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Kennewick Man Caught in Catch-22
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June 26, 1997
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by Andrew L. Slayman
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A federal judge has warned the Army Corps of Engineers that it should make up its mind what to do with the 8,400-year-old Kennewick Man, but he stopped short of granting eight university scientists' request to study the bones (see "Kennewick Update," ARCHAEOLOGY, May/June). In a hearing held June 2 in Portland, Oregon, Magistrate Judge John Jelderks denied both the scientists' motion to permit immediate study and the government's request to have the case dismissed.
Initially the Corps of Engineers said it would repatriate the bones to a coalition of five Indian tribes, but on March 23, according to the Tri-City Herald, it rescinded that decision. In refusing to rule on the case now, Jelderks seems to have been signaling that he wants to wait for the corps to make a final decision before intervening. He did, however, chide the corps for taking so long: "Ten months of not allowing access comes very close to a de facto determination," he said. "The corps has to make that decision and list reasons why."
Jelderks also said that he would issue a written list of questions for the corps to answer, but so far that list has not been forthcoming. At the hearing he did voice two questions: Does the Native American Graves Protection and Repatriation Act (NAGPRA) apply? If so, do the plaintiffs have a legal right to study the remains?
Whether NAGPRA applies depends on whether Kennewick Man is considered to be "of Native American ancestry," but at the hearing the corps' lawyer said that neither James Chatters, the forensic anthropologist who initially examined the bones, nor the laboratory that conducted genetic tests on them has provided the information necessary for the corps to make a decision. At least in the case of the genetic tests, however, the corps has put themselves in something of a catch-22: the one round of tests done so far is incomplete, and in any case it is not valid without a second round for confirmation, but the corps will not let the laboratory carry out a second set.
Jelderks also reproved Congress for not amending NAGPRA to deal with such very early remains, which are not explicitly covered in the original law. "It would be very simple for our friends in Congress to have a simple bill that would resolve this issue," he said. "One paragraph would solve this, but I'm not confident Congress would do it."
Last year Representative Doc Hastings of Washington suggested in a letter to the commander of the Corps of Engineers that Congress might take up the problem, but so far nothing has happened. NAGPRA amendments introduced this spring by Senator Daniel Inouye and Representative Neil Abercrombie, both of Hawaii, deal with several other issues, but they leave this most contentious and important problem, which will affect future generations' knowledge of the continent's earliest inhabitants, unaddressed.
© 1997 by the Archaeological Institute of America
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