In the 1980s, Native American activists began calling for a federal law that mandated the return of prehistoric remains and certain artifacts, held by government and federally funded museums and universities, to the descendants of these indigenous people. Following a series of Congressional hearings, Senators Daniel Inouye of Hawaii and John McCain of Arizona proposed the Native American Grave Protection and Repatriation Act (NAGPRA). President George H. Bush signed the law in 1990.
NAGPRA, administered by the Native American Grave Protection and Repatriation Act Office within the Department of Interior, is comprised of three principal sections. NAGPRA outlaws the unauthorized excavation of Native American Grave sites on federal land; requires museums and universities covered under the law to catalogue "cultural items" in their collections and share lists of these objects with the appropriate tribes so they can petition their return; and prohibits individuals from buying or selling Native American "cultural items," "sacred objects," "ceremonial objects," and artifacts with "ongoing historical, traditional, or cultural importance" to a Native American group. NAGPRA does not apply to human remains and relics removed from state or privately owned land, or to artifacts acquired or found before 1990.
The Kennewick Man Case
Two college students walking along the Columbia River near Kennewick, Washington on July 28, 1996, stumbled upon a human skull lying in two feet of water. After examining the site as a potential crime scene, Benton County Coroner Floyd Johnson called in Dr. James Chatters, a local forensic anthropologist. Chatters discovered, buried nearby, the rest of the bones that he took to the coroner's office for further examination.
Following a newspaper report regarding the discovery of human remains that appeared to be prehistoric, representatives of the Umatilla people, a federally recognized tribe that lived in the area, came forward to claim the skeleton under NAGPRA.
On August 27, 1996, Dr. Chatters held a press conference and announced that based on the radiocarbon process, he believed the Kennewick Man, also known as The Ancient One, had lived during the Paleo period 8,340 to 9,900 years ago. This alone made fascinating and important news, but Dr. Chatters' revelation that Kennewick Man's skull had Caucasoid features (a long narrow face with a prominent chin) heightened media interest because it fueled the debate over the hypothesis that prehistory Europeans as well as Proto-Mongaloids had crossed the Bering Straight into North America.
Dr. Chatters discovered a Paleo projectile point lodged in the Ancient One's hip, a wound that had not been the cause of the five-foot-nine forty-five to fifty-year-old man's ancient death.
In September 1996, as Dr. Chatters made preparations to ship the remains to Dr. Douglas Owsley, a physical anthropologist with the Smithsonian Institution in Washington, D. C., the United States Corps of Engineers (COE) stepped into the case on behalf of the Umatilla Tribe and three out-of-state Native American groups. The COE, having jurisdiction over the site of the Kennewick Man discovery, took custody of the remains before they were sent off for further scientific study.
Although the Native American groups had not established cultural affiliation beyond oral histories, the COE, with speed uncharacteristic of a governmental agency, recognized their NAGPRA claim.
Appalled by the arbitrariness of the COE's decision to repatriate the remains before they could be subjected to thorough scientific study, a group of anthropologists and archaeologists filed a federal lawsuit to overturn the COE's action. Federal Magistrate John Jelderks, in June 1997, ruled that the COE, by acting so hastily, had failed to consider and resolve key legal issues raised by the dispute. Judge Jelders vacated the repatriation, and ordered the COE to reconsider the scientists' request to study the bones. In September 1997, a federal judge ordered the COE to send the Ancient One to the University of Washington's Burke Museum in Seattle.
Secretary of the Interior Bruce Babbitt, on January 13, 2000, issued a determination that the Kennewick Man was Native American and therefore covered by NAGPRA. Eight months later, Babbit ruled that the preponderance of evidence proved the Ancient One was culturally affiliated with the four claimant Indian tribes.
Because Babbitt's ruling had no basis in science, his decision created a firestorm of anger and frustration among anthropologists and archaeologists who believed the decision reflected "a lack of adherence to the statutory definition of cultural affiliation…and an apparent lack of appreciation for the decidedly balanced compromise that is at the heart of NAGPRA.
In 2002, a group of scientists filed a federal lawsuit to block the repatriation of the Ancient One's remains. In August of that year, the federal magistrate presiding over the case found in favor of the plaintiffs. The judge condemned Secretary Babbitt's ruling that the Native American claimants shared a cultural affiliation with the Kennewick Man. The judge opined that Babbitt, in making his decision, had not considered all of the relevant factors related to the issue. The four tribes, joined by the Department of Justice, appealed the case to the Ninth Circuit Court of Appeals in San Francisco.
The federal appeals court, in April 2004, affirmed the lower court's ruling. Appellate Judge Gould, in upholding the scientists' right to maintain control of the remains, wrote: "….Scant or no evidence of cultural similarities between Kennewick Man and modern Indians exists. One of the secretary's [Babbitt's] experts, Dr. Kenneth Ames, an anthropologist with Portland State University, reported that 'the empirical gaps in the record preclude establishing cultural continuities or discontinuities, particularly before about 5,000 B.C.' Dr. Ames noted that, although there was overwhelming evidence that many aspects of the "Plateau Pattern" [The region drained by the Columbia and Fraser Rivers.] were present between 1,000 B. C. and A. D. 1, 'the empirical record precludes establishing cultural continuities or discontinuities across increasingly remote periods.' He noted that the available evidence is insufficient either to prove or disprove cultural or group continuity dating back earlier than 5,000 B. C., which is the case with regard to the Kennewick Man's remains, and that there is evidence that substantial changes occurred in settlement, housing, diet, trade, subsistence patterns, technology, projectile point styles, raw materials, and mortuary rituals at various times between the estimate date when Kennewick Man lived and the beginning of the Plateau Culture some 2,000 to 3,000 years ago."
In July 2004, the four claimant tribes announced they were not going to appeal the Ninth Circuit's decision to the U. S. Supreme Court. This closed the case, and opened the door for further study of the Kennewick Man's bones. To this day, Native American activists regard the Kennewick Man case a bitter defeat and significant setback in the repatriation movement.
At the annual American Association of Forensic Sciences convention held in February 2006 in Seattle, Dr. Douglas Owsley presented his analysis of the Kennewick Man's remains. According to the anthropologist, the Ancient One, because he was more than 9,000 years old, is more closely related to old world populations than to American Indian groups that came to North America across the Bering Straight 2,000 years later.