Prehistory  

Science vs. the State:
The Case of the Kennewick Man

by Timothy Sandefur

A Federal District Court has thrown out the Clinton administration's plea to destroy important evidence of culture in prehistoric America, but it cannot undo the politically-motivated destruction of an important archeological site.

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Almost 10,000 years after his death, Kennewick Man may finally be let out of his tomb, thanks to a decision in a federal trial court. The skeleton, or what is left of it, has been the subject of an intense legal battle between scientists and fundamentalist Indians who insist on their right to bury the skeleton, out of the reach of science.

The controversy (reported in "Creationism: Not Just for Fundamentalists Anymore," December, 2000) began in 1996, when a group of boating enthusiasts discovered human bones beside a riverbed near Kennewick, Wash. The skeleton proved to be 8,500 to 9,000 years old, rousing the curiosity of scientists who had thought that immigration to North America had been more recent. More intriguing still, the skeleton's features resembled Asian tribes more than North American Indians.

But under the Federal Native American Graves Restoration and Protection Act (NAGPRA), skeletons that have a "cultural affiliation" with an Indian tribe must be turned over to that tribe for burial. The Umatilla, Yakama, and Colville tribes demanded that the skeleton, which they call "the Ancient One," be delivered to them for "repatriation," and the Bureau of Land Management obliged. A group of scientists objected; the skeleton did not reveal any "cultural affiliation," or even physical resemblance, to members of these tribes. They filed suit, and the Army placed the skeleton in storage, pending the outcome of the suit.

The lawsuit had all the makings of racial-political demagoguery, and indeed, the Clinton administration seemed to be intent on playing it for multiculturalist point value. The Army Corps of Engineers ordered a stop to any DNA testing on the skeleton, and on orders from "the White House" (nobody quite knows from whom, exactly), dumped 1,000 tons of rock on the site where the skeleton was discovered, to ensure that no further bones or artifacts could be unearthed. The Army also allowed Indians to perform rituals over the skeleton which contaminated it with foreign DNA. After the ceremonies, some of the bones were taken and buried (nobody quite knows by whom), but the Corps refused to allow scientists to examine the skeleton. The bones were badly handled — at one point, the skull was held together with rubber bands, some bones were kept in a paper sack, and the femurs disappeared only to be found, five years later, in a cardboard box in the coroner's office. The Department of the Interior, taking the case over from the Corps, held secret meetings with the Indian tribes in preparing for the litigation.

In late August, after a five-year lawsuit, the Federal District Court in Oregon announced its decision (Bonnichsen, et al. v. United States). Noting the "unfair" and "biased" activities by the Army Corps of Engineers and the Department of the Interior, the court said that the decision that the skeleton was "culturally affiliated" was based solely on the age of the remains and the fact that they were discovered in American soil. This, the court held, is insufficient. "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." In fact, the evidence "would not support a finding that Kennewick Man is related to any particular identifiable group or culture." To define "Native American" as including "people or objects with no relationship to present-day American Indians" would be "absurd."

"Under the Defendants' interpretation, possibly long-extinct immigrant peoples who may have differed significantly — genetically and culturally — from any surviving groups, would all be uniformly classified as 'Native American' based solely upon the age of their remains. All pre-Columbian people, no matter what group they belonged to, where they came from, how long they or their group survived, or how greatly they differed from the ancestors of present-day American Indians, would be arbitrarily classified as 'Native American,' and their remains and artifacts could be placed totally off-limits to scientific study. This court cannot presume that Congress intended that a statutory definition of 'Native American' requiring a relationship to a 'tribe, people, or culture that is indigenous to the United States' yield such far-reaching results."

The court concluded that it "cannot be confident of [the government's] ability to decide a matter fairly," and thus, in an unusual move, ordered the government to allow the scientists access to study the skeleton.

The Kennewick Man controversy reveals some of the wounds that racial and religious politics have opened in this country. Indian tribes, supposedly sovereign nations, have been subjected to such mistreatment and ignorant meddling that they have turned to the powerful influence of collectivist notions of ethnic and political "solidarity." Rather than being interested in the truth about their origins, they, like fundamentalist Protestant communities, have instead embraced a form of literal creationism best summed up in a statement by Armand Minthorn, religious leader of the Umatillas, and one of the defendants in the suit: "From our oral histories, we know that our people have been part of this land since the beginning of time. We already know our history. . . . My people have been here since time began. I know how the world began, and I know how the world will end." Just like fundamentalist Christian sects, the Indians see themselves as the victims of a modernizing world, and see scientific analysis as intrusion and exploitation. One can see their point: to them, this is tantamount to graverobbing, a practice which, in the 19th century, was quite common in Indian graveyards. You wouldn't want scientists playing with your grandma's bones, either.But these bones are thousands of years older than the formation of the Umatilla tribe. Any connection to the current tribe, if there is any, is so distant as to push the boundary between respect for the dead and absurd mysticism. At some point, a skeleton stops being a relative and becomes an artifact. If that point hasn't been reached in the case of the Kennewick Man, when is it reached? One answer might be when "cultural affiliation" can no longer be established. But this presents three problems: first, the criteria for establishing "cultural affiliation" are as vague as politics, rather than being as precise as science. Second, NAGPRA's provisions for dealing with "unaffiliated" skeletons are still under review, and may end up not allowing scientists any say in the matter at all. Third, societies which pride themselves on continuity and tradition will find "cultural affiliation" easier to establish — by any criteria — than societies which seek dynamism and discovery. To make things more difficult, the former sorts of societies have explicit constitutional protection in the "free exercise" clause, while the latter have none. As Richard Dawkins puts it, "If you say 'Look, here is overwhelming evidence from carbon dating, from mitochondrial DNA, and from archaeological analyses of pottery, that X is the case,' you will get nowhere. But if you say 'It is a fundamental and unquestioned belief of my culture that X is the case' you will immediately hold a judge's attention."

This quandary puts liberals in a particularly difficult position. On one hand, the scientific community has always sought a better understanding of the natural world, to provide for "the relief of man's estate." They have consequently been more liberal, believing (rightly) that conservatism's emphasis on culture and traditionalism, and distrust of reason, skepticism, and free speech, are incompatible with that understanding. Fundamentalism is science's enemy, and it belongs squarely in the Republican Party. On the other hand, liberalism's emphasis on Tolerance at All Costs Except for Western Civilization has brought about a liberal hostility toward science itself. Science is now the intrusive mechanism of Western logocentrism; a form of exploitation and "rape of the natural world." Postmodernists, "deep green" environmentalists, militant feminists, and outspoken black history professors, have all turned the left against the Enlightenment and its products; as environmentalist Kirkpatrick Sale says, "Nothing less than a drastic overhaul of this civilization and an abandonment of its ingrained gods — progress, growth, exploitation, technology, materialism, and power — will do anything substantial to halt our path to environmental destructionÉ.." Thus, as Virginia Postrel describes in "The Future and Its Enemies," left and right are converging in a single, anti-progress party. Old fashioned liberal scientists, advocates of the welfare state and the progressive application of science to politics, are at last confronted with the monster they have created: groups demanding the right to be tolerated for intolerance (billing itself as "pride" or "liberation") and which dispute the very possibility of science.

Of course, not all Indian tribes are hostile to science and discovery, although many of them are. (Vine Deloria Jr., a Sioux and author of the foreword to "Skull Wars," a book about Kennewick Man controversy, writes that "Within our lifetime, the differences between the Indian use of the land and the white use of the land will become crystal clear. The Indian lived with his land. The white destroyed his land. He destroyed the planet earth.") But the Kennewick Man controversy is only the tip of a much larger iceberg: leftist hostility to modernism.

This is a crisis of liberal political philosophy, and its real world consequences are not going away with the Bonnichsen court's vindication of science. The opinion may still be appealed, and, more importantly, several new skeletons have since been discovered, dating back ten thousand years or so. Some of these have already been lost, such as one skeleton found in Idaho, which the Shoshone destroyed in 1991. "Spirit Cave Man," discovered 50 years ago in New Mexico, and only recently dated, was reviewed by the Bureau of Land Management and declared not to be culturally affiliated with an Indian tribe; but the NAGPRA Review Committee reversed that decision in late 2001 and ordered the bones turned over to the Fallon Paiute-Shoshone tribe; that dispute is still pending. A state law in California, which would have required all state universities to examine their collections for skeletons with Indian affiliation, and turn them over to tribes, has been amended and is still in committee. A review of NAGPRA's regulation of "unaffiliated" skeletons is going on now, and scientists hope that they will be at least allowed a voice in the decision. But so long as dogmatism is considered a respectable philosophical position, these controversies will continue, and will grow worse. What is now an argument within liberalism will spill over into a society-wide conflict with dangerous consequences: indeed, it already has. Environmentalist terrorist groups have already blown up laboratories and destroyed decades of research;, blocked the use of "golden rice" and other genetically modified foods, and scared the bejeezus out of people whose lives could be vastly improved by food irradiation or gene therapy. Like hippies at the 1968 Democratic Convention, multiculturalists and radical environmentalists are breaking down the doors of the more respectable left, who wonder, naively, where these hooligans came from.

© Copyright 2008, Liberty Foundation

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