Who owns the past?

What was left of the victim was in pieces. A jawbone broken in two, partial ribs, some vertebrae, teeth and a broken pelvis were found scattered around the remote cave on an Alaskan island. Gnaw marks suggested the young man in his 20s might have met his end in the jaws of a bear.

It's a mystery of some vintage — about 10,300 years. But apply modern technology and shrewd deduction, and the few bones and artifacts are enough to provide significant clues about a mystery of the ages: how people came to live in the Americas.

The discovery of the man the Tlingit people named Kuwóot yas.éin pushes back the envelope of human occupation in the region, because the artifacts found with him suggest an extensive trading network by long-standing inhabitants. The findings help to dismantle the old theory still embedded in some textbooks that the first Americans walked across the Bering land bridge around 13,000 years ago. Yes, people probably did, but they were not first.

Kuwóot yas.éin's story has been told quietly because the Tlingits collaborated with scholars. There is less light but much more noise surrounding Kennewick Man, the prehistoric celebrity who walked the Columbia River shore in Southeastern Washington 1,000 years later.

Science vs. native beliefs

A federal court fight made Kennewick Man the symbol of the struggle between science and native beliefs over the telling of the earliest Americans' story. But Kuwóot yas.éin proves it doesn't necessarily have to be so.

In this 10th summer since Kuwóot yas.éin and Kennewick Man were found on federal land, the U.S. repatriation law requires some combination of clarification, enforcement and accountability. Next month, U.S. Rep. Doc Hastings, R-Pasco, will introduce legislation to clarify Congress' original intent in passing the Native Americans Grave Protection and Repatriation Act (NAGPRA). That is, only remains with a substantial cultural relationship to presently existing tribes should be repatriated — given back — to the tribes.

Hastings' bill counters efforts in the Senate Indian Affairs Committee to undermine the U.S. 9th Circuit Court of Appeals ruling in favor of scientists who successfully sued to study the remains. Sen. John McCain, R-Ariz., held a hearing last year on a NAGPRA amendment that would make it easier for modern native people to claim human remains by virtue of common geography rather than cultural affiliation.

The contrasting approaches should revive debate to fine-tune the 1990 repatriation law, a righteous law that establishes a process for museums and federal agencies to return certain Native American cultural items to lineal descendants, and culturally affiliated tribes and Native Hawaiian organizations. While most museums have met their inventory and notification deadlines, many federal agencies have been slower to act. The inconsistencies are so concerning that the federal NAGPRA review committee plans to ask Congress for a Government Accountability Office audit.

Good idea, but any audit should also review how well those agencies follow another part of the law when it comes to handling the rare cases of these exceptionally old remains. That Kennewick Man is a household name and Kuwóot yas.éin is barely known outside anthropological circles is a function of how differently these cases were handled by the federal agencies involved. Each approach contributed respectively to the Washington confrontation and the Alaskan collaboration.

Keith Kintigh, former president of the Society for American Archaeology who helped influence some of the language in the repatriation law, says the federal agency's decision-making is key. The law is clear about proving cultural affiliation. But too often agency officials want the potential controversy off their desks and quickly move to repatriate, he says. That's what happened in the Kennewick case.

"I think the agencies way too often have taken the easy way out," says Kintigh, Arizona State University anthropology professor.

Proving the past

On July 5, 1996, Terry Fifield, the U.S. Forest Service's archaeologist for Prince of Wales Island in Southeast Alaska, took ahelicopter to a remote site on the island's northwest tip . He had been called to collect some human bones found at a paleontology excavation. That night, he called the presidents of two neighboring Tlingit communities as required under the repatriation law and set a meeting within a week.

But he didn't stop there. Two years before, two 35,000-year-old bear bones were found in the cave. Realizing the implications, Fifield also called archaeologist E. James Dixon, now of the University of Colorado, who was studying paleoindian occupation in the region. Dixon suggested he could get a grant for study and liked Fifield's suggestion that native people be hired as interns. The native communities soon endorsed investigation, with some conditions, including that they would be informed first of any findings.

In contrast, the Army Corps of Engineers, which owned the land where Kennewick Man was found, botched the case's early handling so badly, the U.S. interior secretary had to step in. Also, the bones were found in a much more obscure archaeological context, a well-used public park during the Columbia Cup hydroplane races, which draws as many as 50,000 people.

The coroner investigated it as a modern forensics case initially, and the Columbia Plateau tribes were irked when they weren't consulted, especially so when the bones were determined to be 9,300 years old. Media reports of the consulting anthropologist's assertion that Kennewick Man did not resemble modern native people but had European features didn't help either, injecting a shadow of the ethnic subtext that would fan the controversy.

After Corps officials took custody of the bones, their ham-handed mistakes exacerbated the case's rocky start. The Corps quickly announced its intention to repatriate the remains to the tribes without going through the steps of establishing cultural affiliation as required by the repatriation law.

Doug Owsley of the Smithsonian's National Museum of Natural History wrote a letter to the coalition of tribes that claimed Kennewick Man, or the "Ancient One," as their ancestor, including the Umatillas, Colvilles, Yakamas, Nez Perce and the Wanapum band. He offered to collaborate and share findings. But the tribes had no reason to negotiate, since the Corps had made the decision they wanted. So Owsley and seven other scientists sued.

Later, then-Interior Secretary Bruce Babbitt, bucking his own staff's recommendation, ruled Kennewick Man was affiliated with modern tribes. But court-ordered studies to determine cultural affiliation were unsuccessful. A federal judge ruled in favor of the plaintiff scientists in 2002. After prevailing on appeal, the team began its study of the bones, stored at the University of Washington's Burke Museum of Natural History and Culture, in July 2005.

Moving forward

Controversy still swirls around the Kennewick Man study, with some anthropologists and archaeologists critical of the plaintiffs' approach, one they say has created tensions in their relationships with tribes.

Still, when the Corps so blatantly flouted the law, the plaintiffs had no choice but to take a legal stand.

Since the ruling, Corps policies have not changed, said an agency official who oversees Kennewick Man's curation at the Burke. But Christopher Pulliam, deputy director of the Corps' curation and analysis branch, says the agency knows to provide more scrutiny and care in its analysis — and has learned from the experience.

That would not be a bad legacy for the Kennewick Man case, if it were universal. But many scientists say it is not. If anything, it ought to put more federal agencies on notice about how the law should apply, although the ruling technically applies only to the Western states covered by the 9th Circuit Court of Appeals.

If debate is reopened, it should emphasize what the law already says — that the public benefit of scientific knowledge should be factored in. Of course, remains should be repatriated to tribes where there is a known cultural link.

But where such a link cannot be established and the study of the remains can help tell the story of our common America, then they should be available for respectful and ethical study.

Kuwóot yas.éin and Kennewick Man have something to say about how people came to America. But the testimony told through their bones reveals only a small part of the larger mystery. The truth should not be buried.

Times editorial writer Kate Riley is the 2005-06 recipient of the Eugene C. Pulliam Fellowship for Editorial Writing, which provides her the opportunity to probe topics related to America's past. Her email is kriley@seattletimes.com