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

What makes these disputes more difficult is that modern archaeological methods often guarantee that an artifact will--in the eyes of the Indians at least--be defiled. Not only is the find seized from sacred land, but radiocarbon dating (which was used to estimate the age of Kennewick Man) requires that a portion of the find be destroyed. "We're always presented as antiscience Luddites," says Huber. "But we don't like seeing remains pulverized and irradiated."

Finally, ticklish as any NAGPRA case can be, the extreme age and importance of Kennewick Man practically guaranteed that it would be beset by legal maneuvering. Soon after the find was announced in 1996, the Umatilla tribes of Oregon and Washington claimed it. Eight anthropologists immediately sued for the right to study it, and archaeologists for the National Park Service were called in to study the skeleton and help settle the dispute. They found in favor of the Umatillas, but a federal district court disagreed, as did a circuit court, citing a lack of cultural and genetic evidence to link the bones to the claimants.

That stunned the tribes, since NAGPRA does not include a DNA requirement. Last year Senator John McCain proposed an amendment that might have smoothed things over by broadening NAGPRA to include Indians who were ever indigenous to a particular region. The measure appeared headed for approval until the Interior Department objected to it--a move that helped scuttle the change and only inflamed the situation further. Even if the McCain measure had passed, the Indians see it as merely a first step, citing another recent case in which the BLM ignored a NAGPRA committee recommendation without even a court ruling. "With NAGPRA," says Downs, "you get a judgment but no enforcement." With as many as 118,000 sets of Native American remains still awaiting repatriation, that problem is not going away.

The pity is that even in its current, imperfect state, NAGPRA can work (to date, about 30,000 remains and half a million funerary objects have been returned to tribes), provided that everyone turns down the heat and tries to reach consensus. However much knowledge scientists pry from the Kennewick bones, the goodwill lost and the contentious precedents set may make the next generation of NAGPRA cases a lot less friendly than the last.