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
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
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
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
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
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.