Kennewick Man and Social Mores
The Tri-City Herald timeline on this matter is a handy resource (even a few early spots are somewhat bizarre… marking the birth of Jesus just might be a particularly Christian conceit and their date of 24,000 BCE for the first colonization of North America is a bit early, as far as I am aware). The short version: a ~9200 year old skeleton is found on the banks of the Columbia River in fall of ’96, with disposition of the remains accordingly the responsibility of the U.S. Army Corps of Engineers, and subsequently the Department of the Interior. A lengthy legal battle follows involving a group of scientists who sue to be allowed to study the skeleton, while several Native American tribes (and one Norse revivalist group, though they did not fight scientific analysis) lay claim to Kennewick Man. Both the Army Corps and DOI at certain stages side with the tribes. In 2002 a judge rules in favor of the scientists, and in 2004 a court turns down a government appeal, and the remains are made open to further investigation.
I stated earlier that this case remains relevant to pending legislation, and to follow this line of thought we need to fig into the court ruling. Central to the 2002 decision from Judge John Jelderks was rejecting the definition of “Native American” used by the DOI to justify repatriation to the Tribes under NAGPRA:
As noted above, NAGPRA defines "Native American" as "of, or relating to, a tribe, people, or culture that is indigenous to the United States." § 3001(9) (emphasis added). Giving the "plain language" of this provision its ordinary meaning, use of the words "is" and "relating" in the present tense requires a relationship to a presently existing tribe, people, or culture. This is consistent with the Act's definition of the term "sacred objects" as meaning "ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents." 25 USC § 3001(3)(C) (emphasis added).
From this consistent use of the present tense, it is reasonable to infer that Congress intended the term "Native American" to require some relationship between remains or other cultural items and an existing tribe, people, or culture that is indigenous.
The original basis for calling the remains “Native American” under NAGPRA was solely based upon geography and antiquity, as no profound cultural affiliation can be made between Kennewick Man and modern day tribal entities. Jelderks pointed out that such a position would logically require even 12,000 year-old European remains discovered in the U.S. to be regarded as “Native American,” and that Congress would not have desired such an “absurd” application of the law.
The appeals court in 2004 agreed:
The text of the relevant statutory clause is written in the present tense ("of, or relating to, a tribe, people, or culture that is indigenous"). Thus the statute unambiguously requires that human remains bear some relationship to a presently existing tribe, people, or culture to be considered Native American.
This brings us to the topic of the Native American Omnibus Act of 2005, introduced in the Senate by John McCain, passed in committee and scheduled for debate (and apparently a low priority for Senate leadership to push through – I wrote a concerned letter to Senator Maria Cantwell’s office well back last year, but the sluggishness of the legislation is not particularly encouraging, given the law is closer to passing than we should be comfortable with). The relevant section is as follows:
SEC. 108. DEFINITION OF NATIVE AMERICAN.
Section 2(9) of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001(9)) is amended—
(1) by inserting ‘‘or was’’ after ‘‘is’’; and
(2) by inserting after ‘‘indigenous to’’ the following: ‘‘any geographic area that is now located within the boundaries of’’.
This is a direct modification to the text cited in Jelderks’ ruling, with the rather plain intent to construct the law to explicitly state that remains such as those of Kennewick Man are subject to NAGPRA. This is not the first time this attempt has been made, as Senate Bill 2843 back in ’04 made quite similar changes. It also will likely not be the last time such modifications are proposed, and we are fortunate to have a number of people keeping a close watch on such legislative issues and causing a stir when the law might otherwise slip in under the radar. It remains more than worthwhile to contact your representatives in Congress and state concern regarding this issue, a somewhat less publicized assault on science.
But then, I’m getting ahead of myself. I find this situation compelling as a matter of choosing the proper balance of science and cultural respect. NAGPRA is (in my opinion) a good and necessary law. Restitution of cultural belongings to Native American tribes is the ethical responsibility of researchers in archaeology, and also the civic responsibility of our government in light of tribal sovereignty. The debate over the specific example of Kennewick Man is reminiscent, however, of other fights in the culture wars. Take, for example, the statement of Armand Minthorn, member of the Board of Trustees of the Confederated Tribes of the Umatilla Indian Reservation:
If this individual is truly over 9,000 years old, that only substantiates our belief that he is Native American. From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated here from another continent, as the scientists do.
We also do not agree with the notion that this individual is Caucasian. Scientists say that because the individual’s head measurement does not match ours, he is not Native American. We believe that humans and animals change over time to adapt to their environment. And, our elders have told us that Indian people did not always look the way we look today.
Some scientists say that if this individual is not studied further, we, as Indians, will be destroying evidence of our own history. We already know our history. It is passed on to us through our elders and through our religious practices.
Minthorn is factually wrong, but his statement is a declaration of immutable religious faith, a position we can’t hope to change by reasoned debate. I do not even necessarily voice this as a criticism, religious faith held privately and not imposed against rational society is not something I wish to destroy. Our legal responsibility in this matter has been clearly articulated by Jelderks. The compelling question in my view is whether, in light of ethical and civic responsibility, we should not give tribal entities full license to such artifacts—their somewhat dubious personal claims being nevertheless superior to mine. The practical application of such a policy would be problematic—the unspecific cultural affiliation of early North Americans raises issues as to which tribe would have the most valid claim. The likely answer is that while the people we understand to be “Native Americans” may hold claim to such ancestral remains, no single tribal entity could possibly say the same. We therefore are obliged to weigh that claim of ethnicity against our own interests and obligations. I don’t necessarily know that curiosity is excuse enough. It falls on us all to decide whether the search for knowledge itself is a societal more. That question, in fact, is central to many of the issues facing science and policy—part of the rationale behind public funding of research. We have made the search for objective knowledge a positive social value. We should continue to do so, even if it makes Armand Minthorn somewhat uncomfortable.