A well-healed, white-haired white man confronted me after a recent
presentation in Santa Fe, introducing himself solely by his profession.
“I’m an archeologist and I only have one question.” (Only one from a
practitioner of an inquiring science?)

“Do you believe that a 9,000-year-old skeleton should be given to Native
Americans?”

It was an odd question, because my presentation had nothing to do with the
Ancient One, the central figure in a legal contest between Native nations
who speak for their dead people and scientists who believe the Native dead
are their property to study and store. But, the archeologist obviously knew
I had labored long over the Native American human and civil rights advances
known as the repatriation laws.

He leaned in and sprayed: “Do you think Native Americans own Kennewick
Man?” Knowing he was anxious to get to his point, I simply said, “Yes.”

Striking the classic Don Quixote crusader pose, which he must have
practiced a bit in front of a mirror to get exactly right, the archeologist
shouted:

“Then it’s war! It’s still WAR.”

This war is over Ancient One, who is popularly called Kennewick Man, after
the Washington town where kids found him in 1996 on the banks of the
Columbia River. A scientist, appropriately named Chatters (Dr. James C.),
studied Kennewick Man, finding him to be a salmon-eater who died with all
his teeth and a Caucasoid who lacks the Mongoloid features Chatters wrongly
claims are typical of Native Americans.

Reporters breathlessly spread the chatter that Kennewick Man was likely
Caucasian or European, in prose usually used for tabloid stories about
alien abductions. Kennewick Man made the cover of major weekly magazines,
giving heart palpitations to a bunch of white folks who desperately want
the indigenous people of this hemisphere to be anything but Native Peoples
and to have originated anywhere but here.

A Native American coalition of related tribes came together to bury the
Ancient One, under the Native American Graves Protection and Repatriation
Act of 1990. The federal government officially backed their right to do
that. Unofficially, some federal and federally-dependent scientists tried
to undermine the federal and tribal positions. Failing that, a few of them,
including a Smithsonian scientist, went to court to gain possession of
Kennewick Man for their scientific study.

A federal district court judge agreed with the scientists in 2002, as did
three appellate judges in February of this year. The decisions were given
wide play as stories about science trumping Indian religion, portraying the
dead as the scientists’ books and Native repatriators as book-burners.

The Native American coalition filed a petition for en banc rehearing on
March 17, saying rehearing is necessary because this case “presents
national questions of exceptional importance concerning the balance that
Congress struck between the spiritual beliefs of Indian tribes and the
limits of academic exploitation of the dead.”

The coalition of Colville, Nez Perce, Umatilla and Yakama nations said the
judges have “emasculated NAGPRA by rewriting the definition of ‘Native
American,’ the threshold determination necessary to trigger the application
of (NAGPRA) … This foray into the domain of the legislature has muddled
the precision of Congress’ statutory scheme, frustrating NAGPRA’s
application.”

The rehearing petition points out that the judges in the 9th Circuit have
“created different standards governing NAGPRA’s applicability in this
Circuit from the rest of the Nation, thereby obstructing the repatriation
of ‘Native American cultural items,’ and causing rampant uncertainty as to
the statute’s application.”

The petitioning tribes speak on behalf of nearly all Native Americans in
their legal action: “These serious and egregious legal and factual errors
must not be allowed to stand, because of the great injustice done to Indian
people, and the harmful effects of this precedent.”

Some of these petitioners were among the Native traditional people who
organized a national coalition in the 1960s to gain protections for sacred
places and ceremonies, to recover Native human remains and sacred objects
and to promote respect for Native people and rights in general society.

We achieved the American Indian Religious Freedom Act in 1978, which laid
the groundwork for federal museums returning Native human remains and
sacred objects, and led to the repatriation laws in 1989 and 1990.

The first major gains in the national Native repatriation movement were
made during the six months following AIRFA’s enactment. The heads of the
military museums decided in 1979 that it was in keeping with the law for
them to return any human remains, sacred objects and cultural patrimony in
their collections which Native peoples might request.

Smithsonian scientists disagreed with that decision and attempted to change
it, but they did not succeed. They continued, however, to resist returning
any Native human remains or cultural property.

Bowing to national Native and congressional pressure in the mid-1980s, new
institutional leadership directed an inventory of Native human remains in
their collections. The accounting – 18,500 Native human remains, together
with 4,500 Indian skulls from the U.S. Army Surgeon General’s “Indian
Crania Study” in the late-1880s – stunned people in Indian country and in
general society. Native people and members of Congress began developing
repatriation law in earnest. At the same time, Native Americans were
preparing dozens of lawsuits to recover Native human remains, funerary
objects and cultural property.

NAGPRA became law 11 months after the 1989 repatriation provision was
enacted. As with the 1989 law, Congress enacted NAGPRA as human and civil
rights policy for Native Americans, and as pre-settlement of myriad
lawsuits Native peoples were on the verge of filing. Congress chose to
establish a Native American policy and processes for the return of Native
human remains, funerary items, sacred objects and cultural patrimony,
rather than to leave it to the courts to decide repatriation policy on a
piecemeal basis.

Certain scientists who opposed national repatriation policy have worked to
frustrate the repatriation processes and delay repatriations until they can
conduct further studies on human remains in their collections. Many are
trying to hide the identity of human remains which are the subjects of
their studies and to classify them as unidentifiable, in order to avoid
repatriating them. Some federal scientists are abetting this effort by
attempting to create new regulations to make the unidentified Native human
remains the property of the repositories where they now reside.

The main policy achievement of the repatriation laws is the recognition
that Native Americans are human beings and no longer archeological
resources. Ironically, the 9th Circuit ruling denies the humanity of the
Ancient One, holding that archeological resources law applies, that he is
an archeological resource and that archeologists can have at him.

If these wrong-headed notions are not overturned in court, Congress must
step in and spell out its intent at a most rudimentary level. Most Native
people say it’s putting the dead and the living at peace. Some scientists
say, “It’s still WAR.”