Yes: Allow researchers to examine bones when there are no living
The August 1996 unearthing of a remarkably well-preserved 9,300-year-old skeleton along the banks of the Columbia River in my congressional district sparked heated controversy between scientists and tribal leaders and raised questions about the law governing the treatment of American Indian remains.
Dubbed "Kennewick Man" in honor of the city in which it was discovered, it is the oldest skeleton ever found in the Pacific Northwest. I read the initial reports of the extreme old age and unusual traits of this skeleton with interest. My curiosity was shared by scientists and the public, who were intrigued by forensic reports suggesting the skeleton possessed characteristics not seen among any existing Indian tribes in the area. In fact, the bones initially were mistaken for a 19th-century settler.
Specifically, the Kennewick Man skull exhibited characteristics known as Caucasoid. This term is used to describe peoples with narrow faces and sharply defined noses and chins, contrasted with the more rounded faces common to Mongoloid peoples such as modern Indian tribes. This does not mean that the 9,300-year-old man is of European origin, since some very ancient racial groups in Asia also displayed these characteristics. Rather, the Kennewick Man is compelling evidence that the history of human settlement in North America is far more varied and complex than once was believed.
Within days of the skeleton's discovery, however, the U.S. Army Corps of Engineers announced plans to turn the skeleton over to representatives of Northwest Indian tribes for immediate reburial. The Corps claimed that a 1990 law -- the Native American Graves Protection and Repatriation Act, or NAGPRA -- required them to turn the bones over to whichever individual or tribe made the strongest claim of relation to the Kennewick Man. I was skeptical of this decision, as were many of my constituents. How could the skeleton's ownership be determined before even basic questions such as its age and racial classification had been settled?
A number of my colleagues in the Washington state congressional delegation joined me in writing to the Corps of Engineers to request further study before the bones were lost forever. That's when the real shock came. The Corps of Engineers had made its decision without regard to empirical evidence and with no scientific study, partly because informed decisions on these matters actually are discouraged under this federal law. Many legal experts -- including some supporters of graves-protection laws -- believe that the act itself is at fault, in large part because it is so vague on the subject of very ancient remains of unknown origin.
That a tribe has a claim to the physical remains of its own forebears certainly makes sense. But can and should the federal government grant any single group exclusive possession of ancient artifacts without even the most basic study to determine their origins? Many scientists certainly don't think so, and a number of prominent archaeologists and anthropologists have sued the Corps of Engineers for making its decision without adequate study.
Alan Schneider, the attorney for the scientists suing the Corps of Engineers, explained the graves-protection law's flaws in an Albuquerque Journal article. "The subtly implied message is that somehow Native Americans own the history of this country. What's going on here is not a question of whether Native Americans can believe and follow their traditions, but it's a question of whether all of the rest of the country can be required to follow their traditions." Furthermore, it's particularly troubling to me that graves-protection laws assume all tribes will wish to treat physical remains and cultural items in the same way. Without more exacting standards of identification, we run the risk of granting one tribe authority to make decisions about another's cultural heritage. …