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The Kennewick Man Case | News & Comment

Summary of Plaintiffs' Opening Memorandum

For those who are not familiar with legal proceedings, the judge need rule in favor of any one of the eight complaints in the scientists' memorandum for the scientists to be successful. That they have eight legally justified complaints is a measure of how unreasonable the government conduct has been in denying these scientists due process.

Kennewick Man
Summary of Plaintiffs' Opening Memorandum

In August 1996, the government decided to give the Kennewick Man skeleton to a Coalition consisting of four Columbia Plateau tribes and one unrecognized band. When scientists were told that their requests to study the skeleton would not be processed until after the transfer was completed, eight of them began this lawsuit in federal court. On June 17, 1997, the Court remanded the case to defendants with instructions to gather additional evidence, take a fresh look at the issues involved, and reach a new decision that is consistent with the law and evidence. In September 2000, defendants reaffirmed the earlier decision to give the skeleton to the Coalition, and denied the scientists' study requests. The scientists argue in their opening memorandum to the Court that these decisions should be set aside for one or more of the following reasons.

No one knows who Kennewick Man was, what language he spoke, how he died or whether he has any living descendants. Nonetheless, defendants have classified him as Native American solely because he predates 1492. This 1492 Rule is contrary to the language and intent of NAGPRA, was improperly adopted, and would unreasonably bring into NAGPRA's ambit ancient remains and objects that have no demonstrated relationship to present-day American Indians.

Defendants decision that the skeleton is 'culturally affiliated" to the Coalition is contrary to law. Defendants ignored the fact that NAGPRA does not authorize such group repatriations, and their reliance upon oral tradition was misguided. Even if one accepts the Coalition's claims that its members have always lived in the region, it does not follow that Kennewick Man is one of their ancestors or that he has a "shared group identity" with them. Defendants also improperly relied upon a non-precedential Indian Claims Commission case settlement, they failed to consider all contrary evidence on affiliation, and they failed to provide a rational basis for their decision.

Defendants' decision makers had ex parte contacts with the White House and with the government's trial attorneys even though Interior was earlier reprimanded for engaging in such conduct in another case. Defendants' decisionmakers also had ex parte contacts with the Coalition. Defendants withheld the substance of many of these contacts from the record, and refused to give plaintiffs a fair opportunity to participate in the decisionmaking process. They coached the Coalition on how to present its claims and applied an improper presumption in favor of the Coalition's claims. The scientists also argue that the decisionmakers were biased.

Defendants ignored the Constitution's requirement that church and state be kept separate. They accepted the "truth" of the Coalition's religious beliefs, and used those beliefs as proof of prehistoric events contrary to known scientific information. They also used religious beliefs as a basis for denying plaintiffs access to the skeleton, and for denying access to the discovery site and government-held information.

Defendants failed to give serious consideration to plaintiffs' claims that they have First Amendment and statutory rights to study the skeleton. In other situations, scholars are routinely allowed to study prehistoric skeletal remains and objects found on federal land or held in government collections. Skeletons are like books whose stories can be "read" by trained eyes, and it is not for the government to determine which of these stories can be read and who can do the reading..

Defendants buried the skeleton's discovery site without giving plaintiffs an adequate opportunity to receive information and provide input about the project. They also failed to properly investigate the site and the potential adverse effects of the site cover-up. The scientists also contend that there were other alternatives available that would have cost less than the $166,000 spent on this project, and that would not have impacted the site's scientific values.

Defendants have not shown appropriate concern for the skeleton's safety. No long-term preservation plan has been developed, and defendants have allowed the storage area's relative humidity to fluctuate and to fall as low as 16.9%. Low relatively humidity can damage skeletal collections by causing bones to crack and deteriorate.

Defendants violated the Freedom of Information Act ("FOIA") by withholding relevant information from plaintiffs about the skeleton and its discovery site. More than three years after plaintiffs appealed the denial of their first FOIA request, defendants have not reached a decision on that appeal or even set a decision date. Other appeals remain undecided. When documents were produced, their disclosure was incomplete or tardy.

The scientists urge the Court to avoid another remand of the case to defendants for a third round of administrative proceedings. In circumstances such as these, the Court has the inherent authority to decide the substantive issues itself in order to protect a party from further agency delay or abuse. Such authority includes the power to order that plaintiffs be given access to study the skeleton and such other relief as the Court deems appropriate.

Highlights of Significant Events

July 28, 1996
Kennewick Man skeleton discovered near Kennewick, Washington.

August 26, 1996
UC-Riverside confirms test results showing that the skeleton's radiocarbon age is approximately 9300 years before present.

August 28, 1996
Army Corps decides to give the skeleton to tribal Coalition.

September 17, 1996
Army Corps publishes notice of intent to transfer the skeleton to tribal Coalition.

October 16 1996
Scientists file lawsuit seeking access to study the skeleton.

October 24, 1996
Court issues order that possession of the skeleton may not be transferred without prior notice to plaintiffs.

February 19, 1997
Court denies the government's motion to dismiss the scientists' lawsuit.

June 27, 1997
Court issues opinion vacating all prior government decisions, and remands case to the agencies for reconsideration of the scientists' study requests.

September 5, 1997
Government admits that tribes have been allowed to conduct religious ceremonies with the skeleton.

August 25, 1997
Bone fragment found at discovery site.

August 26, 1997
Scientific research team requests ARPA permit to investigate the discovery site. Permit is never granted.

October 1, 1997
Scientists raise concerns that the skeleton is not being protected properly.

October 16, 1997
Court asks the government to respond to the scientists' concerns about safety of the skeleton.

October 29, 1997
Government informs the Court that the skeleton is being safely curated.

November 10, 1997
White House orders burial of discovery site. Project is put "on a fast track".

December 13/17, 1997
Army Corps conducts limited surface examination of the discovery site. Tribal objections limit the studies that can be conducted. Rib fragment found at discovery site.

December 23, 1997
Interior issues opinion that all pre-Columbian human remains will be considered "Native American" for purposes of NAGPRA even if not culturally or biologically related to present-day American Indians.

December 23, 1997
Army Corps announces plans to cover the discovery site.

March 10, 1998
Government admits that portions of both femurs are missing from the collection.

March 17, 1998
Legislation is introduced in the Senate to prohibit burial of the discovery site without prior court approval. Parallel legislation is introduced in the House on March 27, 1998.

March 24, 1998
The Departments of the Army and the Interior sign Interagency Agreement to share authority for deciding the skeleton's disposition.

March 25, 1998
Bone fragment found at discovery site.

April 4, 1998
More bone fragments observed at discovery site.

April 4, 1998
Congress begins Easter recess.

April 6, 1998
Army Corps begins burial of the site under 500 tons of rocks, logs and dirt fill. Cost is $166,000.

April 27, 1998
A box of bone fragments from the discovery site is "unintentionally turned over to the tribes." Included are fragments from the skeleton.

May 29, 1998
Court orders the skeleton moved to a new, more secure facility.

June 12, 1998
Court orders that plaintiffs be allowed to inventory the skeleton.

July 1, 1998
Government files proposed time-line and protocol for study of the skeleton.

July 13, 1998
Scientists challenge the government's proposed time-line and study protocol.

September 29, 1998
Government refuses to allow Dr. Chatters to participate in the collection inventory.

October 20, 1998
Court issues order authorizing Dr. Chatters' participation in the inventory.

October 28/29, 1998
Drs. Owsley and Chatters inventory the collection. This is the first detailed, item-by-item listing of the approximately 350 bone fragments in the collection.

October 29, 1998
Skeleton is moved to the Burke Museum in Seattle, Washington.

November 13, 1998
Government finalizes its protocol for noninvasive studies of the skeleton.

February 25, 1999
Government begins its first phase studies of the skeleton. Plaintiffs are not allowed to participate.

July 1, 1999
Government announces plans to conduct additional radiocarbon dating tests on the skeleton.

September 8, 1999
Government removes 30.3 grams of bone from the skeleton for radiocarbon dating.

September 14, 1999
Scientists charge that the government's sampling of the skeleton for radiocarbon dating was unnecessarily destructive.

September 21, 1999
Court orders the government to reach a final decision on the scientists' study request by March 24, 2000.

October 15, 1999
Results of the government's first phase studies are released. Skeleton does not resemble any modern human population.

January 13, 2000
Government announces that its radiocarbon dating tests confirm the age of the skeleton at approximately 9300 years.

January 13, 2000
Government declares that the skeleton is Native American for NAGPRA purposes solely because of its age.

January 31, 2000
Government requests additional time to conduct DNA tests on the skeleton.

March 8, 2000
Court gives the government an extension until September 21, 2000 to complete DNA testing of the skeleton and answer the scientists' study requests.

April 24/28, 2000
Samples are removed from the skeleton to determine suitability of different bones for DNA testing.

May 8, 2000
Bones are selected for DNA testing.

May 26, 2000
The Yakama Nation files motion to intervene in the case as a co-defendant.

August 2, 2000
Court denies Yakama motion to intervene.

September 21, 2000
Interior declares that the skeleton should be given to the tribal Coalition. Oral tradition is given precedence over scientific data.

September 21, 2000
Army Corps denies the scientists' requests to study the skeleton.

September 25, 2000
Government announces that its DNA tests were unsuccessful.

October 4, 2000
Yakama Nation is given amicus standing to file briefs in the case.

October 25, 2000
Court sets schedule for June 2001 hearing on the scientists' claims.

December 1, 2000
The administrative record for the government's decisions relating to study and classification of the skeleton is filed with the Court.

January 2, 2001
Scientists file Amended Complaint challenging the government's decisions on the skeleton and burial of the discovery site.

January 9, 2001
Scientists file motion to get a copy of the computer data used to generate the government's CT scans of the skeleton.

January 22, 2001
Government files opposition to the scientists' CT scan data motion.

February 1, 2001
Government files Amended Answer denying all of the scientists' claims.

February 5, 2001
Court grants the scientists' CT scan data motion.

February 6, 2001
Court orders the government to file its supplemental administrative record on site burial and denial of the scientists' FOIA requests by February 19, 2001.

April 2/3, 2001
Scientists visit the Burke Museum to inspect the government's photographs, x-rays and CT scan images of the skeleton.

April 16, 2001
Scientists file opening brief for June hearing.

May 17, 2001
Deadline for filing of the government's response to the scientists' opening brief.

June 4, 2001
Deadline for filing of the scientists' reply to the government's brief.

June 19, 2001
Scheduled date for Court hearing in Portland, Oregon.

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