A publication of the Archaeological Institute of America
An 8,400-year-old skeleton found in Washington State has become the subject of a legal battle between scientists, who want it studied, and the U.S. Army Corps of Engineers, which was planning to turn it over to five American Indian tribes, several of which want it reburied immediately. The skeleton is one of the oldest ever found in the New World, more than 90 percent of it has been recovered, and enough organic material remains to permit radiocarbon dating and DNA analysis. The lawsuit, filed against the corps by eight anthropologists, represents the first major legal challenge by scientists to the Native American Graves Protection and Repatriation Act (NAGPRA), a 1990 law that provides for the repatriation to tribes of Indian skeletons and ceremonial and mortuary artifacts (see ARCHAEOLOGY, November/December 1994). At a Federal District Court hearing on October 23, the corps' lawyers announced that repatriation would be delayed pending review of competing claims for the skeleton. The judge ordered the corps to give the scientists 14 days' notice before turning over the remains to allow them to pursue their case.
The skeleton came to light last July 28 in Kennewick, Washington, during a hydroplane race in the Columbia River. Will Thomas and Dave Deacy, residents of nearby West Richland, stumbled across the skull while wading at the edge of the river. They picked it up and stashed it in some bushes until after the race, when they notified the Benton County sheriff's office. The sheriff's office informed the Kennewick police, who inspected the find spot and noticed more bones in the shallow water. Leaving the bones where they were, the police contacted the county coroner's office, which asked anthropologist James Chatters to investigate. Along with police and the coroner, Chatters returned to the site and recovered more bones from the river. The remains were discolored and there was soil adhering to them, indicating that they were not of someone recently deceased. According to Chatters, late nineteenth- and early twentieth-century artifacts were found alongside the bones, suggesting at first that the skeleton was of the same period.
The Archaeological Resources Protection Act (ARPA) of 1979 requires that any archaeologist who wishes to excavate on federal land obtain a permit from the agency that manages the land. As a navigable waterway, the Columbia River is under the jurisdiction of the Army Corps of Engineers. According to Chatters, he applied to the corps' Walla Walla, Washington, district for a permit, which was granted on July 31, retroactive to July 28. After receiving the permit, he returned to the site several times and excavated more bones from the sand at the river's edge.
The shape of the pelvis indicated that the skeleton was a man's, and Chatters estimated he had been five feet nine or ten inches tall. Observations of the pelvis, teeth, and skull sutures suggested he had been between 40 and 55 years old at death. He had a long, narrow skull, a projecting nose, receding cheekbones, a high chin, and a square mandible. The lower bones of the arms and legs were relatively long compared to the upper bones. These traits are not characteristic of modern American Indians in the area, though many of them are common among caucasoid peoples, and for this reason Chatters initially thought the skeleton was Caucasian. A fragment of a projectile point was imbedded in the pelvis, which had healed over the wound. At that point, Chatters was quoted as saying in the New York Times, "I've got a white guy with a stone point in him.... That's pretty exciting. I thought we had a pioneer."
Chatters showed some of the bones to physical anthropologist Catherine J. MacMillan, a professor emeritus at Central Washington University. Looking at the skull on July 30, MacMillan made many of the same observations as Chatters and concurred that the skeleton was Caucasian. CAT scans of the pelvis, however, indicated that the projectile point might be of the Cascade phase, usually dated between ca. 9000 and 4500 B.P. "I was stunned when I examined the pelvic bone and the projectile point associated with it," wrote MacMillan in an August 31 letter to the Benton County coroner, "so I decided to reexamine the skull. My opinion remained the same--Caucasian male."
On August 5, at the coroner's request, Chatters sent the left fifth metacarpal (the bone joining the left little finger to the wrist) to R. Ervin Taylor, Jr., of the University of California, Riverside, for radiocarbon dating. After Taylor's work suggested that a fair amount of organic material remained in the bone, the coroner asked Chatters to have any surviving DNA analyzed. On August 19, Chatters asked Taylor to send a sample of the bone to anthropologist David Glenn Smith at the University of California, Davis, for genetic testing. A week later Taylor's laboratory returned a date of 8410 ± 60 B.P., confirming the date suggested by the projectile point.
Later that month, anthropologist Grover S. Krantz of Washington State University examined the bones. The skeleton "cannot be anatomically assigned to any existing tribe in the area, nor even to the western native American type in general," he wrote to Chatters on September 2. "It shows some traits that are more commonly encountered in material from the eastern United States or even of European origin, while certain other diagnostic traits cannot presently be determined."
Because of the skeleton's age, the Corps of Engineers determined that it was "of Native American ancestry" and therefore subject to NAGPRA. On August 30, according to Chatters, the corps asked the Benton County coroner's office to take custody of the skeleton and bar further access, and on September 2 custody was transferred to the corps.
In the case of human remains inadvertently discovered on federal land, NAGPRA regulations require the government to notify Indian tribes "likely to be culturally affiliated with" the remains, tribes "which aboriginally occupied the area," and "any other Indian tribe...reasonably known to have a cultural relationship to" the remains. Kennewick Man, as the skeleton is now called, had been found within the traditional territory of the Umatilla tribes, and the corps determined that it might be affiliated with the Yakama and Nez Perce as well. On August 27, according to Chatters, the corps notified these three tribes; separately Chatters informed another local tribe, the Colville, whom the corps had indicated they did not plan to contact.
Asserting that the remains were an ancestor's, the four tribes and a fifth Indian group, the Wanapum, filed a joint claim for them. Referring to the skeleton in a tribal position paper, Umatilla trustee and religious leader Armand Minthorn wrote,
If this individual is truly over 9,000 years old, that only substantiates our belief that he is Native American. From our oral histories, we know that our people have been part of this land since the beginning of time....
Some scientists say that if this individual is not studied further, we, as Indians, will be destroying evidence of our own history. We already know our history. It is passed on to us through our elders and through our religious practices.
Accepting the tribes' claim, the corps announced its intent to repatriate the skeleton in the Tri-City Herald, a local newspaper, on September 17 and again on September 24. NAGPRA requires a waiting period of at least 30 days following the second notice before the remains are repatriated, during which other claimants may come forward. According to Lt. Col. Donald R. Curtis, Jr., commander of the Walla Walla district, the corps received several other claims, which are still being evaluated.
A rift in the coalition that originally claimed the remains may complicate the review. The Umatilla have announced their intention to rebury the skeleton as soon as it is repatriated. "Our religious beliefs, culture, and our adopted policies and procedures tell us that this individual must be reburied as soon as possible," wrote Minthorn. Nez Perce ethnologist Allen Slickpoo, Sr., has echoed this sentiment in remarks to the Tri-City Herald. Adeline Fredin of the Colville tribe's archaeology and history department says the Colville are interested in further study of ancient skeletons found in the region by nondestructive analysis, including dating and genetic testing of small samples. Attempts by ARCHAEOLOGY to reach Wanapum and Yakama officials have not been successful.
A number of scientists protested the proposed repatriation. In a letter to the Corps of Engineers, physical anthropologists Douglas W. Owsley of the Smithsonian Institution and Richard L. Jantz of the University of Tennessee, Knoxville, who are studying the ancient populations of North America, warned,
if a pattern of returning [such] remains without study develops, the loss to science will be incalculable and we will never have the data required to understand the earliest populations in America.
In a letter published in the New York Times, William D. Lipe, president of the Society for American Archaeology, urged that the "tribe that has claimed the ancient Washington skeleton...reconsider and permit additional studies to be conducted."
On October 4, Rep. Doc Hastings of Washington wrote to Lt. Gen. Joe Ballard, commander of the Army Corps of Engineers, expressing alarm that the corps planned to give up the skeleton before it could be studied. He urged Ballard to "postpone action until the [skeleton's] origins are determined conclusively or until Congress has the opportunity to review this important issue." In the meantime, he requested that the corps allow scientists access to the bones. A second letter followed a week later, signed by Hastings as well as by Sen. Slade Gorton and Reps. Jack Metcalf and George R. Nethercutt, Jr., all of Washington.
The same day, the journal Science published a news report mentioning that Frederika Kaestle, one of David Glenn Smith's graduate students, was analyzing the skeleton's DNA to try to determine how closely it is related to various populations around the world, including American Indians. When the corps learned that Smith's lab was working on the remains, it ordered him to stop the analysis. Results from the first round of tests are not yet available, and Kaestle says she will need to perform a second round to confirm her results before rendering a verdict. For now, says Smith, "We're not doing anything... We're just kind of waiting for things to happen to find out if we're supposed to continue with the analysis or not."
On October 16, eight scientists filed suit against the Army Corps of Engineers in Federal District Court in Portland, Oregon, where the corps' North Pacific division is headquartered, seeking to gain access to the skeleton and to bar its repatriation. The scientists are Robson Bonnichsen, director of the Center for the Study of the First Americans at Oregon State University; C. Loring Brace, curator of biological anthropology at the University of Michigan's Museum of Anthropology; Dennis J. Stanford, chairman of the Smithsonian's anthropology department; Richard Jantz; Douglas Owsley; and anthropologists George W. Gill of the University of Wyoming, C. Vance Haynes, Jr., of the University of Arizona, and D. Gentry Steele of Texas A&M University.
Their complaint alleges that the Corps of Engineers determined the remains were culturally affiliated to the five tribes without sufficient evidence. NAGPRA regulations stipulate,
Evidence of...cultural affiliation...must be established using...geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion.
In its notice of intent to repatriate, however, the corps indicated only the skeleton's age and its discovery within the Umatillas' aboriginal territory. "Antiquity says nothing about ancestry," the scientists' lawyers argued. "Forensic anthropology does." They noted that results of the various studies carried out on the bones raise some doubt as to whether the skeleton is related to modern Indian tribes. NAGPRA defines "Native American" as "of, or relating to, a tribe, people, or culture that is indigenous to the United States." If the skeleton is not related to any modern indigenous group, the lawyers held, it cannot be Native American within NAGPRA's definition. Furthermore, they contended, "A reliable determination of whether the skeleton is Native American within the meaning of [NAGPRA] cannot be made without...further study."
So far the Corps of Engineers has refused to allow scientific study of the bones, and the complaint asserts that their refusal violates federal law in three respects. First, ARPA was passed to protect archaeological sites and foster their study "for the present and future benefit of the American people." According to Alan L. Schneider, one of the scientists' lawyers, if the skeleton is not subject to NAGPRA, then under ARPA it must be curated and made available for study. Second, NAGPRA allows scientific study of remains when the outcome of the study would be "of major benefit to the United States." In a memorandum that accompanied the complaint, the scientists' lawyers wrote that the skeleton was critical to the Smithsonian's ancient populations project, the outcome of which "will be of major benefit not only to the United States, but to the world."
Third, the complaint asserts that the corps' refusal to allow scientists to study the remains violates the Civil Rights Act of 1866. This law guarantees nonwhites the same legal protection as whites, but over the years it has been read also to offer the same protection to whites as to nonwhites, according to Paula A. Barran, another of the scientists' lawyers. In essence, according to Schneider, they are arguing that their clients are "being denied the right to study [the skeleton] because they're not Native American." If the scientists' requests were refused because of their race or ethnicity, that would indeed seem to constitute a violation of their civil rights.
At a hearing in Federal District Court in Portland, Oregon, on October 23--the day before the skeleton was to be repatriated--the scientists' lawyers asked U.S. magistrate John Jelderks to bar transfer of custody to the Indian coalition until the court could review the scientists' complaints. In a legal brief, lawyers for the Army Corps of Engineers countered that "there is absolutely no need for a temporary restraining order because the Corps of Engineers...has no imminent plans to repatriate [the remains]," adding that the corps would need time to consider the additional claims for the skeleton. Judge Jelderks decided not to issue a restraining order but required the corps to give the plaintiffs 14 days' notice before transferring custody of Kennewick Man. The plaintiffs were also given the option to reopen their request for a restraining order should the need arise. According to a report in the Tri-City Herald, Jelderks warned lawyers for both sides to prepare to argue how to define "indigenous," which features prominently in NAGPRA's definition of Native American.
For now the corps is reviewing the various claims for the skeleton, and until they are finished they are releasing no further information about the case. "It will be many weeks, and perhaps months," according to their lawyers, "before the Corps makes any final decision on whether to repatriate the remains and, if so, to whom." Says Schneider, however, "If we don't get something from the corps fairly soon, we'll probably be back in court on the question of our request for scientific study."
According to Daniel H. Weiner, a lawyer with the New York firm of Hughes Hubbard & Reed who specializes in NAGPRA law, "This situation is the very thing that scholars, scientists, and even some Native Americans were worried about when NAGPRA was passed. Would it stretch back 10,000 years and prevent our learning about our history and heritage in a situation that wasn't anticipated?" The original law charged a review committee with deciding what to do with human remains, such as the Kennewick skeleton, whose cultural affiliation could not be determined. Final regulations have not yet been released, but last August 20 the committee noted in a draft that they believed that "decisions regarding disposition of a small number of generally very ancient human remains will require amendments to NAGPRA by Congress." Perhaps the case of Kennewick Man will get them just that.