Court upholds Kennewick Man decision

Indian Country Today February 18, 2004. All Rights Reserved

Posted: February 18, 2004

by: James May / Indian Country Today

 

 

PORTLAND, Ore. - Saying that federal laws do not cover the remains of a nearly 10,000-year old man, the 9th Circuit Court of Appeals upheld a ruling on Feb. 3 that allows for scientific studies on the remains popularly known as Kennewick Man.

Attorneys for four tribes that sought to inter the remains say the decision undermines a federal law designed to protect American Indian remains.

Scientists on the other hand are hailing the decision and claim that further study is needed of the remains to decide whether they are indeed American Indian.

The decision is the latest chapter of the ongoing litigation between several Northwestern tribes and scientists who want to study the mysterious origins of the remains.

The mystery began when two teenage boat racers discovered the remains in southeastern Washington state in 1996 near the town of Kennewick setting off a huge and impassioned debate. The debate continued after a facial reconstruction of the skull revealed a visage that seemed more Caucasian than American Indian.

Unfortunately, the debate soon turned very ugly as white supremacists latched on to the potential Caucasian angle and tried to file a friend of the court brief in favor of turning the bones over to scientists.

However, it should be noted that the mainstream scientists that sought to study the bones did not solicit the white supremacists and even condemned their offer.

Meanwhile, several local tribes including the Colville Yakama, Umatilla, and Nez Perce insisted that since the remains were pre-Columbian, they were undoubtedly their ancestors and cited protection under the Native American Graves Repatriation Act of 1990 (NAGPRA).

A complex fight ensued and the remains were eventually ordered returned to the tribes by then-Interior Secretary Bruce Babbitt in 2000 and a group of scientists initiated a lawsuit.

In the 2002 decision it was decided that the remains were not covered by NAGPRA but the Archaeological Resources Protection Act. It was argued that there could be no definitive link to the tribes because of their antiquity and further study was allowed.

In their decision, the three judge 9th Circuit panel also reasoned that tribes had gone too far in claiming all pre-Columbian remains to be those of American Indians. Tribal sources say that this is limited because the only documented pre-Columbian non-Indian remains are small scale settlements of Vikings in limited areas on the east coast of Canada. It should also be noted that some claim that Chinese fishing vessels may have visited California in the 16th century.

Originally the attorney for Colville, Rob Roy Smith, who works for a Seattle law firm, represented all four tribes before the 9th Circuit and warned that NAGPRA might be compromised.

"The court has done a great injustice to Indian country," Smith said.

The problem as Smith sees it, is that tribes must now conduct studies of remains to determine their antiquity in order to claim remains. Though some tribes do not have a problem with examining remains, many do, and would be forced to go against their own religious principles in order to gain custody.

Smith added that NAGPRA sets no specific limit on the age of the remains but said that it is generally hard for tribes to claim remains over 500 years old.

There are several competing theories as to the origin of Kennewick Man. Some members of the local tribes cite their religious origin stories that claim they originated in the area and that they were the first inhabitants. The local tribes use the alternate moniker "(The) Ancient One" for the remains.

Though several scientists are at odds over many details, they have theorized that Kennewick Man is actually a relative of the Ainu people of northern Japan. Sometimes dubbed the "American Indians of Japan," the Ainu are an ethnic group with Caucasian-like features that lived on the islands for an indefinite period before the ancestors of the modern Japanese invaded the island from the Korean peninsula.

"(Kennewick Man) is undoubtedly related to the Ainu in Japan," said C. Lording Brace, a professor of anthropology at the University of Michigan, one of the plaintiffs seeking to study the remains.

Though disputed by other scientists, Brace insists that modern ethnic characteristics were very much the same during the time of Kennewick Man. Brace uses the method of dental pathology as evidence to this point.

Among those that disagree with Brace on this point are noted American Indian social critic and author Vine Deloria and David Hurst Thomas, the director of anthropology at the American Museum of Natural History.

Though neither man could be reached for this story, they had previously told Indian Country Today that they believe that modern racial definitions are not valid when speaking of such old remains. Such factors come into play as climate, flora and fauna were much different during that era near the end of the last ice age than they are today.

"It's almost impossible to do a racial composition on a recent corpse, so when we're talking about an era when modern racial classifications had yet to take shape it's irresponsible to say this is white or Indian as we know it today," said Thomas in a 2001 Indian Country Today interview.

Currently, the remains are being held at the University of Washington in Seattle. Smith said that the tribes have at least two options. The first is an en banc hearing, or a hearing before the entire 9th Circuit Court of Appeals that could potentially overturn the three judge panel that made the Feb. 3 ruling.

The other would be congressional action to produce a legislative remedy. Smith said it is unlikely the case would make it to the Supreme Court because cases normally have to conflict with another circuit court in order to make it to the high court.