Picking bones

The US government decides Kennewick Man is a Native American—after first violating sacred Native American beliefs.

IT'S OFFICIAL: Barely in time to meet its court-mandated deadline, the US Department of the Interior has formally announced that . . . roll of drums, please . . . the 9,250-year-old remains discovered over four years ago in Kennewick, Washington, are those of—cymbal crash—a Native American!!! If that news seems to you worthy only of a Simpsonian "Doh!"—like, who else was here that long ago?—it only goes to show how little you appreciate the pettiness of some scientists, the ingenuity of lawyers, and the intricate workings of the American legal system.

Kennewick Man was dragged into Portland federal court in the first place because a small group of scientists was unwilling to see his remains "repatriated" to his presumed descendants many times removed without thorough study—by the suing scientists, of course. However, under a 1990 federal law called the Native American Graves Protection and Repatriation Act, such remains are supposed to be turned over to the custody of their presumed descendants many times removed—in this case the five tribes who still live on the Columbia Plateau where the bones were found.

The scientists' lawyers came up with an ingenious reason that the law, NAGPRA for short, did not apply. "Kennewick Man" looked so different from most modern Native Americans that he must come of completely different ethnic background—white, Australian aborigine, whatever, just not Native American—so Congress hadn't had him in mind when it passed the law, and if anybody thought differently, they would have to prove their case, and to do it they would have to submit the bones to the analysis the scientists were demanding anyway, so there, nyah nyah.

The plaintiffs didn't get hold of the bones, but their arguments persuaded federal judge John Jelderks to order the government to perform the kinds of tests the scientists were asking for: above all, DNA analysis to test the hypothesis that K-Man might prove genetically unrelated to living Native Americans.

From the Indian point of view, such testing was objectionable on two grounds. First, to produce reliable radiocarbon and DNA analysis, substantial amounts of K-Man's skeleton would have to be "sacrificed," and many if not most Native Americans object to fiddling about with ancestral remains on any grounds whatsoever. Second, to establish "cultural affiliation," NAGPRA requires only a preponderance of historical, ethnographic, and linguistic evidence in favor of the link; it doesn't say anything about running a carbonized vapor of ancestral bone through a mass spectrometer.

Law or no law, Judge Jelderks made it clear that he wanted the testing done, despite opinions on the part of the government's own consultants that the results, on bones exposed for nearly 10 millennia to the elements, would be inconclusive at best. And so they were: There wasn't enough of K-Man's own genetic material left in the bones tested to prevail against nine millennia of marination in groundwater beside a mile-wide river.

Early this Monday morning, in a conference call linking Justice Department lawyers, representatives of the Army Corps of Engineers (upon whose land the bones were found), and members of the five Northwest tribes claiming K-Man, Interior Department archaeologist Frank McManamon officially announced that tests had been inconclusive, leaving affiliation to be determined on cultural grounds.

Four major studies were undertaken of existing evidence about human occupation of the Columbia Plateau since the last ice age. One, by Central Washington University's Steven Hackenberger, reviews the literature on human burials in the region and comes to no conclusions at all; another, by Portland State archaeologist Kenneth Ames, finds no evidence either for or against cultural continuity between K-Man's day and ours. The other two studies, by WWU archaeology prof Daniel Boxberger and UW anthropologist Eugene Hunn, support the idea of cultural continuity over the millennia on the high plateau on oral history and linguistic grounds.

That was enough for Interior's McManamon to declare that, under NAGPRA's preponderance-of-the-evidence rule, K-Man should be repatriated to the tribes who have asked for him. It remains to be seen whether the argument will convince Judge Jelderks, but since the government has done everything he asked it to do, there's little reason to expect him not to allow NAGPRA to take its course.

Such a decision would be a significant defeat for the scientist plaintiffs, who want to use K-Man's remains as a lever to overturn NAGPRA completely even more than they want to get their hands on those remains. But Native Americans wouldn't be entirely happy about the outcome either. They're afraid the K-Man case will set a precedent for all future discoveries of ancient North American human remains: offending against both respect for the dead and Indian religious beliefs in the name of NAGPRA.

For more on Kennewick Man:

-The National Park Services Kennewick Man page features all the official documents published by the government about scientific and cultural analysis of Kennewick Mans remains.

-The arguments of the plaintiff scientists in the Kennewick case are detailed and supported on www.friendsofpast.org.

-For the Total Absolute Word on K-Man and the K-Man case, dont miss

Riddle of the Bones: Politics, Science, Race and the Story of Kennewick Man, by Roger Downey, Copernicus Press, hardcover, $25.

Seattle Weekly's complete guide to our coverage of the Pacific Northwest's most celebrated bag of bones.

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