All in all, though, the "motion of order" is ingeniously constructed. NAGPRA doesn't even come up until page 19 of the 26-page motion, and is then dismissed as irrelevant because "its application to the skeleton is only hypothetical at this point. . . . NAGPRA cannot apply unless and until scientific study establishes that the skeleton is Native American." This appears to mean that only scientists—not Congress, not the courts, not the traditions of the people themselves—are qualified and entitled to decide who's Native American and who isn't: in effect, to judge the merits of their own case.
Native American claims for protection of their cultural heritage often get pushed aside by such arguments, even when they seem to have the law to back them up. "You'd think on the face of it that we have a pretty good case here, wouldn't you?" says Rory Snowarrow Flint Knife, a Lakota Sioux currently working with the legal services office of the Yakama. "But I'm not at all sure it's a winner. We're not even directly parties to the suit, you know. This is between the scientists on the one side and the Corps of Engineers and the Department of Justice on the other. With Portland about five hours away from where most of our people live, we can hardly even afford to be interested bystanders."
JERRY GAY
A previously undisclosed cast of Kennewick Man's skull, made from the original found along the banks of the Columbia.
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Off the record, many anthropologists talk about Native American resistance to their science the way authorities in the '60s and '70s talked about other minorities, "small numbers of outside agitators," "radical agendas," and all. Chatters, more candid than most, sees the new assertiveness of Native Americans concerning traditional beliefs and practices as nothing less than a homegrown variety of the ethnic and religious fundamentalism roiling many other nations around the world.
"I've been reading up on fundamentalism lately, and the resemblances are remarkable. Even though they hide behind tradition, most of these people are not traditional tribal leaders: They're a fringe element, young, educated—or under the influence of the educated—ambitious, impatient, and intolerant of any ideas but their own."
On the surface, Chatters' description of the typical Native American radical fits a man like Rory Flint Knife, but only on the surface. Flint Knife grew up "a country boy" in the upper Midwest, but his path back to the country around Yakima was a long one. "I'm only one-quarter Native American by blood. My grandfather said that taking my grandmother off the reservation was the best action of his life. My father totally turned his back on his heritage. I had a law degree from Stanford and a professorship in Indian Studies at the University of California at Berkeley before I realized that I couldn't reconcile what I was doing with who I was; that when I got up in front of students to talk about Indian law, what I really was talking about was law made by Whites and imposed on Indians.
"Three years ago I came here. I had to get back out of the city, into the country, and in touch with the people who have to deal with the consequences of that law every day of their lives. And what's happened so far in this case is classic. Most Native Americans believe that human remains should stay in the earth and that subjecting them to study and analysis in the name of science is desecration. We've got a law that says Native American beliefs and traditions and practices are supposed to be regarded in such cases. But as soon as someone shouts 'science,' we find that law is open to question."
Whatever the ultimate disposal of the bones of Kennewick Man, the handling of this one set of remains seems to have torn open once more all the wounds so painstakingly sutured by NAGPRA. "Cowboys and Indians" is no longer played much by children in America. But some of their elders keep the game alive. How curious that in this round, it's the Native Americans who are the apostles of Law and Order, while white scientists old enough to know better follow the carefree Cowboy Way.
ROGER DOWNEY is a senior editor at Seattle Weekly.
