Bones of Contention

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


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.

The scientists would like the corps to take a longer view. "This is an incredibly important find," says Jantz, a plaintiff in the lawsuit. "There are maybe a dozen skeletons of this age that we know about. Each new discovery represents a significant increase in the amount of information available about the peopling of America."

Kennewick Man appears to challenge the conventional academic belief that North and South America were settled 10,000 years ago by Asian people crossing a land bridge between Siberia and Alaska. During the last Ice Age, sea levels were much lower than they are now, making such a passage possible. Yet the more scientists learn about ancient human migrations, the less predictable they become. Perhaps other types of people crossed this land bridge as well.

Archaeologists working in the Tarim Basin of western China recently uncovered more than 100 mummies that are several thousand years old. Many of these desiccated corpses are in such good condition that their fair skin and blonde hair is still visible. What were they doing in the middle of Asia? The Ainu people of Japan, a long-oppressed minority population, have an even more baffling heritage. Native to Japan before Mongoloid people settled on the island, they are known for their distinctly un-Japanese physical traits, such as light skin and wavy hair. In fact, they look a lot like Europeans. But nobody knows how to explain their presence so far away from Europe. Kennewick Man suggests that similar mysteries may lie hidden in the United States.

Other researchers are examining the possibility that some ancient Europeans made their way to the Americas the way the Vikings did before Columbus: by hopping from northern Europe to Iceland, to Greenland, and finally to Canada. The evidence for this is still highly conjectural. It hinges mainly on some intriguing technological similarities between ancient cultures in America and Europe.

Questions such as these won't be resolved if anthropologists and archaeologists cannot study ancient sites and remains found in the United States. And NAGPRA's vagueness about what constitutes a legitimate tribal claim gives federal agencies a license to disrupt that work. In the case of Kennewick Man, it's impossible for any modern tribe to demonstrate a connection with the remains, especially without further study. "Once you get beyond a certain age, it's extremely hard for a living tribe to make a claim," says University of Arizona geologist C. Vance Haynes Jr., who joined the lawsuit. The Army Corps of Engineers has simply assumed that since the bones are incredibly old, they must be related to tribes inhabiting the region today–as if nobody has moved in or out of the area for more than 9,000 years.

Kennewick Man is not the first case in which government regulations have prevented scientists from researching ancient finds. The Spirit Cave Mummy discovered in Nevada in 1940 was once thought to be only 2,000 years old because of its excellent preservation, but recent radiocarbon dating has suggested an age of 9,400 years. It, too, has several Caucasoid features. But earlier this year the Northern Paiute tribe claimed it under NAGPRA, and since then the Bureau of Land Management has prevented the Nevada State Museum from conducting genetics tests on the remains until it makes a ruling on ownership. Four years ago, a state law forced researchers to give a skeleton found near Buhl, Idaho, to the Shoshone-Bannock tribe for reburial. The remains may have had Caucasoid features and were dated at roughly 10,600 years, making them among the oldest ever found in the Americas. But little is known about them today, since they were quickly turned over to the tribe.

Robson Bonnichsen, director of the Center for the Study of the First Americans at Oregon State University and one of the plaintiffs in the Kennewick Man case, had a troubling run-in with NAGPRA several years ago. While investigating a Montana site that is at least 11,000 years old, he came across several strands of ancient human hair. When he went public with the find in 1993, two local tribes claimed the hair as the remains of their ancestors and demanded that Bonnichsen turn it over to them. The BLM prevented researchers from continuing their work at the site and barred them from analyzing the hair they had collected. Bonnichsen pleaded that there is a big difference between disturbing the buried remains of recent ancestors and studying hair that was almost certainly shed naturally very long ago. After a drawn-out battle, NAGPRA regulations were altered to allow the study of naturally shed hair, but Bonnichsen still has not received permission to conduct the chemical and genetic analysis he had planned.

NAGPRA comes at a particularly inopportune moment. Recent technological advances allow researchers to obtain revolutionary new insights about ancient people. In July, German geneticists determined through mitochondrial DNA analysis that Neanderthals are probably not ancestors of modern humans. Such information would have been impossible to gather only a few years ago, and researchers would like to conduct similar experiments on Kennewick Man to learn more about his relationship to modern people. They would also like to reconfirm his age, obtain a more comprehensive set of skeletal measurements, and search for other clues about life in the past.

These sorts of investigation are routinely performed elsewhere, but the scientists' opponents would have the world believe that this is simply another morality play between treaty-breaking whites and reservation-bound Indians. "It comes down to racism," says Harjo. The implication is that whites would never think of exhuming the remains of their own ancestors. But nothing could be further from the truth. One plaintiff in the lawsuit, the Smithsonian Institution's Douglas Owsley, is studying bones recently discovered at Jamestown, England's first successful colony in North America. Other researchers have learned an enormous amount about prehistoric Europe by examining the 5,300-year-old "Ice Man" found in the Alps in 1991. Last year, a Danish museum sponsored a big exhibit of the so-called Bog People–corpses preserved in the peat swamps of northern Europe for thousands of years. If something like NAGPRA had applied to these remains, they would never have become important sources of information about the past. They would be in the ground, decomposing.

In July, the plaintiffs in the Kennewick Man standoff received some good news. A federal judge, finding that the Army Corps of Engineers had acted capriciously last year in its hasty decision to repatriate the bones, ordered the corps to reassess its decision. A few days later, Sen. Slade Gorton (R-Wash.) inserted language into an Appropriations Committee report saying that "it is in the public interest that information providing greater insight into American prehistory should be collected, preserved, and disseminated for the benefit of the country as a whole" and urging the corps to "act as an impartial party" in the dispute.

The tribes may still get Kennewick Man, but now a judge has imposed a tougher standard on their claim and some political pressure has come to bear on the corps. The bones still sit in a government vault, and the case is likely to grind on for at least a few more months. "I think Kennewick Man has been a good thing if only because it has focused so much attention on this problem," says Jantz. "It just has to have a happy ending."

John J. Miller (millerjj@aol.com) is vice president at the Center for Equal Opportunity. The Free Press will publish his book on Americanization next year.