A Clash of Origin Stories: Reexamining the Ancient One/Kennewick Man Dispute

July 28, 1996, skeletal remains were discovered in an eroding bank of the Columbia River by two students participating in the annual hydroplane races held there. The land there is managed by the Army Corps of Engineers (COE) who has a lease from the nearby city of Kennewick, Washington. Once alerted, COE promptly called in a local forensic anthropologist, James Chatters, who noted what he called "Caucasoid-like features" in the apparently very old skeleton, leading him to speculate that it could be the remains of a fur trapper, possibly as old as 150 years old. Chatters found a stone spear tip embedded in a bone, however, and decided to order carbon-dating of the bones. August 28, the word was released that these bones were approximately 9000 years old. These bones (now called Kennewick Man in the media) are the second-oldest set of human remains ever found in Washington State, and one of less than ten relatively complete, securely dated skeletons more than 8000 years old to have ever been found in North America.

Soon after the announcement of the age of the bones, five Native American tribes jointly pressed the COE for possession of the remains (whom they call Ancient One) for reburial in accordance with NAGPRA. The Native American Grave Repatriation Act was enacted in 1990 as an attempt to put to an end "grave plundering" that was still in existence in the United States. Since Thomas Jefferson began collecting Indian artifacts to display in his foyer, non-Indians have consistently collected Native American artifacts and bones - in most cases to be put on display in museums. Under the provisions of NAGPRA, any artifacts or human remains found on federal or Indian lands are to be handed over to any tribe claiming affiliation with them. The tribes are then to be consulted if any handling, examining, or testing of the remains is desired by any group.

The COE, a federal agency, is especially tasked to uphold federal law. Furthermore, the COE requires regular interaction with Native American tribes because many of the COE projects are accomplished on tribal lands, or require passage through tribal lands for access, or affect tribal lands - such as projects affecting rivers running through tribal lands. These two agencies are bound to future relationships, and are motivated to keep those relationships functioning and positive. Finally, the COE intended to do restoration to shore up the banks of the Columbia River that was eroding at the Kennewick site. Their budget most likely included labor, equipment and materials to do the restoration work, but would not likely include funding necessary to participate in negotiation of what to do about ancient bones. COE subsequently announced its intent to turn over the bones to the Native Americans on September 13, 1996.

Within a month, eight prominent U.S. scientists (all anthropologists - some specializing in archeology) sued the U.S. government in the Portland, Oregon District Court for the rights to examine the bones.1 Aside from the fact that ancient human remains would obviously be interesting to a group of anthropologists, these bones appeared at a politically charged time for scientists studying human history in North America. Since it first gained popularity, the theory that the original inhabitants of the Americas all came from a group of mammoth hunters who crossed the Bering land bridge sometime around 20-15 thousand years ago was not challenged for decades. However, beginning in the 1970s and continuing to today, some scientists believe they can prove that ancient humans came at different times and by different routes to settle the Americas.2 Their voices have been largely ignored by mainstream science until recently. Kennewick Man/Ancient One is remarkable in that its bone structure does not closely resemble Native American ancestors familiar to archaeologists, though the weapon embedded in its thigh (the stone spear tip) is familiar, suggesting battle between two groups of humans. These particular remains could be proof required to change school textbooks, and change the story of history told by North, Central and South Americans. The lawsuit is officially a battle between scientists and the U.S. government, but on another level, it is a battle between scientists who want to challenge the status quo on human history, and scientists who maintain that status quo.

Native Americans claiming the remains included the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), the Nez Perce Tribe, the Wanapum Band, the Confederated Tribes of the Colville Reservation, and the Confederated Tribes & Bands of the Yakama Nation. The Tribes' position is that their traditional oral histories include 10,000 years of human history and that these oral histories tell them their people have existed on the lands of the Americas since time began.3 Therefore, they are assured beyond a doubt that any human remains found are their ancestors. Native American oral tradition also tells the Tribes that they are bound to be stewards of the land, and to ensure proper respect of the land and of the ancestors. Their tradition tells them that once a body becomes a part of the land, it is to remain forever in the land. Native American tribes feel that any unearthing of ancestral remains must be remedied immediately by a proper burial or cremation. Any insensitive handling or examination of human remains is viewed to be disrespectful of the ancestors, and also an attack on the dignity of modern Native Americans. Making matters worse, to perform some scientific tests such as carbon dating requires destruction of a small part of a bone, which removes forever the opportunity for the entire skeleton to be returned to the earth. It is particularly injurious to the Native Americans' identity if they are unable to honor their duty to the ancestors because parts of the bones have been destroyed or interfered with.

Based on the suggestion that the skeleton shows some "Causasoid-type" features, a little-known religious group sued the U.S. government shortly after the first suit,4 demanding that the government allow scientific examination of the bones. The Asatru Folk Assembly (AFA) is a group claiming kinship to ancient Nordic peoples, and following a traditional Nordic religion that honors Viking gods such as Odin and Thor. The AFA believes that the original settlers of the Americas were of European origin, and were eventually replaced by later groups arriving from East Asia. They consider themselves to be the true Native Americans. The AFA demanded, and received, permission from the COE to perform rites and prayers over the remains and near the discovery site. The group's hope is that scientific tests will confirm information supporting the hypothesis that different groups of people settled the Americas at different times, and specifically that the first group to arrive was European.

Media coverage and the court proceedings soon turned the disagreement into a polarized battle between which is the right version of history: the one saying that ancient people migrated to these continents some thousands of years ago, or that humans have always existed here and are the ancestors of modern Native Americans. Specifically, the fighting came down to one point: could the Native Americans claim kinship to the remains based on the wording of NAGPRA? The COE inquired of the Department of the Interior (which is the department it falls under), who confirmed that NAGPRA does not require physical proof of biological relation to remains in order for a Native American group to claim stewardship of the remains.5 Their order to the COE was to turn the bones over to the Native Americans. However, Judge Jelderks of the Oregon District Court criticized the government's handling of this case. The Department of the Interior (DOI) was pressed to review the provisions of NAGPRA with an open mind to possible revision, and the DOI indicated to the court that it was being open about the interpretation on whether or not tribes could claim affiliation. The court determined instead that the DOI seemed committed to an earlier position, while telling the courts that they remained open. Jelderks demanded that DOI make a final determination of whether or not Native Americans could claim affiliation or kinship in this case, whether or not the tribes were linearly related to these particular remains, and he recommended DNA testing to determine this relation.6 Jelderks' points seem to reveal that he was not familiar with NAGPRA, which states clearly that biological relation is not a condition to determine cultural affiliation. DOIs failure to be clear and consistent on this point managed to confuse the court and many others.

April 6, 1998, the COE finally followed through with its plans to restore the eroding Columbia River bank. It dumped 600 tons of rock and dirt onto the site where the bones were retrieved from, and then landscaped the surface with trees to help prevent future erosion. This provoked renewed fury from the scientists who had been prevented from satisfactory examination of the site due to continuing litigation. Their fear is that any artifacts or additional human remains that may have been there with Ancient One/Kennewick Man are destroyed or lost, and the integrity of the site has been compromised from an archaeological point of view due to the introduction of foreign material which will make future dating and accurate interpretation of geology and sediments nearly impossible should they ever have another chance to enter that area for scientific study. Also in 1998, out-of-court mediation was attempted for the first and only time in order to find a way to reach agreement between the parties. The mediation, led by Alice J. Shorett, president of Triangle Associates Inc. in Seattle, was an attempt to solve the 20-month legal battle.7

Litigation continued through 1999, and the remains in question were sent to the Burke Museum in Seattle for safe storage, possibly as a result of the mediation, which successfully discussed movement of the remains. Though off-limits to the public, Native Americans and members of the Asatru Folk Assembly continued to be allowed to perform prayers and rites over the remains. Eventually, a team of five scientists was commissioned by the U.S. government to study the remains as a result of pressure by Judge Jelderks.

In early 2000, the AFA dropped out of the battle citing financial reasons due to the lengthy struggle. Steve McNallen, priest and leader of the AFA, complained that by the DOI's interpretation of NAGPRA, any remains found to be older than 1492 (the beginning of first recorded European history of the continent) will automatically be considered Native American ancestors.8 This is an accurate observation of the DOI's position.9 McNallen feels that his groups' perspective can never be validated by the U.S. government, nor can it be validated by the oral traditions of Native American Indians.

Judge Jelderks agreed with the scientists' position that the purpose of NAGPRA is to reunite modern Native Americans with their ancestors, but given the age of the remains it is not likely that Ancient One/Kennewick Man was actually an ancestor of any living tribe. Jelderks ordered DNA testing to be obtained. When the DNA results were finally returned, Jelderks ruled on the six-year-old case in favor of the scientists on August 30, 2002. Two months later the government and the tribes appealed the decision, and the court barred any examination of the remains while the case was pending. In February 2004, the U.S. 9th Circuit Court of Appeals also favored the scientists. The court stated further that they would refuse to hear the case again. Citing a lack of resources, doubt in the U.S. Supreme Court's likelihood to even hear their case, and the risk that an unfavourable decision would become law the tribes decided not to appeal at the national level.10 The scientists apparently "won" the battle. In July of 2005, a team of scientists finally performed the intense examination of the bones they had desired since 1996.

I believe this is not the end of the story, and that mediation is the only reasonable way to bring closure to the parties involved. The legal case may be settled, but the situation is far from resolved. This case set a precedent whether or not it was ever intended to.11 During the first four years, the government spent a minimum of $1.1 million on the case, but an educated estimate of $3 million in taxpayer dollars to support their position that the remains should be handed over to the Native Americans.12 There are currently no estimates on how much private money was spent in the same amount of time, but it is likely the amount is also significant. It took ten years and millions of taxpayer dollars, as well as at least tens of thousands of privately funded dollars, to arrive at a place that many people are still dissatisfied with, including the scientists - in whose favor the case was eventually decided. There is nothing in place at this time to prevent this same scenario from occurring again, either with current cases of remains being reviewed, or with future remains yet to be discovered. Mediation, if it could occur, would be a way to protect parties from being forced to undergo this process again.

Mediation should include the parties already mentioned: Five Native American tribes, the scientific community (particularly archaeologists), the Asatru Folk Assembly, Army Corps of Engineers, and the United States government - specifically the DOI. Secondary interested parties would be any of the Native American people and anthropologists who feel that the disposition of ancient human remains are integral to their way of life. Secondary parties may also include members of the local community in southeast Washington, who may desire an easing of tension over this local phenomenon.

Interests of the Native Americans would include a desire to receive respect for their oral traditions, which give a complete and satisfactory explanation for them to understand how humans came to settle the Americas. They have no need for, and do not understand, what scientists hope to discover by studying the bones. They believe that their people have always existed on the land of North America, and thus all ancient remains are necessarily from their ancestors. They are not concerned that the skull does not resemble theirs, because their oral tradition teaches that humans change over time to adapt to their environments. Native Americans have legitimate concerns that NAGPRA is no longer a tool of power for them to protect their heritage. There may be an issue of basic human needs as well, based on evidence that a particularly wealthy Native American group, the Pequot Tribe of Connecticut, has chosen to instigate its own massive and highly successful archaeological excavations and open a museum displaying the artifacts.13 One might consider that a wealthy Native American tribe is having more basic needs met than less wealthy tribes, which may explain why they have a large archaeology program. This is a point brought up by Kelman, a mediator specializing in problem-solving workshops, who notes that denial of basic human needs is a source of conflict.14 Azar, another mediator, concurs with this point saying, "the real source of conflict is the denial of those human needs that are common to all…"15 The Pequot are not the only tribe to sponsor archaeologists, however.16 A final interest is that Native Americans will likely want control of their own past - the right to tell their own story of history. This may be another reason why Native Americans become archaeologists and/or sponsor archaeologists.

It would also be appropriate to address colonialist strategies used in American history by some whites to legitimize conquest of this continent by saying Native American tribes were not really the first ones here, and therefore have no more right to this land than anyone else.17 The focus on "Caucasoid-type features" brought some Native American fears back to the surface about the trustworthiness of behaviors of non-Indians. It may be particularly relevant to bring this historical practice to light in the presence of the Asatru Folk Assembly, whose group claims in their newsletter indicate a desire to remain separate and superior to groups descending from East Asians18 (all recognized indigenous people in North, Central, and South America). If possible, the AFA should be made aware of how their group's beliefs are understood to be threatening (and racist) by other indigenous populations.

Interests of the COE include a good working relationship with Native Americans because many of their projects on dams, public safety, restoration, etc. require cooperation with Native Americans. Interests also include clear and consistent guidelines on the interpretation of NAGPRA in order for them to be able to do their job effectively. Instructions on NAGPRA might need to include the appropriate use of taxpayer dollars to fund negotiation over disputed remains. The DOI will likely desire a consistent treatment of NAGPRA as well, and their interests may include the concern that their own interpretation of the law was subjected to critique by a state court.

Interests of the anthropologists are to have their position validated that examination of ancient remains is culturally valuable to them. They would also need other parties to understand that they believe remains this old can help them answer their own important questions about when prehistoric human groups came to the Americas, how many different groups of prehistoric people existed here, and how they got here. Scientists also need other parties to acknowledge that the work they do is intended to help all human beings, not just themselves. Kennewick Man/Ancient One is not the only instance of 8000+ year old bones subjected to NAGPRA, and their valid concern is whether scientists will be allowed to study ancient remains in the future. The anthropologists fear that their way of life is being taken from them by the Native Americans, and that this is happening with an explanation of American origins that makes no sense to them.19 Finally, an interest that I have seen addressed by Native Americans but not by scientists, is that any future remains found on Indian lands will be desired by scientists. With poor relations between them, the opportunity for archaeologists to be invited onto Native American land to examine a skeleton is slim, and it would be a loss to the scientific community if that happened.

Obstacles to addressing these issues in a productive manner will include the deep history of mistrust between Indians and non-Indians, and also between minorities and non-minorities, in the case of AFA. There is a distinct clash of cultures here, and personal identities have been called into question during the course of this dispute, leading to a devaluing of each other's personal belief systems. These differing belief systems are incomprehensible to the different parties, and also appear to be completely unacceptable in terms of what each party has identified as goals. Kreisberg, who studies what he calls "intractable conflicts," points out that methods of dealing with conflict are not often socially regulated when the issues in contention are not believed to be legitimate. This lack of knowing an appropriate social response causes rapid communication and relationship breakdown. It is an example of what he calls dissensual conflict, when parties fight over values they do not share, and at least one of the parties insists that the other adopt their value system.20 This apparent intractable disagreement occurs most clearly between the two most contentious parties: Native Americans who wish to bury the bones, removing forever the chance to study them, and scientists who wish to study the bones, removing forever the chance to rebury them with dignity. An intractable disagreement also appears to be evident in that NAGPRA negates the core beliefs of the AFA by stating that any remains older than European colonization will automatically be considered to be Native American.

As mentioned already, this case set a precedent, but if there are any changes, those changes will also set a precedent. I believe the case is a good candidate for mediation because most of all it would be an opportunity for all the parties to again have a chance to be involved in decision-making which will direct the future behavior of parties involved when ancient remains are discovered in the United States. Kelman says that when solutions are created between parties working together: they are more likely to address the needs and fears of both parties, the parties are more likely to feel committed to the solutions, and the process of creating a solution together actually forms relationships between the parties.21

Court appeals are finite but mediation is not, and parties involved in this case remain dissatisfied for the most part. I believe also that the Native Americans may desire mediation because many Native American traditions include mediation which was in use long before it became popular among mainstream Americans. This type of traditional mediation usually has a primary goal of healing all parties, and healing the community in which a dispute occurred.22 This situation appears to me to be an area in which healing can still occur, and needs to.

In order to find the best mediator for this dispute, it is important to keep in mind the deep distrust of some of the parties, and in particular, the fears of the scientists and of the Native Americans. It would be best if the mediator was not representing the U.S. government, but a foreign mediator with experience negotiating with minority groups may be well received. Indian Dispute Resolution Services (IDRS), who has had successful experiences mediating between Native Americans and government agencies, would probably be a satisfactory mediator for the Native Americans.

It is reasonable to assume that the mediator should not be a scientist. Someone specializing in a scientific field is more likely to value empirical data over oral tradition. However, there are several reasons why someone who is both a scientist and a mediator would be ideal for this conflict resolution. One important exception, for example, is Native American archaeologists who claim group membership in both of the most adversarial of the parties. These may be the only people able to effectively "translate" group values to both the Native American and scientific parties, and have been identified already as a possible mediator between the two.23 In addition, a positive effect of having a modern scientist would be that the person would be well aware that the aim of scientists today is no longer grave robbing, and that many (if not most) anthropologists hold great respect for all ancient remains, even though they express it differently than Native Americans do. There are many mediators today who have a background in anthropology. Douglas P. Fry, Jennifer Beer, and William Ury are just a few examples of leaders in the field of mediation who are trained in anthropology.

Other possible mediators could include non-Indians with little investment in the outcome, who would be trusted by scientists. However, the mediator should be someone who has experience mediating between Indians and non-Indians. Fortunately, there are many mediators who have this type of experience, such as Joe Epstein, the president of Conflict Resolution Services, Inc., and Triangle Associates, Inc. (mentioned earlier).

I believe the only way to get parties to begin mediating would be with an emphasis on "good offices," which in mediation means beneficial acts performed for another. Good offices include maintaining mediator integrity and providing a safe environment for parties in a dispute, among other things. It is imperative to use mediators that would encourage trust from each party, to manage interactions so all parties feel included and respected, and to hold meetings in a place that feels safe to all parties. Because of this, I would suggest a team of mediators, which would include IDRS, Triangle Associates, Inc. (since they already have knowledge and experience from these parties and this dispute), a mediator with a background in anthropology, and a Native American archaeologist who has a desire for peaceful negotiation.

IDRS is the best choice for a mediator which would gain the trust of the Native American party. I have identified the Native Americans as a party needing great reassurance in order to feel trust, and IDRS is an Indian-focused organization. IDRS has a lot of experience in mediation, and also of achieving successful outcomes in mediation between Indians and non-Indian parties. Most importantly, much of their experience is between Indians and U.S. government organizations such as public schools, the Department of Social Services, and the U.S. Forest Service. IDRS even has a division of mediation dedicated to "government-to-government" (Tribal-to-U.S.). This is important because NAGPRA concerns artifacts and remains found on federal or Indian lands. The assets of IDRS are that they understand tribal perspectives which are not commonly known among non-Indians. They may have a good opportunity to make the Indians feel as though they are being heard. They may also make the AFA feel as though they are being heard and respected because they are a minority group, despite their uncommon claims of kinship to the remains. Likewise, being in a white, Western world, the IDRS may have an easier time empathizing with the scientists and the DOI/COE perspectives than those groups would have understanding Indian perspectives. Traditional tribal mediation aims for healing of all parties and improvement of the community.24 This would be a valuable approach that IDRS may promote. A down side is that the Native American may be perceived to be the constituents of IDRS, which would likely be a source of mistrust and suspicion by all other parties. Interests of IDRS may include specifically looking out for the Native Americans, noting an ugly, abusive history with this continent's colonizers. This may cause them to lean to the side of the Indians even if their aim is neutrality.

There is a possible problem on the topic of neutrality. While most parties may expect an uninvolved, strictly neutral mediator, traditional mediation - especially Navajo - often expects that the only good mediator is one well known to parties and also highly involved.25 Navajo mediators are expected to be active participants and to push parties toward a wise agreement - and necessarily to have the power to do this. Consequences of more involved mediation could result in a much more valuable participation and trust by Indians, and more participation by any party that responds well to pressure imposed upon them - on the positive side. On the negative side it would result in further breakdown of communication by those who don't respond well to pressure - likely the scientists in this case. It has clearly been shown, however, that neutrality is not the only way for a mediator to successfully help parties come to an agreement. In fact, man mediator feel that it is the appropriate role for mediator to come to the table with power and leverage, a vision of the desired outcome, and the determination to use "sticks and carrots" to push parties in the direction the mediator feels is best.26

I believe that IDRS would be interested in engaging in this dispute. Though based in California, they have mediated in many U.S. states, including the city of Portland, Oregon, where the Kennewick Man/Ancient One lawsuits were heard. Their locality would be an advantage, as parties may be more interested in having a local mediator than some person or group not from the West Coast. If IDRS does not at first want to be involved, they might be reminded that it is their specialty and in this realm they have had dramatic success. They are a logical and likely choice with a chance of success better than other groups. It's a chance to heal where healing is desperately needed.

On the mediation team, I would recommend the addition of Native American archaeologists. In the words of Dorothy Lippert, a Choctaw woman who is an archaeologist and a case officer at the Smithsonian National Museum of Natural History's Repatriation Office, "Being Native American, and studying archaeology, I couldn't help but get pulled into it all. I would hear one thing in my archaeology classes, and then I would hear another in the Indian community. Neither one could hear what the other was saying. I felt like I had a responsibility to make each point of view clear to the other group."27 Other Native American anthropologists might be found through contacts with the Society for American Anthropology (SAA), which published Native Americans and Archaeologists: Stepping Stones to Common Ground (1997, N. Swidler, AltaMira Press, Walnut Creek). SAA has members who remind the organization that an archaeologist's work is highly improved by working relationships with Native Americans. Archeologists need the insight that could be gained by the contributions of indigenous people, for without it, any theories about discoveries in excavations are purely speculation.28 Native American archaeologists are more easily found than one might imagine. They include Leonard Forsman, Chairman of the Suquamish Tribe, Joe Watkins, Chair of the Native American Relations Task Force and a Choctaw Indian, Rae Gould, a Ph.D. candidate at the University of Massachusetts and a Nipmuck tribe member, and Diane L. Teeman a graduate student at the University of Oregon and a member of the Paiute Tribe. Like Lippert, these people may all recognize their unique position in occupying worlds of both Indian and scientist, and may feel inclined to contribute to improving future relations between them.

Native American archaeologists may be the ideal mediator in a conflict of this kind, but I am not aware of any who have mediation experience. It is for this reason that I recommend they should be part of a mediation team. An experienced mediator such as IDRS could benefit from the knowledge of a Native American archaeologist, and the Native American archaeologists who wanted to help the different parties understand each other could benefit from the experience of IDRS. It will be an easier task to ensure that mediators with a background in anthropology are present at the table.

Whether or not the disputing parties would accept this team as a mediator at first is unknown. The Native Americans may feel like it would be just another venue in which to be abused, or "another broken promise," in the words of Glen Howard Pinkham, a member of the Yakama Nation Tribal Council. However, it could be very likely that the Native Americans would like to mediate, since they have already said as much. Pinkham says he would like to have Smithsonian scientist Doug Owsley (one of the eight scientists in the lawsuit) to come to the Yakama Nation to talk about the future of scientific study of human remains.29 Indians have attended mediation on this subject already (with Triangle Associates, Inc.), though they were not parties. They may be willing to do it again, and with the dignity and power of participating as a party this time. Also, the ruling of the courts was not in their favour, and Native Americans may be interested in trying to get the remains back for repatriation once again.

The COE would not likely think they have much invested in mediation, nor in the choice of a mediator. If this is true, they will not likely be interested in participating unless they are pressured to. They will most likely be motivated by money and politics. Political pressure would be the most effective way to get COE involved. If a government official makes it a priority, the COE will be instructed to participate. Thus the pressure needs to be on a superior office, and not on the COE. Cost analysis would be the primary means of motivating both the COE and their superiors. It would need to show future savings potential if a good working relationship with scientists, Native Americans, and themselves is negotiated in the case of future archaeological discoveries.

The Asatru Folk Assembly is pleased that the bones in this case have been examined, and they will be suspicious of a Native American mediator because that group is the biggest threat to the goals of the AFA. The AFA will want proof of respect for scientific method and the value of the study of human remains. They will also want respect for their group's claims and also for their desires to have access to remains for religious purposes.

Scientists will initially reject IDRS, and most likely the idea of mediation itself. As things currently stand, scientists have full access to the study of the Ancient One/Kennewick Man's bones, and mediation would be seen as a threat to that arrangement. Scientists feel that they are under attack and vulnerable to what they believe is Indian appropriation of their way of life. Their main resistance will be that the legal ruling was in their favour, and they will not want to open up that particular case again, for fear that they may have to give up the bones. The only way to motivate them to come to the table is to remind them of the nine years of expensive and frustrating litigation which they have just gone through. Additionally, remind them that the site of removal of the remains has been practically destroyed, and had it been available to them for study, they may have had the opportunity to gain a much broader knowledge base concerning the valuable remains of which they are now in possession. Finally, remind them of how archaeological evidence is always improved by the insider knowledge that can be gained from any indigenous population who is associated with that evidence. It is a standard of how archaeologists work: combining the empirical data with the science of cultural anthropology. This case should be no different than any other, and the scientists will recognize that, even though they may have difficulty admitting it. And finally, if tensions remain this severe between scientists and Native Americans, then if human remains are ever discovered on tribal lands in the future, scientists will probably never be allowed to see them. Good relations might secure an opportunity to access remains no matter where they are found.

In order to get these parties to the table, mediators need to meet with them face-to-face. This will probably require extensive background research to begin with, so that during contacts the mediators will be knowledgeable. Furthermore, it is likely that a lot of background work in the way of telephone calls, emails, faxes and letters will be necessary to encourage the parties to even attend a face-to-face meeting. Initial extravagance in accommodating parties' needs and schedules may pay off in their eventual agreement to mediate. It may be more appropriate if IDRS contacts the Native Americans, and the archaeologists contact the scientists, though these mediators need to be absolutely forthright about who else will be mediating. Of utmost importance is that the mediators maintain spotless credibility throughout the process, so it needs to begin with a transparent explanation of who exactly will be at the table, and why.

Mediators should get the scientists on board fist. They will be the most reluctant and will stand to lose the most (in their opinion). If the scientists agree to sit at the table, it could be seen as a show of good faith to the Native Americans. The Native Americans will need to be the next party to agree to mediation. All other parties would likely be encouraged to participate if they see these two parties agreeing to discuss the issues again.

Mediators should commit to meeting each party face-to-face at their convenience, in order to begin as smoothly as possible. Begin with individual meetings and attempt to make them as informal and as unhurried as possible. Allow plenty of time to get the issues out and on the table. This topic is emotional and cuts to the core of personal identity of parties, so it will be especially difficult and will take time before their true feelings and opinions begin to emerge. Parties are ripe for mediation because the issues are still burning for many people who were involved or interested, but after ten years they are tired of battle. Scientific work continues on the remains today, and results are still being uncovered in 2006. As more time passes, the situation will feel less critical, so I believe the time for mediation is now.

Whether or not to allow observers should be up to the parties. It seems obvious that the media should not be privy to any information whatsoever, based on how the media has aggravated the situation in the past. Media would polarize the discussion and inhibit productive discussion. In fact, parties may wish to obligate each other to a vow of secrecy. Traditional beliefs in community healing may be a reason for community members to attend. Perhaps there should be no observers, but community members could attend as parties. In other words, the right to listen would come with an obligation to participate.

In the very first meeting, it would be best to have parties share their stories. This would accomplish several goals of the mediator. First of all, sharing this time together, and hearing personal information about each other would help them begin to form relationships. Being able to see the common human thoughts and worries and daily challenges will help parties see each other more as equals. Additionally, if people tell their painful stories, the others will be able to sense their genuineness. It is one thing to complain via a lawyer in court, where the motivation to say something could arrive from any number of secret plans. But to speak from the heart in front of the person believed to be doing one wrong eliminates some of the assumptions that the speaker is deviously planning some new attack. Manipulation might still occur - I am not being too idealistic - but an opportunity for personal story-telling would still be better than getting each other's side from the courtroom or from the papers.

The agenda of the first meeting with all parties should be that there is no negotiation. All parties should try to focus on identifying their main goals while listening to each others' position. Focus on why each person has a particular position. Lay out what each person believes is the worst possible outcome, and have all parties try to understand why that would be the worst, from the speaker's perspective. I believe that the exercise of thinking out each party's BATNA would help them realize that mediation needs to occur.

Another very important point to discuss in the beginning is for the mediator to point out that the reason the issue has been so heated is because all parties have a tremendous respect for these skeletal remains. The incalculable value of Ancient One/Kennewick Man is the most important point to all parties, and this is common ground. While they do not understand each other's methods of valuing the remains, it would be good if all parties could agree that they all value the remains.

It will be challenging to begin this sort of dialogue on topics of religion, personal identity, honor, tradition, and rights. These topics have been identified as those central to what Stone, et al. call "difficult conversations."30 A way to encourage these stories of pain would be to ask directly. Ask the Native Americans how they are dealing with the situation now that the court did not rule in their favor, and ask the scientists how they are dealing with the aftermath of such a costly and negative battle. A mediator's role in listening to the stories of pain will be to help the parties reframe the message they are sending. A distinction needs to be made between truth and perceptions, blame and joint contribution, and intent and impact.

Issues to bring up once parties are in mediation will need to include a discussion about why one can't choose oral tradition vs. science. The media has done a disservice in this highly publicized account, and has shaped the dispute into something that seems intractable to the parties. The work of a mediator will begin with attempting to undo that damage, and to show how the situation is not intractable, and that what appears to be a polarized dispute is not a fight between identities as it has been made out to be. The mediators must make it very clear that the point of mediation is NOT to prove or disprove the validity of any party's position, but to plan a workable process for what to do with ancient remains found in the future by using the Kennewick Man/Ancient One as a test case.

Cultural affiliation should be specifically addressed, but it will be especially difficult. Kinship and cultural affiliation cannot be avoided because they are specifically mentioned in NAGPRA, and therefore addressed by a federal law. They are a significant vehicle for providing Native Americans with power to voice their claim on artifacts and remains. However, the recent court verdict has also proven that a lack of kinship ties can be the scientists' most potent tool for keeping bones away from the Native Americans who want them. Ideally, mediators would do a great service to the country if they could help the parties create a satisfactory way to address the way cultural affiliation is determined, and what to do whether cultural affiliation is determined in the end, or not. What will challenge all parties is that claims to kinship/cultural affiliation are meaningful to different people for different reasons. Even if one party does not understand the other party's belief system, it is important for them to acknowledge those differences to each other.

A mediator should help parties define what their individual goals are. This would be an important, positive step toward an agreement. Mediators could help parties shape goals that are workable. In other words, to take what parties think is their goal, such as "Our goal is to keep those Indians away from the bones," and make it into something that more precisely suits their needs, like: "Our goal is to be able to perform mitochondrial DNA tests on Kennewick Man without outside pressure and aggravation."

Mediation would open up a case that might seem resolved to some. In other words, scientific testing has been done, and Native Americans have been denied the right to bury the bones. It would be appropriate to revisit those topics again, and to ask many questions of the parties. Are scientists satisfied with the work that has been done? What more could be done? What concerns do the scientists have now that testing has been done (i.e. do they have hopes or plans for future technology, and are they concerned about the appropriate use of the information they have gleaned from those studies). And on the other hand, what concerns do the Native Americans have now that testing has been done? Are they dealing with the fact that some parts of the bones have been destroyed? Are there any ways to remedy that situation traditionally? Do they feel some types of testing are better than others? Is there anything the scientists can do to help the Native Americans in their duties to their ancestors?

This leads me to a personally compelling question, which hopefully could be discussed after trust has been built between the parties: what are the chances of reburial by traditional Native American methods now that the bones have been examined? What are the specific oppositions to the burying of the remains at this point (the idea of "losing" perhaps)? Is there any possibility of future exhumation if some scientifically compelling reason comes up in the future, such as dramatically improved technology, and what would be a creative but acceptable way to approach that possibility? What, if anything, do the Native Americans feel would qualify as a compelling reason to re-examine the bones once they've already been examined? Would the suggestion of exhumation be so offensive to Native Americans that it should never be brought up?

There also may still be the possibility of excavating the site where the bones were found. It is possible that some other type of significant find could be there, since most recent reports on the study of the remains have led to the conclusion that Kennewick Man/Ancient One was buried intentionally.31 Under any circumstances would this be acceptable to the Native Americans? If this is discussed, the cost of the project would have to be determined, as well as who would pay for it. COE would likely want assurance that they would not suffer financially due to any further scientific examination of the site. The COE would also need reassurance that safety to citizens would be taken into consideration, if the integrity and stability of the riverbank are interfered with.

And most of all, mediators would need to find out from parties if a compromise is possible. There needs to be an examination of the possibility of working together on future archaeological finds, and possibly a temporary exchange: scientific study for a set amount of time, to be followed by a tribal burial. Perhaps Native Americans would find it acceptable to have the Connecticut Pequot tribe manage future archaeological excavations, since they are currently so successful with it, or the Yakama archeologist skills already offered by Pinkham.32 It would be tremendously helpful if parties could draft a statement for use by future parties in the case of another skeleton being unearthed in the same region. Now that these parties have been involved to such a depth, what would they want to say to parties of the future about the same scenario? Perhaps this type of statement could be used to improve NAGPRA, or to assist a court, or to guide parties in future mediation.

In my opinion, the best approach to mediation between these parties would be an attempt at Restorative Justice, leaning heavily on a humanistic approach, mindfulness, and traditional Native American methods of mediation, all of which aim to heal communities. There is a "cycle of victimhood" already begun for many Native Americans, and there is a threat of another cycle of victimhood which could envelop the scientists if things do not change. In a cycle like this, parties are wounded in some way, and never get through the process of grieving in a healthy way. This prevents them from moving ahead in a positive direction, or inclines them to cause further harm by retaliating. The wounds here appear to be that the parties do not feel like their personal beliefs have been validated, and they are grieving the loss of that validation. Their means of attacking in retaliation is to use legal pressure to take something of value away from each other - in this case the ancient remains. This fighting is an effective way to burn off energy, but it does nothing to bring resolution to the pain of grieving.

The key point at which the parties could move from a cycle of victimization into a cycle of problem-solving, would be to turn the anger they feel into acknowledgement. As I have said already, all of the parties involved - but especially the scientists and the Native Americans - need to acknowledge for each other that their different systems of value have merit. They need to admit that there are truths to other people that do not make sense, but are still true to the people who believe it. As Kelman explains in his essay on interactive problem solving, we collect data which supports what we know, and filter out what doesn't fit.33 This alters our perceptions and makes it even more difficult to bridge the distance between dissonant positions. If parties believe that their opposing party acted in accordance with their own truth, perhaps they can forgive them for what they have done. After receiving forgiveness, a party is more likely to be able to feel empathy.

This is also a Humanistic Approach to problem-solving. There are basic needs that must be met, and of them, security is critical. Native Americans feel their security is in jeopardy because NAGPRA has been overruled in this one case. There is no way to be sure that won't happen again, and they have no way of anticipating how to prove the legitimacy of their demands when the U.S. government isn't consistent about what it wants. The scientists are not feeling secure either, because their careers are geared toward examining ancient human remains, and now it seems like NAGPRA threatens to take that away from them. For both parties, their value system can be considered in the same way as a religion. As Dr. David Steele said, "religion is a marker of identity." Identity, of course, is another basic human need, and all parties have had this challenged, from the Native Americans and the scientists, to the AFA, whose claims are made irrelevant through NAGPRA, and the U.S. government, whose interpretation of the law was critiqued.

If parties' basic human needs are met in providing a safe environment in which constructive and respectful dialogue occurs, I believe a movement from hostility to problem-solving is likely. Mediation is needed, and I believe all parties could agree with this to such a degree that they would eventually agree to participate in mediation. The choice of appropriate mediators is important, and a team of mediators coming from different perspectives would be most likely to serve the needs of all parties. Finally, the potential positive benefits of coming together on any level would serve these parties, no matter if something fundamental is agreed upon or not.