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ARTICLE

Copyright 2004 SAGE Publications (www.sagepublications.com)

ISSN 1469-6053 Vol 4(1): 6080 DOI: 10.1177/1469605304039850

Becoming American or becoming Indian?

NAGPRA, Kennewick and cultural affiliation
JOE WATKINS
Department of Anthropology, University of New Mexico, Albuquerque, USA

ABSTRACT
Magistrate John Jelderks opinion in August 2002, that Kennewick
Man is not Native American under the Native American Graves
Protection and Repatriation Act (NAGPRA), will likely have farreaching impacts on the relationship between American Indians and
American archaeologists. More than a legal decision, the opinion also
points to the inadequacies of NAGPRA. The following article looks
at some of the political implications of the judges decision and the
most recent crack in the fragile peace between archaeologists and
North Americas indigenous people and discusses some of the shortcomings and ambiguities of NAGPRA.
KEYWORDS
indigenous people Kennewick Man NAGPRA
Americans and archaeologists Paleoindians

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INTRODUCTION
On 30 August 2002, Magistrate John Jelderks of the US District Court for
the District of Oregon issued an opinion and order in the case of Bonnichsen et al. v. United States of America, that proclaimed Kennewick Man was
not a Native American under the Native American Graves Protection and
Repatriation Act (NAGPRA). This decision, while legally restricted to the
specific District Court within which Washington state is situated, is likely
to have far-reaching political impacts not only on the conduct of archaeology in the American Northwest, but also for Paleoindian studies in North
America more generally. Even the term Paleoindian, a term of longstanding use for the early cultures within the New World, has recently
gained a political edge. Owsley and Jantz prefer to substitute the term
Paleoamerican for Paleoindian, since, as they note,
when comparing early skulls [in the New World] with available modern
populations, we note that most of them fall far outside the normal range of
recent population variation. More specifically, they especially fall outside the
range of American Indian populations and are so different that it may be
more correct to refer to them as Paleoamerican rather than Paleoindian as
many do. (Owsley and Jantz, 2001: 5667, emphasis added)

The change in terminology may have no impact on the study of early populations in North and South America, but the change certainly carries with
it political implications since, by replacing Indian with American, it illustrates the political aspects of naming.
Thomas (2000: 4) writes about the impact of naming geographic features
as part of the discovery and conquest of the Western Hemisphere:
The names established an agenda under which the rest of the encounter
would be played out. After discovering a patch of unclaimed land, the
conqueror would wade ashore and plant his royal banner. He proclaimed
that these newly discovered lands were now his patrons domain and laid
claim to the new-found riches, the natural resources and the things living and
inanimate all of which was simply wilderness before being discovered and
defined by Europeans. . . . The power to name reflected an underlying power
to control the land, its indigenous people and its history.

If the naming of geographic features carries with it such power, imagine the
power of being able to name the culture that used that geography.
A brief re-examination of the relationships between archaeologists and
American Indians will provide a skeleton upon which to hang the current
conflict. Numerous authors have examined these relationships in more detail
(Bettinger, 1991; Lurie, 1988; McGuire, 1992; Meltzer, 1983; Trigger, 1980,
1986, 1989; Watkins, 2000), but it is necessary for non-American archaeologists to have an understanding of the history of those relationships.

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THE ONLY GOOD INDIAN . . .

A number of anthropologists have traced the history of anthropology and
its relationships with American Indians and many have indicated (if not
demonstrated) that American colonialist attitudes have had a tremendous
amount of influence not only on the manner in which the government has
treated American Indians but also the way that anthropologists have
studied and portrayed them. Trigger (1980) notes that the problems social
scientists choose to research and (hopefully less often) the conclusions that
they reach are influenced in various ways . . . (among them) . . . the attitudes and opinions that are prevalent in the societies in which they live
(Trigger, 1980: 662). He also argues that, during the first half of Americas
existence (1770s1870s), American Indians were held to be inferior to civilized men in order to rationalize the seizure of Indian lands; and that,
eventually, racial myths grew to supplant any other myths about the Indians
as a justification for waging war on the Indians and violating their treaty
rights.
An example of the scientific treatment of American Indian development
revolved around what Willey and Sabloff (1993: 22) call the Moundbuilder
controversy. The Moundbuilders were believed to have been a nonIndian race, perhaps related to the prehistoric Mexicans, Danes, or even
Hindus, who had withdrawn from eastern North America or had been
exterminated by the newly-arrived Indians. Most writers of the period felt
that the Indians of North America were not capable of such feats of engineering required to construct the mounds in eastern North America and
that, therefore, there obviously must have been a race of non-Indians who
had constructed the enormous mounds.
But the controversy has been seen to be more than merely a scholarly
debate. Some scholars argue that the extermination of American Indians
by westward moving settlements of the USA was somehow made morally
easier by the apparent primitiveness of the natives and the controversy may
have served the political administrations well as a justification for exterminating the Indian groups, which had destroyed North Americas only civilized culture (Trigger, 1980: 665). Bettinger (1991: 323) agrees, stating
[m]uch simplified, Indians were savages . . . Americans were civilized . . .
The philosophy of social evolutionary progress assured Americans it was
their manifest destiny to civilize the New World, to replace savagery with
civilization. McGuire argues that the Moundbuilder myth also worked to
remove the Indians ancestors from the history of the USA: By routing the
red savages, the new, civilized, White American race inherited the mantle,
the heritage, of the old civilization . . . (McGuire, 1992: 820)
Kuznar offers a different perspective on the controversy, arguing that
archaeologists went out on a limb and helped American Indians by proving
scientifically that they were more accomplished than many had perceived

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them to be during a time when Americans were carrying on genocidal

wars against Native Americans and when the stereotype of the savage,
intractable, almost subhuman Indian was decidedly useful to many
(Kuznar, 1997: 83). However, Meltzer (1983) argues that the archaeologists
who finally finished off the Moundbuilder controversy were not necessarily
pro-Indian, but perhaps more pro-scientific, emphasizing scientific views
rather than cataclysmic theories that postulated any intrusive or extinct
races. Regardless of the reason, by the time archaeologists finally proved
the mounds were products of the ancestors of the Indians, the Indians
mostly had been dispossessed of their land. The demolition of the lost
Moundbuilder race hypothesis in 1894 did little to change the popular attitudes against the American Indian. They were still considered to be savages
by those who studied them, destined to vanish from the face of the earth
in the wake of the inexorable crush of civilization.
In the late nineteenth century, Franz Boas had brought to the USA the
value of a historical approach as a technique for explaining cultural variation and archaeologists began to adopt this method as a means of
constructing chronologies and delineating small-scale changes that had
taken place in prehistoric times. It corrected the erroneous claim that
American Indians had not changed dramatically and did contribute to a
more positive view of the American Indian, but there was still a general
tendency not to give credit to American Indians for creativity.
The change in archaeological interest from cultural evolution to cultural
chronologies to cultural process has carried with it an associated change in
the manner in which archaeology as a whole has viewed native peoples.
From the beginning of the twentieth century, American Indians have been
viewed as savages incapable of change, as invisible producers of artifacts
and as invisible producers of data irrelevant to themselves, but of use only
to Euro-American scientists. Trigger suggests that archaeologists have
turned from using their discipline to rationalize Euro-American prejudices
against native people, as they did in the 19th century, to simply ignoring
native people as an end of study in themselves (Trigger, 1986: 206). In a
more critical history of archaeology, Kehoe (1998) argues that archaeology
continues to treat American Indians as belonging outside of science and
that scientists act as if only they have the ability to present and understand
the processes which led to the development of American Indian culture and
prehistory.
The Pan-Indian movement of the 1960s, one that identified the remains
of any one native group from any time period a matter of concern for all
living Native Americans, reflected a new political consciousness.
Proponents of Native unity were a threat to many archaeologists who
viewed attempts at control of the resource as attempts to control their
freedom of research. The idea that archaeologists have a moral right of
access to archaeological material because their research is aimed at

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producing knowledge for the public benefit is in apparent conflict with

concepts held by most American Indian groups that cultural material
remains the property of the descendants of the people who produced it,
rather than the entity that owns the land.
In summary, archaeologist Bruce Trigger feels that the Euro-American
stereotype that portrayed American Indians as unprogressive influenced
the development of archaeology to a great extent, arguing that EuroAmerican scholars defined history as studying themselves and anthropology as the science of allegedly simpler peoples. While Trigger and Kehoe
feel that the conflict between archaeologists and American Indians is rooted
in the very way archaeologists define what it is they do, archaeologist Joseph
Winters view of controversy more than 20 years ago seems more to the
point: This confrontation is basically a conflict of values in which the representatives of competing cultures hold radically differing views of resource
definition, ownership, significance and use (Winter, 1980: 124).

EQUAL UNDER THE LAW: NAGPRA AND OTHER

FALLACIES
The 1969 publication of Vine Delorias book, Custer Died for Your Sins,
had a profound influence on the relationships between American Indians
and anthropologists. The printing of excerpts of Custer in Playboy
magazine in August 1969 made the academic world sit up and take notice
of the quiet contempt, distrust and discontent that many American Indians
held for the discipline.
An analysis of American Indian protests as indicated in articles within
American Indian newspapers and magazines for the decade from
19691979 (Watkins, 1994: Appendix B) shows that this distrust revolved
primarily around the perceived threat to their ancestors and their remains.
The American Indian Movements disruption of excavations at Welch,
Minnesota, in 1971 was one such way that Pan-Indian political groups
organized to stop or impede the excavation of prehistoric archaeological
sites and cemeteries. Such Pan-Indian groups also drew attention to the
treatment of American Indian human remains and sensitive material by
museums through such means as the occupation of the Southwest Museum
in Los Angeles in 1971, and they also began addressing the desire for the
repatriation of human remains and artifacts of cultural patrimony, such as
the fight for the return of the Onondaga wampum belts in 1969. Deloria
suggested that American Indians were tired of being considered objects
for observation . . . for experimentation, for manipulation and for eventual
extinction (Deloria, 1969: 81).
American Indian newspapers carried articles that outlined the general
attitudes of the more radical Indians in the 1970s articles such as Indian

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Skeleton, which detailed excavation of skeletal material by Buffalo State

University, with: HOW LONG WILL WE ALLOW THIS KIND OF
SACRILEGE TO CONTINUE? your grandmother, penned in the
margin (Anonymous, 1970: 12); Dont Exploit Our Dead or Our Ceremonies or Our Dances (a statement issued by the Indians of All Tribes
Organization, Anonymous, 1971: 1); and Archaeologists and the Indians,
a paraphrased letter stating that the Bering Strait theory of migration into
North America was nothing more than a ruse by archaeologists to justify
the white mans presence in America and make the red man think he is also
alien in his own land (Hall, 1971: 10). These seemed to indicate that the
general views of American Indians were that archaeology was counterproductive to American Indian wishes.
In the early 1980s, important breakthroughs between American Indian
groups and the public and private sectors were made through the concerted
efforts of individuals in tribes and museums, such as the repatriation of the
Zuni War Gods by the Millicent Rogers Museum and the Denver Art
Museum. But the development and passage of the National Museum of the
American Indian Act (NMAIA) in 1989 and Native American Graves
Protection and Repatriation Act (NAGPRA) in 1990 changed the underlying structures upon which the relationships between archaeologists and
American Indians were based. While scientists argued that the Acts jeopardized their research, American Indians claimed that science could no
longer operate within a cultural and social vacuum as it had since the
investigations of burial mounds in the 1790s (Bettinger, 1991; McGuire,
1992; Trigger, 1980).
The passage of NAGPRA signaled a shift in policy of the USA regarding the treatment of American Indian materials in federally-controlled
museums and facilities and gave American Indians hopes that they were
getting some of the tools necessary to implement the changes they had
protested for in the 1970s. Many authors (Hutt, 1992; Hutt, Jones and McAllister, 1992; Tsosie, 1997; Welsh, 1992) believe that NAGPRA is human
rights legislation aimed at providing equal treatment to all human remains
under the law, without consideration of race or cultural background. The
law, they believe, was meant to remedy the unequal treatment of Native
American remains by previous generations of American military, bureaucrats and scientists. But with the laws passage, tribal groups quickly realized
it was not the panacea they hoped it would be and Indians and archaeologists alike realized there were inadequacies and ambiguities to the law.

PERCEIVED INADEQUACIES OF NAGPRA

While NAGPRA does not authorize the initiation of new scientific studies,
it does not preclude it when the museum deems it necessary for determining

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the cultural affiliation of a set of human remains (Section 5 (b)(2)), or when

such items are indispensable for completion of a specific scientific study,
the outcome of which would be of major benefit to the United States
(Section 7(b)).
In the 1995 oversight hearing on the implementation of NAGPRA,
Kunani Nihipali, a leader of Hui Malama I Na Kapuna `O Hawai`i Nei, a
Native Hawaiian organization, called for a clarification of the role of scientific study, asking that NAGPRA . . . state that where existing documentation establishes geographic location and cultural affiliation by clear,
reasonable belief, or the preponderance standard of evidence, scientific
studies of any kind on ancestral skeletal material remains are prohibited
(Nihipali, 1996: 158).
Other tribes were concerned about the apparent authorization of study
prior to repatriation of materials allowed in Section 7 of NAGPRA.
Another interesting comment made by Owsley and Jantz relates to research
on early human remains in the Western Hemisphere:
Following reports on early discoveries during the first half of the twentieth
century . . . and until the last decade, ancient American skeletons rarely
received much attention in the professional literature. This circumstance is
partly because the reigning paradigm . . . identified ancient Americans as
being just like recent Native Americans and they were, therefore, not of
unusual research interest. (Owsley and Jantz, 2001: 566, emphasis added)

This is strangely reminiscent of a claim made by Jesse Taken Alive,

Chairman of the Standing Rock Sioux Tribe, at a 1995 oversight hearing
on the implementation of NAGPRA:
It was only when Native people . . . rose to stop the racist practice of the
robbery and study of our graves was the loss to science loudly and
arrogantly lamented. Amid great gnashing of teeth, the rush was on to study,
document, analyze and further desecrate our relatives before the precious
scientific and cultural materials could be destroyed through reburial.
(Taken Alive, 1996: 231, emphasis in original)

A second failure of NAGPRA is its inability to protect human remains on

private land. Many American Indian groups cannot understand why the
graves protection portion of NAGPRA was not applied to all lands within
the USA, rather than just to federal or tribal lands. Since the entire continent was at one time Indian land, they have a difficult time understanding
why federal protection of graves should be extended only to federal or
tribal lands. In a review of the legislative history of NAGPRA, Trope and
Echo-Hawk (1992: 52) noted that 34 states had enacted burials protection
laws, which typically prohibit intentional disturbance of unmarked graves,
provide guidelines to protect the graves and mandate disposition of human
remains from the graves in a way that guarantees reburial after a period of
study. They also noted the constitutionality of the laws had been upheld,

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citing as examples cases in California, Minnesota and Oregon (Trope and

Echo-Hawk, 1992: 53).
If such state laws designed to protect human remains have been upheld
as constitutionally valid, there arises a question as to why NAGPRA was
not applied to all lands. The National Congress of American Indians, the
oldest and largest national organization representing American Indians, at
its 1993 Annual Convention held in Reno/Sparks, Nevada, called for
amendatory language to the NAGPRA to extend protection of funerary
remains and objects on all lands within the exterior boundaries of the US
wherever they may be situated (NCAI Resolution No. NV-93170). Even
the past NAGPRA Review Committee Chairwoman Tessie Naranjo of
Santa Clara Pueblo, New Mexico, noted that the Review Committee itself
experienced frustration over this issue (Naranjo, 1996: 149).
Why is such extension of NAGPRA important? According to Melinda
Zeders survey of American archaeologists (1997: 47), approximately 49
percent of archaeologists worked either within the government (23
percent), the private sector (18 percent), or within a museum setting (8
percent). Although these figures might vary from the true proportions of
archaeologists employed in these areas, Zeder feels they are a good fit to
the actual make-up of American archaeology (Zeder, 1997: 48). If one
assumes that private sector and museum archaeologists are as closely tied
to federal regulations as their government counterparts, NAGPRA or the
NMAI Act affects the research of only about one-half of all American
archaeologists. Academic archaeologists, those more often participating in
pure research, are less confined by federal regulations and made up 35
percent of the survey population. When these archaeologists conduct
research on federal or tribal lands, their research is covered under
NAGPRA, as are the artifacts that they might collect. However, if their
research is conducted on private land, they are less constrained. While the
artifacts they collect might eventually come under control of NAGPRA (if
the museums that curate the artifacts receive federal funds), their initial
excavations may not be as stringently controlled.
The ascription of property rights to archaeological resources is, as
Knudson notes (1991: 4), a complicated legal, as well as social, issue. While
human remains may be protected under various state laws, federal intervention on private land can sometimes be seen as a violation of the takings
clause of the 5th Amendment to the Constitution if the land owner is
somehow denied access or free use of his property without adequate
compensation.
Another inadequacy is NAGPRAs failure to protect culturally unidentifiable human remains, something the NAGPRA Review Committee has
tried to remedy (NAGPRA Review Committee, 1999, 2000) through
recommendations which have yet to be codified. Section 7, subsection
(a)(4) of NAGPRA concerns Native American human remains and

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funerary objects whose cultural affiliation has not been established by

inventories or summaries prepared by museums. At the 1995 oversight
hearing on the implementation of NAGPRA, Cecil Antone, Lieutenant
Governor of the Gila River Indian Community at Sacaton, Arizona, noted:
Even though they are not identified [as to culture], they are human beings.
They were human beings. And so in our situation . . . we took them in and
reburied them because they deserved that (Antone, 1996: 37). Jesse Taken
Alive of the Standing Rock Sioux Tribe of Fort Yates, North Dakota, said
the tribe believes those remains dating back 500 years or more are
American Indians . . . Give them back to the people and let us decide how
that should be done, because, after all, as American Indians, as indigenous
people, those are our ancestors (Taken Alive, 1996: 42).
Even the NAGPRA Review Committee felt this issue was a point of
frustration. Dan Monroe, a member of the Committee at the time of his
testimony at the oversight hearing, noted that [T]he most difficult unresolved NAGPRA issue involves the disposition of human remains and
funerary objects (Monroe, 1996: 125, emphasis in original). He further
noted:
[T]he controversy is hottest in respect to disposition of ancient Native
American remains . . . [which] can seldom be affiliated with a specific
tribe. . . . Native Americans almost unanimously argue that they are culturally
and otherwise affiliated with these remains and that their religious and cultural
beliefs dictate that the remains be returned and reburied. (Monroe, 1996: 125,
emphasis in original)

In 1997, Washington States Representative to Congress, Doc Hastings,

introduced a bill that would have amended NAGPRA to require certain
levels of study prior to repatriating culturally unidentifiable human
remains. HR 2893, introduced into Congress in November 1997, would
have, according to biological anthropologist Richard Jantz, made it much
easier for (scientists) to gain study access to any unaffiliated material and
require that (cultural) affiliation be documented to a much greater extent
(Lee, 1997). The National Congress of American Indians response to this
bill was Resolution SFE-97091, titled Amendments to NAGPRA Senate
Bill 110 and House Report 2893, which voiced their opposition to the
proposed changes.
In 1998, the NAGPRA Review Committee issued a set of Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable
Human Remains. These principles presented guidelines for the ultimate
disposition of these types of remains. While no specific remedies are defined
for every case, they do offer suggestions for disposition in cases where the
human remains are associated with a non-federally-recognized tribe and
suggest regional consultations where such approaches would prove
beneficial in situations where the human remains represent a population for

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which there are no present-day cultural survivors or where the present-day

cultural survivors are members of non-federally-recognized Indian tribes.
American Indian views on this issue are divided, but for differing
reasons. Many tribes feel that non-federally-recognized tribes are no less
Indian than their federally-recognized counterparts, while others are afraid
that to allow standing under NAGPRA would allow such groups to bypass
the normally tedious process of federal recognition.
Again, Tessie Naranjo, then the Chairwoman of the NAGPRA Review
Committee, noted at the 1995 oversight hearing that Congress needed to
find a way to permit Native American groups not presently recognized by
. . . the BIA to repatriate their human remains, funerary objects, sacred
objects, or objects of cultural patrimony (Naranjo, 1996: 22). Additionally,
testimony provided by the Keepers of the Treasures-Alaska also called for
such Congressional action: it didnt matter . . . when the human remains of
non-federally-recognized Indian tribes were taken . . . it irks me that living
human beings are technically not in existence merely because the US
Government does not recognize them (Keepers of the Treasures-Alaska,
1996: 72). Additionally, Duane Champagne, Director of the American
Indian Studies Center at UCLA, provided a five-page letter noting the
problems with such a policy in California alone (Champagne, 1996: 99103).
While all tribes agree that human remains of unrecognized American
Indian groups always were and always will be American Indian, many are
concerned about extending rights to groups under NAGPRA. In a statement prepared for the March 1997 Review Committee meeting in
Oklahoma, seven tribes from southwestern Oklahoma the Apache Tribe
of Oklahoma, the Caddo Tribe, the Comanche Tribe, the Delaware Tribe
of Western Oklahoma, the Fort Sill Apache, the Kiowa and the Wichita
and Affiliated Tribes felt repatriation should occur only to federallyrecognized groups. While they felt that human remains, regardless of affiliation, should not be left in museums, they expressed a concern that to
repatriate human remains to non-federally-recognized tribes could potentially assign rights and authority to groups that have come into existence
without a legitimate claim of continuity. The seven tribes feel that
culturally-unidentifiable human remains should be repatriated to the federally-recognized tribes on whose aboriginal lands the remains were found,
with the Review Committee making decisions in cases of multiple tribes
claiming the same ancestral lands.

PERCEIVED AMBIGUITIES IN NAGPRA

There are many ambiguities under NAGPRA, but I will focus my
discussions in this section on the ambiguous treatment within NAGPRA of

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excavated human remains and those human remains encountered as a

result of inadvertent discovery situations during construction or earthmoving projects.
Under Sections 3(c) and (d) of NAGPRA, the excavation of Native
American human remains and objects must follow the Archaeological
Resources Protection Act of 1979 (ARPA), but tribal authority under that
law is limited. If the tribe has the permitting authority for the land where
the remains are located, the tribe may refuse to issue an antiquities permit
and thereby prevent excavation, but in the absence of any such authority,
the tribe has limited options. ARPA requires only that consultation occur,
not that tribal permission be granted. Additionally, if the tribes are to have
the right of ownership and control as called for under 3(c)(3) of NAGPRA,
the artifacts become tribal property only after the scientist is finished
removing and/or studying them, not before.
Tribes have even less authority in the case of an inadvertent discovery
of human remains on federal land if there are no known or easily discovered
lineal descendants. If the material cannot be reasonably identified as to
tribe, then the material becomes the property of the tribe which has the
closest cultural affiliation with the material and which states a claim for the
material. Of course, this might require scientific study of the material to
determine which group might have the closest affiliation, something the
tribes may not want, but something to which the tribes may be forced to
agree in order to regain the human remains for reburial.
If the cultural affiliation of the material cannot be identified as to tribe
but are found on federal land that is recognized by a final judgment of the
Indian Claims Commission or the United States Court of Claims as the
aboriginal land of some Indian tribe, then the material goes to the tribe
which is recognized as the aboriginal occupant of the land. If, however,
another tribe can demonstrate a stronger cultural affiliation than the aboriginal occupant of the land on which the materials were found, the tribe
with the stronger cultural affiliation may claim the human remains.
Ultimately, it can happen that no tribe may be judged to be an aboriginal occupant of the land as defined through a final judgment of the Indian
Claims Commission or the United States Court of Claims. It can also
happen that no tribe will be viewed as being culturally affiliated with the
materials as defined under NAGPRA. And both of these happened in the
case of Kennewick Man.

KENNEWICK AS THE EPITOME OF NAGPRAS

INADEQUACIES AND AMBIGUITIES
The 612-year-long battle over Kennewick Man is a perfect example of
NAGPRAs inadequacies and ambiguities. I cannot go into a long, detailed

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discussion of Kennewick Man, as space is short, but readers who wish to

gain more information on the situation should go to the website maintained
by the Tri-City Herald (http://www.kennewick-man.com). Articles featuring Kennewick Man have been published in popular venues such as The
New Yorker (Preston, 1997), the U.S. News and World Report (Petit, 1998),
Discover (Wright, 1999) and Newsweek (Begley and Murr, 1999) and more
detailed discussion of the situation is presented in books by David Hurst
Thomas (2000), Roger Downey (2000) and James Chatters (2001). Even
the CBS television news program Sixty Minutes (CBS, 1998) has presented
a discussion of the Kennewick case.
When a nearly-complete set of human remains was discovered on the
shore of the Columbia River in 1996 by a couple of college students, no
one could foresee the resulting court challenge of many of the major tenets
of NAGPRA. The area containing the human remains was originally
treated, by Dr James Chatters, as a crime scene, as is normal practice. After
a flaked stone projectile point was discovered embedded in the pelvis of
the skeleton, Chatters sent off a portion of bone to a radiocarbon laboratory and when the dates came back indicating the remains were approximately 9200 years old, NAGPRA went into action.
The human remains were treated as an inadvertent discovery under
NAGPRA and the US Army Corps of Engineers (which controlled the
federal land upon which the remains were found) determined to repatriate
the remains to the Umatilla. But, shortly before the remains were to be
returned, eight anthropologists filed suit in the district court to block the
repatriation.
From the beginning, the human skeletal remains intrigued scientists
since they represented one of the most complete skeletons recovered from
that time period. Archaeologist Rob Bonnichsen was quoted as saying:
Theres a whole book of information [in Kennewick Mans bones]. To put
him back in the ground is like burning a rare book so well learn nothing. . . .
It seems to be the case that there is a major effort to block scientific inquiry
into the study of American origins (OHagan, 1998: 8).
But American Indians were not amenable to further study. To representatives of the Umatilla, it did not matter how old the remains were. If
this individual is truly over 9000 years old, that only substantiates our belief
he is Native American, Armand Minthorn (1996) was quoted as saying. He
went on:
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.
Scientists have dug up and studied American Indians for decades. We view
this practice as desecration of the body and a violation of our most deeply
held religious beliefs. Our beliefs and policies also tell us this individual must
be reburied as soon as possible. (Minthorn, 1996)

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Don Sampson, a former Board of Trustees Chairman for the Confederated

Tribes of the Umatilla Indian Reservation, stated in a position paper that:
We want the public and scientists to understand that we do not reject
science. In fact, we have anthropologists and other scientists on staff and we
use science every day to help in protecting our people and the land.
However, we do reject the notion that science is the answer to everything
and therefore it should take precedence over the religious rights and beliefs
of American citizens. (Sampson, 1997)

A year later, another group involved in the process reaffirmed the stance.
Marla Big Boy, an attorney for the Colville Tribe, told reporters at a press
conference in Santa Fe in December 1998: The Colville Tribe is not against
science. We are against the use of science to discriminate and disenfranchise Native American tribes (Coleman, 1998).
Thus, the question at the outset was not a question of science versus
religion, as some of the popular press reported, but rather a conflict
between American Indian philosophy and the unilateral application of
American science. And even scientists were not of a single mind in relation
to this case. Articles and letters in the American Anthropological Associations Anthropology News discussed the political and academic implications of Kennewick, especially in relation to the scientific and social
definitions of race.
The court case involving the scientists and the US Department of the
Interior over the disposition of the human remains continued from October
1996 until Jelderks August 2002 decision. The lawsuit was put on hold,
however, while the Department of the Interior performed tests on the
skeleton in an attempt to better determine the cultural affiliation of the
human remains. One such study subjected the bones to statistical analyses
of skeletal measurements in an attempt to better determine morphological
relationships between the skeleton and other world populations.
Analyses performed by Powell and Rose of the Department of the
Interiors scientific team (Powell and Rose, 1999) raised some interesting
paradoxes. Statistical tests conducted on the skull led them to conclude
that: [T]he Kennewick skeleton can be excluded, on the basis of dental and
cranial morphology, from recent American Indians. More importantly, it
can be excluded (on the basis of typicality probabilities) from all late
Holocene human groups (emphasis in original). Yet their research also
points out that the Kennewick cranium is morphologically similar to
Archaic populations from the northern Great Basin region and to large
Archaic populations in the eastern woodlands, suggesting that the Archaic
(middle Holocene) populations of North America that followed may have
derived some of their morphological characteristics from the population of
which the Kennewick individual was a member (Powell and Rose, 1999).
Equally intriguing is Powell and Roses conclusion that their statistical

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analyses of various skull measurements support the conclusion that, the

Archaic samples from the southeastern U.S. are clearly distinct.
While the ultimate disposition of the skeletal remains is the focus of the
court case, one of its main issues is whether NAGPRA should have application to human remains as old as Kennewick Man. In 1997, Amanda Horn
examined the legal issues surrounding NAGPRA and its application to the
ancient human remains, as well as the battle for the right to control the
disposition of human remains discovered on federal land in Washington
(Horn, 1997: 503).
Horns examination focused on Congress failure to recognize the
religious relationship between cultural items (including human remains)
and Indian tribes, the differences in application of certain state statutes
regarding Native American human remains, as well as a history of the
Kennewick discovery.
Horn details the challenges to NAGPRA inherent in the eight anthropologists court case against the Corps of Engineers: that is, that Congress
did not contemplate remains as old as Kennewick in its enactment of
NAGPRA, that modern tribes will not be able to demonstrate adequately
a cultural affiliation with material as old as Kennewick and that the Corps
action to repatriate the material was unwarranted until further study allowed
an accurate determination of the Kennewick materials ethnicity and
cultural affiliation (Horn, 1997: 512). The archaeologists also relied upon the
scientific exceptions provision of NAGPRA, which allows scientific testing
of materials when the results would be of a major benefit to the USA.
American Indian concerns with the human remains were also discussed.
Horn argues that, strictly speaking, under NAGPRA the Agency must
immediately repatriate the remains upon request to Native American tribal
groups that can provide evidence of cultural affiliation [25 USC 3005(c)],
which the tribes might furnish through oral histories. Moreover, in the
Kennewick case, the land upon which the remains were found is considered
to be within the aboriginal homeland of the Columbia Basin tribes, based
upon an 1855 treaty between the Umatilla and the federal government
which secured the tribes hunting, fishing, gathering and other rights on
their traditional homeland (Horn, 1997: 513).
In relation to the scientific exception clause of NAGPRA, Horns
analysis illustrates what many Native Americans feel about the scientific
study of human remains:
The scientists arguments . . . are reduced to a belief that their interests in
knowledge and education outweigh the religious, civil and sovereign rights
of the Native Americans . . . From the Native American perspective, the
proposed compromise constitutes no compromise at all as the word is
commonly defined. Instead, the compromise illustrates another example of
the subordination of Native American ideals by the dominant power.
(Horn, 1997: 516)

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In conclusion, Horn realizes that Kennewick Man will probably be

subjected to a complete scientific examination before he is released to a
tribe for reburial (Horn, 1997: 516), that the disposition of the remains will
significantly impact decisions regarding the control of remains discovered
in the future (Horn, 1997: 517) and also that the discovery and the long
journey that the Kennewick Man will inevitably travel before being put to
rest, solidifies a foundation for discussion between the Native Americans
and archaeologists (Horn, 1997: 517).
An additional point that Horn discusses, but does not analyze, is the
status of the land upon which the human remains were located. While the
land in question is in fact within territory which the 1855 treaty between
the Umatilla and the federal government did secure as a portion of the
tribes traditional homeland (Horn, 1997: 513), the report on the nondestructive examination of the Kennewick remains states that Section
3(a)(2)(c) of NAGPRA (25 U.S.C. 3002(a)(2)(c)) does not apply because
[A] careful legal analysis of the judicial decisions by the Indian Land
Claims Commission and the Court of Claims shows that the land where the
remains were discovered has not been judicially determined to be the
exclusive aboriginal territory of any modern tribe (McManamon, 1999: 2,
emphasis added).
If remains as ancient as those exemplified by the Kennewick material
are excluded from protection or disposition under NAGPRA, Congress or
the court will need to provide further guidance on the antiquity of human
remains in order to be considered outside of the scope of NAGPRA and
whether science or tribal oral history should be used to define that threshold. It also might be argued that the court decision will be binding only in
this judicial circuit and that other challenges to NAGPRA will occur within
each federal District Court, as was the case with tests of the Antiquities Act
in the Ninth (US vs. Diaz) and Tenth (US vs. Smyer) Circuits of the US
Court of Appeals (Hutt, Jones and McAllister, 1992: 245) in the 1970s.
The testing of some of the major inadequacies and ambiguities of
NAGPRA has just begun and both the scientific and Native American
communities are awaiting the results.
Perhaps the Kennewick case should not be considered a good test case
for NAGPRA, however, because of the relative absence of cultural material
associated with the human remains. Even the projectile point lodged in the
skeletons pelvis is ambiguous in relation to the question of cultural affiliation. Powell and Rose (2000) suggest the spear entered Kennewick Mans
body from behind and slightly below the horizontal plane: was he speared
by an enemy, or was the wound the result of an accident? Perhaps
Kennewick Man slipped and a foreshaft being carried in a pouch was driven
into his body before lodging in the pelvis. Or perhaps the point was
imbedded in his pelvis through some other manner.
Perhaps it is the absence of cultural material associated with the human

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remains that led Jelderks to assert that Kennewick Mans culture is

unknown and apparently unknowable (Jelderks, 2002: 31). It is this lack of
cultural material associated with the skeleton that reduces the widespread
applicability of the opinion in other NAGPRA cases, but the Jelderks
opinion still might be used to add an additional barrier to tribes wishing to
participate in the NAGPRA process since claimants for human skeletal
material could first be required to prove they are indigenous, then to prove
they might be related to the individual skeletal material under consideration and then to proceed with the process. Jelderks asserts: 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 (Jelderks, 2002: 27) and that
[T]he culture that is indigenous to the 48 contiguous states is the American
Indian culture (Jelderks, 2002: 30). This implies that there is only one
American Indian culture. Taken to its logical conclusion, then, there would
therefore be only one European culture or one Asian culture or one
African culture. Arguably, that is not the case. Even though there might be
a stereotypical European or Asian culture, such stereotyping reduces any
sort of utility in practice.
Additionally, as another indication of the political ramifications of the
case, Jelderks (2002: 32) wrote: It is arguably unnecessary to review the
Secretarys related conclusion that the remains are culturally affiliated to a
coalition of tribal claimants, yet went on to do so because, in his opinion,
judicial economy favors creating a complete record for possible appellate
review and perhaps avoiding more delays in this litigation.
Jelderks asserts that [A] finding of cultural affiliation with human
remains requires proof of a relationship of shared group identity which can
be reasonably traced . . . between a present day Indian tribe . . . and an
identifiable earlier group of which the decedent was a member (Jelderks,
2002: 37, emphasis in original).
Again, taken to its extreme, there is no way of demonstrating any shared
group identity with human remains and other populations unless there
exists written documentation of a relationship. What exactly is a shared
group identity? Is it knowable from the archaeological record? Is the
shared group identity biological or cultural? Specialized scientific tests
such as DNA testing can determine biological affinity, but that tells us
nothing about cultural affinity. Biological affinity does not equal cultural
affinity, as can be demonstrated by the situations where American Indian
tribal groups in the nineteenth century adopted members from other tribes
and cultures into their cultural groups.
As most archaeologists will readily agree, the primary focus of most
archaeological studies is on the cultural refuse of past archaeological
cultures. And it is this cultural refuse in various iterations and proportions
that we have used to describe archaeological cultures to the point that the

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terms have taken on meanings of their own. In the American Southwest,

for example, the term Basketmaker has no meaning other than as an
archaeological culture, but it is so entrenched in the archaeological literature that to try to redefine it would be nearly impossible. And occasionally
archaeologists rely too heavily on the use of durable artifacts such as stone
tools and debris as cultural descriptors what Martin Wobst (2001) calls
the glorification of materiality in archaeology. Perhaps an archaeologically-defined group of people based their culture on an entire suite of artifacts not easily preserved within the archaeological record (such as fabric,
netting, artwork, bone, body decoration, tattoos, hair style). Based solely
on the durable artifacts, Punk culture today would not be easily differentiated from mainstream culture, even though their members are visually
distinguishable in most situations.
When Janet Spector asked, what are the ramifications of the fact that
until fairly recently academic knowledge has been produced almost exclusively by white, middle-class men of European descent, socialized in cultures
that discriminate on the basis of race, sex and class?, she began an internal
questioning that led her to become acutely aware of the exclusion of Indian
people from the creation of archaeological knowledge about their histories
and cultures (Spector, 2000: 134). And the recent court ruling regarding
Kennewick seems to contribute again to the exclusion of Indian people
from their histories and cultures.
NAGPRA has been demonstrated to be a politically-charged law that
has been freely interpreted by US bureaucrats, sometimes to the benefit of
tribes and sometimes to their detriment. Jelderks talks of Congress not
intending its definition of Native American to be applied so that
[A]ll pre-Columbian people, no matter what group they belonged to, where
they came from, how long they or their group survived, or how greatly they
differed from the ancestors of present-day American Indians, would
arbitrarily be classified as Native Americans and their remains and artifacts
could be placed off-limits to scientific study. (Jelderks, 2002: 29, emphasis in
original)

No such restrictions occur or are even hinted at in any records of any

Congressional hearings prior to implementation of the law, however. Even
the Society for American Archaeology, the professional organization of
archaeologists in America, in its amicus brief presented to the court, agreed
with the defendants that all human material from prior to 1492 recovered
within the political boundaries of the current USA should be considered to
be Native American under the definitions of NAGPRA.
But the court ruling, at least in the Kennewick case, argues that such a
determination must be made on a case-by-case basis. And so we are stuck
with a magic threshold through which humans passed as they entered
PaleoAmerica, a temporal as well as a spatial threshold. NAGPRA, as it

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is currently interpreted, would make it continually necessary to define at

what point an individual Beringian became a Paleoamerican, at what
point a Paleoamerican became a Paleoindian and even when the population of the USA became American Indian. We should agree at what
point to give up trying to separate cultural affinities from biological ones,
or we will continually face litigation rather than cooperation.

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JOE WATKINS, half Choctaw Indian by blood, has been working in

archaeology for 35 years. Currently he is an Associate Professor in the
Department of Anthropology at the University of New Mexico but, over
the course of his career, he has worked in the government and private
sectors of cultural resource management and public archaeology. As
both an American Indian and an archaeologist, his primary interests
include the ethical practice of anthropology and the study of anthropologys relationships with descendant communities and aboriginal
populations.
[email: jwatkins@telepath.com]