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Archaeologists, Native Americans face off over ownership of famed Kennewick Man bones

By Diane Ainsworth, Public Affairs
Posted June 7, 2000

On the afternoon of July 28, 1996, a windy Sunday along the shores of the Columbia River, two college students watching hydroplane races stumbled across a human skull that had washed onto the beach. Thinking that the skull might be the remains of a murder victim, they hid it in nearby bushes and called the local Kennewick, Washington police.

The skull turned out to be 9,400 years old. Additional excavations in the shallow waters of this cut-bank yielded a nearly complete skeleton, one of the half dozen oldest and most complete skeletons in the Americas, and touched off a bitter battle among archaeologists, native Americans and the law over its rightful owner.

The standoff over the remains is unprecedented. In virtually all other disputes over ancient skeletal remains, bones and artifacts have been returned to tribes for reburial in accordance with federal law, whether or not they were scientifically proven to be related. That policy has led to many "skull wars" over the years, said recent campus speaker David Hurst Thomas, curator of anthropology at the American Museum of Natural History, New York, whose new book, "Skull Wars," chronicles the history of these delicate and often stormy negotiations between Indians and archaeologists.

"The pivotal issue over these bones is not about religion or science," Thomas told an overflow crowd in Kroeber Hall. "It is about politics. About control and power, not philosophy. Who gets to control ancient American history? The government, the academic community or modern Indian people?"

Thomas, who has been an outspoken advocate of cooperative partnerships between native Americans and the archaeologists who want to preserve their culture, outlined the events of the Kennewick controversy. In a case that has become so rancorous that it might wend its way all the way to the Supreme Court, he maintains there are ways to resolve the issues outside of the courts.

"Cooperative relationships among tribes and archaeologists, in which both sides are working side by side to document Indian culture, can stop these legal cases and, ultimately, bridge the chasm between scholars of native American history and living descendants of those tribes," he said. "I understand that litigation will often follow in disputes over property rights, but I also question whether judges should be forced to carry the burden of defining the future of America's ancient past."

The seeds of the Kennewick fracas began nearly five years ago, when the government put the skeleton under lock and key shortly after its recovery. The Army Corps of Engineers, which had custody of the remains, intended to return them to five American Indian tribes who had filed a joint claim, under the Native American Graves Protection and Repatriation Act of 1990, for possession and reburial of the bones. Meanwhile, a group of eight infuriated archaeologists interested in studying the artifacts, which bore no physical resemblance to native Americans, had also filed suit. They alleged that the corps had made a hasty decision based on insufficient evidence. So began years of legal wrangling between archaeologists and the Confederated Tribes of the Umatilla Indian Reservation, which is home to the Umatilla and other tribes including the Yakama, Warm Springs and Nez Perce Indians.

One of the problems with repatriation act is its vagueness in defining rightful ownership based on "culture" and not requiring physical or genetic evidence of lineage, some archaeologists have pointed out. The law states that "…any person or descendant of a person who lived in North America before European settlement, generally 500 years ago, is considered legally native American."

In addition, the National Park Service endorses passage of a new amendment that would grant native American communities living nearest a discovery site "cultural" affinity and, therefore, ownership of ancient artifacts. In the case of Kennewick Man, the closest tribes are the Umatilla, the Nez Perce, the Yakama and the Colville Confederation, which form the coalition claiming the bones.

Glynn Custred, an anthropologist at Cal State Hayward, argued in a recent paper that since no community in North America can be traced back earlier than 500 to 600 years, ancient remains like Kennewick Man should presumably fall outside the provisions of the law.

Steven Shackley, a research archaeologist in the Phoebe Hearst Museum of Anthropology, concurs. "Indians may not be the sole ancestors of archaic and paleoAmerican remains, one of which is the Kennewick Man. Without thorough scientific study, no one will know."

So who can lay claim to Kennewick Man if his remains are 9,400 years old?

UC Davis anthropologist David Smith, an expert in ancient DNA sampling, was enlisted in 1996 to analyze the bone powder and answer that question. During this time, scientists were denied access to the bones, but Indians were able to stage religious ceremonies as they chose. In the process, parts of the skeleton began to disappear. Fragments of the femurs vanished and some bones were intentionally turned over to the tribes. In October 1997, a year after the archaeologists had filed their suit, the remains were transferred to the Burke Museum at the University of Washington, Seattle, for proper curation.

Many archaeologists, including Shackley, backed the scientific testing, calling the law's definition of native American "flawed and unscientific." This raised the ire of other scholars, who argued vehemently that race was not relevant to the case.

"This multicultural tug-of-war raises deep questions about how we can make the past serve the diverse purposes of the present, Indian as well as white," Thomas said. "It also challenges us to define when ancient bones stop being tribal and become simply human."

For native Americans, who have special laws to protect their sovereign rights, racial heritage is a moot point. "It doesn't have much bearing on the treaties of sovereign Indian nations or their rights to artifacts that appear to be culturally linked," said Otis Parrish, a member of the Kashaya Pomo Tribe of Sonoma County and curator of the Phoebe Hearst Museum of Anthropology. "This case is an attack on native sovereignty. What scientists never understand is that every tribe considers itself to be an autonomous nation. They want to make decisions based on their beliefs."

That's not necessarily a valid argument, Shackley counters, because based on the repatriation act and the interpretation by the National Park Service's Review Committee, native Americans have been given far more rights than all other ethnic groups. "If any other U.S. minority group attempted to claim the same level of sovereignty, the claim would be summarily dismissed," he said. "But because this is legislation based on collective guilt with a deep past, these issues are ignored. Religion and oral history, which is enough to establish cultural affiliation, are becoming the sole determinants of our interpretation of America's past."

In April, DNA testing of the remains began again and the U.S. Department of the Interior appointed a research team to perform the analysis. Those on all sides of the debate are troubled, though, by all of the legal confusion, false alarms, jump starts and reversals of opinion surrounding the case. What will happen to approximately 15 other ancient skeletons that are awaiting similar decisions?

"Are we going to continue to let the legal experts decide scientific issues?" Thomas asked a captive audience at Berkeley. "I hope not. I'd like to see Indians and archaeologists back away from the legalisms of absolute rights, ownership and control, because if they continue to do so, all of us may well overlook the underlying issues that led to the passage of (the repatriation act) in the first place."



June 7 - July 11, 2000 (Volume 28, Number 34)
Copyright 2000, The Regents of the University of California.
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Office of Public Affairs at UC Berkeley.
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