Landmark Judgment Returns Bones to Tribe

Cynthia Coleman Emery

The US Supreme Court has declined to weigh in on a lower court ruling that will, in effect, allow ancient bones to be returned to American Indians in California.

The judgment means a landmark legal decision recognizes the authority of Native tribes to assume control over ancestors and artifacts, despite claims by scientists that returning the 9,000 year-old bones to the tribes is a “tragedy and a disgrace.”

The case at hand involves two skeletons—a woman and a man—discovered on state property in San Diego in 1976. Since then, the bones had been the subject of empirical study until local tribes requested the bones be returned.

Science writer Carl Zimmer notes that tribes went to court in 2006 to have the skeletons returned.

Several scientists sued to have control over the bones, but lost their battle on two fronts: a district court rejected their claims in 2012, and a federal court upheld the decision to repatriate the skeletons to tribes in 2014.

In January 2016, the US Supreme Court declined to hear the case, thus upholding the lower court decision that would allow the bones to return home.

What makes the case doubly significant is that Kennewick Man, the ancient skeleton discovered in the Northwest Pacific in 1996, has yet to be repatriated to tribes despite the finding in 2015 that The Ancient One’s DNA matches that of Colville tribal members’.

The scientific discovery of the DNA match, covered widely in the popular press on the heels of the April report in Nature—one of science’s most prized journals—has armed American Indian tribes with the empirical gravitas to make a claim for the return of ancestors.

The new data, in concert with the 1990 Federal law that enables the return of artifacts and human remains to tribes (the Native American Graves Protection and Repatriation Act) should empower Native Americans to invoke their sovereignty, which affords tribes dominion over their property, laws, values, mores and customs.

Yet some scientists continue to up-end NAGPRA by claiming their interests trump those of the tribes.

One of the professors who challenged the court’s initial decision to return the bones to tribes said: “To have them [the 2 skeletons] slip through our fingers this way is a tremendous loss for science.”

Similarly the lawyer representing the scientists responded to the Supreme Court’s decision to refuse to hear the case by calling the judgment a “tragedy and a disgrace—a tragedy for science, and a disgrace for the court.”

Ironically news consumers need to dig for viewpoints from Indian perspectives, and few reporters explain to readers that federally recognized tribes are sovereign nations: they signed treaties with representatives of the United States that their rights and freedoms, and cultures and traditions, would be honored and protected by laws.

But when perspectives come to loggerheads over discovery of ancient bones—when Indian knowledge systems meet Western knowledge systems—then tribal views are diminished in favor of mainstream values.

And scientific pursuits are valued by politicians, courts and mainstream press over Indian concerns.

In the case of Kennewick Man’s bones, the Umatilla spokesman—Armand Minthorn—told the press repeatedly that cultural tradition requires that the skeleton be returned to the earth.

Such views are marginalized as quaint or silly: hardly salutary when compared with the needs of Scientific Progress.

But when the argument plays out in terms of sovereignty and self-determination, the contention over ancient bones becomes a political one.

So it’s not about which viewpoints are more rational or empirical; rather, the argument centers on who gets to make decisions about the provenance of ancient remains.

And since legislation has been in place for 26 years to return found and stolen objects to tribal governments, it make sense that Native Americans—not Western scientists—should determine how best to manage their artifacts.

Cynthia-Lou Coleman Emery, PhD, is a professor and researcher at Portland State University, where she teaches and studies science communication, particularly issues that impact American Indians. She is enrolled with the Osage tribe.

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smartphoenixnavajo's picture
First and foremost, orthodox academics in america, will never change, despite any "new" findings they encounter. They are too entrenched into the foundation they have built in the small time they have been recording and making up history. Basically any new finding would require them to retract and rewrite and when it occurs over and over, like it should or they claim, they would be no more than charlatans. People would lose faith. Its like sending bad police officers to prison for breaking the law, its just not done. These academics who claim, science will be lost and so forth are no more interested in new science or changing science, as much as they are looking out for themselves. As in tenure or a better position in the old pyramid. The best part of all these rogue academics is that they now and will further establish NAGPRA even further. It is and was not their intention, but courts and such, rule on prior established rulings and this line of failures on these rogue academics, will make it easier to continue to rule in favor of the native americans americans. I laughed out loud when way back, when james chatters said, kennewick man could not be decended from modern native americans because it and we did not look the same. He ignored the very foundation western academics is built on, the theory of evolution. So you see, these quacks will keep coming and it will keep getting easier to dismiss them and perhaps not just from the courts, but from our educational institutions.