The Kennewick Man Case | Events

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

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:

1. Whether these remains are subject to NAGPRA, and why (or why not).
2. What is meant by terms such as "Native American" and "indigenous" in the context of NAGPRA and the facts of the Kennewick case.
3. 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.
4. Whether NAGPRA requires (either expressly or implicitly) a biological connection between the Kennewick skeleton and a contemporary Native American tribe.
5. 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.
6. The level of certainty required to establish such a biological or cultural affiliation, e.g., possible, probable, clear and convincing, etc.
7. 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.
8. 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.
9. 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.
10. 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.
11. Whether scientific study and repatriation of the skeleton are mutually exclusive, or if both objectives can be accommodated.
12. What law controls if the skeleton is not subject to NAGPRA.
13. What happens to the skeleton if no existing tribe can establish a cultural affiliation.
14. Whether plaintiffs have a right (under the First Amendment or otherwise) to study the skeleton.
15. 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).
16. What role, if any, the NAGPRA Review Committee should play in resolving the issues presented by this case
17. 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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