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August 30, 2002 - Portland, OR Justice John Jelderks, Justice Magistrate of the United States District Court in Portland, Oregon, handed down the long-awaited decision on the so-called Kennewick Man case. Jelderks found that the scientists must be allowed access to the skeletal remains, and that the remains must not be repatriated to the American Indian tribes cited in the court case. Jelderk's reasoning is quite interesting, and will no doubt have repercussions in future applications of legislation protecting archaeological resources.

As legal documents go, the Kennewick Man decision is clearly written, logically reasoned, and absolutely devasting in its criticism of the activities of the U.S. Corps of Engineers and Department of the Interior. But, that's really beside the point, to be honest, although it does make for some entertaining--or very painful--reading.

The main gist of the argument is that the prevailing legislation that should have dictated what happened to the bones should have been the Archaeological Resources Protection Act (ARPA), not the Native American Graves Protection and Repatriation Act (NAGPRA).

ARPA, enacted in 1979, was intended to protect archaeological sites on federal lands. Under ARPA, the intent was to protect and conserve the archaeological materials for, basically, science. Artifacts found under ARPA are to be properly curated, and it is expressly stated that such materials be made available to qualified scientists.

NAGPRA, enacted in 1990, was intended to see that archaeological and cultural materials associated with burials and other ceremonies that were found on federal lands would be returned to their original owners if they could be identified, that is, the American Indians who made them or their descendants. NAGPRA was particularly aimed at returning human remains and ceremonial goods, untold thousands of which languished in museums around the country. Written into NAGPRA is a mandate to the federal agency involved to discuss the issues concerning the repatriation with tribes. Nothing in NAGPRA discusses consultation with anyone else, and curation is not an issue.

Justice Jelderks argued that under NAGPRA, to be able to return a particular funerary item or set of skeletal remains, one must identify a one-to-one relationship between the ancient culture and a present day claimant. The Kennewick Man case, he argues, cannot be connected to the claimants for several reasons. First, there are essentially no cultural remains buried with the skeletal remains of Kennewick man--in fact, the only cultural remains found with him was the projectile point buried in his thigh. Even if such an old point could be assigned to a particular cultural group (and it can't), that doesn't necessarily mean that Kennewick Man belonged to that group, in fact it rather implies the opposite. No cultural materials to match to modern-day tribes, so no connection made there. Secondly, the area in which Kennewick Man was found was not one tribe's traditional lands; in fact, he was found in what was considered a crossroads by most of the tribes residing in the Northwestern United States. Not a one-to-one relationship there, either. Thirdly, as has been stated and restated in the press, Kennewick man's skeleton is morphologically different than modern tribes. His skeleton is, however, like others found dated to the same period in the north American continent; but no connection to modern tribes for any of them.

Justice Jelderks also argued, rather amazingly in retrospect, that Kennewick Man was not Native American at all under NAGPRA. I'm not sure that makes a lot of sense--so, what is he? chopped liver? Except that--we simply don't have an alternative category for early American residents of undefined ethnic status yet; this debate appears to support the contention that most if not all of our modern ethnic designations are recent developments. But his argument that there is simply not adequate information to connect Kennewick Man with any one (or even any collective) tribal group of our modern day, is a sensible and, more to the point, a defensible argument.

So now, pending appeal, the scientists will at long last have access to the Kennewick man skeletal material. The ending is not all that happy, unfortunately. During the three years that the Kennewick Man skeleton resided in the tender hands of the Corps of Engineers, the bones were improperly stored. Bones went missing; a small percentage of them was reburied. Saddest for the scientific value of the bones is the fact that the Corps allowed the Native American community ritual access to the bones--and during those ceremonies sage and cedar were burned on or near the bones, undoubtedly inhibiting several of the scientific studies, including future DNA studies. This is rather ironic, in fact: because it is remotely possible that DNA testing might have connected Kennewick Man with modern day tribes.

While the Kennewick Man case is not likely over, this is truly a most interesting wrinkle in the continuing saga of modern science and religion and politics



Last updated Sunday, July 23rd, 2006

By Anna King, Herald staff writer

Ten years isn't long. Not in a history that began 9,000 years ago.

But the discovery of Kennewick Man on July 28, 1996, is dramatically reshaping beliefs about how humans populated the Americas. And his skeleton may continue to raise more questions about the past than it answers.

One of the most complete ancient skeletons ever found, Kennewick Man triggered a nine-year legal clash between scientists, the federal government and Native American tribes who claim Kennewick Man as their ancestor.

And the long dispute has made him an international celebrity.

Authors have pondered his mysteries in books, he's been the subject of documentary films, his story is taught in classrooms across the globe, dozens of Web sites track his tale and his likeness recently appeared on the cover of Time magazine.

The 9th U.S. Circuit Court of Appeals ultimately ruled in the scientists' favor, allowing the first studies of the bones last summer.

Some of the nation's leading scientists began studying Kennewick Man about a year ago. They've released some of their findings but say future generations of scientists will be able to learn more from the ancient bones as technology advances.

The pioneer

When C. Loring Brace, 75, saw a picture of Kennewick Man's skull accompanying a New York Times article in 1996, he instantly knew where his ancestors came from.

"One look at that thing, and I knew it was going to relate to the Ainu of Japan," he said.

Brace, a professor of anthropology at the University of Michigan, had to wait nearly nine years to study Kennewick Man. He visited the bones for the first time last summer.

He knew where Kennewick Man's ancestors fit on the world map because he has carefully measured about 10,000 skeletons over nearly 30 years.

He puts his complex measurements into a computer database, which allows him to study and track incremental change in human populations over time.

Kennewick Man, and the handful of other ancient skeletons that have been found, are reshaping the way scientists view North American history. And the Bering Land Bridge theory now appears a little simplistic, they say.

It's likely that waves of migrations came to North America, perhaps starting thousands of years before people first crossed the Bering Land Bridge.

"The Kennewick Man skeleton is a piece of all our histories," said Thomas Stafford Jr., a Lafayette, Colo., geochemist. "Who's the pioneer - the guy who came in a covered wagon, the American Indians that came 8,000 years ago or the people before them?"

Brace said Kennewick Man supports the theory that ancient people traveled from Asia to North America by boat or on foot along coastlines and over ice sheets.

About 12,000 years ago, prehistoric hunters, called the Clovis people, followed big game animals across the land bridge between Siberia and Alaska. Modern Native Americans are likely their descendants.

Brace said Kennewick Man is likely related to the ancient Jomon, who also were the ancestors of the Ainu people of Japan. The new theory is a radical shift in the long-accepted ancient history book.

Brace said when he was finally able to measure Kennewick Man's skull, his hunch proved right.

"I got my calipers on him, and it says what I expected it to," he said. "Tying that across to Central Japan, that's not something that most people in the business expected."

Kennewick Man might have been compared to a European when he was first discovered, because the Jomon people share similar characteristics, Brace explained.

The Ainu don't look like other Japanese, he said. They have light skin, wavy hair and body hair.

"Their eyes don't look Asian at all," Brace said.

Not everyone agrees with this theory, Brace concedes, but then they don't have his data.

He said since populations were so much smaller 9,000 years ago, it's very difficult to find skeletons because there weren't established burial grounds or cemeteries. And bones deteriorate over time with exposure to elements, so finding a complete skeleton from 9,000 years ago is even more rare.

Stafford said Kennewick Man's importance in reshaping theories about the past is "extraordinary."

"There are so few of these skeletons that every single one of them is priceless," he said. "To lose one out of six is just inconceivable."

The ancestor
That view clashes with Mid-Columbia tribes, which haven't given up hope of reburying the skeleton they call Ancient One. Only last month, tribal leaders prayed over Kennewick Man's bones at the Burke Museum in Seattle.

Last month, Audie Huber watched as the remains of 143 Native Americans were returned to the ground near Lyons Ferry State Park north of Washtucna.

They were dug up in the 1960s to make way for Ice Harbor Dam and had been stored in the anthropology departments of the University of Idaho in Moscow and Washington State University in Pullman.

Huber, who works for the Umatilla Indian Reservation's department of natural resources, helped orchestrate the return of the bones to the tribes under the federal Native American Graves Protection and Repatriation Act or NAGPRA

. "The sense of relief was really palatable," Huber said. "I lack the words to describe it."

Huber, a Native American from the Northwest coastal Quinault tribe, has been monitoring the Kennewick Man court case since the first hearing in 1996.

The legal battle has been "exhausting," he said. "But we are here to protect the resources and we will continue to do so."

He said having remains sitting in boxes or on display in museums marginalizes living tribal members.

Although the tribes have faced international criticism, their beliefs shouldn't be hard to understand, Huber said.

"Many cultures believe that once remains are in the ground, they should stay there," he said.

Huber said the tribes are fighting for the right to be consulted on any studies of the bones through the Archaeological Resources Protection Act of 1979, which protects archaeological sites and artifacts.

The scientists say the tribes have no claim on the bones because the courts decided the tribes aren't related to the ancient skeleton.

A bill introduced last year by Sen. John McCain, R-Ariz., could expand the authority of NAGPRA and give tribes more control.

"This amendment would bring all historical human remains under NAGPRA," Huber said.

Rob Roy Smith, the Seattle lawyer who represented the tribes in the Kennewick Man case, said if the new bill passed, it likely would not change anything in the Kennewick Man case.

The bill hasn't gained much traction because the Iraq war and other concerns are taking precedent, Smith said.

Huber said the tribes dedicated time and resources to the Kennewick Man case because they knew it would set a precedent for the federal government in future cases.

Smith hopes the tribes and scientists will have open discussions instead of long court cases if another set of remains is found on federal land.

"There hasn't been that next discovery to test what will happen under that statute," Smith said. "But it's just a matter of time. Hopefully we've learned our lessons."

Like the Mid-Columbia tribes, the Asatru Folk Assembly claimed Kennewick Man as an ancestor in late 1996.

Stephen McNallen, the religious leader of the Asatru, said he fought for about three years in court to have the skeleton studied because it might be linked to ancient Europeans.

And he's interested to see what studies of Kennewick Man's DNA will reveal.

The Asatru follow a pre-Christian European theology, with Viking gods such as Odin and Thor. The group, founded in 1972, believes there were migrations of early Europeans to North America thousands of years before Columbus.

"No matter who Kennewick Man turns out to be, it will be of great interest to everyone," McNallen said.

The Asatru gave up their fight in 2000 because the lengthy legal battle was requiring too much time and money, McNallen said.

And he said he wouldn't have taken up the Kennewick Man issue so publicly if he'd known how much criticism the Asatru would face after performing religious ceremonies in the Tri-Cities. Minority religions are often misunderstood, he said.

"I think it's better to be more reserved than we were at that time," he said. "We don't invite outsiders and we don't allow ourselves to be photographed (during religious ceremonies)."

If Kennewick Man proves to be related to another ethnic group, such as the Southeast Asians, the Asatru will readily accept the scientific evidence, McNallen said.

"All we've wanted all along is just the facts," he said.

The 'window into the past'

The scientists who fought to study Kennewick Man for nine years said the wait was frustrating but allowed scientific methods and technology to improve.

They say the bones are revealing stories of the past and raising even more questions.

"I'm kind of glad that some of the people in the government were so cautious," said Stafford, the Colorado geochemist. "If we had studied it for a month and then reburied it, the things I'm telling you now wouldn't exist."

The experts who recently studied Kennewick Man say they are finishing their reports and will write a book or journal together. And they think their team effort will serve as an example of how to study future discoveries.

"To my knowledge, this is the first time (in North America) a study has been done with this many people," Stafford said.

In the past 10 years, Stafford has developed a more precise radiocarbon dating test that is accurate within 20 years. Previously, the best dating technology had a 500-year margin of error.

He hopes to use his improved test on Kennewick Man's bones.

Several labs tested pieces of the bones for the government to determine the skeleton's age, but the results varied by more than 2,600 years, Stafford said. He is using leftover bone fragments and powders from those tests to determine what part of the bone might yield the most accurate radiocarbon date.

The problem is finding the best protein for the test. As bone ages, bacteria, water and other elements break down the protein inside.

Kennewick Man's bones contain less than 1 percent to 5 percent of their original protein, Stafford said. And after thousands of years, the protein becomes harder to find and less consistent, like a badly mixed cake batter, he said.

Stafford also wants to use chemistry to find out what Kennewick Man ate and where he might have traveled.

The scientist plans to find out if Kennewick Man preferred vegetables, meat or fish.

"I am just amazed at all the new things I see in this skeleton," he said. "It gives me other ideas for other tests."

He hopes to complete his tests by September.

The scientists also want to try extracting DNA from Kennewick Man's bones or teeth, although Stafford isn't sure the technology is advanced enough to try yet.

"We ought to let DNA technology catch up with our ideas," he said. "We should do these experiments on bison bone and not on Kennewick."

If successful, DNA testing could allow scientists to compare Kennewick Man's genes with other populations around the world or tell scientists something about his physical traits.

Hugh Berryman, research professor at Middle Tennessee State University, said Kennewick Man has just begun to tell his story.

Berryman, an anthropologist, does much of his work in forensics studying the recently dead.

He's an expert at interpreting skeletal injuries and figuring out how and why bones break. And after studying the ancient skeleton, he believes Kennewick Man was well loved.

Kennewick Man had healed from the spear wound in his hip, so he must have had close friends or family, Berryman said.

"There were others that helped him survive," he said. "He wasn't in good shape then."

It's unclear if Kennewick Man was injured while hunting, in battle or in a family dispute, Berryman said.

"Nine thousand years doesn't make him any less a person," he said. "He had the same thoughts and feelings as we do. But I can safely say it was wasn't a dispute over a parking space."

Scientists plan to scan the spear point encased in hip bone to determine the stone's origin. It may give some clue of how far Kennewick Man traveled or what peoples he may have encountered.

Berryman said he and the other scientists have been able to understand much about Kennewick Man's life, but future studies will undoubtedly find more answers and raise more questions.

"He is a window into the past," Berryman said. "When you look at a skeleton like this, you are kind of communicating with him through technology. Fifty years from now, there may be some great technology and questions we can ask him."

For background articles on Kennewick Man in Viewzone - CLICK HERE.