In answer to a question I have been asked numerous times, I decided to write this post about ethics in relation to human remains. This is undoubtedly a complex issue; there are no right or wrong answers. The only ‘right’ conduct in such matters involves collaboration, listening to everyone’s opinion at least to some extent, particularly that of any surviving descendants. Although in most cases we can no longer be sure what the deceased would have wanted, we can treat them with respect and courtesy in all cases. Treating people with dignity and respect, whether they are alive or dead, is of the utmost priority in any field, but particularly in one which is as public-centred as archaeology.

One of the best examples of the clash between research and respect for cultural beliefs is the case of Kennewick Man; this dispute involved the army, Native American tribes, scientists, and the public. It is a case which generated controversy for years, and continues to do so even after its end, highlighting the need for increased discussion of guidelines for such cases, and how to resolve them peacefully.

Kennewick Man: A Case of Disagreement

Kennewick Man or the ‘Ancient One’ is a prehistoric, almost complete male skeleton found on the 28th July 1996; two men found part of the skull on the bottom of Columbia River in Columbia Park in Kennewick, Washington. Further investigation followed this discovery and revealed the majority of the remains. The remains were originally believed to be Native American; however, controversy began when independent archaeologist Dr. James Chatters described the remains as ‘Caucasoid’, and had a piece of the bones dated. Results revealed that Kennewick Man is over 8,690-8,400 years old, and one of North America’s oldest and most complete skeletons ever found. An eight-year-long lawsuit began following this discovery between the federal government in conjunction with several Native American tribes, and a group of scientists. The case was officially resolved in 2004, but the controversy continued on.


Facial Reconstruction of Kennewick Man (Preston, 2014)

The dispute arose from the issue of ‘ownership’ of the remains; U.S. public policy states that ‘ownership’ of human remains does not belong to anyone. However, as the remains were found on federal land, this meant that the U.S. Army Corps of Engineers controlled the remains. However, The Native American Graves Protection and Repatriation Act (NAGPRA) is a public policy which states that ‘cultural items’ of Native Americans must be returned to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organisations by federal agencies and institutions which receive federal funding. These cultural items include human remains.

Until the case could be resolved, the Burke Museum was designated by the court as the neutral location most suitable for storing the remains, as it is the Washington State museum. A Memorandum of Agreement for Curatorial Services was signed by the Burke Museum and the Northwestern Division, United States Army Corps of Engineers on 16th October 1998. This agreement meant that the Burke Museum protects the remains and associated records. The remains were not on display, and the U.S. Army Corps of Engineers regulated access to them. However, the corps did allow the museum to follow their Native American Collection Policy, and facilitate authorised access to the remains for ceremonial activity conducted by representatives of the tribal community. The museum’s policy is to aid Native Americans in the repatriation of cultural items, including human remains.

In spite of this the tribal community intended to have the remains repatriated and buried. The community did not want the remains studied as according to their beliefs the remains should be buried, and repeated handling and sampling is damaging to remains. The scientists have also been allowed access to the remains on three occasions since the 2004 ruling to conduct scientific research.

The initial dispute involved the county coroner and the corps; Johnson believed he had legal jurisdiction as county coroner, and had Chatters analyse the remains. A coalition of Native American tribes and bands from the Columbia River Basin claimed the remains under NAGPRA, and demanded they be reburied. They viewed scientific investigation of the remains as an act of desecration and a transgression against their most sacred religious beliefs. This policy is only applicable if affiliation is proven; hence the remains had to be examined.

The coalition believed that Kennewick Man was a direct tribal ancestor; according to their oral histories, their people have belonged to this region since time began. Their intention was to bury the remains in a secret location where they could never be subject to scientific examination. The corps announced their intention to give the remains to the coalition, after a month-long public comment period. This action showed that although the Native American public was the most intimately involved in the dispute, the wider public were also involved.

The corps had made their decision to have the remains reburied by the Native Americans, and ignored contact from the archaeologists and anthropologists who wanted to study the remains. Thus a group of eight scientists sued the government as private citizens, as no institution wanted to be associated with the case. Hence a different area of the public became involved in this issue, creating a wider public policy dispute which now encompassed human remains being returned to the public, and the public being allowed access to study human remains.

Further controversy arose when the scientists were granted permission to examine the remains, and during transport, large portions of both femurs went missing; the FBI was called in to investigate. The femurs were later found at the county coroner’s office, although the mystery of their relocation has never been solved. The corps and tribes were deliberating over a number of other issues during this dispute, from salmon fishing rights along the Columbia River to the clean-up of the heavily polluted Hanford nuclear site. These issues would certainly have affected the feelings of both parties, and thus affected this dispute as well.

Judge Jelderks finally awarded in favour of the scientists, stating that the corps had acted in ‘bad faith’ by misleading or deceiving the court on multiple occasions. It took several years for the corps to approve the study plan of the scientists, which was finally enacted over sixteen days between 2005 and 2006. 

Recent research conducted by one of the academics, Dr. Owsley of the Smithsonian, in September 2014 and based on morphological attributes, has shown that Kennewick Man is not Native American, but more likely related to circumpacific groups such as the Polynesians and Ainu. U.S. District Court Judge Jelderks ruled that the remains could not be defined as ‘Native American’ under the NAGPRA law, and the 9th Circuit Court of Appeals upheld this decision in April 2004. However, in June 2015 Dr. Willerslev and colleagues sequenced the genome of Kennewick Man, and compared it to global genomic data, including that of the Polynesians and Ainu, and found that modern Native Americans are the closest living relatives to Kennewick Man. This made the remains subject to NAGPRA.

Heritage and Mediation

This is clearly a complex dispute as public policies and laws in relation to human remains are complex and highly diverse. In disputes such as this one, the courts often decide who will control the fate of the remains, consequently making them a symbol of the power dichotomy between the power of the state and the public. Disputes concerning human remains are difficult due to the clear materiality of the remains; they decompose, can be cremated, stolen, dismembered or purchased, although not all of these practices are legal. However, remains were once living beings, and it is extremely difficult and controversial to attempt to decide when or indeed if there is an end to the humanity of what was once a person like any one of us.

This dispute is clearly one which exemplifies the iceberg of conflict. It encompasses a much wider range of interests than simply what happens to one set of remains; interests of Native American tribes against the federal government, and against intrusive academic inquiry, as well as federal control, the clash of scholarly efforts to discover more about our past, and the consequences of public policies not being enforced. Basically the interests of the three parties involved are vastly different. Mediation could have helped to resolve this issue, if not in a timelier fashion than the courts, than at least in a more efficient and peaceful manner.

This is a clear example of a history of conflict complicating the current dispute; the disrespect and maltreatment of Native American remains and culture by museums and scientists, both private and those associated with the government, is still a bone of contention. Recent Native American graves and burial platforms were looted in the 19th century, and corpses were dug up and even decapitated on battle fields, with the heads being sent for study in Washington. This lack of regard and consideration for the religious beliefs and feelings of Native American peoples was only addressed with the creation of NAGPRA in 1990.

Mediation, or Alternative Disputes Resolution, involves a mediator being called in by the parties. It is a voluntary process, although court-ordered mediation has proven successful as well. The parties, their representatives, and the mediator(s) meet for collaborative problem-solving and consensus building. There are several different types of mediation, from facilitative to transformative, and the mediator should develop a strategy to suit the situation as it develops. This mediation would be highly complex, but all issues and interest would be dealt with in turn, simplifying issues somewhat and allowing parties to reach a decision themselves.

Clearly this is an incredibly complex and multi-faceted dispute, involving public policy in relation to land ownership and access, control of human remains, prehistory and scientific enquiry. The controversy generated from this dispute has had lasting repercussions, with people desiring a change in public policy in relation to such issues; Alan Schneider, co-counsel for the scientists in this dispute, believes this dispute is a clear example of why public policy in such issues needs to be changed, and that the public should be more of a focus in these issues.

Mediation can only be successful if all parties participate; co-operation can be difficult to achieve at first, but it has proven its value several times over. Mediation works in a variety of areas, from work and family issues to public policy disputes as is the case here. It has been successful in all of these areas; it has been growing in popularity within environmental disputes, and examples of its success in resolving or at least managing conflict can be seen in the Lower Kishon River Basin dispute and in the work of the International Council of Museums (ICOM), who deal with disputes such as this one, through their Art and Cultural Heritage Mediation division. Mediation is a fast growing field, and its value in many different types of disputes has been well proven; its value in public policy disputes in heritage is only beginning to be realised, but I am confident that this is an area which will see clear growth over time.

The Future of Archaeological Practice

Kennewick Man was finally repatriated early this year at an undisclosed location after a private ceremony. The case came to what was to many a satisfactory end, although the repercussions from this case shall haunt archaeological practices for years to come. NAGPRA has been contentious since its creation; there are clearly many issues to be worked out, but it is certainly a step in the right direction. Continued discussion between heritage professionals, the public, and legal professionals can only improve relations between all three. Human remains will always be a divisive issue; cultural context and the desires of the descendants must always be taken into account. The remains must always be treated with respect and dignity; we can never forget that this was once a living, breathing being like ourselves.




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