In the latest round of a high-profile legal battle, four Native American tribes were this week granted the right to appeal in a court case to decide who has the rights to the remains of the “Kennewick Man”. A six year-old controversy surrounds the remains, discovered in July, 1996, below the surface of Lake Wallula in Kennewick's Columbia Park in Washington.
Authorities initially did not realize how old the almost-complete remains were or to whom they belonged. Carbon dating conducted by Richland anthropologist Jim Chatters revealed that Kennewick Man's remains are between 9,200 and 9,600 years old. This evidence makes the skeleton of the 45-year old prehistoric man, presumed to have died from trauma by a stone projectile, one of the oldest discovered in the United States. It is in surprisingly good condition for its age. The discovery has sparked a bitter controversy involving American Indian groups, whose religious traditions insist upon reburial of the remains, and scientists and anthropologists who insist on their rights to study and learn from Kennewick Man.
Players in the debate include local officials, archaeologists, and four Pacific Northwest tribes: the Nez Perce, Umatilla, Yakama and Colville tribes regard the Kennewick Man (whom they call The Ancient One) as an ancestor, and are seeking to challenge one federal judge's interpretation of the Native American Graves Protection and Repatriation Act (NAGPRA).
Since the Judge Jelderk's August 30 ruling in favor of the scientists, the tribes have argued that the federal government is unable to defend their rights to the remains, and no longer represents their interests, since no appeal has yet been filed by government lawyers. The decision could significantly impact NAGPRA, a law passed in 1990 designed to prevent theft and illegal trafficking of Indian artifacts, protect tribal burial sites and restore the remains of ancestors to tribes.
“(Tribes) are adversely affected both by the disposition of this case, as well as the breadth of the opinion, which calls into question the remedial purposes of NAGPRA,” said lawyers for the Nez Perce, the Umatilla , the Yakama Nation and the Colville Nation. Before the August 30 decision, government agencies had decided to repatriate the remains to the tribes in accordance with the Act.
Some of the anthropologists who are eager to study Kennewick Man are Douglas Owsley, head of physical anthropology at the Smithsonian Institution; Dennis Stanford, chairman of the same institution's anthropology department; Robson Binnichsen, director of the Center for the Study of First Americans at Oregon State University; D. Gentry Steele, anthropology professor at Texas A&M University; C. Loring Brace, curator at the Museum of Anthropology at the University of Michigan; George Gill, anthropology professor at the University of Wyoming; C. Vance Hanes Jr., anthropology professor at the University of Arizona and Richard Lantz, an anthropology professor at the University of Tennessee.
Arguing against the tribes' claim to the remains of the Kennewick Man, these scientists argued that the repatriation would deny them the chance to study in detail a hugely significant finding, that might provide invaluable information as to how the Americas were settled “Repatriation will deprive scholars of any opportunity or right to study this treasure. Study of the skeleton would be of a major benefit to the United States,” they contended. The scientists sued the government in 1996 after the U.S. Army Corps of Engineers, supported by the Department of the Interior, decided to repatriate the remains to the tribes involved, without further study of them. The anthropologists involved argued that their constitutional rights had been violated, claiming they were denied the opportunity to examine the remains due to their not holding the same religious beliefs as the tribes involved in the case. They also cited that there is no proof linking the remains to any modern day tribes in the area, since no tribe can prove a direct link extending over 9,000 years, let alone to the Kennewick Man. Also noted was their uncertainty as to whether or not the Kennewick Man could be counted as Native American in the first place, as a first examination revealed different physiological features. While the scientists are not seeking a direct confrontation with the tribes involved, they view the tribal presence as unnecessary; this sentiment has made any chance for a quick resolution unlikely.
Following the previous ruling, Judge Jelderks told the scientists to submit a study plan within 45 days. The study plan, overseen by several experts, would most likely include DNA testing, the piecing together of the remains to discern more about the body of the Kennewick Man, and re-measuring bones for greater accuracy. What concerns tribal leaders most about DNA and C-14 testing is that they require removal of samples and destroy bone. Complicating the matter further is the fact that the ancient bones are low in the protein needed for radiocarbon testing. Further discussion of study plans will likely be postponed until the case is resolved.
The tribes see the recent granting of a right to appeal as a pivotal turning point. The order was granted on October 21, and welcomed by the four tribes. The Umatilla Tribes said in a statement: “We feel that the court has appropriately recognized that we have a right to participate as full parties in this litigation.” Tim Weaver, an attorney for the Yakama Nation, said the tribe was delighted over the judge's ruling and “definitely” would appeal by the deadline. Statements have been issued from all parties involved except for the Department of the Interior, which has until the October 29 deadline to make its own position known. However the case is decided, it is expected to set an important precedent for how NAGPRA will be interpreted in the future, and how American Indians and the scientific community will interact on this sensitive issue.
