A federal judge has decided that scientists can continue picking over the bones of the Native man who was disinterred six years ago near Kennewick, Washington, and is popularly called "Kennewick Man."
It took U.S. Magistrate Judge John Jelderks 73 pages to say that the views of eight anthropologists trump the Native American Graves Protection and Repatriation Act and the Congress that passed it in 1990.
These scientists ? including two from the Smithsonian Institution ? fought against passage of NAGPRA, which applies nationwide, as well as the first repatriation provision in 1989, which applied only to the Smithsonian. They have been trying to undermine the repatriation laws ever since their enactment and haven't been shy about saying their goal is to gut NAGPRA.
Prior to the repatriation laws, Native Americans were considered the archaeological resources of the United States. These laws are civil and human rights policies, which were intended to apply international human rights standards to Native American burials and burial grounds.
The repatriation laws also pre-empted dozens of lawsuits that Native peoples were about to file in 1989 to protect dead relatives and reclaim them from federal and federally-assisted museums, agencies and educational institutions.
Now, here comes the judge to turn back the clock. He is saying that the dead man at the center of the lawsuit is not Native American and that the Archaeological Resources Protection Act and not NAGPRA is the operative law.
To understand why there is repatriation policy and why there is a lawsuit, you only need to know that the Colville, Nez Perce, Umatilla, Wanapum and Yakama Peoples call the man from the shores of the Columbia River their relative and ancestor, an "Ancient One."
In his August 30 opinion, Jelderks called him "a human skull and scattered bones."
This Ancient One's relatives say everyone deserves to rest in peace and they want to rebury him. The scientists say that the American past belongs to everyone and should be open to scientific study.
This has been at the very heart of the Indian and non-Indian conflict since 1492. Then, Europeans said everyone, meaning themselves, had a right to Native Peoples' lands and used Manifest Destiny to justify moving and mowing down anyone in their way.
The only differences here are: body snatching is substituted for land-grabs and scientific right replaces divine right of kings.
The scientists say the Ancient One's head doesn't look like modern American Indian skulls ? whatever the heck that means ? and they want to study him for what his body can tell them about human migration. The Indians say we've always been here, we didn't migrate from anywhere.
As anyone knows who has followed these scientists' race-based line, they are trying to prove that Native Americans are not native to this land, in order to justify going after the last scraps.
Actually, scientists already have studied the Ancient One and radiocarbon dated him. They have determined that he is Native American and lived between 8,340 and 9,200 years ago. Persons unknown stole some of his bones and are likely conducting tests as the legal battle rages over the rest of him.
Jelderks opines that "skulls this old are extremely rare in the Western Hemisphere." This, of course, is absurd ? not every dead Indian has been dug up, yet, and hundreds of Native American heads and other remains are in federally-documented locations today ? but it is what passes for scientific and judicial wisdom in this case.
The Colville, Nez Perce, Umatilla and Yakama Nations are friends of the court, but not parties to the case. The federal government notified them about Kennewick Man under the terms of NAGPRA. The nations claimed him under that same law and made the case that he was their cultural affiliate. The federal government agreed, but when steps were taken to return him, the anthros sued the feds.
Jelderks writes: "The term 'Native American' requires, at a minimum, a cultural relationship between remains or other cultural items and a present-day tribe, people, or culture indigenous to the United States. A thorough review of the 22,000-page administrative record does not reveal the existence of evidence from which that relationship may be established in this case."
Let's start with place names and geography. This Ancient One was found in the Columbia River shallows near Kennewick, whose name means "Winter Home" in one of the languages shared by the Yakama and Umatilla Peoples.
Kennewick is in southeastern Washington, near the confluence of the Columbia and Snake Rivers, in a fishing, hunting and gathering area common to the Colville, Nez Perce, Umatilla, Wanapum, Yakama and all the Columbia River Tribes. Lewis and Clark and their Corps of Discovery met with Indians from these same nations at that same place.
Kennewick is across the Columbia River from present-day Oregon and the Confederated Tribes of the Umatilla Reservation of Cayuse, Umatilla and Walla Walla.
The Kennewick area where the Ancient One was unearthed is in Umatilla aboriginal territory. The National Park Service lurched into the matter and wrongly relied on a 1960 Indian Claims Commission finding, which was vacated in 1964, to say that the human remains from Kennewick were not in Umatilla aboriginal territory. A 1966 finding is the correct one that stands today and is based on the entire area of the Treaty of Walla Walla in 1855, including the Kennewick area in question.
It took a while for the Interior and Justice officials and attorneys to realize that the NPS was bungling things and did not have the needed expertise. Federal Indian experts were finally heard and their informed arguments carried the day on the big points.
Soon the federal government will make its determinations about appeals and the future course of litigation in this case. It will be important for the top decision-makers in Justice and Interior to revisit its NPS experience and to listen to people who know Native American history and law and can read the legislative history of the repatriation laws.
It's no wonder the judge was overwhelmed by the record, but he is in a position to know Oregon history quite well and Indian lands even better. The Jelderks have been in Oregon for more than a century on land that used to belong to Native Peoples.
Today, it's mostly white folks who live in Oregon, over 85 percent, while Native Americans are only 1 percent of its population. Indians have the state's highest poverty rate, more than 29 percent, and 89 percent live in three cities: Portland, Eugene and Jelderks' hometown, Salem.
Jelderks was born, raised and educated through law school at Willamette University in Salem, and worked as a district attorney in Salem's Marion County. For five years, he was Hood River County's district attorney. He was a county lawyer and a fledgling judge at a time when Oregon and Washington were fighting most ferociously to keep Indians from fishing on the Columbia and throughout the Pacific Northwest.
For 19 years, starting in 1972, he was a circuit judge for Hood River, Wasco, Sherman and Gilliam Counties, all along the Columbia River. The latter county is only one over from Umatilla County and the Umatilla Reservation to the east and Kennewick to the north. He has been a federal magistrate judge since 1991, before NAGPRA was a year old.
We may never know why Jelderks wrote the opinion he wrote. Perhaps these scientists just sounded familiar. One is almost a homeboy, after all, having studied dead Indians all around the Willamette Valley and elsewhere in the Northwest.
That's Robson Bonnichsen, the lead scientist in the case, who founded the Center for the Study of the First Americans in 1991 at Oregon State University in Corvallis, not far south of Salem. He directed the Center until this year, when he migrated to Texas.
Another key figure in the case, James Chatters, the archaeologist who first studied this Ancient One, has also gravitated to Texas, like a big game hunter. And what are they stalking in the Lone Star state? An ancient burial ground of Comanche and other Native Americans which has been unearthed on Dupont property in Victoria County, Texas.
A reburial was to have taken place in Victoria County on August 30, but then there was the decision brought to us by the native Oregonian and the new Texans.
Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D. C., and a columnist for Indian Country Today.