Last weekend, Congress passed legislation that directs the Army Corps of Engineers to transfer the human remains of Kennewick Man, also known as the Ancient One, to Washington state authorities so they can repatriate him to claimant tribes in Washington State. Tucked into a 270-page bill called the 2016 Water Infrastructure Improvements for the Nation Act, Section 1152 requires transfer of the human remains within 90 days after the president signs it into law. Barring new developments, we seem to be nearing the end of a long saga. His remains were found 20 years ago, in 1996, and the litigation began the same year. It has been twelve years since the Ninth Circuit ended the lawsuit, ruling that Kennewick Man was not “Native American” within the meaning of the Native American Graves Protection and Repatriation Act (NAGPRA). (For those who aren’t familiar with the Kennewick Man case, visit my footnote down below for an overview.) While some research still questions the cultural link to Native Americans, a 2015 article in Nature reported that his DNA is closer to local Washington tribes than to any other population, and as a result, last spring the Army Corps of Engineers began repatriation consultations. A senator from Washington introduced the bill in Congress to hasten the process. Now, this nearly 9000 year old individual will finally be laid to rest. Can we also finally lay to rest some of our archaeological angst over NAGPRA?
A recent survey of members of the Society for American Archaeology suggested that archaeologists are still deeply divided in their opinions about NAGPRA, and especially about the status of very ancient human remains under NAGPRA. Maybe one thing we can all agree on is that the Kennewick Man case, and the way it was handled, did great harm to the already strained relationship between anthropologists and Native American people. Many anthropologists have worked hard in the intervening years to make changes and to build bridges. Today’s museums and curricula and survey reports look significantly different than they did twenty years ago, with a greater sensitivity to indigenous concerns, interests and involvement, and that is partly an outcome of NAGPRA and the Kennewick controversy.
But even as many archaeologists and heritage professionals work hard on a daily basis towards repairing relationships, other professionals’ violations of NAGPRA can still impact our efforts to engage with all publics. An egregious example that has been in the news in recent years took place at Effigy Mounds National Monument in Iowa, where a former park superintendent stole human remains from the park just as NAGPRA was about to be enacted, taking them home and storing them in garbage bags in his garage for more than 20 years while other employees allegedly covered up his actions. The fact that it took 20 years for the theft to come to light is bad enough, but in the meantime the park also undertook a number of projects that also violated NAGPRA, such as building a boardwalk among the burial mounds with environmental and archaeological compliance. The former supervisor was recently sentenced for his theft of human remains. His punishment was criticized by some as too light (though that may have had to do with his advanced age and poor health), and it certainly does not reflect the very serious impact his conduct has had on archaeology and public trust in our National Park system.
Just last month came news of another NAGPRA violation. The Indianapolis Star ran a long investigative story on the collection, over a ten-year period, of human remains and associated funerary goods at Strawtown Koteewi Park in Indiana. The excavation was run by archaeologists at a local university in cooperation with the county park, starting in 2001. The first human remains were found in that very first excavation year, but work continued over the next decade, with a large summer public archaeology component funded by grants. Some funerary objects were apparently displayed in the park’s nature center. No effort was made to comply with NAGPRA’s consultation requirements (until 2012, when a tribal historic preservation officer contacted the chair of the university’s anthropology department with questions). Meanwhile, hundreds if not thousands of children worked at the dig. As many of us have learned in our own experiences in public archaeology with Native Americans, the prospect of children accidentally handling human remains is to many, as a tribal representative says in the article, simply “unthinkable.”
In 2013, after everything came to light, the Department of Interior fined the park for violations of NAGPRA. The university archaeologist who headed the research was not fined, and, according to the article, his “reputation doesn’t appear to have been damaged in the archaeological community.” Park officials say they relied on archaeologists, who allegedly told them that NAGPRA didn’t apply to them. (If so, that was an incorrect interpretation—NAGPRA applies to any entity that receives federal funds, which the county park department apparently did.) I don’t know the people involved, and I only know the facts as reported in the paper, so I don’t want to assume that anyone intentionally flouted the law. It seems quite possible that they didn’t know much about NAGPRA when the first human remains came up in 2001, somehow got the idea then that NAGPRA didn’t apply, and then just tried not to think too hard about it in subsequent years. They did keep getting grants and accolades, after all. Maybe (probably) at some point the truth did dawn on someone, and people were afraid of the fallout if they came clean. But ignorance of the law—or being in willful denial about it—is no defense.
NAGPRA is complicated, but archaeologists, heritage professionals and anyone else entrusted with human remains or Native American patrimony must make the effort to learn the law. If your company or department has a lawyer, maybe you can rely on them to interpret the law when a sticky question arises, but most of us are on our own to learn it. There are good resources out there if you look for them. I’d recommend starting with the Interior Department’s National NAGPRA website. You can watch free training webinars where professionals from the National NAGPRA office explain the basics. There are FAQs on the website that answer many fundamental questions. You can also call the National NAGPRA office and ask specific questions about your issues. Many universities (including Binghamton) now offer courses that introduce students to the laws of our profession, and professional groups and private companies may also provide periodic training seminars. Or just jump on in and read the law for yourself here, and the regulations here.
NAGPRA is law, but it is so much more than that. It is the flashpoint of archaeologists’ relationships with Native Americans. For those of us who want to work towards an archaeology that is inclusive of indigenous people and indigenous concerns, NAGPRA is just a starting point. Ideally, we should be going beyond the letter of the law to embrace the human rights concerns that are the spirit of the law, but at a minimum we all have to know and respect the law. Kennewick Man may be going home, but the fallout from the case will continue to haunt our public archaeology.
About the Author: Michelle Turner is a PhD candidate at Binghamton University. She works on southwestern archaeology and is currently writing her dissertation about recent fieldwork at Aztec Ruins National Monument. She has a BA in International Studies from American University and a JD from the Vanderbilt University School of Law. Prior to starting her PhD, Michelle practiced law for about ten years, first at two large law firms and then as a clerk for a federal magistrate judge. In addition to her work in southwestern archaeology, Michelle also does research on cultural property law and repatriation efforts. Please note that this post is not intended as legal advice.
 A brief overview of the Kennewick Man dispute: In 1996, two teenagers noticed the human remains of an adult man eroding out of a riverbed near Kennewick, Washington. X-rays and CT scans revealed a stone projectile point embedded in his hipbone. Radiocarbon dating on a bone fragment showed that the remains were between 8000 and 9000 years old. The Army Corps of Engineers, which had jurisdiction of that stretch of river and therefore of these remains, prepared to repatriate him to local tribes pursuant to NAGPRA. Then, a group of physical anthropologists filed suit to prevent repatriation. The firestorm of publicity that surrounded the case was partly about a conflict between science and the concerns of Native Americans, but it also had ugly racial overtones. Some researchers argued that the morphology of the skeleton was very different from modern Native Americans. The press and others seized on the suggestion of a possible 9000 year old Asian or European visitor in North America, and things got worse when a facial reconstruction was released that made him look just like the actor Patrick Stewart.
The Ninth Circuit ruled that there was insufficient evidence of cultural affiliation between the human remains and any existing Native American tribe. He was too old, and the age and geographic location of the remains were not, alone, sufficient evidence of cultural affiliation. Bonnichsen v. U.S., 367 F.3d 864 (9th Cir. 2004). Since 2004, the remains have seen some study, including the publication of a book edited by two of the Bonnichsen plaintiffs, titled Kennewick Man: The Scientific Investigation of an Ancient American Skeleton. I haven’t read it yet, but my understanding is that at least some of the papers argue that he had a different Asian origin than the ancestors of modern Native Americans. Last spring, following DNA results showing that Kennewick Man is more closely related to local tribes in Washington than to any other population, the Army Corps of Engineers announced its conclusion that Kennewick Man was Native American and began the process of deciding which tribe to repatriate him to. (And for anyone who wants more details about the case, there’s lots of information on the Internet but I’d also recommend David Hurst Thomas’s great book, Skull Wars: Kennewick Man, Archaeology, and the Battle for Native American Identity.)