Bones of Contention 

The battle lines are color lines in the debate over who owns Montana’s past

When two college students discovered a human skull in the Columbia River near Kennewick, Wash., in July 1996, they couldn’t have known that their find would spark an international outcry over native rights, scientific freedom and the limits of government control. But it did. And a piece of that debate has now moved to the Montana Legislature, where a behind-the-scenes battle is being fought over a human-remains repatriation bill sponsored by Rep. Gail Gutsche, a Missoula Democrat.

The fracas has drawn in the governor’s office, historians, property-rights activists, ranchers who keep bones and artifacts in paper bags, and tribal leaders, who want to ensure their ancestors are treated with respect and not studied like a school project. And much of the clamor ties back to that summer day in Washington.

Will Thomas and Dave Deacy were preparing to watch a boat race on Lake Wallula, a Columbia River reservoir, when they stumbled upon the skull on federal land leased by the city of Kennewick. They hid the head in some brush until the race concluded, then put it into a bucket and hauled it to local police, who gave the cranium to the county coroner.

Convinced the skull was not from anyone recently deceased, the coroner contacted James Chatters, a local forensic anthropologist. Chatters went to the site, uncovered the rest of the skeleton, and opened the door to the “Kennewick Man” controversy, an ongoing saga that has pitted Indian tribes against anthropologists, prompted scientists to file a wide-ranging lawsuit against the federal government, and is prompting a group of academics from around the world to rally against Gutsche’s House Bill 165, which expands Montana’s 1991 Human Skeletal Remains and Burial Site Protection Act.

Current law in Montana says that skeletal remains and burial objects found on state or private land after July 1, 1991, must be reviewed by the Burial Preservation Board if the items are deemed to be “archaeologically significant.” The 13-member board, largely made up of tribal representatives, helps determine if the material is tied to present-day descendants, tribal or otherwise.

“This bill honors the sanctity of graves,” Gutsche told the Senate Judiciary Committee on Tuesday. “This is about preserving. This is about protecting. There’s no guarantee in this bill that anyone will ever claim anything.”

Gutsche’s proposal, which passed the House by a 95-4 margin, includes remains and burial objects taken from non-federal sites in Montana prior to 1991. Publicly held collections, as well as those claimed by private landowners, are covered by the bill.

If HB 165 passes the Senate and is signed by Gov. Judy Martz, about 200 museums would be required to inventory their bones and related objects and give lists to the burial board, the state’s historical preservation office and to all tribal governments in the state. Once the information is disbursed, parties that believe they have a claim to any of the material could file a formal request for repatriation. Such claims would trigger a hearing process and potential court action. Under HB 165, returns would be mandatory if kinship or other cultural ties to the bones and belongings can be established.

Bones for the Ages

When he was working on the case that started all this some five years ago, anthropologist James Chatters noticed that the Kennewick Man skeleton had a projectile point stuck in its right hip. Further analysis of the bones and the point revealed that the skeleton was more than 9,000 years old, putting it among the oldest finds of human remains in the nation. Area Indian tribes quickly dubbed the skeleton “The Ancient One,” and the U.S. Army Corps of Engineers took jurisdiction over the bones under the 1990 Native American Graves Protection and Repatriation Act, or NAGPRA, upon which Montana’s law is based. The Corps also prohibited further study of the skeleton by Chatters or any other researchers, a move that was welcomed by Native groups that opposed further testing of the remains, including carbon-dating.

“Indian activists weren’t amused [about further testing],” California State University-Hayward professor Glynn Custred wrote about the case last year, “for the present system of incentives and rewards in which they operate depends on the constant assertion of Indian victimhood and white guilt. Such assertions would not be helped if it turned out the Indians weren’t the first Americans after all; that Europeans may have been here before them; or that Indians, like the Europeans who followed, may have come to America as colonizers to find a racially different aboriginal population, which they eventually replaced. For them it is better that as little as possible be known about Kennewick Man, or about any other ancient skeletal material for that matter.”

NAGPRA requires that all American Indian or Native Hawaiian remains and associated funerary objects found on federal land after Nov. 16, 1990, be made available for return to native groups that claim a cultural affiliation or other ties to them. The law also mandates that federal agencies possessing such materials draw up inventories for public review. In the Kennewick case, a coalition of five tribes and bands—the Umatilla, Yakama, Nez Perce, Wanapum and Colville—laid claim to the bones, saying they were culturally tied to them, primarily because of where they were found.

A week before the skeleton was to be given to the tribes for reburial, eight scientists filed suit in Portland’s U.S. District Court, arguing that the government didn’t have enough proof to give the Kennewick Man away. In the months since, lead plaintiff Robson Bonnichsen, an Oregon State University anthropologist and director of the school’s Center for the Study of the First Americans, and the other researchers have argued they have a right to study the remains and that the Corps has stepped way beyond NAGPRA’s boundaries. The scientists, who obtained an initial court ruling that the government’s review process was flawed, also propose to conduct a free multidisciplinary study of the bones to help determine if they indeed can be linked to the tribal groups. Trial in the matter is tentatively set in June. A prime question the plaintiffs want answered is: Exactly who is a Native American?

Academic Rights or Cultural Propriety?

At a website called “Friends of America’s Past,” which is dedicated to the Kennewick case and other similar battles around the country, the scientists say the controversy surrounding ancient remains affects their freedom to study crucial archaeological clues and preserve them for future examination.

“The public’s right to understand the past, free of arbitrary and political agency decisions, is at stake,” the researchers contend on the website. The group also wants to “prevent the loss of valuable scientific information due to biased interpretation of the law.”

The website, based in Portland, also contains details about Gutsche’s bill and provides a sample letter of opposition addressed to Sen. Lorents Grosfield (R-Big Timber), chairman of the Senate Judiciary Committee and a HB 165 co-sponsor, and Gov. Martz. The letter, signed by Bonnichsen, states that the legislation “is seriously flawed and should be tabled.”

“I have grave concerns for the future of archeological research and the preservation of significant early human remains in the state of Montana if HB 165 is passed,” he wrote, adding that one of the state’s premier discoveries of artifacts—the Anzick Collection—may be threatened by the bill. “The majority of human remains that have been and are likely to be found in the state of Montana constitute what are known as unidentified and unaffiliated human remains.”

The Anzick Collection was found in 1968 by landowners in Park County and initially included the skeletal remains of two children and more than 100 objects carbon-dated to be at least 11,000 to 13,000 years old. The artifacts are one of the oldest finds in the country—dating back to an epoch known as the Clovis Era, after a similar find in Clovis, N.M.—and must be kept available for scientific review, Bonnichsen maintains. “The national and international significance of this unique discovery can not be overestimated,” he wrote. “Will school children have an opportunity to learn of the achievements of the Clovis people, or will the Anzick remains be placed in the ground in deference to the wishes of a modern group that may have no connection to the Anzick people?”

According to state officials, no tribal groups have filed claims against the collection, which was displayed at the Montana Historical Society’s museum in Helena from 1988 until controversy over Gutsche’s bill flared this winter. Since then, says Director Arnie Olsen, two of the three landowners have removed their share of the artifacts—minus the bones—which are reportedly stored in another locale. It is not known whether the artifacts being held hostage in the HB 165 debate will be returned to state custody, Olsen says.

“There’s no guarantee that they’ll ever bring it back,” he explains, adding that the exhibit was viewed by more than a million people before it was yanked. “It’s too bad to see it go, but it’s owned by private citizens. It doesn’t belong to us.”

Olsen acknowledges the historical society is in an uncomfortable position with Gutsche’s bill. While he testified as a proponent at the Jan. 12 House hearing, it was also revealed that he was trying to secretly scuttle the bill with amendments exempting the Anzick Collection, requiring future relinquishment of artifacts by private landowners to be voluntary, and taking power away from the burial board.

Complicating the matter further is the fact that HB 165 was initially recommended by House Speaker Dan McGee (R-Laurel) and is still publicly supported by both McGee and Martz. “There is nothing more sacred than burial and nothing more meaningful than our faith in a higher power,” Martz said in her Jan. 25 State of the State address while urging swift passage of the bill. “No matter what color you are—human remains belong with families.”

After the amendments were uncovered, House Judiciary Committee Chairman Jim Shockley (R-Victor) told Olsen he had to be listed as an opponent of the bill. Despite that determination, Olsen filed lobbying documents with the state Commissioner of Political Practices on Feb. 5 that still say he was a proponent. Asked about the discrepancy last week, Olsen said he’s “not an expert on legislative procedure.”

“I offered the testimony as a proponent because we in the past have acted on behalf of repatriation,” he said. “The bill goes beyond what any other state has, as far as we know. We had some concerns and we expressed those. This bill clearly sets precedents. It’s clear other people are watching it.”

Olsen also acknowledges that he prepared a January briefing report for Martz that tears into Gutsche’s bill. The report warns that it will be “front-page news” if the Anzick Collection is removed. “Much of the good of the bill for human remains may be overshadowed by these private collection concerns,” he wrote. “Others will be alarmed by this press notification and could take similar actions. The loss to primary exhibits at the historical society will be evident to all visitors since there is nothing like it to put in its place.” He added that the collection could be sold or exhibited in another state if HB 165 is approved.

“It’s part of our job,” he says of his role highlighting concerns about the bill. “It’s our job to lay out how it impacts not only us, but the museums and private parties.”

Olsen says he understands tribal concerns about burial sites, and he’s not against releasing bones where cultural affiliation can be determined. Artifacts are another story, he says, especially with older sites where it’s difficult to know who or what came from where.

“We’re here to do what we think is right, whether it’s popular or not,” he explains. “We don’t do things based on popularity but based on scientific and technical information. We work hard to work with the tribes in many, many areas, and we want to maintain those relationships.”

Lobbying With the Dead

Bonnichsen says he’s been in contact with Montana Historical Society employees about HB 165, but he’s not talked to Olsen directly. Nonetheless, activism against the bill has stirred up emails and letters to Grosfield and Martz from as far away as Europe and South America, as well as across the United States.

“Personally, I have very little heart left for saying anything polite about either the Native American Graves and Repatriation Act or any state complements or supplements thereto,” wrote Gene Galloway of Council Bluffs, Iowa. “Native American claims to old or ancient remains under these authorities have been largely indiscriminate, inflexible and complete. The usual native position is that these are all ‘ancestors’ and generational distance makes no difference. Their claims are emotional, religious, politically correct and insane.”

“I have a great respect for the dead, but also view that it is of utmost importance that we allow scientific examination prior to burial to help interpret our cultural past, which may or may not include our Indian friends,” adds Steve Kohntopp of Filer, Idaho. “They should also be interested, but I somehow think that their decisions to seek protection under this bill helps maintain a continuing monetary gain for their culture. How sad for all Americans.”

Other writers take a property-rights angle and question Indians’ abilities to distinguish time within their own culture.

“The threat of this unlawful taking of private property will have devastating effect on landowners and collectors who have lawfully assembled a collection over the years,” opines David Bobb of Ashland, Ore. “At any time a disgruntled Native American can allege that a private citizen has illegal objects in his possession and could have their entire collection confiscated without due process and it would be incumbent upon them to prove these items are not ‘funerary objects.’”

“Many Native Americans do not comprehend the temporal boundaries of modern ethnic groups,” concludes Laura Miotti, an anthropology professor at the National University of La Plata in Argentina. “As scientists, we support Native American human rights issues. Yet, our support will not come in the form of agreeing to destroy the record from the remote past.”

Drawing the Line

In a telephone interview last week, Bonnichsen said he believes the historical timeline needs to be drawn at about 1,500 years, meaning that bones and objects older than that probably can’t be accurately tied to modern tribal groups, at least in the white man’s realm.

“There’s no human culture that’s lasted 12,000 years,” he explains. “It’s really quite arbitrary, but it’s tough to connect with anything more than 1,500 years old. If there’s a clear connection, I have no problem with them being returned to tribes. But there’s no way to trace these remains to present-day people.”

Some tribal leaders, however, say their cultures are ageless.

“We never asked science to make a determination as to our origins,” Cheyenne River Sioux repatriation officer Sebastian LeBeau says in one account about the Kennewick Man conflict. “We know where we came from. We are the descendants of the Buffalo people. They came from inside the earth after supernatural spirits prepared this world for humankind to live here. If non-Indians choose to believe they evolved from an ape, so be it.”

“We did not abandon our ritual territories” when tribes were forced onto reservations, adds Tony Incashola, director of the Flathead Reservation’s Salish-Pend d’Oreilles Culture Committee. “Our lives as Native Americans didn’t start in 1991 or 1990.”

At the committee hearing Tuesday, Rep. Norma Bixby (D-Lame Deer) said it’s time for the state to take another step toward protecting native rights. “To me it is a sad time when the bones and objects of our ancestors are considered to be property,” she said. “Montana needs to follow in the footsteps of the federal government.”

“We carry them in our heart,” Salish and Kootenai tribal member Claire Charlo said of her ancestors. “That’s who we are.”

Shawn White Wolf, a member of the Northern Cheyenne Tribe, told lawmakers that the main issue is respect.

“If I ever see [my mother] in a museum, if I ever see her studied on a table, I would be devastated,” he said. “I hope you won’t allow that to happen to my mother or my father.”

While the Kennewick Man case was mentioned at the hearing, no opponents testified against the bill.

Nonetheless, Bonnichsen maintains state officials are being misled and HB 165 will stir up more problems than it solves.

“Everyone in Montana seems to have their heads in a snowbank over this,” he says. “I think it’s a dysfunctional piece of legislation that’s already on the books, and this bill would tie into that. I think it really behooves Montana to see what’s going on in the Kennewick Man case. It’s going to have a lot of impact with what happens with that legislation. I think the Montana Legislature should wait on this bill.”

For starters, he says, the bill needs to create more “balance” on the state’s burial board.

Landowners, fish and game officials, and other interest groups need to be at the table when repatriation issues are decided, he contends. And timelines should be put inserted so frivolous claims aren’t allowed to proceed.

“All it takes is one group of people to make a claim,” he says, adding that tribes here could form coalitions, as they did in Washington state. “There’s every reason to believe that same kind of behavior would happen in Montana. The law leaves it open as to who can make claims. This thing could cost the state of Montana a whole lot of money if the lawyers jump in. I sincerely hope Mr. Olsen will step up to the plate on this.”

According to Bonnichsen, Montanans are being shanghaied.

“I think it’s a case of very well-meaning people who don’t know the issues,” he says of HB 165. “It’s a very complicated situation. The question is how on the one hand to be fair to Native Americans and on the other hand, how to be fair to society. Unfortunately, we’re involved with a lot of identity politics. The scientific data has outpaced public policy.”

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