Who Should Own the Bones?

By Jeffrey Kluger

The Pawnee Indians tell a mordant story about the kinds of things scientists discover when they study sacred remains. After decades of watching researchers plunder its burial grounds for bodies and artifacts, the tribe finally forced Nebraska researchers and museums to return the items in 1989. Once the treasures were back in hand, the Pawnees asked the scientists what they had learned.

"You ate corn," they answered.

Kennewick Man, the most talked-about Native American remains uncovered in recent memory, may be revealing a lot more than that. But if it's a mother lode for scientists, it's also been a massive headache for the Federal Government, local tribes and the lawyers who represent them. At issue is the Native American Graves Protection and Repatriation Act (NAGPRA), a 1990 law intended to make up in some way for the generations of scientific strip-mining Indian lands have endured, by either selectively protecting artifacts still in Native American hands or returning those that have been carried off.

NAGPRA probably seemed straightforward enough to the legislators' eyes. It requires Indians who want to protect an artifact to show by a preponderance of archaeological, geological, historical or other evidence that they have some cultural affiliation to it. But what appears clear to lawyers can be devilishly hard to apply.

For one thing, the older an artifact is, the harder it becomes to show the neat nexus of affiliations that the law requires. "The evidence collapses as you go back in time," says Pat Barker, an archaeologist for the Bureau of Land Management (BLM) in Nevada, who is working on a similar case. "The first 500 years is pretty solid, by 1,000 it's getting dicey, and by 10,000 most of that stuff you just can't get at."

That would put Kennewick Man--more than 9,000 years old--firmly in the hands of the scientists. But lawyers and archaeologists aren't theologians, and for a lot of Native Americans, spirituality is what protecting artifacts is all about.

"Archaeologists always tell us where we came from," says Rochanne Downs, a coordinator for the dozens of Indian tribes that have banded together in the Great Basin Inter-Tribal NAGPRA Coalition. "Well, we know where we came from. Our people were made from mud, and then the tribes were sent out. Sometimes people think that's funny, but when I look at the Immaculate Conception, that seems kind of odd to me." Not all Indians believe in the ancient-clay idea, but if those who do are going to be shown the same respect as the adherents of any other faith, then the age of the find becomes immaterial. "We don't have a prehistory," says Downs. "We have one continuous history."

Human remains that are returned to tribes are treated reverently. Several weeks ago, the Umatilla tribe in Washington reinterred 240 remains in a massive burial accompanied by traditional ceremonies and moving words from tribal elders. "It was hard to describe," says Audie Huber, a Native American--though not an Umatilla--who has monitored the Kennewick case for several tribes. "The sense of relief was palpable."

What makes these disputes more difficult is that modern archaeological methods often guarantee that an artifact will--in the eyes of the Indians at least--be defiled. Not only is the find seized from sacred land, but radiocarbon dating (which was used to estimate the age of Kennewick Man) requires that a portion of the find be destroyed. "We're always presented as antiscience Luddites," says Huber. "But we don't like seeing remains pulverized and irradiated."

Finally, ticklish as any NAGPRA case can be, the extreme age and importance of Kennewick Man practically guaranteed that it would be beset by legal maneuvering. Soon after the find was announced in 1996, the Umatilla tribes of Oregon and Washington claimed it. Eight anthropologists immediately sued for the right to study it, and archaeologists for the National Park Service were called in to study the skeleton and help settle the dispute. They found in favor of the Umatillas, but a federal district court disagreed, as did a circuit court, citing a lack of cultural and genetic evidence to link the bones to the claimants.

That stunned the tribes, since NAGPRA does not include a DNA requirement. Last year Senator John McCain proposed an amendment that might have smoothed things over by broadening NAGPRA to include Indians who were ever indigenous to a particular region. The measure appeared headed for approval until the Interior Department objected to it--a move that helped scuttle the change and only inflamed the situation further. Even if the McCain measure had passed, the Indians see it as merely a first step, citing another recent case in which the BLM ignored a NAGPRA committee recommendation without even a court ruling. "With NAGPRA," says Downs, "you get a judgment but no enforcement." With as many as 118,000 sets of Native American remains still awaiting repatriation, that problem is not going away.

The pity is that even in its current, imperfect state, NAGPRA can work (to date, about 30,000 remains and half a million funerary objects have been returned to tribes), provided that everyone turns down the heat and tries to reach consensus. However much knowledge scientists pry from the Kennewick bones, the goodwill lost and the contentious precedents set may make the next generation of NAGPRA cases a lot less friendly than the last.

With reporting by Reported by Dan Cray/Los Angeles