill this week. A spokesman for the panel declined to comment yesterday.

Schneider and an advocacy group known as Friends of America's Past said they were concerned that the bill would go to the full Senate as a routine "housekeeping" measure and be approved with little or no debate. "Basically all ancient skeletons would be subject to (the Indian graves law), and under the tribes' interpretation, you couldn't study them," Schneider said.

But an attorney for one of the tribes called the criticism off base. Even if the bill is enacted -- a long shot at best, given congressional leaders' intent to adjourn early this month -- it is not clear that it would apply to Kennewick Man, said Rob Roy Smith, an attorney for the Confederated Tribes of the Colville Indian Reservation. "I'm not sure if it would have any retroactive effect," Smith said. Still, Smith said Northwest tribes applaud Campbell's efforts.

The change would add the words "or was" to a definitional section of the law. The change is intended to clarify that in the context of ancient remains, the term "Native American" refers to a member of a tribe, a people or a culture that is or was indigenous to the United States.

Supporters say the bill would strengthen the case of tribes trying to claim and bury ancient remains without having to prove a link to a current tribe.

------------------

http://www.oregonlive.com/editorials/oregonian/index.ssf?/base/editorial/112116291464490.xml&coll=7
The Oregonian, Tuesday, July 12, 2005

Finally, Kennewick Man speaks
Initial study of the ancient bones seems like 'CSI: Seattle'

The 9-year legal fight about Kennewick Man dragged on so long that the story of the ancient bones became a bit of a yawner. Month after month, more dry news of the seemingly interminable procedural wrangling turned the words "Kennewick Man" into reader code for "Warning: Boring Story."

No more, though. The scientists who finally prevailed in that court battle are getting their first close look at the 9,300-year-old skeleton, and their initial reports are filled with the promise of fascinating discoveries.

On Sunday, after four days of studying the 380 bones and bone fragments at the University of Washington, 11 experts from around the nation gave reporters some exciting initial reactions.

Scientifically, the skeleton is "a Rembrandt," said Hugh Berryman, a forensic anthropologist from Middle Tennessee State University. "This individual's biography is written in his bones." And that is a very big deal because those bones represent one of the oldest and most complete skeletons ever found in North America. The research just now getting under way will shed new light on the anthropological mysteries of the continent.

Darkness almost won out, though. The U.S. Army Corps of Engineers owned the land along the Columbia River near Kennewick, Wash., where the remains were found in 1996, and the agency was set to relinquish the bones to Native American tribes that wanted to rebury them and shield them from scientific inquiry. A group of scientists, however, sued for the right to study the remains. Late last year a 9th U.S. Circuit Court of Appeals panel, agreeing with an earlier decision by a federal judge in Portland, ruled there was no link between the skeleton and the tribes.

Now, Kennewick Man is finally free to give up his secrets. Can any DNA be retrieved from his teeth? Where did his people migrate from? And what about that spear tip still embedded in his pelvis?

Now begins a whole new era in the Kennewick Man saga, and this time it can't possibly be the least bit dull.

-------------------

http://www.tri-cityherald.com/tch/local/story/6709833p-6596915c.html
The Tri-City Herald (Kennewick, Pasco, and Richland, Washington), Friday, July 15th, 2005

Experts wrap up analysis of Kennewick Man

By Anna King, Herald staff writer

SEATTLE -- The dozens of eyes studying Kennewick Man began to show the strain Thursday afternoon of the long hours and intensive analysis of the past 10 days.

The scientists had just hours left to complete their work. And these dozen experts in fields from forensic anthropology to geochemistry could be the last Kennewick Man sees.

They were guarded in their remarks about what they have found so far, but a few details slipped -- like the position of some of the 9,400-year-old skeleton's hands and feet and if his skull links him to other ancient populations of North and South America.

Hugh Berryman, one of the scientists, took a break at a shady table holding an almost empty Diet Coke outside the Burke Museum on the scenic University of Washington campus where the study is going on inside a classroom. "I'd like to be able to put some things together, and then look at it again to make sure I've got it right," he said, with a soft Southern accent. "But there just isn't time."

Berryman, a forensic anthropologist at Middle Tennessee State University in Nashville, specializes in how bones break. He's been carefully examining each of Kennewick Man's bones and determining when, how and why each broke. Berryman said he thinks Kennewick Man's right hand was facing palm down and his left foot was heel down and turned out and to the side while he was buried along the banks of the Columbia River in Kennewick for all those centuries. Yet none of the scientists were willing to speculate yet on whether the old man was buried or was preserved for so many years right where he fell.

But those answers are coming.

Sometimes four of the scientists have spent an entire day studying just one of the major limb bones, Berryman said.

David Hunt, a forensic anthropologist with the Smithsonian Institution in Washington, D.C., said it took him four days to piece together the expensive and high-tech 11-piece model of Kennewick Man's skull and compare it to the original. The pieces for the model were fabricated weeks ago and assembled last week. After he put it together, Hunt said he thinks the skull's shape looks similar to other Paleo-American skulls he's handled. "Some of the features I see here are very similar to the Paleo-Indian, Paleo-Native American cultures I've worked with," he said.

Hunt used jeweler's wax on the original skull to make sure the model fit as closely as possible to the real thing. He said he was a bit nervous while handling pieces of Kennewick Man's skull, and he expects criticism on his reconstruction, despite his painstaking work.

Doug Owsley, the team's lead scientist and a forensic anthropologist for the Smithsonian, was quick to point out that he doesn't think Kennewick Man is related to modern-day tribes. "It's much more complicated," he said. "He doesn't fit into this simple Bering (Sea) land bridge model. He could be an immigrant himself."

The plastic replica skull was created using a high-powered CAT scan machine, and cost about $20,000. Nathan Myhrvold of Seattle, the former chief technologist at Microsoft, was identified Thursday as the plastic skull's major donor.

Owsley said the scientists have determined that Kennewick Man's skeleton was buried and then didn't shift much until he was eroded out of the riverbank along the Columbia. The skeleton was found by college students wading in the river during Water Follies in 1996.

Scientists also were looking for cut marks or signs that a burrowing animal had damaged the skeleton and left tiny scratches behind.

Scientists say they believe the sharp stone point lodged in Kennewick Man's hip is made of basalt. And they think they might be able to determine where the basalt came from.

In the next week, Owsley said a plastic model of the arrowhead in his hip will be made so scientists who specialize in stone tools can take a closer look at what's inside.

And in October they expect to have an interim report prepared.

But the scientists say they are worried about Kennewick Man's future.

Further studies of Kennewick Man could be stopped if a bill proposed by U.S. Sen. John McCain, R-Ariz., passes and a two-word amendment changes the wording of the Native American Graves Protection and Repatriation Act. It would let federally recognized tribes demand the return of remains, even if they can't prove a link to a modern tribe. And that decision might be made in just a few weeks in Washington, D.C.

Northwest Native American tribes believe Kennewick Man is their ancestor and want to rebury the bones.

"That is so scary, because it would end it," Berryman said. "Any attempt to understand the past would be gone."

Today could be the last time the forensic scientist ever gets the chance to study the ancient bones.

"Mr. Kennewick is a fine gentleman," Berryman said. "I wouldn't mind seeing him again. He's like an old friend."

-----------------

http://www.tri-cityherald.com/tch/local/story/6758121p-6646511c.html
The Tri-City Herald (Kennewick, Pasco, and Richland, Washington), Friday, July 29th, 2005

Debate over Kennewick Man's remains now with lawmakers

By Les Blumenthal, Herald Washington, D.C., bureau

WASHINGTON -- Though his 9,300-year-old remains rest in a Seattle museum, Kennewick Man is at the center of a debate 3,000 miles away over a two-word amendment to a Senate bill that has sparked sharp controversy between the nation's Indian tribes and parts of the scientific community.

At a Senate Indian Affairs Committee hearing Thursday, tribal representatives laid claim to ancient remains such as those of Kennewick Man, while scientists insisted they needed to study such remains if they are ever to understand the earliest inhabitants of North America.

Meanwhile, the Bush administration appeared to flip-flop on the issue and now believes a "genetic link" would have to be established before Kennewick Man and other similar skeletons could be turned over to the tribes for burial.

The committee already had approved the amendment to a technical corrections bill, but it was stripped out before the full Senate acted.

The amendment to the Native American Graves Protection and Repatriation Act would reverse a federal appeals court order and ensure federally recognized tribes could claim ancient remains even if a direct link to a tribe can't be proven.

"It doesn't matter if it is two words or 100 words. Words have meaning," said North Dakota Sen. Byron Dorgan, the committee's top Democrat. "This is a very emotional issue and a spiritual issue. It is not an easy issue to deal with."

The dispute dates to 1996, when two men stumbled upon a skeleton along the banks of the Columbia River while attending the Columbia Cup hydroplane races in Kennewick. The Army Corps of Engineers laid claim to the skeleton, originally thought to be that of a white settler, and planned to turn it over to local tribes. The Umatilla, Yakama, Nez Perce and Colville Tribes wanted to bury the bones before they could be studied.

But scientists filed suit, insisting the remains, dubbed Kennewick Man, could not be linked to any of the tribes. Initial tests showed the skeleton was 9,300 years old, and some scientists suggested that rather than resembling Native Americans, the skeleton was more like the prehistoric Jomon of Japan or Polynesians or Caucasians.

A federal judge in Portland and the 9th U.S. Circuit Court of Appeals agreed with the scientists, who recently spent 10 days examining Kennewick Man at the Burke Museum at the University of Washington. Their report is due in October.

Since the appeals court ruling, the tribes have sought to have Congress clarify the law by adding "or was" to a definition of ancient Native American. The new definition would say that when it comes to ancient remains, Native American refers to a member of a tribe or culture that is or was indigenous to the United States.

Without the change, more than 100,000 human remains currently held in museums and other collections no longer would be protected by the statute, said Walter Echo-Hawk, an attorney with the Native American Rights Fund.

If the appeals court decision is allowed to stand, Echo-Hark said, "Museums and agencies are free to make unilateral determination affecting the classification, treatment and disposition of these dead without any consultation with Indian tribes."

Paul Bender, an Arizona State University law professor who helped write the original law, said the appeals court decision ran contrary to the statute, which was intended to cover skeletal remains even if no relationship was established to an existing tribe.

"If there are no lineal descendants, the materials are to go to the Indian tribe on whose land the materials were discovered or to the tribe that that has the closest cultural affiliation with the materials," Bender said.

But a lawyer for the scientists who filed the Kennewick Man lawsuit disagreed.

"We had a national treasure that was going to go back into the ground without ever being examined," said Paula Barran, a Portland attorney.

The Bush administration originally supported the Army Corps of Engineers decision to turn Kennewick Man over to the tribes and filed a brief before the appeals court arguing that was what the statute required.

However, Paul Hoffman, the Interior Department's deputy assistant secretary for fish, wildlife and parks, testified Thursday that the administration would oppose the amendment to the existing law.

Hoffman said the administration believed the law should "protect the sensibilities of currently existing tribes, cultures and people while balancing the need to learn about past cultures and customs."

"In the situation where remains are not significantly related to any existing tribe, people or culture, they should be available for appropriate scientific analysis. The proposed legislation would shift away from this balance."

Sen. John McCain, R-Ariz., chairman of the committee, was not pleased at the administration's change in position. He said the amendment was "consistent" with the law's original intent.

After the hearing, a McCain aide said the amendment was mum when it came to whether it could be retroactively applied to Kennewick Man, adding that the committee had received differing opinions from lawyers.

Asked whether a compromise was possible, McCain told reporters, "You can't forget that the desecration of Indian remains was a common and obscene practice for centuries. This (Kennewick Man) is kind of a unique situation. But for us to do anything that would undermine our ability to finally prevent that kind of disgraceful practice is something we want to prevent."

----------------------

** Article comparing how Kennewick Man was handled, vs. how discovery of an even older set of human bones was handled by scientists and members of a tribe in a way that was mutually respectful and productive.

http://seattletimes.nwsource.com/html/opinion/2003226316_sunkuwoot27.html?syndication=rss
Seattle Times, Sunday, August 27, 2006

Who owns the past?

by Kate Riley / Times staff columnist

What was left of the victim was in pieces. A jawbone broken in two, partial ribs, some vertebrae, teeth and a broken pelvis were found scattered around the remote cave on an Alaskan island. Gnaw marks suggested the young man in his 20s might have met his end in the jaws of a bear.

It's a mystery of some vintage — about 10,300 years. But apply modern technology and shrewd deduction, and the few bones and artifacts are enough to provide significant clues about a mystery of the ages: how people came to live in the Americas.

The red-carpet treatment

The discovery of the man the Tlingit people named Kuwóot yas.éin pushes back the envelope of human occupation in the region, because the artifacts found with him suggest an extensive trading network by long-standing inhabitants. The findings help to dismantle the old theory still embedded in some textbooks that the first Americans walked across the Bering land bridge around 13,000 years ago. Yes, people probably did, but they were not first.

Kuwóot yas.éin's story has been told quietly because the Tlingits collaborated with scholars. There is less light but much more noise surrounding Kennewick Man, the prehistoric celebrity who walked the Columbia River shore in Southeastern Washington 1,000 years later.

Science vs. native beliefs

A federal court fight made Kennewick Man the symbol of the struggle between science and native beliefs over the telling of the earliest Americans' story. But Kuwóot yas.éin proves it doesn't necessarily have to be so.

In this 10th summer since Kuwóot yas.éin and Kennewick Man were found on federal land, the U.S. repatriation law requires some combination of clarification, enforcement and accountability. Next month, U.S. Rep. Doc Hastings, R-Pasco, will introduce legislation to clarify Congress' original intent in passing the Native Americans Grave Protection and Repatriation Act (NAGPRA). That is, only remains with a substantial cultural relationship to presently existing tribes should be repatriated — given back — to the tribes.

Hastings' bill counters efforts in the Senate Indian Affairs Committee to undermine the U.S. 9th Circuit Court of Appeals ruling in favor of scientists who successfully sued to study the remains. Sen. John McCain, R-Ariz., held a hearing last year on a NAGPRA amendment that would make it easier for modern native people to claim human remains by virtue of common geography rather than cultural affiliation.

The contrasting approaches should revive debate to fine-tune the 1990 repatriation law, a righteous law that establishes a process for museums and federal agencies to return certain Native American cultural items to lineal descendants, and culturally affiliated tribes and Native Hawaiian organizations. While most museums have met their inventory and notification deadlines, many federal agencies have been slower to act. The inconsistencies are so concerning that the federal NAGPRA review committee plans to ask Congress for a Government Accountability Office audit.

Good idea, but any audit should also review how well those agencies follow another part of the law when it comes to handling the rare cases of these exceptionally old remains. That Kennewick Man is a household name and Kuwóot yas.éin is barely known outside anthropological circles is a function of how differently these cases were handled by the federal agencies involved. Each approach contributed respectively to the Washington confrontation and the Alaskan collaboration.

Keith Kintigh, former president of the Society for American Archaeology who helped influence some of the language in the repatriation law, says the federal agency's decision-making is key. The law is clear about proving cultural affiliation. But too often agency officials want the potential controversy off their desks and quickly move to repatriate, he says. That's what happened in the Kennewick case.

"I think the agencies way too often have taken the easy way out," says Kintigh, Arizona State University anthropology professor.

Proving the past

On July 5, 1996, Terry Fifield, the U.S. Forest Service's archaeologist for Prince of Wales Island in Southeast Alaska, took ahelicopter to a remote site on the island's northwest tip . He had been called to collect some human bones found at a paleontology excavation. That night, he called the presidents of two neighboring Tlingit communities as required under the repatriation law and set a meeting within a week.

But he didn't stop there. Two years before, two 35,000-year-old bear bones were found in the cave. Realizing the implications, Fifield also called archaeologist E. James Dixon, now of the University of Colorado, who was studying paleoindian occupation in the region. Dixon suggested he could get a grant for study and liked Fifield's suggestion that native people be hired as interns. The native communities soon endorsed investigation, with some conditions, including that they would be informed first of any findings.

In contrast, the Army Corps of Engineers, which owned the land where Kennewick Man was found, botched the case's early handling so badly, the U.S. interior secretary had to step in. Also, the bones were found in a much more obscure archaeological context, a well-used public park during the Columbia Cup hydroplane races, which draws as many as 50,000 people.

The coroner investigated it as a modern forensics case initially, and the Columbia Plateau tribes were irked when they weren't consulted, especially so when the bones were determined to be 9,300 years old. Media reports of the consulting anthropologist's assertion that Kennewick Man did not resemble modern native people but had European features didn't help either, injecting a shadow of the ethnic subtext that would fan the controversy.

After Corps officials took custody of the bones, their ham-handed mistakes exacerbated the case's rocky start. The Corps quickly announced its intention to repatriate the remains to the tribes without going through the steps of establishing cultural affiliation as required by the repatriation law.

Doug Owsley of the Smithsonian's National Museum of Natural History wrote a letter to the coalition of tribes that claimed Kennewick Man, or the "Ancient One," as their ancestor, including the Umatillas, Colvilles, Yakamas, Nez Perce and the Wanapum band. He offered to collaborate and share findings. But the tribes had no reason to negotiate, since the Corps had made the decision they wanted. So Owsley and seven other scientists sued.

Later, then-Interior Secretary Bruce Babbitt, bucking his own staff's recommendation, ruled Kennewick Man was affiliated with modern tribes. But court-ordered studies to determine cultural affiliation were unsuccessful. A federal judge ruled in favor of the plaintiff scientists in 2002. After prevailing on appeal, the team began its study of the bones, stored at the University of Washington's Burke Museum of Natural History and Culture, in July 2005.

Moving forward

Controversy still swirls around the Kennewick Man study, with some anthropologists and archaeologists critical of the plaintiffs' approach, one they say has created tensions in their relationships with tribes.

Still, when the Corps so blatantly flouted the law, the plaintiffs had no choice but to take a legal stand.

Since the ruling, Corps policies have not changed, said an agency official who oversees Kennewick Man's curation at the Burke. But Christopher Pulliam, deputy director of the Corps' curation and analysis branch, says the agency knows to provide more scrutiny and care in its analysis — and has learned from the experience.

That would not be a bad legacy for the Kennewick Man case, if it were universal. But many scientists say it is not. If anything, it ought to put more federal agencies on notice about how the law should apply, although the ruling technically applies only to the Western states covered by the 9th Circuit Court of Appeals.

If debate is reopened, it should emphasize what the law already says — that the public benefit of scientific knowledge should be factored in. Of course, remains should be repatriated to tribes where there is a known cultural link.

But where such a link cannot be established and the study of the remains can help tell the story of our common America, then they should be available for respectful and ethical study.

Kuwóot yas.éin and Kennewick Man have something to say about how people came to America. But the testimony told through their bones reveals only a small part of the larger mystery. The truth should not be buried.

Times editorial writer Kate Riley is the 2005-06 recipient of the Eugene C. Pulliam Fellowship for Editorial Writing, which provides her the opportunity to probe topics related to America's past. Her email is kriley@seattletimes.com

* Science and tribal beliefs
http://seattletimes.nwsource.com/html/opinion/2003226288_sunkuwootside27.html

* Kuwóot yas.éin and Kennewick Man
http://seattletimes.nwsource.com/html/editorialsopinion/2003226442_sunkuwootweb27.html

* Kennwwick Man Analysis (PDF)
http://seattletimes.nwsource.com/ABPub/2006/08/25/2003226520.pdf

National Native American Graves Protection and Repatriation Act, federal program:
www.cr.nps.gov/nagpra

Friends of America's Past, advocates for study of early Americans:
www.friendsofpast.org

Society for American Archaeology:
www.saa.org/repatriation/index.html

Confederated Tribes of the Umatilla Indian Reservation's Kennewick Man Web site:
www.umatilla.nsn.us/ancient.html

University of Washington Burke Museum of Natural History and Culture, Kennewick Man site:
www.washington.edu/burkemuseum/kman

U.S. Forest Service's On Your Knees Cave (Alaska) Web site:
www.fs.fed.us/r10/tongass/forest _facts/resources/heritage/onyourknees.shtml

National Park Service's Kennewick Man study page:
www.cr.nps.gov/archeology/kennewick/

----------------

Summary of Kennewick Man official documents available for download, including radiocarbon dating and DNA results (but the list appears not to be up-to-date):
http://www.cr.nps.gov/aad/kennewick/index.htm

--------------

The Smithsonian Magazine for September 2014 publishes a review of what has happened with Kennewick Man, tracing the controversy between scientists vs. tribes in light of NAGRPA, and the role of the U.S. Army Corps of Engineers in supporting the tribes and defying court orders.

http://www.smithsonianmag.com/history/kennewick-man-finally-freed-share-his-secrets-180952462/?all
The Smithsonian magazine, September 2014 [photo of fully-fleshed reconstructed head is included in the actual article]

The Kennewick Man Finally Freed to Share His Secrets
He's the most important human skeleton ever found in North America -- and here, for the first time, is his story

By Douglas Preston

In the summer of 1996, two college students in Kennewick, Washington, stumbled on a human skull while wading in the shallows along the Columbia River. They called the police. The police brought in the Benton County coroner, Floyd Johnson, who was puzzled by the skull, and he in turn contacted James Chatters, a local archaeologist. Chatters and the coroner returned to the site and, in the dying light of evening, plucked almost an entire skeleton from the mud and sand. They carried the bones back to Chatters' lab and spread them out on a table.

The skull, while clearly old, did not look Native American. At first glance, Chatters thought it might belong to an early pioneer or trapper. But the teeth were cavity-free (signaling a diet low in sugar and starch) and worn down to the roots -- a combination characteristic of prehistoric teeth. Chatters then noted something embedded in the hipbone. It proved to be a stone spearpoint, which seemed to clinch that the remains were prehistoric. He sent a bone sample off for carbon dating. The results: It was more than 9,000 years old.

Thus began the saga of Kennewick Man, one of the oldest skeletons ever found in the Americas and an object of deep fascination from the moment it was discovered. It is among the most contested set of remains on the continents as well. Now, though, after two decades, the dappled, pale brown bones are at last about to come into sharp focus, thanks to a long-awaited, monumental scientific publication next month co-edited by the physical anthropologist Douglas Owsley, of the Smithsonian Institution. No fewer than 48 authors and another 17 researchers, photographers and editors contributed to the 680-page Kennewick Man: The Scientific Investigation of an Ancient American Skeleton (Texas A&M University Press), the most complete analysis of a Paleo-American skeleton ever done.

The book recounts the history of discovery, presents a complete inventory of the bones and explores every angle of what they may reveal. Three chapters are devoted to the teeth alone, and another to green stains thought to be left by algae. Together, the findings illuminate this mysterious man's life and support an astounding new theory of the peopling of the Americas. If it weren't for a harrowing round of panicky last-minute maneuvering worthy of a legal thriller, the remains might have been buried and lost to science forever.

The storm of controversy erupted when the Army Corps of Engineers, which managed the land where the bones had been found, learned of the radiocarbon date. The corps immediately claimed authority -- officials there would make all decisions related to handling and access -- and demanded that all scientific study cease. Floyd Johnson protested, saying that as county coroner he believed he had legal jurisdiction. The dispute escalated, and the bones were sealed in an evidence locker at the sheriff's office pending a resolution.

"At that point," Chatters recalled to me in a recent interview, "I knew trouble was coming." It was then that he called Owsley, a curator at the National Museum of Natural History and a legend in the community of physical anthropologists. He has examined well over 10,000 sets of human remains during his long career. He had helped identify human remains for the CIA, the FBI, the State Department and various police departments, and he had worked on mass graves in Croatia and elsewhere. He helped reassemble and identify the dismembered and burned bodies from the Branch Davidian compound in Waco, Texas. Later, he did the same with the Pentagon victims of the 9/11 terrorist attack. Owsley is also a specialist in ancient American remains.

"You can count on your fingers the number of ancient, well-preserved skeletons there are" in North America, he told me, remembering his excitement at first hearing from Chatters. Owsley and Dennis Stanford, at that time chairman of the Smithsonian's anthropology department, decided to pull together a team to study the bones. But corps attorneys showed that federal law did, in fact, give them jurisdiction over the remains. So the corps seized the bones and locked them up at the Department of Energy's Pacific Northwest National Laboratory, often called Battelle for the organization that operates the lab.

At the same time, a coalition of Columbia River Basin Indian tribes and bands claimed the skeleton under a 1990 law known as the Native American Graves Protection and Repatriation Act, or NAGPRA. The tribes demanded the bones for reburial. "Scientists have dug up and studied Native Americans for decades," a spokesman for the Umatilla tribe, Armand Minthorn, wrote in 1996. "We view this practice as desecration of the body and a violation of our most deeply-held religious beliefs." The remains, the tribe said, were those of a direct tribal ancestor. "From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated here from another continent, as the scientists do." The coalition announced that as soon as the corps turned the skeleton over to them, they would bury it in a secret location where it would never be available to science. The corps made it clear that, after a monthlong public comment period, the tribal coalition would receive the bones.

The tribes had good reason to be sensitive. The early history of museum collecting of Native American remains is replete with horror stories. In the 19th century, anthropologists and collectors looted fresh Native American graves and burial platforms, dug up corpses and even decapitated dead Indians lying on the field of battle and shipped the heads to Washington for study. Until NAGPRA, museums were filled with American Indian remains acquired without regard for the feelings and religious beliefs of native people. NAGPRA was passed to redress this history and allow tribes to reclaim their ancestors' remains and some artifacts. The Smithsonian, under the National Museum of the American Indian Act, and other museums under NAGPRA, have returned (and continue to return) many thousands of remains to tribes. This is being done with the crucial help of anthropologists and archaeologists -- including Owsley, who has been instrumental in repatriating remains from the Smithsonian's collection. But in the case of Kennewick, Owsley argued, there was no evidence of a relationship with any existing tribes. The skeleton lacked physical features characteristic of Native Americans.

In the weeks after the Army engineers announced they would return Kennewick Man to the tribes, Owsley went to work. "I called and others called the corps. They would never return a phone call. I kept expressing an interest in the skeleton to study it -- at our expense. All we needed was an afternoon." Others contacted the corps, including members of Congress, saying the remains should be studied, if only briefly, before reburial. This was what NAGPRA in fact required: The remains had to be studied to determine affiliation. If the bones showed no affiliation with a present-day tribe, NAGPRA didn't apply.

But the corps indicated it had made up its mind. Owsley began telephoning his colleagues. "I think they're going to rebury this," he said, "and if that happens, there's no going back. It's gone." So Owsley and several of his colleagues found an attorney, Alan Schneider. Schneider contacted the corps and was also rebuffed. Owsley suggested they file a lawsuit and get an injunction. Schneider warned him: "If you're going to sue the government, you better be in it for the long haul."

Owsley assembled a group of eight plaintiffs, prominent physical anthropologists and archaeologists connected to leading universities and museums. But no institution wanted anything to do with the lawsuit, which promised to attract negative attention and be hugely expensive. They would have to litigate as private citizens. "These were people," Schneider said to me later, "who had to be strong enough to stand the heat, knowing that efforts might be made to destroy their careers. And efforts were made."

When Owsley told his wife, Susan, that he was going to sue the government of the United States, her first response was: "Are we going to lose our home?" He said he didn't know. "I just felt," Owsley told me in a recent interview, "this was one of those extremely rare and important discoveries that come once in a lifetime. If we lost it" -- he paused. "Unthinkable."

Working like mad, Schneider and litigating partner Paula Barran filed a lawsuit. With literally hours to go, a judge ordered the corps to hold the bones until the case was resolved.

When word got out that the eight scientists had sued the government, criticism poured in, even from colleagues. The head of the Society for American Archaeology tried to get them to drop the lawsuit. Some felt it would interfere with the relationships they had built with Native American tribes. But the biggest threat came from the Justice Department itself. Its lawyers contacted the Smithsonian Institution warning that Owsley and Stanford might be violating "criminal conflict of interest statutes which prohibit employees of the United States" from making claims against the government.

"I operate on a philosophy," Owsley told me, "that if they don't like it, I'm sorry: I'm going to do what I believe in." He had wrestled in high school and, even though he often lost, he earned the nickname "Scrapper" because he never quit. Stanford, a husky man with a full beard and suspenders, had roped in rodeos in New Mexico and put himself through graduate school by farming alfalfa. They were no pushovers. "The Justice Department squeezed us really, really hard," Owsley recalled. But both anthropologists refused to withdraw, and the director of the National Museum of Natural History at the time, Robert W. Fri, strongly supported them even over the objections of the Smithsonian's general counsel. The Justice Department backed off.

Owsley and his group were eventually forced to litigate not just against the corps, but also the Department of the Army, the Department of the Interior and a number of individual government officials. As scientists on modest salaries, they could not begin to afford the astronomical legal bills. Schneider and Barran agreed to work for free, with the faint hope that they might, someday, recover their fees. In order to do that they would have to win the case and prove the government had acted in "bad faith" -- a nearly impossible hurdle. The lawsuit dragged on for years. "We never expected them to fight so hard," Owsley says. Schneider says he once counted 93 government attorneys directly involved in the case or cc'ed on documents.

Meanwhile, the skeleton, which was being held in trust by the corps, first at Battelle and later at the Burke Museum of Natural History and Culture at the University of Washington in Seattle, was badly mishandled and stored in "substandard, unsafe conditions," according to the scientists. In the storage area where the bones were (and are) being kept at the Burke Museum, records show there have been wide swings in temperature and humidity that, the scientists say, have damaged the specimen. When Smithsonian asked about the scientists' concerns, the corps disputed that the environment is unstable, pointing out that expert conservators and museum personnel say that "gradual changes are to be expected through the seasons and do not adversely affect the collection."

Somewhere in the move to Battelle, large portions of both femurs disappeared. The FBI launched an investigation, focusing on James Chatters and Floyd Johnson. It even went so far as to give Johnson a lie detector test; after several hours of accusatory questioning, Johnson, disgusted, pulled off the wires and walked out. Years later, the femur bones were found in the county coroner's office. The mystery of how they got there has never been solved.

The scientists asked the corps for permission to examine the stratigraphy of the site where the skeleton had been found and to look for grave goods. Even as Congress was readying a bill to require the corps to preserve the site, the corps dumped a million pounds of rock and fill over the area for erosion control, ending any chance of research.

I asked Schneider why the corps so adamantly resisted the scientists. He speculated that the corps was involved in tense negotiations with the tribes over a number of thorny issues, including salmon fishing rights along the Columbia River, the tribes' demand that the corps remove dams and the ongoing, hundred-billion-dollar cleanup of the vastly polluted Hanford nuclear site. Schneider says that a corps archaeologist told him "they weren't going to let a bag of old bones get in the way of resolving other issues with the tribes."

Asked about its actions in the Kennewick Man case, the corps told Smithsonian: "The United States acted in accordance with its interpretation of NAGPRA and its concerns about the safety and security of the fragile, ancient human remains."

Ultimately, the scientists won the lawsuit. The court ruled in 2002 that the bones were not related to any living tribe: thus NAGPRA did not apply. The judge ordered the corps to make the specimen available to the plaintiffs for study. The government appealed to the Court of Appeals for the Ninth Circuit, which in 2004 again ruled resoundingly in favor of the scientists, writing: because Kennewick Man's remains are so old and the information about his era is so limited, the record does not permit the Secretary [of the Interior] to conclude reasonably that Kennewick Man shares special and significant genetic or cultural features with presently existing indigenous tribes, people, or cultures.

During the trial, the presiding magistrate judge, John Jelderks, had noted for the record that the corps on multiple occasions misled or deceived the court. He found that the government had indeed acted in "bad faith" and awarded attorney's fees of $2,379,000 to Schneider and his team.

"At the bare minimum," Schneider told me, "this lawsuit cost the taxpayers $5 million."

Owsley and the collaborating scientists presented a plan of study to the corps, which was approved after several years. And so, almost ten years after the skeleton was found, the scientists were given 16 days to examine it. They did so in July of 2005 and February of 2006. From these studies, presented in superabundant detail in the new book, we now have an idea who Kennewick Man was, how he lived, what he did and where he traveled. We know how he was buried and then came to light. Kennewick Man, Owsley believes, belongs to an ancient population of seafarers who were America's original settlers. They did not look like Native Americans. The few remains we have of these early people show they had longer, narrower skulls with smaller faces. These mysterious people have long since disappeared.

To get to Owsley's office at the National Museum of Natural History, you must negotiate a warren of narrow corridors illuminated by fluorescent strip lighting and lined with specimen cases. When his door opens, you are greeted by Kennewick Man. The reconstruction of his head is striking -- rugged, handsome and weather-beaten, with long hair and a thick beard. A small scar puckers his left forehead. His determined gaze is powerful enough to stop you as you enter. This is a man with a history.

Kennewick Man is surrounded on all sides by tables laid out with human skeletons. Some are articulated on padded counters, while others rest in metal trays, the bones arranged as precisely as surgeon's tools before an operation. These bones represent the forensic cases Owsley is currently working on.

"This is a woman," he said, pointing to the skeleton to the left of Kennewick Man. "She's young. She was a suicide, not found for a long time." He gestured to the right. "And this is a homicide. I know there was physical violence. She has a fractured nose, indicating a blow to the face. The detective working the case thinks that if we can get a positive ID, the guy they have will talk. And we have a positive ID." A third skeleton belonged to a man killed while riding an ATV, his body not found for six months. Owsley was able to assure the man's relatives that he died instantly and didn't suffer. "In doing this work," he said, "I hope to speak for the person who can no longer speak."

Owsley is a robust man, of medium height, 63 years old, graying hair, glasses; curiously, he has the same purposeful look in his eyes as Kennewick Man. He is not into chitchat. He grew up in Lusk, Wyoming, and he still radiates a frontier sense of determination; he is the kind of person who will not respond well to being told what he can't do. He met Susan on the playground when he was 7 years old and remains happily married. He lives in the country, on a farm where he grows berries, has an orchard and raises bees. He freely admits he is "obsessive" and "will work like a dog" until he finishes a project. "I thought this was normal," he said, "until it was pointed out to me it wasn't." I asked if he was stubborn, as evidenced by the lawsuit, but he countered: "I would say I'm driven -- by curiosity." He added, "Sometimes you come to a skeleton that wants to talk to you, that whispers to you, I want to tell my story. And that was Kennewick Man."

A vast amount of data was collected in the 16 days Owsley and colleagues spent with the bones. Twenty-two scientists scrutinized the almost 300 bones and fragments. Led by Kari Bruwelheide, a forensic anthropologist at the Smithsonian, they first reassembled the fragile skeleton so they could see it as a whole. They built a shallow box, added a layer of fine sand, and covered that with black velvet; then Bruwelheide laid out the skeleton, bone by bone, shaping the sand underneath to cradle each piece. Now the researchers could address such questions as Kennewick Man's age, height, weight, body build, general health and fitness, and injuries. They could also tell whether he was deliberately buried, and if so, the position of his body in the grave.

Next the skeleton was taken apart, and certain key bones studied intensively. The limb bones and ribs were CT- scanned at the University of Washington Medical Center. These scans used far more radiation than would be safe for living tissue, and as a result they produced detailed, three-dimensional images that allowed the bones to be digitally sliced up any which way. With additional CT scans, the team members built resin models of the skull and other important bones. They made a replica from a scan of the spearpoint in the hip.

As work progressed, a portrait of Kennewick Man emerged. He does not belong to any living human population. Who, then, are his closest living relatives? Judging from the shape of his skull and bones, his closest living relatives appear to be the Moriori people of the Chatham Islands, a remote archipelago 420 miles southeast of New Zealand, as well as the mysterious Ainu people of Japan.

"Just think of Polynesians," said Owsley.

Not that Kennewick Man himself was Polynesian. This is not Kon-Tiki in reverse; humans had not reached the Pacific Islands in his time period. Rather, he was descended from the same group of people who would later spread out over the Pacific and give rise to modern-day Polynesians. These people were maritime hunter-gatherers of the north Pacific coast; among them were the ancient Jōmon, the original inhabitants of the Japanese Islands. The present-day Ainu people of Japan are thought to be descendants of the Jōmon. Nineteenth-century photographs of the Ainu show individuals with light skin, heavy beards and sometimes light-colored eyes.

Jōmon culture first arose in Japan at least 12,000 years ago and perhaps as early as 16,000 years ago, when the landmasses were still connected to the mainland. These seafarers built boats out of sewn planks of wood. Outstanding mariners and deep-water fishermen, they were among the first people to make fired pottery.

The discovery of Kennewick Man adds a major piece of evidence to an alternative view of the peopling of North America. It, along with other evidence, suggests that the Jōmon or related peoples were the original settlers of the New World. If correct, the conclusion upends the traditional view that the first Americans came through central Asia and walked across the Bering Land Bridge and down through an ice-free corridor into North America.

Sometime around 15,000 years ago, the new theory goes, coastal Asian groups began working their way along the shoreline of ancient Beringia -- the sea was much lower then -- from Japan and Kamchatka Peninsula to Alaska and beyond. This is not as crazy a journey as it sounds. As long as the voyagers were hugging the coast, they would have plenty of fresh water and food. Cold-climate coasts furnish a variety of animals, from seals and birds to fish and shellfish, as well as driftwood, to make fires. The thousands of islands and their inlets would have provided security and shelter. To show that such a sea journey was possible, in 1999 and 2000 an American named Jon Turk paddled a kayak from Japan to Alaska following the route of the presumed Jōmon migration. Anthropologists have nicknamed this route the "Kelp Highway."

"I believe these Asian coastal migrations were the first," said Owsley. "Then you've got a later wave of the people who give rise to Indians as we know them today."

What became of those pioneers, Kennewick Man's ancestors and companions? They were genetically swamped by much larger -- and later -- waves of travelers from Asia and disappeared as a physically distinct people, Owsley says. These later waves may have interbred with the first settlers, diluting their genetic legacy. A trace of their DNA still can be detected in some Native American groups, though the signal is too weak to label the Native Americans "descendants."

Whether this new account of the peopling of North America will stand up as more evidence comes in is not yet known. The bones of a 13,000-year-old teenage girl recently discovered in an underwater cave in Mexico, for example, are adding to the discussion. James Chatters, the first archaeologist to study Kennewick and a participant in the full analysis, reported earlier this year, along with colleagues, that the girl's skull appears to have features in common with that of Kennewick Man and other Paleo-Americans, but she also possesses specific DNA signatures suggesting she shares female ancestry with Native Americans.

Kennewick Man may still hold a key. The first effort to extract DNA from fragments of his bone failed, and the corps so far hasn't allowed a better sample to be taken. A second effort to plumb the old fragments is underway at a laboratory in Denmark.

There's a wonderful term used by anthropologists: "osteobiography," the "biography of the bones." Kennewick Man's osteobiography tells a tale of an eventful life, which a newer radiocarbon analysis puts at having taken place 8,900 to 9,000 years ago. He was a stocky, muscular man about 5 feet 7 inches tall, weighing about 160 pounds. He was right-handed. His age at death was around 40.

Anthropologists can tell from looking at bones what muscles a person used most, because muscle attachments leave marks in the bones: The more stressed the muscle, the more pronounced the mark. For example, Kennewick Man's right arm and shoulder look a lot like a baseball pitcher's. He spent a lot of time throwing something with his right hand, elbow bent -- no doubt a spear. Kennewick Man once threw so hard, Owsley says, he fractured his glenoid rim -- the socket of his shoulder joint. This is the kind of injury that puts a baseball pitcher out of action, and it would have made throwing painful. His left leg was stronger than his right, also a characteristic of right- handed pitchers, who arrest their forward momentum with their left leg. His hands and forearms indicate he often pinched his fingers and thumb together while tightly gripping a small object; presumably, then, he knapped his own spearpoints.

Kennewick Man spent a lot of time holding something in front of him while forcibly raising and lowering it; the researchers theorize he was hurling a spear downward into the water, as seal hunters do. His leg bones suggest he often waded in shallow rapids, and he had bone growths consistent with "surfer's ear," caused by frequent immersion in cold water. His knee joints suggest he often squatted on his heels. I like to think he might have been a storyteller, enthralling his audience with tales of far-flung travels.

Many years before Kennewick Man's death, a heavy blow to his chest broke six ribs. Because he used his right hand to throw spears, five broken ribs on his right side never knitted together. This man was one tough dude.

The scientists also found two small depression fractures on his cranium, one on his forehead and the other farther back. These dents occur on about half of all ancient American skulls; what caused them is a mystery. They may have come from fights involving rock throwing, or possibly accidents involving the whirling of a bola. This ancient weapon consisted of two or more stones connected by a cord, which were whirled above the head and thrown at birds to entangle them. If you don't swing a bola just right, the stones can whip around and smack you. Perhaps a youthful Kennewick Man learned how to toss a bola the hard way.

The most intriguing injury is the spearpoint buried in his hip. He was lucky: The spear, apparently thrown from a distance, barely missed the abdominal cavity, which would have caused a fatal wound. It struck him at a downward arc of 29 degrees. Given the bone growth around the embedded point, the injury occurred when he was between 15 and 20 years old, and he probably would not have survived if he had been left alone; the researchers conclude that Kennewick Man must have been with people who cared about him enough to feed and nurse him back to health. The injury healed well and any limp disappeared over time, as evidenced by the symmetry of his gluteal muscle attachments. There's undoubtedly a rich story behind that injury. It might have been a hunting accident or a teenage game of chicken gone awry. It might have happened in a fight, attack or murder attempt.

Much to the scientists' dismay, the corps would not allow the stone to be analyzed, which might reveal where it was quarried. "If we knew where that stone came from," said Stanford, the Smithsonian anthropologist, "we'd have a pretty good idea of where that guy was when he was a young man." A CT scan revealed that the point was about two inches long, three-quarters of an inch wide and about a quarter-inch thick, with serrated edges. In his analysis, Stanford wrote that while he thought Kennewick Man had probably received the injury in America, "an Asian origin of the stone is possible."

The food we eat and the water we drink leave a chemical signature locked into our bones, in the form of different atomic variations of carbon, nitrogen and oxygen. By identifying them, scientists can tell what a person was eating and drinking while the bone was forming. Kennewick Man's bones were perplexing. Even though his grave lies 300 miles inland from the sea, he ate none of the animals that abounded in the area. On the contrary, for the last 20 or so years of his life he seems to have lived almost exclusively on a diet of marine animals, such as seals, sea lions and fish. Equally baffling was the water he drank: It was cold, glacial meltwater from a high altitude. Nine thousand years ago, the closest marine coastal environment where one could find glacial meltwater of this type was Alaska. The conclusion: Kennewick Man was a traveler from the far north. Perhaps he traded fine knapping stones over hundreds of miles.

Although he came from distant lands, he was not an unwelcome visitor. He appears to have died among people who treated his remains with care and respect. While the researchers say they don't know how he died -- yet -- Owsley did determine that he was deliberately buried in an extended, prone position, faceup, the head slightly higher than the feet, with the chin pressed on the chest, in a grave that was about two and a half feet deep. Owsley deduced this information partly by mapping the distribution of carbonate crust on the bones, using a magnifying lens. Such a crust is heavier on the underside of buried bones, betraying which surfaces were down and which up. The bones showed no sign of scavenging or gnawing and were deliberately buried beneath the topsoil zone. From analyzing algae deposits and water-wear marks, the team determined which bones were washed out of the embankment first and which fell out last. Kennewick Man's body had been buried with his left side toward the river and his head upstream.

The most poignant outcome? The researchers brought Kennewick Man's features back to life. This process is nothing like the computerized restoration seen in the television show Bones. To turn a skull into a face is a time- consuming, handcrafted procedure, a marriage of science and art. Skeletal anatomists, modelmakers, forensic and figurative sculptors, a photographic researcher and a painter toiled many months to do it.

The first stage involved plotting dozens of points on a cast of the skull and marking the depth of tissue at those points. (Forensic anatomists had collected tissue-depth data over the years, first by pushing pins into the faces of cadavers, and later by using ultrasound and CT scans.) With the points gridded out, a forensic sculptor layered clay on the skull to the proper depths.

The naked clay head was then taken to StudioEIS in Brooklyn, which specializes in reconstructions for museums. There, sculptors aged his face, adding wrinkles and a touch of weathering, and put in the scar from the forehead injury. Using historic photographs of Ainu and Polynesians as a reference, they sculpted the fine, soft-tissue details of the lips, nose and eyes, and gave him a facial expression -- a resolute, purposeful gaze consistent with his osteobiography as a hunter, fisherman and long-distance traveler. They added a beard like those commonly found among the Ainu. As for skin tone, a warm brown was chosen, to account for his natural color deepened by the harsh effects of a life lived outdoors. To prevent too much artistic license from creeping into the reconstruction, every stage of the work was reviewed and critiqued by physical anthropologists.

"I look at him every day," Owsley said to me. "I've spent ten years with this man trying to better understand him. He's an ambassador from that ancient time period. And man, did he have a story."

Today, the bones remain in storage at the Burke Museum, and the tribes continue to believe that Kennewick Man is their ancestor. They want the remains back for reburial. The corps, which still controls the skeleton, denied Owsley's request to conduct numerous tests, including a histological examination of thin, stained sections of bone to help fix Kennewick Man's age. Chemical analyses on a lone tooth would enable the scientists to narrow the search for his homeland by identifying what he ate and drank as a child. A tooth would also be a good source of DNA. Biomolecular science is advancing so rapidly that within five to ten years it may be possible to know what diseases Kennewick Man suffered from and what caused his death.

Today's scientists still have questions for this skeleton, and future scientists will no doubt have new ones. Kennewick Man has more to tell.

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THE BRITISH GOVERNMENT BEGINS A PROCESS IN 2000 TO DEVELOP A LAW SIMILAR TO NAGPRA. A SCHOLAR LOOKS AT THE HISTORY OF NAGPRA AND KENNEWICK MAN, AND ADVISES AGAINST FOLLOWING THE AMERICAN EXAMPLE.

The following article is taken from:
http://www.butterfliesandwheels.com/articleprint.php?num=15

Don't Bury the Bones
By Tiffany Jenkins
director, the Institute of Ideas

A committee has met behind closed doors in London over the last two years to decide the future of old bones in British cultural and scientific institutions. Their deliberations and decision will have consequences for all of us. The skeletons in the closets could tell us about history, humanity and our health, if only we would let them.

There is a growing feeling amongst many in the museum profession that old human remains should be returned to where they were originally found. Tony Blair raised the issue of repatriation in 2000 when he agreed to increase efforts to send back remains from Australian indigenous communities. The Department for Culture Media and Sport subsequently set up a working group to examine the issue and consider how the law might be changed to allow institutions to repatriate all human remains.

The working group is made up of a few lawyers, museums professionals and anthropologists, among them Dr Neil Chalmers, director of The Natural History Museum; Norman Palmer, Professor of Commercial Law at University College London, and Tristram Besterman, director of the Manchester University Museum, who was until recently the convenor of the Museums Association Ethics Committee.

The group was asked to examine the legal status of human remains in the collections of publicly funded Museums and Galleries in the UK and the powers of these institutions to deaccession the remains. They had to consider the desirability of deaccession, the form of changes in legislation that would be necessary, and a statement of principles for guidance. The group will also make recommendations on how to include non-human remains associated with human remains in these changes.

The group is expected to issue recommendations to government soon. The main suggestion will be the relaxation of laws that currently prevent institutions from parting with bones. Overall it will advocate the return, for moral reasons, of skeletons presently held in national collections.

The bones are evidence from the past that speak to us about life from between one century to many thousands of years ago. Under scrutiny they reveal patterns of migration, the effect of environment upon body form, and the relationship between different populations. We can learn who lived where and when, about patterns in health, origin, gene flow and microevolutionary change

When the law changes, large and significant collections could be broken up and sent away. A survey by the committee found human remains from all over the world in more than sixty British museums. The Natural History Museum, for example, has a broad collection of at least twenty thousand remains that are used extensively by scientists for comparative research. University collections include those held at Edinburgh and Cambridge.

If returned, the collections will probably be treated as sacred and then buried. This has already happened in similar cases, and the likelihood that it will continue was reinforced at the annual conference for the Museum Association. The keynote speech was given by Rodney Dillon, a Tasmanian Aboriginal and Torres Strait Islander Commissioner who travels the world campaigning for the return of old aboriginal skeletons. Speaking to a welcoming audience Dillon proclaimed, ‘We take pride in our people's past. Without our remains where they should be, buried where they belong, we can’t cope. People are walking around with their heads down as their ancestors are not there.’

The pending ruling won’t remove all the material, of course. Not every group wants the remains returned, and in some situations no link can be found to any group at all. Some remains are of no research value, so there is no reason for them to be in a lab collecting dust. And research may well continue around the world. But on the whole it is likely that some of the most crucial material about humanity will be lost.

America has gone further down this path and indicates what could happen in the UK. In 1990, NAGPRA (the Native American Graves Protection and Repatriation Act) set new criteria for who should make the decisions regarding the disposition of human remains and artefacts. It is a mandate for researchers and museums to return all human remains to their closest hereditary or cultural descendants. The descendants decide the future of the bones whether they throw them into the sea, examine them, or bury them six feet under.

There has been a steady impact upon collections. Museums backed by government have sent back vital collections and remains, most of which have been covered in soil. It is estimated that the Smithsonian alone has transferred more than 3,335 sets of human remains. In 1999 the Peabody Museum based at Harvard University returned remains of nearly two thousand individuals to the Pecos and Jemez Pueblo in New Mexico.

The Pecos were at their peak between 1300 and 1600 and ruled over a trade path between the Pueblo farmers of the Rio Grande and tribes of the buffalo plains. The bones have been studied since their discovery in 1915. The collection was the largest available skeletal population from a single community and was large enough to be statistically significant. As a result we have learned about the influence of diet and disease on populations. We know more about osteoporosis, head injuries, and the development of dental cavities. This was brought to an end upon return of the collection when the bones were covered in earth. We can learn nothing further from these bones.

The Kennewick Man found on a riverbank in Washington state in 1996 is one of the most important skeletons to be found, but it cannot at present be examined. Initial radiocarbon samples showed the bones to be around 9,500 years old, proving the skeleton to be of Paleo-Indian age, and one of the oldest prehistoric individuals to be found in North America. Preliminary analysis suggested the bones were not American Indian but possibly European. Before further research could be done the bones were confiscated. Under NAGPRA any human remains found in North American that predate Columbus (1492), no matter how old the bones are, are considered American Indian.

The case has been contested by anthropologists who have gone from court to court asking to be allowed to examine the skeleton. Early this year a federal judge denied the motion that had put their investigations on hold. Scientists and historians held their breath eager to start work only to have their hopes dashed a month later with another court hearing blocking the study of the bones. Eight years after the discovery of an amazing piece of history, it still cannot be investigated.

Legislation backing the right of one group to decide prevents us all from ever finding out more, or challenging what we think we know. In the name of protecting ancient and sacred beliefs, what ought to be a rational legal system is blocking the furthering of our knowledge of humanity.

At the heart of the battle is the idea that a group identity owns the sole rights to investigate the past and can prevent all others from doing so. Yet the very idea of fixed groupings and cultural continuity over thousands of years is a flawed supposition. The history of human beings is not one of separate and permanent cultures, but one of continual migration, amalgamation, fission and disintegration. Neither people nor language, and certainly not geographic location remain stable for more than a small period of time. The idea that there is a clear link to thousands of years ago is fundamentally wrong. It also advances notions of fixed and separate races that should not be tolerated today. These are ideas that science and a rational understanding of history have proven incorrect.

The idea that one group should dictate to others what can and cannot be investigated is a serious and dangerous problem for all. The collections should belong to the world rather than any one group. That one group can censor and obscure access to knowledge on the basis of an identity from hundreds or thousands of years ago, is seriously wrong and threatens the future of ideas and understanding.

At last years Museums Association conference, Rodney Dillon exclaimed in his keynote address, ‘We have no clean water, there is petrol sniffing and crime is rife.’ It was a moving speech that filled me with outrage. But he used this terrible situation to argue that the bones should be returned and buried. ‘It is no good worrying about the future, we need to think about the past,’ he claimed.

Destroying history, understanding, and knowledge is not the solution to the very serious problems of this community. Indeed there is a great danger in rooting today’s pressing problems in the bones from thousands of years ago. The current circumstances of aborigines need to change in the here and now. Worrying about the past only obscures the nature and urgency of the problems.

The UK working group is eager to send the bones back. Members admit their recommendations will be "anti-scientific" but those in the nervous and unconfident museum profession welcome an opportunity to improve their image. They feel that they can benefit from this gesture. At a recent meeting on the bones someone from the Heritage Lottery Fund declared we 'need to understand the spiritual role of these objects and sacred artefacts that can help us find our place.’ It seems that many are turning their backs on the scientific project of making new discoveries, and instead want to find new meaning in old myths.

Secrets at our fingertips about the past are being covered up. The opportunity to explore and ask questions of our ancestors, to reaffirm or challenge conventional views, to evaluate what we discover against what we have been led to believe, is at stake. Those in charge of cultural institutions should not turn their backs on their responsibility to honour access to knowledge, for the sake of humanity's past and all our futures.

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GO BACK TO: NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawai'i -- Mokapu, Honokahua, Bishop Museum Ka'ai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization

GO BACK TO OTHER TOPICS ON THIS WEBSITE

Email: Ken_Conklin@yahoo.com