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Chronology
1996 Highlights
July 28 |
Skeleton discovered near Kennewick, Washington |
August |
Radiocarbon date by UC Riverside on the metacarpal
shows an age of approximately 9300 BP |
September |
Army Corps takes possession of the skeleton from the Benton
County Coroner.
Scientists request permission to study the skeleton. Requests
were denied. Efforts to open a dialog through the Corps and the
Confederated Tribes of the Umatilla were ignored.
Tribal claimants collect additional bones on the site.
Army Corps publishes two notices of intent to transfer the
skeleton to a coalition of five tribes.
|
October |
Scientists file complaint challenging the denial of the study
request.
Court issues an order that scientists must be given 14 days
notice prior to the Corps releasing the skeleton.
|
December |
Government files a motion to dismiss the scientists'
complaint. |
1997 Highlights
February |
The Court denies the government's motion to
dismiss the scientists' complaint. |
March |
Scientists file a motion for access to study.
Their study plan includes detailed proposals from 17 scientists
from across the country. |
April |
Government files a motion for judgement in its
favor and states study of the skeleton is unnecessary. |
June |
Court denies the government's motion for judgment
and also the scientists' motion for access for immediate study,
but leaves this open to file at a later date. Court asks for
quarterly status reports. |
July |
Concern increases that bones are improperly
housed. Reports surface that Corps has allowed tribes to conduct
religious ceremonies with the skeleton and that cedar bows were
placed with the bones. |
August |
Five scientists submit ARPA request to investigate the discovery
site. No permit granted.
The Confederated tribes of the Umatilla Indian Reservation
file a competing ARPA request. Their permit is granted to dig
10 one-meter square test pits at the discovery site. No results
have been released.
|
October |
Corps admits that five religious ceremonies have been conducted.
Corps hires a conservator, who verifies presence of ashes
and cedar twigs and recommends bones be stored in sealed containers.
Corps announces the project to study the site.
|
December |
Corps conducts limited site study. No trenching or test pits.
Coring limited to 5 locations. Sediment profiles limited to 20
cm (no vertical face cuts). Inadequate and conflicting data obtained,
but report not released until January 1999.
Fragment of bone found on the beach.
Corps informs scientists of plans to cover the site, ignoring
the fact that the site is on the Federal Register and that the
National Historic Preservation Act applies.
|
1998 Highlights
January |
Plaintiffs raise concerns that tribes have added
bones to the collection on two occasions. Corps access records
confirm this. |
March |
Government reports to the Court that portions of both femurs
are missing from the collection. They also claim that the skeleton
is being curated in "a manner which ensures continued protection
and their scientific integrity."
Army Corps of Engineers formally enlists assistance from the
Department of Interior.
|
April |
Corps covers the discovery site, ignoring recommendations
from Corps scientists and the approval of House and Senate bills
to protect the site. Cost reported at least $160,000.
A box of human and animal bone fragments from the Kennewick
site is incorrectly but "unintentionally turned over to
the tribes." Fragments included a human rib fragment found
during site study. Corps claim "the Kennewick remains were
never at risk."
|
May |
Court issues an order for a hearing to review the adequacy
of the Corps' curation protocols. Incidents and mishaps confirmed
during the hearing.
Court orders that the skeleton be moved to a new facility
and that plaintiffs be allowed to inspect the condition of curation.
Mediation sessions on curation issues held in Portland (3
days).
|
June |
Court orders that skeleton be inventoried before
it is moved to a new facility and that two representatives of
plaintiffs could be present. |
July |
National Park Service releases their multiphase
study plan. |
October |
Dr. Douglas Owsley (Smithsonian Institution) inventories the
skeleton in Richland. The 350 fragments represent one individual,
a male. Dr. James Chatters conducts a condition assessment that
shows deterioration (old cracks expanding, new cracks forming).
Neither is compensated for travel expenses, time, or expertise.
Skeleton moved to the Burke Museum, University of Washington,
Seattle.
|
1999 Highlights
January |
Government reports the curation of the skeleton has begun
at the Burke Museum, University of Washington, Seattle.
Scientists file analysis documenting the need for more study
of the discovery site.
|
February |
Government conducts limited studies at the Burke
Museum and promises scientific reports to the public in April. |
April |
No scientific reports released to the public. |
June |
Government encourages press reports that Kennewick
Man was intentionally buried and that the skeleton displays evidence
of red ocher. |
July |
No scientific reports released to the public. Government reports
further tests are needed.
Government encourages press reports that C14 results will
be available by September 15, 1999.
|
August |
Scientists file a motion requesting immediate response to
their 1996 study requests.
Court schedules oral arguments on scientists' motion for September
14
|
September |
Government takes 30.3g of bone for C14 studies but informs
the press reports that two 'approximately' 10g samples will be
tested.
Court hears oral arguments on scientists' motion for immediate
response to study request.
Scientists charge that the government mishandled its selection
and sampling for radio carbon dating and assert that the government
is engaged in a deliberate misinformation campaign.
Government tells Court that the results of the C14 tests by
three laboratories will be released in early to mid-November.
Court orders the government to answer scientists' study requests
by March 24, 2000. Magistrate Jelderks' order September 21, 1999
"...I conclude that six months is sufficient time for completing
the radiocarbon analysis, DNA testing, cultural affiliation assessment,
and any other studies that defendants may conclude are necessary
in order to formulate an agency response to the Bonnichsen plaintiffs'
request to study. Therefore, defendants will be allowed until
March 24, 2000, to respond to the Bonnichsen plaintiffs' study
request."
|
October |
The press reports government statements that scientific reports
will be released next year.
Government posts scientific reports to National Park Service
website.
|
December |
The year 1999 ends with no report of C14
test results. The government states they expect results to be
available in late January, 2000. |
2000 Highlights
January |
Department of the Interior announces C14 results.
DOI announces that the Kennewick Man is a Native American.
Their interpretation of NAGPRA's intent is that anyone who died
on this continent more than 500 years ago is a Native American.
DOI asks the court for 6 more months for DNA tests, if they
decide to conduct them. If granted this delays their answer to
the scientists' study request to September, 2000 (currently due
March 24, 2000).
|
February |
Scientists ask the court to deny the government's
request for 6 months more to conduct DNA studies. |
March |
The Court allows six months more to conduct
DNA tests. It requires monthly status reports, consultation with
the plaintiffs, and an answer to the study request by September
24, 2000. |
April |
The DOI conducts microsampling of bone for DNA
tests and taphonomic evaluation to assist in choosing appropriate
bones to test. Five scientists are hired (none are plaintiff
scientists). |
May |
DNA tests begin in laboratories at Yale University, the University
of Michigan, and the University of California, Davis
The Army Corps of Engineers reports no damage to the Kennewick
remains during minor flooding in the Burke Museum collections
area.
The Yakamas file a motion to intervene as defendants in the
lawsuit.
|
August |
The DNA tests continue.
The Court denies the Yakama's requestto interevene as defendants
in the lawsuit.
|
September |
The Department of the Interior announces that the Kennewick
remains are culturally affiliated with the five claiming tribes
on the basis of oral tradition and geography. No further study
is needed. The DOI reports no results were obtained from DNA
studies.
Scientists immediately file a request to the Court for a status
conference.
Yakamas file a request to appear as amicus curiae.
|
October |
Court lifts the stay and sets the schedule for
trial. |
December |
The Society for American Archaeology files request to appear
as amicus curiae |
2001 Highlights
January |
Scientists file an amended complaint with seven points of
concern.
Scientists file motion requesting raw computer data. Department
of Justice denies request for raw computer data. Tribes ask the
Court to put a protection order information about the remains.
|
February |
Department of Justice files response to amended complaint
denying plaintiffs charges.
Court grants plaintiffs' request for raw CT data and
denies tribes' request for a protective order.
Court grants SAA's request to for amicus status.
Court directes the DOJ to provide documents as soon as available
and the final amended administrative record by 2/19.
|
March |
Department of Justice assigns David Shuey as attorney of record,
replacing Aimee Bevan.
Friends of America's Past finances the travel expenses for
two prominent scientists to evaluate the discovery site.
|
April |
Friends of America's Past finances travel expenses for two
experts from the Smithsonian Institution to evaluate the image
record archived at the Burke Museum.
Plaintiffs brief filed April 16.
|
May |
National Congress of American Indians granted request to participate
as amicus curiae
Defendants file Motion toStrike Extra Record Evidence and
Declarations; Plaintiffs respond
Government brief filed May 17 asking the Court to uphold decision
to repatriate the remains to the Coalition and to deny the scientists'
issues.
|
June |
Plaintiffs reply filed June 4. Also filed: amicus briefs
from the Coalitin of five tribes; the Society for American Archaeology;
the National Congress of American Indians
Oral hearing June 19-20, 2001 at 10:00 am. Federal Court,
Portland, Oregon
Report that the missing femurs may have been found; FBI takes
them into custody and investigates
|
July |
The FBI drops its investigation. Many questions remain unanswered.
The Corps' reports to the Court that the femur fragments recovered
fit the femur fragments in the collection. They also list additional
unidentified bone fragments and a piece of lithic point in 'bag
3' but do not identify or describe them.
J.P.Siofele, Paramount Chieftan Faumina (a descendant of first
rulers of ancient Polynesia) files a motion with the Court to
claim the Kennewick remains.
|
August |
Parties respond to Siofele's motion. Court denies the motion
as untimely |
2002 Highlights
August |
The Court renders an Opinion on August 29, 2002. Highlights: The Court finds that NAGPRA does not apply to the Kennewick Man skeleton, rejecting the defendants' definition (and process in defining) the term "Native American". The Court also finds that the Army Corps of Engineers violated the National Historic Preservation Act when it buried the site where the skeleton was found. The Court gives the scientists permission to study the skeleton, defining a deadline for them to submit a study plan. Read the full text of the opinion for additional findings. |
September |
A newly formed Joint Tribal Coalition asks the Court for permission to intervene so they can appeal the decision. This coaltion excludes the Wanapum Band (not federally recognized so they have no claim under NAGPRA) |
October |
Scientists file a study plan with the federal attorneys to submit to the Army Corps of Engineers. The Court allows the new Joint Tribal Coalition to intervene. They file an appeal on October 24, 2002. The government files a notice of intent to appeal and Siofele files an appeal.
|
November |
Tribal Coalition files a motion to stay (delay) study and requests an expedited hearing. Scientists file a motion in opposition to stay study. The government supports the tribal request for a stay.
|
December |
Tribal Coalition files a reply to the scientists opposition to stay the study. Behind the scenes: Government and scientists communicate on the scientists study plan.
|
Recent background (posted in 2001)
The Kennewick Man case is not over, it has just begun. The
Court put the lawsuit on hold in June 1997, directing the Army
Corps to re-evaluate its decision. At that time, Court ruled
that the Corps' determination, based on the geographic location
of the claiming tribes, was insufficient for affiliation. The
Court also found that the Corps' determination process was flawed.
We've waited four years for the Corps, with the help of the Department
of the Interior (DOI), to make a final determination. The delays
are about to end.
In January, 2000, the DOI announced the Kennewick Man is a
"Native American." They confirmed to the court their
only criteria for their definition: he lived here more than 500
years ago. In September, 2000, DOI Secretary Babbitt announced
that the Kennewick remains are culturally affiliated to the claiming
tribes based on their geographic location. Secretary Babbitt
also concluded that although the record has gaps, their oral
traditions don't contradict their claim. He set aside all conflicting
scientific evidence. (see Secretary Babbitt's letter)
With the DOI's determination, the Corps announced they would
repatriate the remains to the five claiming tribes with no further
study. However, these decisions are not the final resolution
of this dispute. The Court will evaluate the merits of this
'new' determination along with the scientists' claims. In the
meantime, the skeleton is secure at the University of Washington's
Burke Museum until the case is resolved.
During an October, 2000 status conference, Judge Jelderks
set the schedule for resolving the lawsuit. The Court reviewed
the agencies' definition of "Native American" and indicated
a strong interest in reviewing this definition. The Court also
allowed the plaintiffs' request to amend their complaint to include
violation of the National Historic Preservation Act (destruction
of the discovery site in 1998) and the Freedom of Information
Act. Finally, Judge Jelderks scheduled an oral hearing of the
case for June, 2001 in Federal Court in Portland.
On December 1, the Corps and DOI filed with the Court their
administrative record containing more than 20,000 pages of letters,
reports, email, meeting notes, and other information relating
to their decisions. Attorneys for the scientists have been reviewing
these documents to prepare their case.
On April 16, the scientists filed their written 42-page brief
making their case. The Department of Justice's response was filed
May 17. Briefs are expected to be filed by the amicus
parties (the five tribes, the Society for American Archaeology,
and National Congress of American Indians). The scientiststs
have the last word, with a reply to all responses due June 4.
The parties are scheduled meet in Court for a public hearing
on June 19, 2001. The judge will ask any remaining questions
and give his written opinion sometime this summer.
The future of the Kennewick Man is still to be determined.
The only certainty is that the bones would have been buried in
the fall of 1996 with no study if the 8 scientists had not filed
the lawsuit. That they are still above ground, after nearly five
years, keeps the hope alive that a complete and accurate story
of his life can be told.
What questions has the Court asked the Corps?
On June 27, 1997 the Court asked the Corps to consider these
issues when deciding the fate of the Kennewick skeleton:
- Whether these remains are subject to NAGPRA, and why (or
why not).
- What is meant by terms such as "Native American"
and "indigenous" in the context of NAGPRA and the facts
of the Kennewick case.
- Whether, if there was more than one wave of ancient migration
to the Americas, or if there were sub-populations of early Americans,
NAGPRA applies to remains or cultural objects from a population
that failed to survive and is not directly related to modern
Native Americans.
- Whether NAGPRA requires (either expressly or implicitly)
a biological connection between the Kennewick skeleton and a
contemporary Native American tribe.
- Whether there has to be any cultural affiliation between
the skeleton and a contemporary Native American tribe. If the
answer is yes, how can such an affiliation be established if
no cultural objects are found with the remains.
- The level of certainty required to establish such a biological
or cultural affiliation, e.g., possible, probable, clear and
convincing, etc.
- Whether any scientific studies are needed before the Corps
can determine whether this skeleton is subject to NAGPRA, and
if so, whether such studies are legally permissible.
- Whether there is evidence of a link, either biological or
cultural, between the skeleton and a modern Native American tribe
or to any other ethnic or cultural group including (but not limited
to) those of Europe, Asia, and the Pacific islands.
- Whether the 'study' provisions of Section 7(b) of NAGPRA
are limited to objects that were in the possession or control
of a federal agency or museum prior to November 16, 1990.
- Whether there is any other law, e.g., the Archaeological
Resources Protection Act ("ARPA"), or any other section
of NAGPRA, that either permits or forbids scientific study of
this skeleton.
- Whether scientific study and repatriation of the skeleton
are mutually exclusive, or if both objectives can be accommodated.
- What law controls if the skeleton is not subject to NAGPRA.
- What happens to the skeleton if no existing tribe can establish
a cultural affiliation.
- Whether plaintiffs have a right (under the First Amendment
or otherwise) to study the skeleton.
- Whether there is any merit to the equal protection arguments
asserted by the plaintiffs (if the Corps decides it has authority
to address that issue).
- What role, if any, the NAGPRA Review Committee should play
in resolving the issues presented by this case
- Whether NAGPRA is silent on important issues raised by the
case, and whether Congressional action will be required to clarify
the law regarding "culturally unidentifiable ancient remains."
What does the Court say about the government's handling of
the case?
On June 27, 1997 Magistrate Jelderks commented
...on hasty decision making by the Corps
"I am left with the distinct impression that early in
this case the defendants made a hasty decision before they had
all the facts, or even knew what facts were needed. In addition,
some of the "facts" upon which the Corps relied have
proven to be erroneous, e.g., that the site at which the remains
were discovered is recognized as the aboriginal land of an Indian
tribe."
...on whether Corps considered if NAGPRA applies
"I also question whether the agency gave adequate consideration
to the question of whether NAGPRA applies to these remains, or
the significance for this case if NAGPRA either does (or does
not) apply. Agency officials appear to have recognized that there
was a problem, but were unsure how to resolve it."
...on Corps doubts but suppressed concerns
"The record suggests that Corps officials harbored doubts
on those points, but chose to suppress concerns in the interest
of fostering a climate of cooperation with the tribes."
...defendants dismiss plaintiffs First Amendment rights
"In its briefs, defendants categorically dismissed the
possibility that plaintiffs might have a First Amendment right
to study the remains. ...this issue warrants greater consideration
than the Corps has given it thus far.... It protects both the
right to send and also to receive information.... I suggest that
plaintiffs arguments are not frivolous, and the issue merits
more serious consideration on remand than it received in defendants'
briefs."
On September 21, 1999, Magistrate Jelderks commented
...on the delay of C14 tests:
"Given that this position renders the age of the skeleton
of critical importance, defendants' decision to wait nearly three
years to begin radiocarbon analysis to confirm the age of the
skeleton is difficult to understand."
...on defendants explanation to use soil strata at the discovery
site to determine the age of the skeleton:
"That explanation seems inconsistent with defendants'
earlier decision to bury the site under tons of rubble, complicating
if not precluding completion of the very studies that they now
assert are needed."
...on the lack of progress on the question of cultural affiliation:
"Defendants have offered no reasoned explanation for
the lack of progress in conducting this inquiry."
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