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The Earliest Americans | Conferences & Papers

A Brief Review of the Kennewick Man Dispute

1996 Highlights

July 28Skeleton discovered near Kennewick, Washington
AugustRadiocarbon date by UC Riverside on the metacarpal shows an age of approximately 9300 BP
SeptemberArmy 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.

OctoberScientists 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.

DecemberGovernment files a motion to dismiss the scientists' complaint.M

1997 Highlights

FebruaryThe Court denies the government's motion to dismiss the scientists' complaint.
MarchScientists file a motion for access to study. Their study plan includes detailed proposals from 17 scientists from across the country.
AprilGovernment files a motion for judgement in its favor and states study of the skeleton is unnecessary.
JuneCourt 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.
JulyConcern 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.
AugustFive 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.

OctoberCorps 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.

DecemberCorps 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

JanuaryPlaintiffs raise concerns that tribes have added bones to the collection on two occasions. Corps access records confirm this.
MarchGovernment 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.

AprilCorps 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."

MayCourt 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).

JuneCourt orders that skeleton be inventoried before it is moved to a new facility and that two representatives of plaintiffs could be present.
JulyNational Park Service releases their multiphase study plan.
OctoberDr. 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

JanuaryGovernment 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.

FebruaryGovernment conducts limited studies at the Burke Museum and promises scientific reports to the public in April.
AprilNo scientific reports released to the public.
JuneGovernment encourages press reports that Kennewick Man was intentionally buried and that the skeleton displays evidence of red ocher.
JulyNo 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.

AugustScientists file a motion requesting immediate response to their 1996 study requests.

Court schedules oral arguments on scientists' motion for September 14

SeptemberGovernment 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.

OctoberPress 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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