Kennewick Man to go to scientists, judge says
Native American coalition had sought 9,300-year-old remains for burial
Saturday, August 31, 2002
By CAROL SMITH
SEATTLE POST-INTELLIGENCER REPORTER
A federal judge yesterday laid to rest the controversy over what to do with the remains of Kennewick Man, ruling that the 9,300-year-old bones should be turned over to a team of scientists for study.
The long-awaited opinion, which came more than a year after oral arguments were presented in the highly charged case, sets a precedent that will affect future findings of ancient remains, scientists said.
A clay model of the head of Kennewick Man, based on a skull found in July 1996. AP
"It's a win for all science," said Robson Bonnichsen, an anthropology professor at Texas A&M University and one of the plaintiffs in the case. "I'm just delighted."
In his ruling, U.S. Magistrate John Jelderks in Portland blocked the return of the bones to a coalition of five Native American tribes that claimed him as an ancestor. They wanted to give the remains they called the "Ancient One" an appropriate burial.
The tribes claimed the right to the remains under the Native American Graves Protection and Repatriation Act, a 1990 law that allows tribes to retain custody of remains or artifacts to which they can show a link.
"This treatment of Native American remains as scientific specimens deprives native people of the basic right to properly bury or care for these ancestors," said a spokesman for the Umatilla Tribes. "By enacting NAGPRA, Congress intended that Native American ancestral human remains be treated the same as non-Indian remains, with respect."
The bones, which have been at the center of a six-year battle between the scientists and the tribes, are currently housed for safekeeping at the Burke Museum on the University of Washington campus. The ruling orders a scientific team to submit a proposal for studying the bones within 45 days and gives the government another 45 days to respond.
Jelderks reviewed more than 20,000 pages of documents in the case. His ruling rejected a decision by former Interior Secretary Bruce Babbitt to give the remains to the tribes.
"Allowing study is fully consistent with applicable statutes and regulations, which are clearly intended to make archaeological information available to the public through scientific research," Jelderks wrote.
He also said the Army Corps, which took control of the bones, violated the National Historic Preservation Act in its handling of the site where the skeleton was found.
"The scientists view the court's decision as confirmation of their contentions that the American past is the common heritage of all Americans and that it should be open to legitimate scientific research," said Alan Schneider, plaintiffs' attorney.
"These eight scientists stood up for the rights to ask questions of the past and challenge what's in the archaeology books," said Douglas Owsley, head of the division of physical anthropology at the Smithsonian's National Museum of Natural History.
There have only been 39 known skeletons that are more than 8,000 years old, and of those the majority are highly fragmented, Owsley said.
Kennewick Man is one of the seven best-preserved and dated, he said. His skull alone could yield a trove of information. In the past five years, the field of archaeology has overturned many of its long-held assumptions, including the theory that North America was populated by one mass migration across the Bering Strait 11,500 years ago. Scientists now believe there could have been migrations from different parts of the world thousands of years before that.
The Kennewick bones, which were discovered in July 1996 along the banks of the Columbia River by students watching hydroplane races, raised questions about when the Americas were first populated, and how the first people got here.
"There is still much to learn," said Bonnichsen.
Scientists hope to repeat skull measurements, and possibly DNA tests, to help better understand the origin of the bones. The measurements will be digitized and fed into a database that can compare them to other peoples, ancient and modern, around the world.
"The answers aren't all in," he said. "If we were to repatriate very early remains, we'd be closing the door to possible answers."
The decision marks the latest chapter in a colorful saga that has seen a variety of groups, ranging from the Smithsonian Institution to the "Asatru Folk Assembly," descendents of an ancient Nordic sect, which claimed a connection to the bones.
Twice the court turned away latecomers, who petitioned for rights to the bones, including members of the Yakama Nation, and a man of Polynesian heritage who claimed to be a direct descendant.
And there was alleged skullduggery as well, with two stray leg bones turning up in an evidence locker in the Benton County Sheriff's Office three years after they went missing. The bones were reunited with the rest of the skeleton and the FBI declined to pursue a criminal investigation.
Kennewick Man has become something of a celebrity, with media comparing his reconstructed facial features to those of "Star Trek" actor Patrick Stewart.
There has also been intense speculation -- and controversy over the nature of his life and death.
Government scientists originally claimed a "projectile tip" lodged in his hip showed that he'd been shot from behind. But Owsley, who has viewed the remains, said it came from the front.
Further study should reveal much about the way Kennewick Man lived, he said.
It's unclear whether the Department of Justice will challenge the decision. Government attorneys were reviewing the decision yesterday and unavailable for comment.
P-I reporter Carol Smith can be reached at 206-448-8070 or firstname.lastname@example.org
Kenniwick Man Was Not Alone! or Corps Confusion in Columbia Park!
In July and August of 1996 an event occurred that sent the discipline of archeology on a collision course with Native Americans. Previous to this event the relations between the two groups were beginning to heal. The litany of grave destruction that had occurred over the 150-year history of archeology looked like it would end with the passage of the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990. Unfortunately, the healing turned into open wounds again when the Kenniwick Family was illegally removed from their resting-places on the shore of the Columbia River in August of 1996.
The context of this event is critical to the understanding of exactly what took place. I am an archeologist (among other titles) and have always been taught that context is perhaps the most significant factor in determining what happened in the past. Context is formally defined by Merriam-Webster as "the interrelated conditions in which something exists or occurs". My first admonition to you, the reader is to please not take the Kenniwick Man discovery and isolate it from everything else that happened that fateful summer. Here is the context:
In July of 1996 I was an employee of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR). I was working for the Cultural Resources Protection Program (CRPP) under the direction of Jeff Van Pelt, program manager. I was working on two different projects in Richland, Washington within the ceded lands (or aboriginal territory, if you will) of the CTUIR. One of the projects was an assessment and monitoring of a Tribal burial ground that had been disturbed over the 4th of July holiday. The other was a restoration project on another Tribal burial ground that had been disturbed a year previously. Both of these sites are within a National Register Prehistoric District.
A prehistoric district is an area that has been determined to contain significant and multiple archeological sites within its boundaries. Districts such as this are supposed to be given special consideration prior to any federal undertakings within them. A federal undertaking includes (but is not limited to) any ground disturbing activity or the issuing of an archeological permit under the Archeological Resources Protection Act of 1979 (ARPA). Before the federal agent responsible for any undertaking can issue a permit within a National Register Prehistoric District, the Code of Federal Regulations requires the agent to allow the National Advisory Council for Historic Preservation a 30 day comment period before the issuance of a permit (36CFR800).
Context is critical!
During my assignment in the Tri-Cities (common name for the Richland, Kenniwick, Pasco area) I was staying at the Dunes Motel. The Dunes is a block away from the north end of Columbia Park. I spent many evenings walking along the shore of the Columbia River at this park. I was emotionally drained from working in the presence of so many of my relatives whose remains had been disturbed from what was supposed to be their permanent resting place. Fortunately, Columbia Park provided a respite where I could pray for my relatives and calm my spirit.
You see, I am an enrolled member of the CTUIR. I was born on the reservation and have lived in Eastern Oregon most of my life. I was sadly aware of all the grave robbing that had been occurring for the past 500 years and had decided in 1985 at the age of 29 that I would commit myself to protecting what few burials remained. I left a very successful career behind and went back to college in January of 1990. That was the same year that NAGPRA became law and it affirmed my commitment. I tried to relate all of my studies in the direction of protecting my ancestor's graves in the Columbia Plateau. That included 4 years of graduate school. I was working toward my Ph.D. in archeology until I ran out of strength in June of 1997. I felt betrayed by the profession of archeology and had to get out. Yet, my commitment to protect the remains of my people is as strong as ever.
You as a reader need to know where I am coming from. This is all a part of the context. Okay, back to 1996:
Two days after my assignment was complete a couple of students from the Tri-Cities discovered the remains of a human near the shore of Columbia Park, within the same National Register Prehistoric District, during the annual boat races. They stashed the skull in the bushes until the racing was over and then contacted the local police. The police notified the coroner's office and the coroner notified Dr. Jamie Clare Chatters. Dr. Chatters and the police proceeded to collect all the bones they could and Dr. Chatters carried them all away the night of July 28th 1996. Most people are familiar with this event and the resulting furor it has caused. What most people don't know is what happened behind the scenes.
I know the rest of the story. Well, most of it anyway.
Sometime after Dr. Chatters discovered the stone point lodged in the hip of the remains he requested that the Corps of Engineers issue him a permit under ARPA. Normally an archeologist would need a well-planned research design to apply for an ARPA permit. Due to the time constraints (the permit was issued retroactively to the date of discovery, July 28,1996) this is hardly possible. A research design requires a background literature review of all related sites and minimally, a detailed plan of action including (but not limited to) how artifacts would be recovered, documented and stored. I have not seen the required permit application, if there is one, which I doubt. The Corps issued the permit that was notarized on July 30,1996 (Eng. Form 4923-r of the Department of the Army, Archeological Resources Permit, Permit Number: DACW68-4-96-40).
The Corps of Engineers is the responsible federal agency because the lands along the shore of Columbia Park are within the McNary Dam Reservoir. The Corps has jurisdiction over all federal undertakings in the reservoir. The National Register Prehistoric District is also in the McNary Reservoir. According to 36CFR800, the Corps was supposed to allow the National Advisory Council for Historic Preservation 30 days to comment before the Corps could issue an archeological permit for an undertaking within the Prehistoric District. Since the permit was issued retroactively it is extremely unlikely any comment could have been requested or received.
You must realize that much of this information is privileged. For instance, I cannot reveal to you the actual boundaries of the Prehistoric District. I have been privy to a lot of protected information over the course of my career. In the summer of 1994 I served an internship in the Oregon State Historic Preservation Office. I reviewed site reports from all over the state and made final determinations as to whether sites were eligible for the National Register of Historic Places. In my life I worked on many archeology sites. I have a lot of information that I cannot reveal to the general public. In no way do I intend to breach professional ethics in this document, but a lot of information has been hidden from the public and it must be revealed.
After the questionable permit was notarized, Dr. Chatters was required to conduct archeological studies at the site. Since no site report has been forthcoming since he gave the remains to the Corps, we can only speculate whether any archeology was actually conducted under the permit issued.
What we do know for sure is that Chatters removed the remains of 4 to 6 individuals from the site. This action also is questionable from a legal standpoint. The permit had a special provision (provision 'E') that required the archeologist conducting the study to notify the tribe before excavating or removing any human remains from the site. Chatters did not notify the tribe, as required by the questionable permit and was very likely out of compliance with the permit. We could debate whether being out of compliance with a questionable permit would make that act legal or not (two wrongs making a right). Despite that, Chatters was likely out of compliance with the questionable permit and by removing the remains he also may have violated section 3 of NAGPRA which states that remains can only be removed if they are taken "pursuant to" an ARPA permit and with the permission of the Tribe. If Chatters violated the aforementioned provision of the questionable permit, would his actions be considered "pursuant to" the permit?
As near as I can determine, Dr. Chatters may have violated the law. To most of the country he is a hero. He attained this status while removing remains from the graves of my ancestors. I think I have a right to be upset about it and I am. My research is firmly grounded in the law. If this were to occur in any other part of the country I would come to the same legal conclusion: Dr. Chatters and the Corps of Engineers very likely broke the law. Yet, Dr. Chatters is fast becoming one of the most respected archeologists in the country and is backed by eight of the most prominent men in the field. The irony is too thick!
Here is some more irony: The lead archeologist in the case against the Corps, Dr. Robsen Bonnichsen, is a former friend of mine. I received my Bachelor of Arts in anthropology from Oregon State University and did two years of graduate school there studying cultural resource management. For four weeks in the summer of 1992 I worked as the lead surveyor for the Center for the Study of the First Americans (directed by Dr. Bonnichsen) at the Mammoth Meadow Site in southwest Montana. Needless to say he is no longer my friend. Immediately prior to he and his colleagues filing suit against the Corps, Bonnichsen was under contract to do an archeological investigation for the CTUIR. He most likely used the money the Tribe paid him to pay his attorney to file the lawsuit (Bonnichsen et al v United States of America Civil #96-1481JE) against the Corps to stop the Corps from returning the remains to the CTUIR.
This is all a part of the context of the Kenniwick Family case and I have always been right in the middle of it. I was probably the last tribal member to be at the site before the remains were discovered. Thus, I feel a heavy responsibility for them.
It must be made clear that I am not writing on behalf of my tribe. The governing body of the CTUIR has never supported my position and that is part of the reason I quit a very successful academic career. I recommended very early on that the Tribe should file a lawsuit against the Corps of Engineers and Dr. Chatters for what is seemingly the most flagrant violations of ARPA and NAGPRA ever. Instead the Tribe has pursued legal action against neither. As a result, the remains will be removed even further away from their home than they already are. My Tribe is so accustomed to being the defendant that they don't know they can prosecute anybody! We have a very good law (NAGPRA) that protects our ancestor's remains and we are not seeing that it be enforced. I consider this a travesty and it hurts.
Part of the problem is that the Tribe has been treating the crime as an inadvertent discovery, which it was not. How does one inadvertently remove the remains of several Native Americans under a questionable permit? The permit was amended twice. The second amendment was produced because Dr. Chatters found more human remains at the site. How could these remains be considered inadvertent discoveries when they were found under the umbrella of an ARPA permit? Dr. Chatters was out there purposefully trying to find more remains to back up his Caucasoid theory. Again I say, these remains were not discovered inadvertently!
And what of those remains? Did they back up his Caucasoid theory? No they did not. Dr. Chatters himself admitted that they were all Native American. The only inventory I have seen on the second set of remains (which was not done by Dr. Chatters) supported Dr. Chatter's conclusion that they were Native American. However, the author of that report (Donald E. Tyler, Moscow Idaho, confidential report to the Corps of Engineers) stated that due to there being no provenience (i.e. record of context) little could be learned from the remains other than their condition.
I could go on and on with all I know about the case but since I may be starting to bore some of you I need to draw some conclusion.
Henceforth be it known to all who read this;
The Corps of Engineers most likely issued an ARPA permit in violation of 36CFR800
Chatters most likely violated a key provision of the permit
Multiple violations of NAGPRA and ARPA occurred in this case
Dr. Chatters found and removed the remains of 4 to 7 individuals
He admitted that 80 % of them were Native American
Kenniwick Man was found in association with those Native American remains
Kenniwick Man is Native American.
The Corps of Engineers and Dr. Chatters may have broken the law.
I don't know how anybody can draw a different conclusion from the facts I have presented here. Context is critical! Kenniwick Man was found in the same context as other Native Americans. He should not be isolated from his context. To do so is to do another form of archeology of which I am not familiar. The morphology of the skull should indicate to us that one Native American out of all the Native Americans that have ever been studied has a slightly narrower skull than the others. If you have ever studied statistics and probability it would not be very hard to believe that one skull out of the 2 or 3 hundred thousand currently held by museums and universities could be slightly narrower than the rest. This is not statistically significant.
This Caucasoid migration theory now being proposed by many has been totally blown out of proportion and now it is being used by the right wing segment of archeologists as a way to regain their former privilege of digging up Native Americans with no hindrance. Plus, Dr. Chatters likely violated ARPA and NAGPRA above and beyond what I have pointed out in this document, and his credibility should most certainly be questioned. Unfortunately, Dr. Chatters is a free man and has become a celebrity as a result of his removal of my ancestor's remains from their resting places.
Do I sound spiteful at all? I am not about to apologize. Dr. Chatters' archeology career has soared while mine has been completely grounded, all from the same incident. He is caucasoid, I am a tribal member. Is there a relation? This really is an issue of racism, but nobody wants to admit it.
If you would like any further information please don't hesitate to call or write me. I have been kept out of the debate and am trying very hard to have my voice heard. I have very little support but take solace in knowing that I am working on behalf of those who came before me. My spirit feels good about this so I know I have their support.
These are my words.
AUTHOR'S NOTE: David Liberty is a library technician for the Columbia River Inter-Tribal Fish Commission in Portland, Oregon. This group works to restore fish runs in the Columbia Basin. He was formerly a graduate student in the Anthropology program at the University of Oregon.
ACTION AND INFORMATION LINKS
He can be called at home (541-386-6939) after 5pm Pacific time; David would like to receive comments and suggestions from readers.
David Michael Liberty
Hood River Oregon, 97031