Bones of contention

But as Dewar discovered, the scientific examinations were curiously drawn out, and the announcement of the results didn't appear for a very long time. The delay, it seemed, had an interesting relationship to the Army's progress on a chemical weapons incinerator which had to be up and running in time to comply with international agreements mandating the destruction of the Umatilla depot's inventory of sarin, VX and mustard gas by 2004.

The government understandably didn't want any sand in the gears of this huge project. The Umatilla Indian tribes were major stakeholders in the area, and their status as sovereign entities made them especially powerful. In March 1996, the Umatilla filed a letter objecting to the Army's environmental impact statement on the planned incinerator, and a government representative was assigned to negotiate a letter of agreement that would answer their concerns. That negotiation was underway when Kennewick Man was found, and he instantly became an important, if undiscussed, bargaining chip.

In the beginning of the wrangle, the Army might really have intended to immediately repatriate the remains as a way to gain the tribe's good will in the negotiations. But it's more likely that they were only anxious to maintain their own control over the skeleton, to at least keep it subtly in play during the incinerator negotiations and beyond. If keeping Kennewick Man in legal limbo was one of the Army's means of leverage, the filing of the scientists' suit was something of an inadvertent gift.

Eventually, though, the Department of the Interior was required by the court to render a decision on whether the plaintiff scientists would be allowed to study Kennewick Man. When Bruce Babbitt, secretary of the interior, gave his answer in the fall of 2000 -- more than four years after the discovery of the remains -- the chemical weapons incinerator was not yet complete and there was still some uneasiness about it being derailed or delayed by political or legal agitation.

Babbitt declared that without a successful extraction of mtDNA, the other scientific evidence couldn't tie Kennewick Man to any modern tribe or group of tribes in the area. Even cultural evidence -- the Indians' own "Who's On First?" stories, in effect -- couldn't establish the current tribes as his descendants. However, a second carbon dating undertaken during the government's examination had confirmed that Kennewick Man was indeed many thousands of years old. That, Babbitt said, was pretty much all he needed to know. He fell back on the argument that, as he read the NAGPRA statute, any remains with dates prior to 1492 were by definition Native American, and therefore the ancient skeleton could not undergo any further scientific study.

But that didn't mean Kennewick Man would be instantly handed over to the Native Americans; luckily he would have to remain in the government's possession while the further question of the scientists' suit was settled. In turning the scientists' case over to trial following the Department of the Interior's decree, the judge particularly questioned the legal sturdiness of Babbitt's contention that a "pre-1492" date was all that was needed to prohibit any further study of the bones. The scientists' attorneys maintain that the statute doesn't actually say any such thing. It was, they say, only Babbitt's interpretation of the law's intent that led him to that conclusion.

A court case is like a story-telling competition. Each side tries to compile the most compelling saga of justice denied, and spin a convincing tale of the dire consequences if the question isn't decided their way.

The scientists in the suit claimed that reburying Kennewick Man would deprive the world of the essential knowledge locked up in his bones. Advances in technology might make it possible to extract information from him in the future that couldn't even be imagined now. Although pure knowledge was valuable for its own sake, continued research on the remains might even result in practical applications for human health and world ecology someday. No one could know.

The tribes argued that Kennewick Man's spirit had been disturbed by his exhumation, and that it was an affront to the laws and customs of the sovereign Native American nations -- not to mention a violation of historic treaties -- to continue to keep him in a drawer in a lab, or on a shelf like a trophy, now that his age was known. How would you like it, they asked, if someone dug up your grandfather's body without permission and stuck it on a specimen tray for undergraduates to tell macabre jokes about (perhaps wiggling the jaws to make him "talk") or for total strangers to pick over, like a cut of meat in a supermarket display?

Final arguments in the case were heard in June of 2001, and we are still awaiting the judge's decision. But it would surprise no one if the case eventually ended up in the Supreme Court. The Umatilla chemical incinerator will be finished and destroying sarin long before the ancient hostage is released.

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