Before Columbus…

Last week, Hillary Clinton condemned the Bush administration’s “open season on open inquiry” and promised to end its “war on science.” She might have chosen a better target, closer to home: the Senate, where the Indian Affairs Committee has just approved a two-word change to federal law that could render the scientific study of pre-Columbian history in the United States virtually impossible.

One of the first casualties of the revision would be Kennewick Man — the popular name for a set of 9,300-year-old bones found along the Columbia River near Kennewick, Wash., in 1996. Human remains of that age are extremely rare in North America. Each discovery has much to teach about the ancient settlement of the western hemisphere. Kennewick Man holds special interest because the bones are well preserved and aren’t obviously related to modern-day tribal populations. The first physical anthropologist to examine them initially thought they belonged to a 19th-century pioneer of European extraction. Then the carbon-dating results came back with their amazing conclusion.

Today, Kennewick Man is a profound mystery. He certainly belongs to an early wave of migrants. Scientists still aren’t sure precisely where these people came from or how they got here. They’ve been linked to various Asian groups, including the indigenous Ainu population of Japan, and the traditional explanation of a crossing on a Bering Strait land bridge is giving way to other ideas. One hypothesis is that the ancestors of today’s Indians, who are most closely related to people in northeastern Asia, arrived at a later point in time and replaced those who came before them.

The only way to solve the riddle of how the New World came to have such people is to allow the scientific study of old bones. The public has taken a keen interest in the question: A few years ago, Time even put Kennewick Man on its cover.

Yet under the North American Graves Protection and Repatriation Act (NAGPRA) — a well-meaning law passed in 1990 — tribes can lay claim to cultural objects and human remains locked away in federally funded museums or unearthed on federal land. In order to do so, they must prove a reasonable connection between themselves and the objects they wish to obtain.

When Kennewick Man came to light, a coalition of tribes in the Pacific Northwest demanded the remains under the provisions of NAGPRA. They said they wished to bury the bones, making further study impossible. The Army Corps of Engineers, which has jurisdiction over Kennewick Man, took steps to comply. But then a group of prominent scientists sued. In 2004, the U.S. Circuit Court of Appeals ruled in favor of the scientists, pointing out that the modern tribes had failed to demonstrate an adequate link between themselves and the skeleton of a person who died more than nine millennia ago.

So the tribes turned to Congress. Two years ago, Sen. John McCain proposed altering NAGPRA’s definition of “Native American” from “of, or relating to, a tribe, people, or culture that is indigenous to the United States.” The new language would add two words: “...is, or was, indigenous...” McCain’s efforts failed, in part because of public objections. But now the change has slipped through in a bill of “technical corrections” that the Senate’s Indian Affairs Committee has just approved.

This is no technical correction. It’s a major change in federal law that would lead to an impoverished understanding of American prehistory — an “open season on open inquiry” that neither Senator Clinton nor anybody who wants to understand the human past should accept.

The sordid history of this controversy proves that the Tribes have great influence over federal agencies:

On October 17, 1996, eight anthropologists, including three from the Smithsonian, filed a lawsuit in the United States District Court for the District of Oregon: Bonnichsen v. United States (U.S.D.C. Dist. Or. No. 96-1481-JE). The case was assigned to a magistrate judge, who held a hearing on Plaintiffs motion for temporary restraining order on October 23, 1996. Defendants, various United States government entities including the Corps of Engineers and the Department of the Interior, avoided an injunction by agreeing to give the Plaintiffs 14 days notice before any disposition of the remains (enough time to seek a temporary restraining order). A protracted legal battle ensued. The first phase concluded with an order from Judge Jelderks, directing the Corps to reevalaute the issues applying the appropriate legal stanards, and to store the remains “in a manner that preserves their scientific value”. Bonnischen v. United States, 969 F. Supp. 628 (D.Or. 1997).

By the time Judge Jelderks entered this order, the Corps had already lost the femur bones (discovered five years later in the county coroner’s evidence locker) . Then, “under circumstances which have never beeen satisfactorily explained” (August 30, 2002 “Opinion and Order” at 8) a box containing a small quantity of bones from the Kennewick skeleton was removed by Tribal representatives from the Corps’ allegedly “secure” storage and secretly buried. The Corps allowed Tribal representatives to visit the remains and conduct religious ceremonies, allowing them to be handled, covered with contemporary plant material and smoke from cedar or sage, which compromised later DNA analysis.

In April 1998, the Army Corps of Engineers buried the discovery site with two (2) millions pounds of rubble and dirt, delivered by helicopter at a cost of over $150,000 to the United States’ taxpayers, and planted 3700 fast-growing willow, dogwood and cottonwood trees.

The reason for the Corps’ haste was a bill, pending in the United States Congress, to amend NAGPRA and prohibit the Corps’ destruction of the site.

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