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A Brief Review of the Kennewick Man Dispute
1996 Highlights
| July 28 | Skeleton discovered near Kennewick,
Washington |
| August | Radiocarbon date by UC Riverside on the
metacarpal shows an age of approximately 9300 BP |
| September | Army Corps takes possession of the skeleton
from the Benton County Coroner.
Scientists request permission to study the skeleton. Requests were
denied. Efforts to open a dialog through the Corps and the
Confederated Tribes of the Umatilla were ignored.
Tribal claimants collect additional bones on the site.
Army Corps publishes two notices of intent to transfer the skeleton to
a coalition of five tribes. |
| October | Scientists file complaint challenging the
denial of the study request.
Court issues an order that scientists must be given 14 days notice
prior to the Corps releasing the skeleton. |
| December | Government files a motion to dismiss the
scientists' complaint.M |
1997 Highlights
| February | The Court denies the government's motion to
dismiss the scientists' complaint. |
| March | Scientists file a motion for access to study.
Their study plan includes detailed proposals from 17 scientists from
across the country. |
| April | Government files a motion for judgement in its
favor and states study of the skeleton is unnecessary. |
| June | Court denies the government's motion for judgment
and also the scientists' motion for access for immediate study, but
leaves this open to file at a later date. Court asks for quarterly
status reports. |
| July | Concern increases that bones are improperly
housed. Reports surface that Corps has allowed tribes to conduct
religious ceremonies with the skeleton and that cedar bows were placed
with the bones. |
| August | Five scientists submit ARPA request to
investigate the discovery site. No permit granted.
The Confederated tribes of the Umatilla Indian Reservation file a
competing ARPA request. Their permit is granted to dig 10 one-meter
square test pits at the discovery site. No results have been
released. |
| October | Corps admits that five religious ceremonies
have been conducted.
Corps hires a conservator, who verifies presence of ashes and cedar
twigs and recommends bones be stored in sealed containers.
Corps announces the project to study the site. |
| December | Corps conducts limited site study. No
trenching or test pits. Coring limited to 5 locations. Sediment
profiles limited to 20 cm (no vertical face cuts). Inadequate and
conflicting data obtained, but report not released until January 1999.
Fragment of bone found on the beach.
Corps informs scientists of plans to cover the site, ignoring the fact
that the site is on the Federal Register and that the National
Historic Preservation Act applies. |
1998 Highlights
| January | Plaintiffs raise concerns that tribes have
added bones to the collection on two occasions. Corps access records
confirm this. |
| March | Government reports to the Court that portions of
both femurs are missing from the collection. They also claim that the
skeleton is being curated in "a manner which ensures continued
protection and their scientific integrity."
Army Corps of Engineers formally enlists assistance from the
Department of Interior. |
| April | Corps covers the discovery site, ignoring
recommendations from Corps scientists and the approval of House and
Senate bills to protect the site. Cost reported at least $160,000.
A box of human and animal bone fragments from the Kennewick site is
incorrectly but "unintentionally turned over to the tribes." Fragments
included a human rib fragment found during site study. Corps claim
"the Kennewick remains were never at risk." |
| May | Court issues an order for a hearing to review the
adequacy of the Corps' curation protocols. Incidents and mishaps
confirmed during the hearing.
Court orders that the skeleton be moved to a new facility and that
plaintiffs be allowed to inspect the condition of curation.
Mediation sessions on curation issues held in Portland (3 days). |
| June | Court orders that skeleton be inventoried before
it is moved to a new facility and that two representatives of
plaintiffs could be present. |
| July | National Park Service releases their multiphase
study plan. |
| October | Dr. Douglas Owsley (Smithsonian Institution)
inventories the skeleton in Richland. The 350 fragments represent one
individual, a male. Dr. James Chatters conducts a condition
assessment that shows deterioration (old cracks expanding, new cracks
forming). Neither is compensated for travel expenses, time, or
expertise.
Skeleton moved to the Burke Museum, University of Washington, Seattle. |
1999 Highlights
| January | Government reports the curation of the
skeleton has begun at the Burke Museum, University of Washington,
Seattle.
Scientists file analysis documenting the need for more study of the
discovery site. |
| February | Government conducts limited studies at the
Burke Museum and promises scientific reports to the public in April. |
| April | No scientific reports released to the public. |
| June | Government encourages press reports that
Kennewick Man was intentionally buried and that the skeleton displays
evidence of red ocher. |
| July | No scientific reports released to the public.
Government reports further tests are needed.
Government encourages press reports that C14 results will be available
by September 15, 1999. |
| August | Scientists file a motion requesting immediate
response to their 1996 study requests.
Court schedules oral arguments on scientists' motion for September 14 |
| September | Government takes 30.3g of bone for C14
studies but informs the press reports that two 'approximately' 10g
samples will be tested.
Court hears oral arguments on scientists' motion for immediate
response to study request.
Court orders the government to answer scientists' study requests by
March 24, 2000. |
| October | Press reports government statements that
scientific reports will be released next year.
Scientists charge that the government mishandled its selection and
sampling for radio carbon dating and assert that the government is
engaged in a deliberate misinformation campaign.
Government posts scientific reports to NPS website. Magistrate
Jelderks' order September 21, 1999 "...I conclude that six months is
sufficient time for completing the radiocarbon analysis, DNA testing,
cultural affiliation assessment, and any other studies that defendants
may conclude are necessary in order to formulate an agency response to
the Bonnichsen plaintiffs' request to study. Therefore, defendants
will be allowed until March 24, 2000, to respond to the Bonnichsen
plaintiffs' study request." |
What questions has the Court asked the Corps?
On June 27, 1997 the Court asked the Corps to consider these issues
when deciding the fate of the Kennewick skeleton:
- Whether these remains are subject to NAGPRA, and why (or why not).
- What is meant by terms such as "Native American" and "indigenous" in
the context of NAGPRA and the facts of the Kennewick case.
- Whether, if there was more than one wave of ancient migration to the
Americas, or if there were sub-populations of early Americans, NAGPRA
applies to remains or cultural objects from a population that failed
to survive and is not directly related to modern Native Americans.
- Whether NAGPRA requires (either expressly or implicitly) a
biological connection between the Kennewick skeleton and a
contemporary Native American tribe.
- Whether there has to be any cultural affiliation between the
skeleton and a contemporary Native American tribe. If the answer is
yes, how can such an affiliation be established if no cultural
objects are found with the remains.
- The level of certainty required to establish such a biological or
cultural affiliation, e.g., possible, probable, clear and convincing,
etc.
- Whether any scientific studies are needed before the Corps can
determine whether this skeleton is subject to NAGPRA, and if so,
whether such studies are legally permissible.
- Whether there is evidence of a link, either biological or cultural,
between the skeleton and a modern Native American tribe or to any
other ethnic or cultural group including (but not limited to) those of
Europe, Asia, and the Pacific islands.
- Whether the 'study' provisions of Section 7(b) of NAGPRA are limited
to objects that were in the possession or control of a federal agency
or museum prior to November 16, 1990.
- Whether there is any other law, e.g., the Archaeological Resources
Protection Act ("ARPA"), or any other section of NAGPRA, that either
permits or forbids scientific study of this skeleton.
- Whether scientific study and repatriation of the skeleton are
mutually exclusive, or if both objectives can be accommodated.
- What law controls if the skeleton is not subject to NAGPRA.
- What happens to the skeleton if no existing tribe can establish a
cultural affiliation.
- Whether plaintiffs have a right (under the First Amendment or
otherwise) to study the skeleton.
- Whether there is any merit to the equal protection arguments
asserted by the plaintiffs (if the Corps decides it has authority to
address that issue).
- What role, if any, the NAGPRA Review Committee should play in
resolving the issues presented by this case
- Whether NAGPRA is silent on important issues raised by the case, and
whether Congressional action will be required to clarify the law
regarding "culturally unidentifiable ancient remains."
What does the Court say about the government's handling of the case?
On June 27, 1997 Magistrate Jelderks commented
...on hasty decision making by the Corps
"I am left with the distinct impression that early in this case the
defendants made a hasty decision before they had all the facts, or
even knew what facts were needed. In addition, some of the "facts"
upon which the Corps relied have proven to be erroneous, e.g., that
the site at which the remains were discovered is recognized as the
aboriginal land of an Indian tribe."
...on whether Corps considered if NAGPRA applies
"I also question whether the agency gave adequate consideration to the
question of whether NAGPRA applies to these remains, or the
significance for this case if NAGPRA either does (or does not) apply.
Agency officials appear to have recognized that there was a problem,
but were unsure how to resolve it."
...on Corps doubts but suppressed concerns
"The record suggests that Corps officials harbored doubts on those
points, but chose to suppress concerns in the interest of fostering a
climate of cooperation with the tribes."
...defendants dismiss plaintiffs First Amendment rights
"In its briefs, defendants categorically dismissed the possibility
that plaintiffs might have a First Amendment right to study the
remains. ...this issue warrants greater consideration than the Corps
has given it thus far.... It protects both the right to send and also
to receive information.... I suggest that plaintiffs arguments are not
frivolous, and the issue merits more serious consideration on remand
than it received in defendants' briefs."
On September 21, 1999, Magistrate Jelderks commented
...on the delay of C14 tests:
"Given that this position renders the age of the skeleton of critical
importance, defendants' decision to wait nearly three years to begin
radiocarbon analysis to confirm the age of the skeleton is difficult
to understand."
...on defendants explanation to use soil strata at the discovery site
to determine the age of the skeleton:
"That explanation seems inconsistent with defendants' earlier decision
to bury the site under tons of rubble, complicating if not precluding
completion of the very studies that they now assert are needed."
...on the lack of progress on the question of cultural affiliation:
"Defendants have offered no reasoned explanation for the lack of
progress in conducting this inquiry."
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