Plaintiffs Statement on Judge's Decision
ALAN L. SCHNEIDER
ATTORNEY AT LAW
1437 SW COLUMBIA STREET, SUITE 200
PORTLAND, OREGON 97202
(503) 274-8444
(503) 274-8445 FAX
PAULA A. BARRAN
BARRAN LIEBMAN LLP
601 S.W. SECOND AVENUE,
SUITE 2300
PORTLAND, OREGON 97204
(503)228-0500
(503) 274-1212 FAX
August 30, 2002
Kennewick Man/Court Decision
A court decision has been entered in the Kennewick Man
lawsuit (Bonnichsen et.al. v. U.S., Civil No. 96-1481JE,
District of Oregon). In a 73 page opinion released this
afternoon, the federal trial court set aside former Interior
Secretary Babbitt's decision to classify the 9400 year-old
Kennewick Man skeleton as Native American and to give it to a
coalition of Columbia River Indian claimants. The court has
also ruled that the suing scientists will be allowed to study
the skeleton and that the Army Corps violated the National
Historic Preservation Act when it buried the skeleton's
discovery site. Some of the highpoints of the court's
decision are:
"I conclude that the final decisions challenged here were not
made by neutral and unbiased decision makers in a fair
process as is required under the APA." Opinion & Order at p.
23
". . . it appears that a remand with instructions to fairly
reevaluate the issues again would be futile." Opinion &
Order at p. 25.
"The Secretary erred in defining "Native American" to
automatically include all remains predating 1492 that are
found in the United States." Opinion & Order at p. 29.
"The term "Native American" requires, at a minimum, a
cultural relationship between remains or other cultural items
and a present-day tribe, people, or culture indigenous to the
United States. A thorough review of the 22,000-page
administrative record does not reveal the existence of
evidence from which that relationship may be established in
this case." Opinion & Order at p. 30.
"Based on a careful review of the record, I conclude that the
Secretary's cultural affiliation determination cannot be
sustained." Opinion & Order at p. 38.
"The Secretary misconstrued § 3002(a)(2)(C) to include cases
in which no valid final judgment established aboriginal
title, and misinterpreted the statue by applying it to cases
in which the ICC had specifically found that the tribe failed
to establish its aboriginal title. The statute cannot be
construed in this manner." Opinion & Order at p. 64.
"In sum, I conclude that the Corps violated NHPA requirements
that the views of "interested parties" be considered, that
potential loss of archaeological data be mitigated, and that
the potentially negative effects of the project be fully and
carefully considered." Opinion & Order at p. 68.
"Allowing study is fully consistent with applicable statues
and regulations, which are clearly intended to make
archaeological information available to the public through
scientific research. Allowing study is also consistent with
the usual practice of federal agencies under circumstances in
which NAGPRA does not apply." Opinion & Order at p. 72
The scientists view the court's decision as confirmation of
their contentions that the American past is the common
heritage of all Americans, and that it should be open to
legitimate scientific research. However, the legal
controversy over the fate of the skeleton may not end with
this decision. The Department of Justice could challenge the
decision through various procedural motions or appeals. The
scientists' attorneys estimate that government expenditures
on the lawsuit and related matters may already exceed
$3,000,000.
Download the opinion [316k PDF]
Read the opinion [HTML format - including PDFs of references to administrative record]
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