Tribes’ Win in Fight for La Jolla Bones Clouds Hopes for DNA Studies

The San Diego Archaeology Center holds a pair of extraordinary skeletons. Dating back about 9,500 years, they are among the oldest human remains ever found in the Americas.

A number of scientists would love to study the bones, using powerful new techniques to extract any surviving DNA.

“These skeletons of such antiquity are so important for helping us understand what happened in the past in North America,” said Brian Kemp, a molecular anthropologist at Washington State University.

But for years, the remains have been out of reach, the subject of a legal struggle that pitted three University of California scientists against their own administration and the Kumeyaay, a group of Native American tribes.

The skeletons were found in San Diego’s La Jolla community in 1976 by an archaeology class digging on land owned by the University of California, San Diego. In 2006, a group of tribes laid claim to the skeletons, and the university later agreed to transfer custody. To block the transfer, the scientists went to court.

After losing in lower courts, the scientists in November asked the United States Supreme Court to become involved. This week, the court declined. That decision swept away the last obstacle to the transfer.

“It’s hard to describe how bad I feel,” said Robert L. Bettinger, one of the plaintiffs in the case and a professor at the University of California, Davis. “To have them slip through our fingers this way is a tremendous loss for science.”

Steven Banegas, spokesman for the Kumeyaay Cultural Repatriation Committee, which claimed the skeletons, said the tribes would meet to decide what to do with the remains. He did not rule out that scientists could study them. “These things we need to discuss,” he said. “We want to be the ones who tell our own story.”

At the time the skeletons were found, archaeologists were relatively free to do with Native American remains as they saw fit. That changed with the passage of the Native American Graves Protection and Repatriation Act of 1990. The law was a response to some ugly chapters in the history of research on Native Americans. Grave robbers had plundered skeletons and sacred objects, some of which were stockpiled in museums.

The act established a legal procedure by which Native Americans could claim cultural objects and human remains kept in museums or found on public land. More than 1.4 million objects and remains of 50,000 people have been transferred under the act, but some cases have sparked conflicts.

In 1996, for example, hikers stumbled across an 8,500-year-old skeleton in Kennewick, Wash. Native American tribes claimed the skeleton, intending to rebury it. But scientists challenged their claim, and after eight years of legal battling, they won the opportunity to study the remains. Most recently, geneticists retrieved enough DNA from the Kennewick Man’s bones to reconstruct his entire genome.

Last year, the scientists reported that he was closely related to living Native Americans. That finding strongly weighed against earlier claims that Kennewick Man might be related to Polynesians or even Europeans.

Ancient skeletons like Kennewick Man and the La Jolla remains can offer clues to how humans spread across the Americas. Researchers generally agree that people moved from Asia over the Bering Land Bridge roughly 15,000 years ago.

How they spread from there is still the subject of fierce debate. Did they move down through the center of North America? Did their route hug the coast? The La Jolla remains, excavated from a cliff overlooking the Pacific, could offer some clarity.

The Kumeyaay Cultural Repatriation Committee, representing 12 bands of Native Americans in Southern California, filed a claim for the La Jolla remains in 2006.

To determine what connection the remains might have to its people, the committee asked Arion Mayes, a San Diego State anthropologist who had worked on Kumeyaay skeletons, to conduct an examination, on the condition that she not destroy any of the material. “It was a great honor,” Dr. Mayes said.

Dr. Mayes found clues about what the two people had been like in life. One was a man who died in his mid- to late 20s. He had a strong right arm that he may have built up through the use of a spear thrower. The other, a woman in her late 30s or early 40s, had teeth that showed signs of having been worn down by stripping fibers for making baskets.

“She used her teeth as tools,” Dr. Mayes said.

The University of California, for its part, appointed a committee of professors to evaluate the tribes’ claim. In 2008, they concluded that the skeletons were “culturally unidentifiable.” The grave contained no objects that might have established a cultural link, and the committee found no compelling evidence that these were ancient relatives of the Kumeyaay people.

Even so, Dr. Bettinger, a member of the committee, said in an interview that he grew concerned that the university would rush a transfer of the skeletons, and that the Kumeyaay would deny access.

So in 2010, he asked the university for permission to study the remains. So did Margaret J. Schoeninger, an anthropologist at the University of California, San Diego, and Tim D. White of the University of California, Berkeley. Dr. Schoeninger was denied, and Dr. Bettinger and Dr. White say they never received a response.

Instead, the University of California announced that in 2011, the skeletons would be given to the La Posta Band, one of the Kumeyaay bands. Dr. Bettinger, Dr. Schoeninger and Dr. White sued to stop the transfer, arguing that the university had not made an adequate finding about the skeletons.

Dr. Kemp of Washington State, who filed an amicus brief on behalf of the scientists, said the university had failed to meet the requirements of the repatriation act. “The law hasn’t been followed,” he said.

But the court arguments didn’t directly address the university’s actions or the scientific importance of the skeletons. The University of California argued that the Kumeyaay bands had to be joined in the suit. Because the bands had tribal immunity, the university argued, the scientists couldn’t sue them.

A district court agreed and dismissed the suit. In 2014, the United States Court of Appeals for the Ninth Circuit also ruled against the scientists.

In November, the scientists petitioned the Supreme Court to send the case back to the circuit court to consider whether tribal immunity can be invoked in claims arising under the repatriation act. The court rejected the petition with no explanation.

“It’s a tragedy and a disgrace — a tragedy for science, and a disgrace for the court,” said James McManis, a lawyer for the plaintiffs.

Mr. McManis said the decision could leave researchers at a disadvantage because tribes will be able to claim immunity in disputes over remains.

The Supreme Court’s denial marks the end of the road for the scientists. The task now, said Dorothy Alther, the lawyer for the Kumeyaay, is “to contact the university and see what the next steps are for repatriation.”

Kate Moser, a spokeswoman for the University of California, said by email, “We believe the university process has achieved a decision that is in accordance with both the law and our commitment to the respectful handling of human remains and associated artifacts.”

Dr. Mayes said she hoped that scientists and Native Americans would find more constructive ways to resolve such conflicts. “When you end up in the courts, things get volatile and the conversation gets lost,” she said. “Only by having mutual respect will we have a positive situation in the future.”

While some tribes have rejected ancient DNA studies, others have decided to go forward with them. Mr. Banegas wouldn’t rule out that possibility for the La Jolla remains once they come into Kumeyaay custody. “That’s not off the table,” he said. “I wouldn’t want anyone to think we’re closed off.”