Ancient American Skeletons Safe from Reburial—For the Moment

A federal court judge in San Francisco granted a temporary restraining order last week to prevent the University of California, San Diego (UCSD), from handing over 9000-year-old human bones to Native Americans, in the latest twist in an unusual custody battle for two human skeletons that are among the earliest found in the Americas.

Three University of California professors filed a lawsuit last week to prevent UCSD from transferring the bones, which have been described as better preserved than those of the Kennewick Man, another ancient skeleton that has been the center of debate and lawsuits.

The restraining order will be in effect until Friday, 11 May, when Judge Richard Seeborg of the United States District Court for the Northern District of California will decide whether to extend it until the case is settled, according to Jim McManis, an attorney in San Jose, California, who represents the professors pro bono.

Meanwhile, in anticipation of the professors' lawsuit, members of the Kumeyaay tribes filed their own lawsuit in federal court in San Diego on 13 April demanding transfer of the skeletons.

The bones were discovered in 1976 during an excavation at University House in La Jolla, which is the traditional home of the UCSD chancellor. The Kumeyaay, representing 12 federated tribes, have been seeking the remains for reburial, claiming that they were found on their traditional lands. Under the Native American Graves Protection and Repatriation Act, museums and other institutions must repatriate remains and artifacts that can be traced to a tribe.

A controversial rule concerning this law, issued in 2010 by the Department of the Interior, gives tribes a way to recover even remains that cannot be linked to specific groups. The new lawsuits may test that rule.

After years of legal dispute, UCSD officials were preparing to give the bones to representatives of the Kumeyaay, against the advice of a UCSD scientific advisory committee and a separate system-wide UC research committee that reviewed the claims.

The professors, anthropologist Margaret Schoeninger of UCSD, paleoanthropologist Robert Bettinger of UC Davis, and paleoanthropologist Tim White of UC Berkeley, filed the lawsuit to block the repatriation, saying that there is no evidence that these bones are related to the Kumeyaay, and in fact, the evidence suggests otherwise.

The scientific advisory committee found that the Kumeyaay language moved into the region 2000 years ago, and that the Kumeyaay traditionally cremated their dead rather than burying them. Moreover, Schoeninger's lab's analysis of stable isotopes from samples of the skeletons indicated that they ate a diet of marine mammals and offshore fish—a coastal adaptation that contrasts with the desert origins of the Kumeyaay.

Anthropologists who study the bones and DNA of Paleoindians also agree that the remains are probably too old to have any affiliation, cultural or otherwise, with tribes living in southern California today.

Because of their great antiquity, the bones are important for exploring the mystery of the identity of the first people to migrate from the Old World to the New World. They also should be saved for future scientific analysis, the lawsuit argues, because new methods are being developed to extract and study ancient DNA and to analyze the diet and lifestyles of ancient people.