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Kennewick Man Still Has a Lot to Say

October 01, 2000|MICHAEL J. KELLY | Michael J. Kelly is the director of legal research, writing and advocacy at Michigan State University, Detroit College of Law

Secretary Bruce Babbitt's endorsement of the Interior Department plan to repatriate the "Kennewick Man" to five claimant Indian tribes in the Pacific Northwest constitutes a crime against science.

All parties agree on the rarity of the 9,000-year-old skeletal remains, the uniqueness of their location in the Columbia River basin of Washington state and the importance of their discovery. Known as the Kennewick Man, this middle-aged individual with a healed spear wound in his hip died an unexplained and lonely death more millenniums ago than humans were supposed to have occupied that part of North America, according to anthropologists. However, tribal oral histories hold that the ancestors of present-day Native Americans, of which Kennewick Man is considered one, have occupied their traditional lands, close to where he was found, since the beginning of time.

These oral histories and the geographic position they encompass are what Babbitt claims ultimately persuaded him to sign off on his department's decision to return the bones to the tribes for immediate burial in a secret location, precluding the possibility of further study.

His decision is completely consistent with federal law. The Native American Graves Protection and Repatriation Act, passed in 1990, allows for such indicative evidence to provide the basis for determining cultural affiliation of human remains. Once a cultural affiliation is determined, repatriation must then be undertaken. While this law works remarkably well for recent or slightly antiquated human remains, it never comprehended a situation where truly ancient human remains are discovered. Thus, its application in this case distorts its intent.

A strict interpretation of the law means that even ancient human remains like the Kennewick Man must be turned over to whatever tribes happen to currently occupy, or historically occupied, the area in which the bones were discovered. This is where legality and reality divide.

Morphologically, Kennewick Man's physical features bear scant resemblance to modern Native Americans, further stretching the realistic credibility of the Interior Department's cultural affiliation determination, even though it may be legally justified. Not only was he found in an area where there were no established Indian communities when he died, he does not even look like the people who claim to be his descendants. It is the equivalent of discovering the body of Moses in the West Bank and handing his remains over to the Palestinian Arabs because they occupy that area and their oral histories tell them that this was always the case.

As for the hapless Kennewick Man, the matter now goes back to U.S. Magistrate Judge John Jelderks' federal district court in Oregon. A lawsuit by a group of scientists requesting an injunction against repatriation was put on hold during the Interior Department's reconsideration of the matter.

The scientist representing the Smithsonian in the group stated that he could count on one hand the number of skeletal remains as ancient as the Kennewick Man and that there was a wealth of information locked inside those bones. This motivated him to join his colleagues in a legal fight to at least study the ancient find before turning it over to the tribes for reburial.

Hopefully, the judge will prove as wise as Solomon in his interpretation of the Native American Graves Protection and Repatriation Act and seize on the compromise of a limited study followed by repatriation. Losing the Kennewick Man back into the ground after such an exciting discovery without the prospect of learning what he has to tell us would be a tragedy of Shakespearean proportions.

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