Friends of America's Past

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April 22, 2005 update

We are supporting activities on three fronts: legal, political, and scientific.


Three tribes (Nez Perce, Umatilla, and Yakama) have appealed the District Court's denial of their motion to intervene in the post-judgment phases of the case. Even though they have been found to have "no cognizable" connection to the Kennewick Man skeleton, they still maintain that they have a right to participate in all discussions and decisions relating to its study. Their brief is due to the Ninth Circuit Court of Appeals on June 27, 2005. Plaintiff scientists' reply brief is due July 27, 2005. Out of pocket expenses continue. Our hope is that the 9th Circuit will not order a stay (hold) on study until this appeal is resolved.


The Senate Indian Affairs Committee has proposed an amendment which expands the definition of Native American (see related information NAGPRA Alert ). IF this amendment can be pulled back into committee for public hearings and review, the committee would benefit from hearing from as many people as possible on the impacts and consequences of the amendment (via FAX, email and testimony).

We would also like to identify organizations and individuals who are willing to attend a Senate Indian Affairs Committee hearing, if one is scheduled. We encourage interested organizations and individuals to contact the members of the committee to request ways to offer testimony. We can assist in providing factual information about the legal, financial, and scientific consequences of the amendment to those willing to express their views. Public participation is critical to the democratic process. Our goal is to keep factual explanations of prehistory available to the public.

With respect to the Kennewick Man skeleton, the consequences of the proposed amendment have been misunderstood and misrepresented by those making public statements on behalf of various Senators. The amendment contains no language exempting the Kennewick Man remains. If the definition of Native American is expanded, any federally recognized tribe will be free to file a new NAGPRA claim with the Army Corps.

Although two courts have ruled in favor of science in the original claim, the study of Kennewick Man's remains would likely remain in limbo until the Army Corps resolves any new claim(s). Then the courts will get involved again as one side or the other would likely appeal the Army Corps' decision. Although it is reasonable to expect that the courts would ultimately uphold the Ninth Circuit's opinion in Bonnichsen et al., new claims could take years to resolve and the legal expenses would continue to escallate.


The scientists continue to negotiate their study plan with the Army Corps of Engineers. When access for study becomes a reality, we hope to assist them with expenses (to the extent funds are available) related to the proposed studies and the timely publication of the results.

We appreciate your continued support, which comes in so many forms.

Please follow this link to our address and optional contribution form.

We apologize that this page has not been updated recently. An update on the events from 2004 to the present is underway.

As 2003 closes, the Kennewick Man case continues. On August 30, 2002, the U.S. District Court granted the eight scientists permission to study the Kennewick Man skeleton. The Department of Justice and the Joint Tribal Coalition filed separate appeals to the U. S. Court of Appeals for the Ninth Circuit. The appeals were reviewed together after the final briefs were filed on July 1, 2003. The lower court's decision to allow access to the skeleton for study was put on hold until the appeals are resolved.

The Department of Justice appealed only one issue in the Federal District Court's opinion: the definition of Native American. The Joint Tribal Coalition told the Appeals Court that the lower court erred on every issue. The scientists continue to seek access to study the ancient remains, and argued that the District Court's decision should be upheld.

The 3-judge panel from the 9th Circuit Court of Appeals heard oral arguments on September 10, 2003. Listen to the 65-minute session, audio of oral arguments before the 9th Circuit. The transcript is also available. An opinion from the 9th Circuit panel is expected sometime in 2004.

We depend your help, as the scientists' attorneys continue to work pro bono. The appeals process has added significant out-of-pocket expense to this lawsuit. In addition to the multiple copies required by the court, the rules required that all parties be copied on the briefs. Parties include several attorneys for the four tribes, a half-dozen attorneys at the Department of Justice, and the ten participating amici.

Through your generosity, Friends of America's Past supported a significant portion of the printing, delivery and postal charges for the plaintiffs' reply briefs and excerpt of record, which exceeded 35,000 pages. We also covered expenses for the printing and delivery of two of the amici briefs filed by individuals on behalf of the scientists. Your support made this possible, and we thank you.

We hope to continue to lend financial support for out-of-pocket expenses as the appeals process continues. To be prepared when a need arises, we must replenish our funds. Continued success depends on your support.

Please follow this link to our address and optional contribution form.

Express your views and concerns

With the August 30, 2002 decision in the Kennewick Man lawsuit, the politics are heating up. As a nonprofit organization we cannot directly lobby for specific legislation. However, we can provide the public with information.

It is now increasingly important for you to immediately express your views about this decision, and your concern about the cost to American taxpayers. In a democracy, all views of the past must be available, free of government interference. We need to preserve the evidence of prehistory and allow access for scientists to discover and explore factual explanations of the past. Please take a few minutes to email your comments to Senators and Representatives on Capitol Hill (email addresses) and newspaper editors in your area.

A review of documents filed with the court establishes that the Department of the Interior and Army Corps of Engineers have spent approximately $3 Million (perhaps more) of tax payers money on this dispute in the past six years. The Court has ruled against the agencies' position. Congressional review is needed to correct serious problems of bias and exclusion in the way these agencies make decisions and interpret the law. Congressional action is also needed to clarify the areas of NAGPRA, which were not addressed in 1990.

In summary, after enduring years of agency maneuvering, the Court ruled that the suing scientists have a statutory right to study the Kennewick Man skeleton. The Court set aside the Secretary of the Interior's decision that the Kennewick Man's remains are Native American and are culturally affiliated with the coalition of tribes making the claim. The agencies now take the position that they have no qualified claimant for the remains, but disagreed that their definition of Native American was flawed. The Court also found that the Army Corps of Engineers violated the National Historic Preservation Act when they buried the site where the Kennewick Manes remains were discovered. The agencies did not appeal this finding.

Please take a few moments to express your views. We will appreciate receiving a copy of your comments. Contact us at

Download a PDF file (316k) of the opinion.

Read the opinion [HTML format - including PDFs of references to the administrative record].

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