Update October 2004
Status: Study of the skeleton
In February 2004, the 9th Circuit Court of Appeals upheld in total the lower court's opinion, which includes permission for access to study under ARPA. However, the Army Corps of Engineers has not yet allowed the scientists to assess the condition of the skeleton or to begin studies.
The Army Corps continues to resist approving the more than 40-page study plan the scientists submitted in the fall of 2002. The Corps is asking for more specifics. To address the Corps' concerns and to provide more specifics, the scientists need to see the bones to assess their current condition. However, the Corps apparently won't allow a condition assessment until after they approve the final study plan.
The scientists may need to return to the Court to seek help through a morass of constraints. Out-of-pocket legal expenses continue.
Tribes' legal activities
Despite the Court's order in August, the tribes continue to pursue their belief that the Kennewick Man skeleton is the remains of their ancestor and should be given to them. On August 17, 2004, the Court stated: "Following the Ninth Circuit's conclusion that NAGPRA does not apply, there is no basis for concluding that the tribal claimants have a legally cognizable interest which entitles them to participate as parties in any further proceedings in this court."
On September 9, 2004 the tribes filed a new motion to intervene in the case. The tribes' now argue their right to intervene using the American Indian Religious Freedom Act, their sovereign nation status, the Archeological Resources Protection Act, and the National Historic Preservation Act. The scientists have until October 11, 2004 to file a response.
Either side could appeal a District Court's opinion. The Ninth Circuit would hear the appeal. Out-of-pocket legal expenses continue.
New amendment to NAGPRA
The timing of the Senate vote on expanding NAGPRA to include all ancient remains is unclear. A similar vote will be taken in the House of Representatives. See our comment on the this new development.
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