A well-healed, white-haired white man confronted me after a recent presentation in Santa Fe, introducing himself solely by his profession. "I;m an archeologist and I only have one question." (Only one from a practitioner of an inquiring science?)

"Do you believe that a 9,000-year-old skeleton should be given to Native Americans?"

It was an odd question, because my presentation had nothing to do with the Ancient One, the central figure in a legal contest between Native nations who speak for their dead people and scientists who believe the Native dead are their property to study and store. But, the archeologist obviously knew I had labored long over the Native American human and civil rights advances known as the repatriation laws.

He leaned in and sprayed: "Do you think Native Americans own Kennewick Man?" Knowing he was anxious to get to his point, I simply said, "Yes."

Striking the classic Don Quixote crusader pose, which he must have practiced a bit in front of a mirror to get exactly right, the archeologist shouted:

"Then it's war! It's still WAR."

This war is over Ancient One, who is popularly called Kennewick Man, after the Washington town where kids found him in 1996 on the banks of the Columbia River. A scientist, appropriately named Chatters (Dr. James C.), studied Kennewick Man, finding him to be a salmon-eater who died with all his teeth and a Caucasoid who lacks the Mongoloid features Chatters wrongly claims are typical of Native Americans.

Reporters breathlessly spread the chatter that Kennewick Man was likely Caucasian or European, in prose usually used for tabloid stories about alien abductions. Kennewick Man made the cover of major weekly magazines, giving heart palpitations to a bunch of white folks who desperately want the indigenous people of this hemisphere to be anything but Native Peoples and to have originated anywhere but here.

A Native American coalition of related tribes came together to bury the Ancient One, under the Native American Graves Protection and Repatriation Act of 1990. The federal government officially backed their right to do that. Unofficially, some federal and federally-dependent scientists tried to undermine the federal and tribal positions. Failing that, a few of them, including a Smithsonian scientist, went to court to gain possession of Kennewick Man for their scientific study.

A federal district court judge agreed with the scientists in 2002, as did three appellate judges in February of this year. The decisions were given wide play as stories about science trumping Indian religion, portraying the dead as the scientists' books and Native repatriators as book-burners.

The Native American coalition filed a petition for en banc rehearing on March 17, saying rehearing is necessary because this case "presents national questions of exceptional importance concerning the balance that Congress struck between the spiritual beliefs of Indian tribes and the limits of academic exploitation of the dead."

The coalition of Colville, Nez Perce, Umatilla and Yakama nations said the judges have "emasculated NAGPRA by rewriting the definition of 'Native American,' the threshold determination necessary to trigger the application of (NAGPRA) ? This foray into the domain of the legislature has muddled the precision of Congress' statutory scheme, frustrating NAGPRA's application."

The rehearing petition points out that the judges in the 9th Circuit have "created different standards governing NAGPRA's applicability in this Circuit from the rest of the Nation, thereby obstructing the repatriation of 'Native American cultural items,' and causing rampant uncertainty as to the statute's application."

The petitioning tribes speak on behalf of nearly all Native Americans in their legal action: "These serious and egregious legal and factual errors must not be allowed to stand, because of the great injustice done to Indian people, and the harmful effects of this precedent."

Some of these petitioners were among the Native traditional people who organized a national coalition in the 1960s to gain protections for sacred places and ceremonies, to recover Native human remains and sacred objects and to promote respect for Native people and rights in general society.

We achieved the American Indian Religious Freedom Act in 1978, which laid the groundwork for federal museums returning Native human remains and sacred objects, and led to the repatriation laws in 1989 and 1990.

The first major gains in the national Native repatriation movement were made during the six months following AIRFA's enactment. The heads of the military museums decided in 1979 that it was in keeping with the law for them to return any human remains, sacred objects and cultural patrimony in their collections which Native peoples might request.

Smithsonian scientists disagreed with that decision and attempted to change it, but they did not succeed. They continued, however, to resist returning any Native human remains or cultural property.

Bowing to national Native and congressional pressure in the mid-1980s, new institutional leadership directed an inventory of Native human remains in their collections. The accounting - 18,500 Native human remains, together with 4,500 Indian skulls from the U.S. Army Surgeon General's "Indian Crania Study" in the late-1880s - stunned people in Indian country and in general society. Native people and members of Congress began developing repatriation law in earnest. At the same time, Native Americans were preparing dozens of lawsuits to recover Native human remains, funerary objects and cultural property.

NAGPRA became law 11 months after the 1989 repatriation provision was enacted. As with the 1989 law, Congress enacted NAGPRA as human and civil rights policy for Native Americans, and as pre-settlement of myriad lawsuits Native peoples were on the verge of filing. Congress chose to establish a Native American policy and processes for the return of Native human remains, funerary items, sacred objects and cultural patrimony, rather than to leave it to the courts to decide repatriation policy on a piecemeal basis.

Certain scientists who opposed national repatriation policy have worked to frustrate the repatriation processes and delay repatriations until they can conduct further studies on human remains in their collections. Many are trying to hide the identity of human remains which are the subjects of their studies and to classify them as unidentifiable, in order to avoid repatriating them. Some federal scientists are abetting this effort by attempting to create new regulations to make the unidentified Native human remains the property of the repositories where they now reside.

The main policy achievement of the repatriation laws is the recognition that Native Americans are human beings and no longer archeological resources. Ironically, the 9th Circuit ruling denies the humanity of the Ancient One, holding that archeological resources law applies, that he is an archeological resource and that archeologists can have at him.

If these wrong-headed notions are not overturned in court, Congress must step in and spell out its intent at a most rudimentary level. Most Native people say it's putting the dead and the living at peace. Some scientists say, "It's still WAR."



Suzan Shown Harjo, Cheyenne and Hodulgee Muscogee, is president of the Morning Star Institute in Washington, D.C., and a columnist for Indian Country Today.