Bones of Contention

A federal law stands between scientists and America's prehistoric past.

John J. Miller from the October 1997 issue

When Dave Deacy and Will Thomas found a human skull in the shallows of the Columbia River in July 1996, they thought they had stumbled across the remains of a murder victim. So they hid the skull in some bushes and notified the police in Kennewick, Washington. That evening, Benton County Coroner Floyd Johnson called James Chatters, a local forensics specialist and the owner of Applied Paleoscience, a resource management firm in nearby Richland.

About a dozen times a year, a county coroner leads Chatters into the field to examine mysterious bones found by somebody who wasn't looking for them. The coroner wants to know if he will have to reopen an unsolved missing person case. At Kennewick, Chatters and Johnson recovered an almost complete skeleton in good condition. Little did either of them realize that this discovery would set off an important academic and legal debate over the prehistoric settling of America and the ownership of the past.

"The bones looked very fresh," says Chatters. "They had a nice yellow-brown color to them, and that's how contemporary bones would look." The fact that they were located on a river bank also argued for a fairly recent vintage, since most bones do not weather well in a muddy environment. But soil adhered to them, suggesting strongly that they did not belong to a newly deceased person. Still, they seemed no more than 200 years old.

Back at his lab, Chatters quickly profiled the remains. They belonged to a white man of average height and slender build, somewhere between the ages of 40 and 55. He had suffered several serious injuries, including compound fractures to at least six ribs. "I thought we had found an early European settler," says Chatters. One point nagged at him, however. An arrowhead lodged in the right side of the man's pelvis was of a type commonly used in the region thousands of years ago. It had not gone completely out of style by the 19th century, but it was rare. Chatters re-examined the skull and also showed the remains to a colleague, Catherine J. MacMillan, a retired physical anthropologist from Central Washington University. She concurred that the skeleton was Caucasoid. To satisfy any lingering doubts about the age, the coroner asked Chatters to order radiocarbon dating on a finger bone.

The stunning results came back a week later. Ever since, a startling question has buzzed around the academic world and occasionally spilled into the popular press:

What on earth was a white guy doing in the Pacific Northwest nearly 10,000 years ago?

Well, maybe not a white guy. It's a mistake to project modern racial categories onto the past, especially since this particular past is so long ago. Scientists have no way of knowing the color of Kennewick Man's skin--a point that Chatters and others have been careful to make from the start. But if they can't say with certainty that he was white, they can say he had a lot of traditionally Caucasoid features, as opposed to the Mongoloid ones characterizing most of today's Indians. His skull was long and his face was narrow and prognathic rather than broad and flat. And he lacked other features, such as shovel-shaped incisors, that are generally associated with Mongoloid people. Chatters recently said that Kennewick Man probably looked a lot like Patrick Stewart, the actor who played Captain Picard in Star Trek: The Next Generation. "These remains are an absolutely priceless piece of the human record," says David Murray, an anthropologist at the Statistical Assessment Service in Washington, D.C.

But they may soon be gone. Only a few days after the dating tests came in, the federal government seized Kennewick Man and prevented scientists from conducting further research on him. For more than a year, the remains have been locked away in a repository.

What happened? The answer lies in a piece of legislation passed by Congress and signed by President Bush in 1990. The Native American Graves Protection and Repatriation Act (NAGPRA) was meant both to protect existing Indian burial sites from disinterment and to help tribes reclaim the remains of ancestors stored in museums. The difference between an archaeologist and a grave robber is often in the eye of the beholder. NAGPRA was supposed to create a set of rules to resolve conflicts between scientists who study dead Indians, and living Indians hoping to honor tribal customs. But it was never intended to stop anthropologists and archaeologists from conducting important research on ancient remains. Unfortunately, it has come very close to doing just that. "If we lose Kennewick Man, then every ancient skeleton in the United States could be lost to this law," says Richard Jantz, a biological anthropologist at the University of Tennessee.

When human remains are found on federal property--Kennewick Man was located in an area managed by the Army Corps of Engineers--NAGPRA requires the government to contact any tribes that may share a "cultural affiliation" with the bones. This bond is easy to establish when a grave includes funerary objects widely recognized as having been produced by a certain tribe. But not every case is so obvious. The older the remains, the harder it is to tie them to a modern tribe. And sometimes, as in the case of Kennewick Man, there are no clues apart from the bones themselves.

When uncertainties arise, tribes may claim the remains if they summon "geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion" in their favor. Such sweepingly vague language has made it extremely difficult to resolve several disputes to everyone's satisfaction. "There have been a lot of unintended consequences since the law was passed," says Phillip Walker, a physical anthropologist at the University of California at Santa Barbara.

The Army Corps of Engineers decided that Kennewick Man's age showed beyond any doubt that he was an Indian. It confiscated the remains from Chatters's office and notified several local tribes of their existence. Within a few days, five tribes petitioned under NAGPRA to have the remains repatriated for reburial, an act that would forever remove Kennewick Man from scientific study. "Our elders have taught us that once a body goes into the ground, it is meant to stay there until the end of time," wrote Armand Minthorn, a leader of the Umatilla tribe.

The corps almost immediately complied with the tribes' request, publishing its intention to hand over the remains and forbidding any scientist to look at them in the meantime. During a 30-day waiting period between the announcement and the actual repatriation, however, a group of eight prominent scientists sued the corps. They said that it had misinterpreted NAGPRA, that Kennewick Man represents a national treasure with no apparent tie to any of today's Indian tribes, and that they want the opportunity to conduct in-depth examinations. They filed their case against the government with no institutional backing, since none of their universities wants to get involved in a lawsuit that appears to pit a bunch of white men against Indians. Several professional organizations also have chosen to sit on the sidelines for similar reasons. The plaintiffs are thankful to have a lawyer pursuing their case for free.

In many such NAGPRA disputes, science clashes with an odd combination of religious fundamentalism and political bargaining. Many Indians--particularly the sort likely to become involved in tribal governments--have embraced a kind of anti-scientific spiritualism as a way of promoting group cohesion. "We have our own science and traditions," says Suzan Harjo, president of the Washington, D.C.-based Morning Star Foundation and a member of the Cheyenne and Arapaho Tribes of Oklahoma. "What the archaeologists call evidence is usually based on what one person thinks might have happened," she adds. "It's such a Eurocentric point of view." The Umatillas' Minthorn feels the same way. "From our oral histories, we know that our people have been part of this land since the beginning of time," he says. "We do not believe that our people migrated here from another continent, as the scientists do."

Politics has also played a role. The scientists' Portland, Oregon-based lawyer, Alan L. Schneider, likes to point out that the Army Corps of Engineers is not a disinterested party in NAGPRA discussions. "They have a lot of ongoing dealings with all the tribes in the area," he says. The corps regularly negotiates salmon fishing rights with the Indian tribes claiming Kennewick Man, for instance. Schneider uncovered a revealing internal memo during discovery: "All risk to us seems to be associated with not repatriating the remains," it reads. In other words, the corps has privately acknowledged its strong political incentive to make good on the Indians' NAGPRA claim because doing otherwise would complicate its relationship with them.