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The Kennewick Man Case | News & Comment

Comment on the 9th Circuit's Opinion

On February 4, 2004, the US Court of Appeals for the Ninth Circuit entered a unanimous decision in the Kennewick Man lawsuit (Bonnichsen et al., v. U.S., No. 02-35994 DC). The three-judge panel included Ruggero J. Aldisert, Senior US Circuit Judge for the Third Circuit, sitting by designation; Susan P. Graber, and Ronald M. Gould.

Judge Gould wrote the 30-page opinion, which upheld the district court's decision of August 30, 2002. The court set aside former Interior Secretary Babbitt's decision to classify the 9400 year-old Kennewick Man skeleton as Native American and thus NAGPRA does not apply to these remains. The court has also affirmed that the suing scientists be allowed to study the skeleton.

Some interesting points from the court's decision:

Reviewing the background of the case in Section I, the Court noted concern with claims on religious grounds:

"Indian tribes from the area of the Columbia River opposed scientific study of the remains on religious and social grounds. 8"

Footnote 8: "We note that the Ethnic Minority Council of America, in its amicus brief, urges that: 'Potential descendants [of Kennewick Man] may not be members of the Joint Tribal Claimants or believe in the expressed "Indian" religious interpretations made by the political leaders of the tribes'.... Further, as suggested by the amicus Ohio Archaeological Council, in the absence of a conclusive determination of cultural affiliation, Tribal Claimants cannot establish that permitting Plaintiff-scientists to study the Kennewick Man's remains offends their religious views or customs." Opinion p.1587.

"Congress's purposes would not be served by requiring the transfer to modern American Indians of human remains that bear no relationship to them. Yet, that would be the result under the Secretary's construction of the statute, which would give Native American status to any remains found within the United states regardless of age and regardless of lack of connection to existing tribes.17" (Opinion p. 1598)

Footnote 17: "...Indeed, the government in oral argument even said that if remains of a mythical first man and first woman, an "Adam and Eve," were found in the United states, those remains would be "Native American" under the government's interpretation of NAGPRA. Thus the government's unrestricted interpretation based solely on geography, calling any ancient remains found in the United States "Native American" if they predate the arrival of Europeans has no principle of limitation beyond geography. This does not appear to us to be what Congress had in mind. Nor does the legislative history support NAGPRA coverage of bones of such great antiquity." (Opinion p. 1598).

"NAGPRA requires that human remains bear a significant relationship to a presently existing tribe, people, or culture to be considered Native American. The district court did not err in reaching that conclusion. (Opinion p.1600).

"If accepted, the Secretary's interpretation would mean that the finding of any remains in the United States in and of itself would automatically render these remains "Native American." This interpretation would leave no meaning for the 'relating to" clause unless we were to interpret the clause to cover remains found outside the United States. But we cannot conclude that Congress intended an absurd result, for Congress could not be considered to have a jurisdiction over disposition of human remains found in some other country. By reading NAGPRA's definition of "Native American" literally, meaning is given to each of the terms. Some remains may be covered because they are remains of a tribe, people or culture that is indigenous, while others may be covered because they are 'related to' a currently existing indigenous tribe people or culture." Opinion p. 1601

"Congress enacted NAGPRA to give American Indians control over the remains of their genetic and cultural forbearers, not over the remains of people bearing no special or significant genetic or cultural relationship to some presently existing indigenous tribe, people, or culture." Opinion p.1603.

"We review the full agency record to determine whether substantial evidence supports the agency's decision that Kennewick Man is "Native American" within NAGPRA's meaning. Here, after reviewing the record, we conclude that the record does not contain substantial evidence that Kennewick man's remains are Native American within NAGPRA's meaning." Opinion pp. 1603-4

"The administrative record contains no evidence - let alone substantial evidence - that Kennewick Man's remains are connected by some special or significant genetic or cultural relationship to any presently existing indigenous tribe, people or culture. An examination of the record demonstrates the absence of evidence that Kennewick Man and modern tribes share significant genetic or cultural features." Opinion p. 1604.

"The Secretary's only evidence, perhaps, of a possible cultural relationship between Kennewick Man and modern-day American Indians comes in the form of oral histories. ... But we conclude that these accounts are just not specific enough or reliable enough or relevant enough to show a significant relationship of the Tribal Claimants with Kennewick Man.... As the district court observed, 8340 to 9200 years between the life of Kennewick Man and the present is too long a time to bridge merely with evidence of oral traditions." Opinion p.1607.

"We thus hold that Kennewick Man's remains are not Native American human remains within the meaning of NAGPRA and that NAGPRA does not apply to them. Studies of the Kennewick Man's remains by Plaintiffs-scientists may proceed pursuant to ARPA.24 Opinion p. 1608.

Next steps

The Joint Tribes and the Department of Justice will announce their decisions whether or not to appeal.

They have at least two options for appeal: Either (or both) may appeal the decision to the Supreme Court. Or, either (or both) may request a wider panel of judges from the Ninth Circuit to review this opinion. Their burden is to convince the court the panel has erred.

If the Joint Tribes and DOJ do not appeal, the plaintiff scientists will work with the Army Corps of Engineers to implement the study plan the scientists submitted to the district court in the fall of 2002. It is our understanding that the district court has retained jurisdiction to ensure no unreasonable demands or constraints are imposed.

Will other scientists have access to study the Kennewick Man skeleton if the decision stands?

Yes. No legal obstacles would bar any qualified scientists and their students from requesting permission from the Army Corps of Engineers to study these (or any other) remains in the Corps' care. It is our hope that scientists from around the world will submit requests to study the Kennewick Man to the Army Corps when this lawsuit is final and the plaintiffs have filed their reports.

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