Kennewick Man in court

THE DISCOVERY of a nearly complete 9,000-year-old skeleton in the Columbia River just five years ago has raised some fascinating questions: Can such ancient remains be considered "Native American" under U.S. law? Do scientists have a First Amendment right to study such specimens? Were the ancestors of American Indians the first peoples to arrive in North America?

Last Tuesday eight eminent scientists, more than a dozen lawyers, and scores of tribal representatives came together in a Portland courtroom to seek some clarification of these issues. Instead they listened, in ever more bug-eyed disbelief, to a federal judge's deadpan disquisition on just what the U.S. Congress might have meant when it used the words "that is."

The words in question appear in a section of the Native American Graves Protection and Repatriation Act (NAGPRA), defining a "Native American" as a member of "a tribe, people, or culture that is indigenous to the United States."

A lay reader might be forgiven for pausing over the word "indigenous" (polite Latin for "native," as in "The natives are restless"); it wouldn't occur to many of us to wonder about "that is." But Judge John Jelderks, responding to a suggestion by attorney Paula Barran, pounced on the words like a kitten on a ball of yarn—and with equally intractable results.

Does "is," Jelderks wondered, mean only "is" here, or is the present tense shorthand for "is and was"? Now, the whole point of NAGPRA is to clarify who owns remains and artifacts. And remains and artifacts are necessarily past-tense kinds of things. So common sense would suggest that the phrase "that is," if it means anything—the two words can be omitted without changing the grammar one iota—presumably refers to past inhabitants of the continent, as well as those living today.

One of the attorneys representing the Native Americans contending for custody of the K-Man's bones tried to suggest as much to the judge, but the judge didn't seem interested. Indeed, apart from putting the word "is" through the rhetorical wringer, the judge's main contributions to the legal arguments were a series of bewildering non sequiturs. He offered the migrations of his maternal grandparents to illuminate the somewhat more complex population history of the Columbia Plateau since the last ice age. He enquired of counsel how NAGPRA might apply to a hypothetical blond-haired, blue-eyed family hypothetically found frozen in a hypothetical ice cave on Oregon's Mount Hood. He repeatedly drew analogies between the Kennewick discovery and Viking settlements of the New World, though such settlements, by a known European people and recorded in written documents, are exactly not what NAGPRA was written to deal with.

Listening to the judge musing out loud, one begins to see that it isn't just intransigence on the part of the scientific plaintiffs or the government that has kept Bonnichsen v. U.S. Army Corps of Engineers simmering for five years. Judges who want to can force the parties before them to pare their arguments down to essentials and to highlight the differences between them.

Judge Jelderks is clearly not such a judge. Plaintiffs and defendants alike came into his chambers last Tuesday morning expecting the proceedings to last and hour and a half or so, and to result, if not in a judgment, at least in a chance to present final arguments. When they wobbled out on Wednesday (the judge concluded around 5 p.m. Tuesday that he needed more time), the only thing clear was that the case, already amounting to 25,000 pages of evidence, testimony, and affidavits, was no closer to resolution than on the day it was filed in October of 1996.

Probably the least disappointed among the capacity crowd in Jelderks' courtroom were the dozens of Native Americans from the Umatilla, Nez Perce, Wanapum, and other Plateau tribes; they had less reason than most to expect written law to produce something recognizable as justice.

Jelderks' fascination with the "is-was" quibble should have been grounds for satisfaction among Barran's scientific clients, most of them in court for the first time in the long-running case. Somehow, though, they didn't seem to be taking much pleasure in the experience. Interested parties or not, these men have spent their lives applying scientific rules to the evaluation of evidence; listening to the judge spinning airy scholastic arguments out of grammatical floss clearly made them queasy.

Oddly enough, I found myself sympathizing most of all with the attorneys on both sides. Scientists argue before a worldwide jury of peers; for all their talk of precedent and statute, attorneys must trim their arguments to win the favor of an individual mind and sensibility. When that sensibility is as—let us say—idiosyncratic as Judge Jelderks', the outcome is as predictable as a butterfly landing on a particular flower.

As if the proceedings in court weren't weird enough, word emerged late last week that bits of K-Man, missing, presumed stolen, and sought by the FBI, may just have turned up in a cardboard box in a storage locker where the rest of the skeleton briefly reposed in August 1996. See "Dem Bones," p. 12, for the latest news on the story.

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