Kennewick Man, Kinship, and the "dying Race": the Ninth Circuit's Assimilationist Assault on the Native American Graves Protection and Repatriation Act

Publication year2021

84 Nebraska L. Rev. 55. Kennewick Man, Kinship, and the "Dying Race": The Ninth Circuit's Assimilationist Assault on the Native American Graves Protection and Repatriation Act

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Allison M. Dussias*


Kennewick Man, Kinship, and the "Dying Race": The Ninth Circuit's Assimilationist Assault on the Native American Graves Protection and Repatriation Act


TABLE OF CONTENTS


I. Introduction ...................................................... 56
II. Documenting the Dying Race: Imperial Anthropology
Encounters Native Americans ...................................... 61
III. Let My People Go: The Native American Graves
Protection and Repatriation Act and its Application to
the Ancient One ................................................. 74
A. Understanding NAGPRA and its Key Goals ....................... 74
B. Parsing the Statute--The Who, What, When, and
Where of NAGPRA .............................................. 77
1. Definitions and Coverage .................................. 77
2. Ownership and Control Priorities .......................... 79
3. Post-NAGPRA Discoveries and Repatriation of
Pre-NAGPRA Collections .................................... 84
C. The Discovery of the Ancient One and the DOI's
NAGPRA Decision .............................................. 87
1. The DOI's Native American Determination ................... 88
2. The Cultural Affiliation Analysis ......................... 94
a. Archaeological Data Report ............................. 97
b. Traditional Historical and Ethnographic
Information Report ..................................... 99
c. Linguistic Information Report .......................... 102
d. Bio-Archaeological Information Report .................. 104
3. The DOI's Cultural Affiliation Conclusion ................. 105

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IV. They Blinded Me with Science: Bonnichsen v. United
States ......................................................... 107
A. The Empire Strikes Back: Imperial Anthropology
Lays Claim to the Ancient One ................................. 107
1. The Plaintiffs' Claim--Science Battling
Religion ................................................... 110
2. The Tribal Claim--We Are Still Here ........................ 116
B. The Court of Appeals Opinion in Bonnichsen v.
United States
................................................ 126
1. Setting the Stage .......................................... 130
2. What's in a Name? .......................................... 131
3. Redefining "Native American" ............................... 133
4. Rejecting Disinterested Experts' Opinions .................. 138
5. Denying Cultural Affiliation ............................... 143
6. The Panel's Conclusion ..................................... 149
C. The Aftermath and Impact of the Bonnichsen
Decision ...................................................... 150
V. Conclusion ........................................................ 156
VI. Postscript ....................................................... 161

These tough men had to rely so much on this quiet, gentle woman who could translate, who could find medicinal herbs, who could look for landmarks. . . . Americans today could probably use such a level-head guide. . . . We exist in uncertain times, times of change, times of danger. . . . Maybe our Native American culture will be needed again to help lost Americans survive when the television lights dim and the oil runs out. That is the Indian strength--we know how to survive.
- Randy'L He-dow Teton, Shoshone Bannock(fn1)

I. INTRODUCTION

On October 20, 1805, Meriwether Lewis and William Clark took a break from their travels along the rapids of the Columbia River to satisfy their curiosity about the burial practices of the local people with whom they had been trading and socializing.(fn2) Entering a sixty-foot

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long "Indian Vault" constructed of planks of wood and pieces of canoes, they found large numbers of piled bones, a circular arrangement of skulls on mats, and more recently deposited bodies wrapped in leather robes. The remains were accompanied by fishing nets, baskets, skins, horses' skeletons, and other funerary objects.(fn3)

Lewis and Clark's investigation of this burial site was but one instance of the many un-consented Euro-American entries into Native American graves that were to occur in the lands over which the United States claimed authority by virtue of the Louisiana Purchase. While Lewis and Clark apparently took nothing with them from the burial chamber that they had encountered, those who came after them usually lacked such scruples. Indeed, to the American anthropologists and other similarly minded social scientists whose profession was taking shape as the nineteenth century progressed, grave robbing was precisely the reason for the burial explorations in which they engaged. They were committed to "proving" the inferiority of Native Americans to Euro-Americans through physical comparisons, which required examination of Native American skeletal remains. They were convinced that the indigenous inhabitants of the continent, burdened by their innate inferiority compared to European-derived American civilization, could not long survive, and therefore were a "dying race." This belief precipitated a flurry of activity aimed at documenting Native Americans' presence through anthropology, ethnology, and similar fields while some of them still remained. Eventually, it was believed study of Native Americans would be within the purview of only those who studied extinct cultures.

That they were a doomed people would not have crossed the minds of the members of the Nez Perce Tribe who had welcomed Lewis and Clark and their "Corps of Discovery" to Nez Perce territory in the Fall of 1805. If the Nez Perces had speculated about anyone's chances of survival at that point, it would probably have been the survival odds of Lewis, Clark, and their party that occupied their thoughts. First of all, the Nez Perces would have known that the Corps of Discovery had had very little success in hunting in recent weeks, and that the fish, roots, and berries that they were able to purchase from the Nez Perces

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saved the Corps from starvation.(fn4) Also, the Corps had been forced to linger on Nez Perce land because many of its members were critically ill from dysentery and too weak to ride a horse or walk;(fn5) they could hardly have inspired awe as the emissaries of a superior civilization. Indeed, at this point the very survival of the Corps and their mission rested in the hands of the Nez Perces. They could easily have overpowered the weakened party and seized the Corps's weapons, which at that time amounted to the biggest arsenal west of the Mississippi River. They did not. Nez Perce oral history reveals that when members of the tribe first encountered ill members of the Corps, they did consider killing them for their weapons. The party was spared through the intervention of Watkuweis ("Returned from a Far Country"), who had lived with white traders in Canada for several years following her capture by Blackfeet Tribe members.(fn6) The Corps eventually recovered sufficiently to travel, guided along part of the way by Nez Perces, who at times even piloted the Corps's boats through rapids.(fn7) Continuing along the Snake and Columbia River system, the party encountered Yakimas, Wanapams, and Walla Wallas, hospitable relatives of their Nez Perce guides.(fn8) The amicable reception they received did not, however, deter Lewis and Clark from finding a moment to satisfy their curiosity about "the method those nativs [sic] practiced in depos[it]eing [sic] the dead"(fn9) by visiting the burial chamber on October 20.

A handful of days before their visit to the burial chamber, Lewis and Clark and their party would have passed near the site of another burial, one which was to lie undisturbed for the next one hundred and ninety-one years. On July 28, 1996, the human remains of the man dubbed "Kennewick Man" by the popular press were found by chance scattered a few meters offshore in Lake Wallula, a lake formed behind a dam on the Columbia River, near Kennewick, Washington. The discovery area is under the management authority of the Army Corps of Engineers, which determined that the remains were Native American and, pursuant to the Native American Graves Protection and Repatri

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ation Act ("NAGPRA"),(fn10) were required to be transferred to a group of area tribes, who had acknowledged the "Ancient One"(fn11) as an ancestor. The tribal coalition included the Nez Perce Tribe, on which the Corps of Discovery had depended for survival almost two hundred years before. The tribes sought to repair the damage done by erosion along the river by returning the Ancient One to the place where members of his community had buried him thousands of years before.

This reburial might have been a routine matter under NAGPRA were it not for two factors. Portions of the remains were radiocarbon dated to be over 8,000 years old, and a misleadingly photographed and heavily publicized artistic reconstruction of the skull "did not look Native American" to at least some non-Native American readers of TIME magazine and similar popular publications. These factors sparked widespread interest in the remains, and also suggested to interested anthropologists that there might be a way to pry the remains out from under NAGPRA's protection. Those who demanded access argued that Kennewick Man, the name preferred by those who opposed the government's NAGPRA ownership determination, should not be recognized as Native American, and was therefore within NAGPRA's coverage. Rather than being recognized as an ancestor of contemporary tribal members, Kennewick Man was depicted as a genetic "dead end"--an early "American" who had left no biological descendants to rightfully lay claim to him and thus frustrate academics'...

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