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The Kennewick Man Case | News & Comment

What's the Kennewick Man Case Really About?

Cleone Hawkinson

[originally appeared in the Ohio Archaeology Magazine]

This article, a brief overview of the case, is the first of a series of articles that will describe various facets of the Kennewick Man dispute.

The Kennewick Man case has been in and out of the public's attention for nearly three years. One controversy has followed another while the bones have been under the jurisdiction of the Army Corps of Engineers. The country is familiar with reports of inappropriate storage, missing femur fragments, burying the site despite pending Congressional legislation, and the illegal removal of materials from the storage repository. Recently, the government has begun studies of the skeleton. Does this mean the case has somehow been concluded? No, it does not. All the questions posed in the October, 1996 suit remain unresolved.

The Kennewick Man case (Bonnichsen et al., v. U.S., District of Oregon Civil No. 96-1481 JE) is the first lawsuit filed in this country to test the processes used by federal agencies when making decisions under the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). This case is about attempts to restrict and control scientific inquiry and to limit the free exchange of scientific ideas. It is also about the importance of obtaining as much data as possible from skeletal remains that are at risk of reburial. If the Kennewick skeleton is ultimately reburied, any data that is not obtained now will be lost forever. The studies being conducted by the government are limited in scope and include only a few scientists. As a result, the risk remains that important data and insights could be missed that might later be critical for understanding the significance of this skeleton in the broader view of human development and migration.

The major events

Two college students discovered the Kennewick Man skeleton on July 28, 1996. A section of river bank had slumped and then eroded into the Columbia River, exposing the bones. The city of Kennewick, Washington leases this land along the river from the Army Corps of Engineers. As a result, the skeleton's discovery was initially investigated by state police and the county coroner. Dr. James Chatters, a local forensic archaeologist, assisted in this investigation. Over a period of about two weeks, he recovered nearly 350 fragments of bone along the bank and in the water. At the request of local authorities, Drs. Irv Taylor and Donna Kirner of the University of California-Riverside agreed to radiocarbon date one of the skeleton's metacarpals. They obtained a date of approximately 9,000 BP.

Upon learning of this date, the Army Corps demanded the immediate return of the skeleton and ordered a halt to any further investigation. Less than a week later, the Corps decided to give the skeleton to a coalition of five Columbia River tribes who were asserting claims for its immediate reburial under NAGPRA. All requests by scientists to the Army Corps and to tribal claimants for an opportunity to study the skeleton went unanswered. On October 16, 1996, one week before the scheduled date for the transfer of the skeleton, the eight Bonnichsen plaintiffs filed their lawsuit in U.S. federal court.

In their complaint, the scientists alleged that the Army Corps lacked sufficient information to determine that the skeleton was subject to disposition under NAGPRA and that it was affiliated with the claiming tribes. They also alleged that the Army Corps had arbitrarily denied them an opportunity to examine the skeleton to obtain information concerning its origins, biological affinities, and other matters of scientific importance.

In response, the government filed a motion to dismiss the case. This motion was denied. The plaintiff scientists then filed a motion that proposed a multidisciplinary study of the skeleton to be conducted at no cost to the government. Their study plan has two objectives. The first is to obtain data that can be used to help determine whether the skeleton is, or is not, "Native American" within the meaning of NAGPRA. The second objective is to obtain information of general scientific interest, such as data relating to Kennewick Man's age, health, nutrition, activity patterns and lifestyle.

The plaintiffs' study plan involves more than fifteen scientists representing eleven universities and research institutions. Their proposed studies would include multiple researchers to collect data on skeletal and dental measurements and traits (with the data to be analyzed through six major databases). Plaintiffs also propose to conduct DNA analyses, to collect dietary information (i.e., stable isotopes, plant phytoliths from any calculus on the teeth, and dental wear patterns) and to perform bone histology to confirm the biological age of the Kennewick Man. They proposed additional C14 tests to independently verify the UC Riverside tests. At the time the scientists created their proposal, a survey of the discovery site had not been conducted, so they did not include sediment analysis as part of their proposal. This approach provides yet another line of investigation that is a legitimate area of interest. The scientists' multidisciplinary proposal is one of the most comprehensive plans created in this country for the study of ancient remains.

The government opposed the plaintiffs' study motion and filed a new motion of their own to have a portion of the case dismissed. On June 27, 1997, the court denied this government request. In a 52-page opinion the court ruled that the Army Corps' decision-making process relating to the skeleton was fatally flawed. The court found that the Corps had assumed facts that were erroneous, that it had acted before gathering all the needed evidence, and that it had failed to consider all relevant aspects of the problem. Because of these errors, the case was sent back to the Army Corps to conduct a fresh decision making process.

The court instructed the Army Corps to reach new decisions that are 'based upon all of the evidence' and that apply the 'relevant legal standards.' The Corps must also address whether it will allow the Bonnichsen plaintiffs to study the skeleton. The court has retained jurisdiction over the case and will review whatever new decisions are reached by the government. When that occurs, the court will reconsider the scientists' study request if it has not been granted by the Army Corps.

Some progress has been made. The Army Corps has conceded that the skeleton was not found on land that was judicially determined to have been aboriginally occupied by the Umatilla as claimed in its original Notice of Intent to Repatriate Human Remains. It has also conceded that the 'cultural affiliation' of the skeleton has not been established.

On March 24, 1998, the Army Corps' delegated to the Department of Interior responsibility for deciding two issues: (1) whether the skeleton is or is not Native American within the meaning of NAGPRA; (2) if it is, whether it can be affiliated to any present-day Indian tribe. Dr. Francis McManamon of the National Park Service (Department of Interior) was designated to resolve these issues.

The government's study plan

During testimony before the House Committee on Resources (June 10, 1998), Dr. McManamon conceded that NAGPRA does not prohibit study of ancient remains. Up to that time, the government's position was that scientific study was unnecessary and that the types of studies and tests proposed by the Bonnichsen plaintiffs are irrelevant, unscientific and duplicative.

On July 1, 1998, the government unveiled Dr. McManamon's two-phase plan for the study of the Kennewick skeleton. This plan calls for study of the skeleton by "government experts or experts hired by the government." Eight months later, on February 25, 1999, the government's Phase I Studies began at the Burke Museum on the campus of the University of Washington, Seattle, where the skeleton is now housed.

The Phase I study focuses on the question, "Are the remains Native American as defined by NAGPRA?" Dr. McManamon hired five scientists to conduct the studies defined in his plan. They were asked to start 'from scratch' and assume that all previously obtained data are unreliable. The government allowed five days for these scientists to conduct studies in three areas: sediment, lithic, and skeletal analyses.

For the sediment analysis, the procedure was to collect sediments from the bones, and then to try to correlate these sediments with those taken from the discovery site by the Army Corps in December 1997. The objective was to determine a relative date for the skeleton based upon geological criteria.

The government has ruled out the C14 date obtained in 1996. According to government representatives, the C14 date is unreliable because the bone chosen for the tests is not 'appropriate' and because of the disturbed context in which it was discovered. The nature of their objections is unclear because no one from the laboratory at the University of California, Riverside, has voiced any concerns about the choice of bone or their results.

In addition, the government seems to be ignoring scientific concerns voiced by their own geologists, and by independent scientists, about the sediments collected at the discovery site. In a report released in December 1998, the Corps' own geologists have stated that the preliminary site survey of December 1997 was inadequate. They have recommended a more complete study and analysis of the site. Independent scientists were allowed to observe the December 1997 site survey. In their report (February, 1999), they contend that further study of the site is needed before conclusions can be reached concerning the site's geology and the depositional history of the skeleton. They have also questioned the techniques used to collect the sediment samples that will be used as the controls for analysis of the sediment collected from the bones.

As a second line of inquiry to establish the skeleton's age, the government hopes to find similarities in the spear point lodged in the hip with a known lithic type. Dating the lithic type may be of general scientific interest. However, in reality, any such date will tell us little about the age of the skeleton. The particular type of projectile point is known to have been used for many thousands of years, with no firm date as of yet for its initial appearance in the area. The best evidence so far of the skeleton's age is still the C14 date. Further radiocarbon tests could easily confirm whether this date is in fact accurate.

The third area of the Phase I study is the skeletal analysis. The procedure followed by the government's study team was to gather metric and nonmetric data to determine biological age, race, sex, pathology, and taphonomy. The stated objective was to determine if the skeleton can be identified as a Native American. However, the government has not explained how these analyses will be used in the context of Dr. McManamon's interpretation of the definition of the term Native American, (i.e., anyone residing on the continent prior to European contact). It would take a great leap of imagination to argue that skeletal measurements are relevant in determining how long ago the Kennewick Man lived.

With these concerns in mind, the government's scientific conclusions concerning the age of the skeleton are likely to raise as many questions as they answer. Sound scientific practice would dictate that all conclusions should be reviewed by independent scientific experts. However, the government has given no indication that it will seek, or even accept as a necessary step, scientific peer review of its conclusions.

If the Phase I studies are inconclusive on the question of whether the skeleton is Native American, the government will consider proceeding to Phase II studies. These could include 'destructive' tests (e.g., C14 and possibly DNA). To date, however, few details of the Phase II study plan have been released.

What about the question of cultural affiliation?

Another objective of the Phase I studies was to obtain data to help to determine cultural affiliation, if it becomes necessary. The government's Phase I studies include some of the assessments proposed in the plaintiffs' study proposal, but many were omitted. The government's investigation of this issue will be further complicated by the fact that it does not have access to many of the comparative databases that can be used for affiliation analyses. Key databases are maintained by plaintiffs or other members of the study team, but so far they are being denied access to the skeleton and to the data obtained by the government's study team. It is difficult to understand what the government hopes to gain by conducting studies to gather data, but then to block its confirmation and use. They have given few details about how they intend to establish cultural affiliation or how long this may take.

Unresolved issues

According to Dr. McManamon, the legal criteria for determining whether the skeleton is Native American are different from the scientific question of cultural affiliation. Dr. McManamon has taken the position that all human remains that predate European contact must be considered Native American. The scientific questions are concerned with what populations existed in North America and whether their descendants are represented in modern day tribes.

The Bonnichsen plaintiffs dispute this interpretation. They assert that Dr. McManamon's view is contrary to Congressional intent, and that it ignores important scientific data indicating that the New World may have witnessed multiple migrations, some of which may not be ancestral to modern U. S. Indian people.

Will the government allow other scientists, particularly the plaintiffs, to study the skeleton now that the government has agreed that study is necessary and is conducting limited studies themselves? The government's latest stated position is that plaintiffs and outside scientists have no right to study ancient remains such as the Kennewick Man. The government is claiming that it can grant or deny access at its absolute discretion. So far, it will not say whether it will exercise this discretion and allow plaintiffs or other scientists to study.

Plaintiffs maintain that scientists have rights under the first amendment and federal statutes. In support of this view, the court opinion of June 27, 1997 states: "The First Amendment is not limited to "speech" per se. It protects both the right to send and also to receive information. Defendants acknowledge that the First Amendment limits the government's power to suppress knowledge by removing books form a library, but argues that the government has no affirmative obligation to facilitate the dissemination of knowledge by writing and publishing books. That misconstrues the plaintiffs' argument.

"Plaintiffs' contention is that to the trained eye the skeletal remains are analogous to a book that they can read, a history written in bone instead of on paper, just as the history of a region may be "read" by observing layers of rock or ice, or the rings of a tree. Plaintiffs are not asking the government to conduct the tests and publish the results. Plaintiffs simply want the government to step aside and permit them to "read that book" by conducting their own tests...."

The government has argued that plaintiffs are biased and their proposed studies are irrelevant, unscientific and duplicative. Plaintiffs maintain they have no expectations concerning the outcome of studies, they are merely asking for the right to study. Further, the government's inclusion of some of the studies suggested by plaintiffs demonstrates that study is neither irrelevant nor unscientific. Finally, the scientific method is, by definition, duplicative. Results must be repeatable and conclusions must be reviewed by other scientists to be considered reliable. At this point, the government's approach appears incomplete in this regard.

Why are so many different types of studies important?

The Kennewick skeleton is one of a few dozen known skeletons of this age from Asia, and North and South America, and most of these skeletons are far less complete. Because the Kennewick skeleton is in very good condition, it is a critical source of information for many areas of inquiry that will lead to an understanding of this period of human development and migration.

New techniques have allowed fresh insights for testing existing theories about the peopling of the New World. Many First American scholars now believe that credible evidence reveals two or more waves of human migration into the New World before the end of the Pleistocene. A growing body of evidence suggests that these waves may have involved multiple racial or ethnic groups. How these early populations relate, if at all, to later New World populations is yet to be determined. The views are varied and sometimes contradictory. The tools and techniques for identifying these differences are being developed at the very time the source of information is being denied. No one has all the answers about the past. In fact, no one has asked all the questions that could be asked.

Cleone Hawkinson is a founder of Friends of America's Past, a nonprofit, tax-exempt organization dedicated to promoting and advancing the rights of scientists and the public to learn about America's past. She was recently the plaintiffs' representative to observe the government's Phase I studies of the Kennewick Man skeleton at the Burke Museum in Seattle from February 25, to March 1, 1999.

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