| 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.
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| 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.
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| 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.
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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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