The Legal Battle: Archaeology: Who Should Own the Bones?

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The Pawnee Indians tell a mordant story about the kinds of things scientists discover when they study sacred remains. After decades of watching researchers plunder its burial grounds for bodies and artifacts, the tribe finally forced Nebraska researchers and museums to return the items in 1989. Once the treasures were back in hand, the Pawnees asked the scientists what they had learned.

"You ate corn," they answered.

Kennewick Man, the most talked-about Native American remains uncovered in recent memory, may be revealing a lot more than that. But if it's a mother lode for scientists, it's also been a massive headache for the Federal Government, local tribes and the lawyers who represent them. At issue is the Native American Graves Protection and Repatriation Act (NAGPRA), a 1990 law intended to make up in some way for the generations of scientific strip-mining Indian lands have endured, by either selectively protecting artifacts still in Native American hands or returning those that have been carried off.

NAGPRA probably seemed straightforward enough to the legislators' eyes. It requires Indians who want to protect an artifact to show by a preponderance of archaeological, geological, historical or other evidence that they have some cultural affiliation to it. But what appears clear to lawyers can be devilishly hard to apply.

For one thing, the older an artifact is, the harder it becomes to show the neat nexus of affiliations that the law requires. "The evidence collapses as you go back in time," says Pat Barker, an archaeologist for the Bureau of Land Management (BLM) in Nevada, who is working on a similar case. "The first 500 years is pretty solid, by 1,000 it's getting dicey, and by 10,000 most of that stuff you just can't get at."

That would put Kennewick Man--more than 9,000 years old--firmly in the hands of the scientists. But lawyers and archaeologists aren't theologians, and for a lot of Native Americans, spirituality is what protecting artifacts is all about.

"Archaeologists always tell us where we came from," says Rochanne Downs, a coordinator for the dozens of Indian tribes that have banded together in the Great Basin Inter-Tribal NAGPRA Coalition. "Well, we know where we came from. Our people were made from mud, and then the tribes were sent out. Sometimes people think that's funny, but when I look at the Immaculate Conception, that seems kind of odd to me." Not all Indians believe in the ancient-clay idea, but if those who do are going to be shown the same respect as the adherents of any other faith, then the age of the find becomes immaterial. "We don't have a prehistory," says Downs. "We have one continuous history."

Human remains that are returned to tribes are treated reverently. Several weeks ago, the Umatilla tribe in Washington reinterred 240 remains in a massive burial accompanied by traditional ceremonies and moving words from tribal elders. "It was hard to describe," says Audie Huber, a Native American--though not an Umatilla--who has monitored the Kennewick case for several tribes. "The sense of relief was palpable."