Indigenous Bodies in Colonial Courts: Anthropological Science and the (Physical) Laws of the Remaining Human

Introduction

American archaeology on the Columbia Plateau is a science of the past. The data is material remains: arrowheads, rocks broken by hand, human and animal bones, faint storage and house pits, the rare pictograph. For over a century, the field methods of this science of the past have been to excavate and analyze these traces. According to their calculations and hypothesis tests, the cultured past gradually evolved in reaction to climatic and ecological changes. In any positivists' endeavor, much deemed subjective, or "soft knowledge," is excluded. Such elements as oral traditions, historical linguistics, local knowledge, and reflexive and subjective experience are barred. The most egregious exclusion is the contemporary public (which includes the tribes), whom science swore to inform. Scientists do not pursue cognitive, social, embodied, and phenomenological information, only information that can correlate behavior to ecology, represent the past as rational to Anglo-American sensibilities, and render the chaos of the past manageable for federal land agencies. The best of the science's knowledge of the shape of projectile points, the presence of pithouses, and the shape of Indian bones were legally and strategically deployed to keep the Ancient One at the Burke Museum in Seattle, Washington.

An absence of creativity, ignorance of twenty years of qualitative archaeological theory and practice, a lack of responsibility to inform the public, and a disengagement with the politics of archaeological praxis are but a few valid critiques of most late-twentieth-century Columbia Plateau archaeologists. Their most infamous omission is the avoidance of presently living Native Americans and a callous appropriation and possession of their material cultural history. On the Columbia Plateau, archaeologists have produced little in the way of socially relevant or publicly interesting knowledge. The results of the first sixty years of modern research produced not one popular text or archaeological synthesis that was useful to more than one hundred people, including graduate students. During this period, living Columbia Plateau peoples continued to live on isolated reservations with second-rate health care, education, housing, and infrastructure. Where the judges in Bonnichsen v. U.S. marginalized oral traditions, this article is an attempt to deconstruct the core of their argument, which is based on anthropological science. I describe how archaeologists' field and representation practices perpetuate a false sense of scientific accuracy resulting in profound consequences for Native Americans.

The Ancient One Becomes the "Kennewick Man"

As a response to centuries of looting of Native American graves and outrage that the Smithsonian Institution had the remains of more than 18,500 individuals, Native Americans and their supporters rallied for a law that become the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). The act enables Native Americans, both American Indians and Native Hawaiians, to reclaim and repatriate human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony in museums and federal agencies. The law requires that the appropriate Native American tribe be promptly notified when any human remains or cultural objects are accidentally found on federal or tribal lands. NAGPRA provides a process for museums and federal agencies to return certain Native American cultural items to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations.¹

On July 28, 1996, speedboaters found the Ancient One, a nearly complete human skeleton, in the Columbia River. On September 2, control of the Ancient One was transferred to the U.S. Army Corps of Engineers (COE). On September 9, the Confederated Tribes of the Colville Reservation, Nez Perce Tribe of Idaho, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes and Bands of the Yakama Nation, and Wanapum Band claimed the Ancient One under NAGPRA. After accepting the claim, the COE followed the law by publishing an intent to repatriate on September 17. Bonnichsen v. U.S. was born the following month when eight scientists, arguing that the Ancient One was so old that the remains could not be affiliated with contemporary tribes, filed suit against the COE to stop it from repatriating the Ancient One and for the right to study the...