An article published on 18 June 2015 in the scientific weekly Nature has given the world a new appreciation of the origins of the human remains known as ‘Kennewick Man’. The remains were discovered in the State of Washington in 1996 and preliminary studies showed that Kennewick Man was roughly 9,000 years old and had no noticeable morphological connection to any existing Native American group in the United States. In fact, it was said that the remains were most likely affiliated with the Ainu people from the islands of Japan and Russia, or else with Polynesian peoples.

Anyone who has read my article in the recent publication on human remains, Heritage, Ancestry and Law: Principles, Policies and Practices in dealing with Historical Human Remains (ed. Ruth Redmond-Cooper), Institute of Art & Law, 2015, will know of the lengthy judicial dispute that arose following this discovery. Under the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), human remains (and related objects) associated with a Native American group must be returned to that group so that the remains can be given a proper burial. But the question here was whether Kennewick Man qualified as ‘Native American’.

A group of scientists eager to study the remains had applied to the courts to stop the government’s initial plan to return the remains to local Native American groups (there were five local Native groups involved). The case went twice before Judge Jelderks of the District Court of Oregon and eventually ended up before the Ninth Circuit Court of Appeals.

What came out of the court decisions was grossly unfavourable to the Native communities. Judge Jeldercks had set aside the government’s decision to return the remains to the Native groups. He did this on the basis that Kennewick Man had not been shown to be ‘Native American’ for the purposes of NAGPRA: the remains did not relate to a tribe, people or culture that was currently Indigenous to the United States. For NAGPRA to be triggered, there must be a link between the remains and a contemporary Native group. This was not the case, according to the judge. Additionally, the requirement that there be a ‘cultural affiliation’ between the remains and a particular Native group could not be shown for the same reason. The governmental decision was thus overturned and Judge Jeldercks ordered that the scientists could have access to the remains for the purposes of further scientific analysis. The decision was upheld on appeal.

As a result, the remains of Kennewick Man were transferred to the Burke Museum at the University of Washington and scientific analysis did proceed. There was, however, a settlement reached with the Native groups which allowed them access to the remains for (a mere) three days in June 2006, in order for a ceremony to take place in line with Native traditions.

But the recent publication of the Nature article has shown that, following DNA testing of the remains, what had been initially surmised by the scientific community was wrong. According to researchers at Stanford and the University of Copenhagen who had successfully sequenced the genome, Kennewick Man is more closely related to North American groups than to any other population worldwide. And, in particular, based on genetic data available, the individual seems to share ancestry with the current Colville Native group, one of the five groups that had originally claimed the remains in 1996.

And so what does this tell us? First of all that the initial morphological studies of the skull were wrong – or at least have been disproven by a more comprehensive genetic analysis. Kennewick Man does not share genetic attributes with the Ainu or the Polynesian groups, but rather belongs to a group that was and remains Indigenous to the North American continent.

But also, perhaps more importantly from a legal perspective, this finding calls into question the initial decisions of Judge Jeldercks of the District Court. As reported in my article, the judge had placed an almost blind faith in the modern scientific approach to determining the origins of the remains, and this at the expense of the oral traditions proposed by the Native groups. As such, the ‘scientific’ understanding at the time of the decisions pointed one way. What we have learned more recently is that scientific determinations do change (isn’t that what the scientific method is all about?) and now the science behind the studies clearly points in another direction.

The hopes and traditions of Native communities need to be respected. That much is clear. Kennewick Man must now be returned to the Native group that can show the necessary ‘cultural affiliation’ (which currently looks to be the Colville group). But equally important is the lesson for the judiciary – and the legal profession at large: do not adhere blindly to the determinations of modern science, even when this comes from experts, serving as witnesses or advisors. These determinations are always subject to change, and so should not form the sole basis of a judicial outcome. The consequences can be serious… Here Native groups were precluded for nearly twenty years from treating the remains of their ancestor in a manner befitting their traditions. Surely a more appropriate balance between the interests of the parties should have been reached. And much earlier at that.

Thank you to Lyndon Ormond-Parker of Melbourne University (one of the contributors to Heritage, Ancestry and Law mentioned above) for putting us onto this recent study, and to Anthony Misquitta of Farrer & Co for informing us of the outcome.