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Originally published September 22, 2009 at 4:24 PM | Page modified September 22, 2009 at 6:31 PM

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Guest columnist

Corps followed the law in handling of jawbone found on the Columbia River

The Army Corps of Engineers followed the Native American Graves Protection and Repatriation Act in the handling of a jawbone found on federal land, writes guest columnist James Nason. He disagrees the Ancient One/Kennewick Man lawsuit resolution is a model in these circumstances.

Special to The Times

ALAN Schneider and Cleone Hawkinson want us to believe the U.S. Army Corps of Engineers erred in its handling of a recently discovered human jawbone ["Corps' handling of human remains obscures the past," Opinion, Sept. 15].

Their misinformation and disinformation about this hardly aids public understanding, but does promote the views of the group they represent.

Their group would prefer, for their own ends, to ignore parts of the Native American Graves Protection and Repatriation Act (NAGPRA), one of our most important cultural property laws. Fortunately, Congress did not believe the intensive lobbying against the law and unanimously passed NAGPRA, which President George H. W. Bush signed in 1990.

NAGPRA finally gave civil-rights protections to Native American bodies so they cannot be owned by scientists and institutions, like pots or arrowheads, while also outlining procedures to be followed when human remains are inadvertently found on federal or tribal lands.

This jawbone was found along the Columbia River on federal land that had customarily been used by the Umatilla. And, contrary to Schneider's and Hawkinson's charges, the Corps has followed each mandatory requirement of the law by promptly notifying the tribe most likely to have possible cultural affiliation based on customary land use.

Tribal consultations followed. The purpose of such consultation is to allow tribes to decide whether evidence supports their cultural affiliation to the remains. If so, the tribe can claim the remains for disposition.

This consultation included a professional specialist in human bone remains, and the tribe concluded the remains were Native American.

The Corps, as is common in such cases, has begun to carry out its own examination. If the Corps concurs with tribal findings, it will place notices in area newspapers for two weeks, followed by an additional 30-day waiting period to allow additional claimants to come forward. This is hardly a "snap decision" or "rush to judgment," as Schneider and Hawkinson claim.

They also claim that visual exams of jawbones are not useful, and believe that DNA and other tests should be done. Yet specialists know that jawbones and teeth can provide important information on age, sex and origin, while the law makes it clear that the "preponderance of evidence," not "scientific certainty," is sufficient in these cases.

Schneider and Hawkinson want these, and other human remains, held as property for future study — yet the law gives no absolute rights to scientists to study such remains or requires that agencies maintain them for future study. They may not like it, but Congress did not accept their opinions in this matter.

They would also like us to believe that tribes will always try to bias outcomes in order to rebury remains, and that the federal government will always cater to Native American tribal wishes, something tribal leaders would be surprised to learn. Do Schneider and Hawkinson really believe that tribes want to undertake the cost and trouble to rebury human remains that are not Native American? That's just silly.

Tribes are not opposed to science, and many, like the Umatilla, have their own professional archaeological staff. They are opposed to bad science and to scientists who would destroy Native American civil and other rights in the name of "science."

Schneider and Hawkinson hold up the now-infamous Ancient One/Kennewick Man trial as a model. It is certainly a model, one akin to the notorious 1857 Supreme Court decision that decided that slavery was a good thing and that slaves could never be citizens. That version of justice, like the science behind it, was neither just nor right, but reflected the dominant social values and legal culture of that time.

NAGPRA is clear and the Corps appears to have properly applied it. We should let that law, and the Corps, continue to do its work. Science will not suffer, only some scientists who can't seem, unlike so many others, to work collaboratively with tribes in cases just like this.

James Nason is a University of Washington professor emeritus of anthropology and emeritus curator at the university's Burke Museum of Natural History and Culture.

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