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The Kennewick Man Case | News & Comment

Judge Rules Scientists Can Study Kennewick Man

This article was originially published in the Mammoth Trumpet, 2002.

by Bradley T. Lepper

After 14 months of deliberating, weighing the evidence and arguments in more than 22,000 pages of documentation, U.S. Magistrate John Jelderks announced his decision regarding the fate of the 9,000-year-old remains of Kennewick Mančalso known as the Ancient One. He affirms the right of scientists to study these remarkable bones while thoughtfully and thoroughly demolishing former Secretary of the Interior Bruce Babbit's decision to "repatriate" the remains to a coalition of Native American tribes.

In his detailed opinion, Jelderks rules that since the time the Army Corps of Engineers took possession of the remains, the representatives of the federal government in charge of this case "have not acted as the fair and neutral decision makers required by the [Administrative Procedure Act]." Indeed, their "procedures, actions, and decisions have consistently indicated a desire to reach a particular result." In other words, the Department of the Interior, for some reason, determined from the outset to give the bones to the Native American tribes regardless of their legal responsibility to consider fairly the interests and claims of the scientists and others who wished to have the opportunity to study the remains.

In his critique of Babbit's decision to repatriate the bones of Kennewick Man to a coalition of Native American tribes, Jelderks agrees with the key arguments presented by Alan Schneider and Paula Barran, the attorneys for the scientists. The following quotes are excerpted from Jelderks's decision:

  • "The Secretary erred in defining 'Native American' to automatically include all remains predating 1492 that are found in the United States."
  • "The Secretary erred in assuming that the coalition [of Native American tribes] was a proper claimant and in failing to separately analyze the relationship of the particular Tribal Claimants to the remains."
  • The Secretary's determination that the Native American Graves Protection and Repatriation Act (NAGPRA) allows evidence of "aboriginal occupation" to substitute for a "final judgement" of the Indian Claims Commission in establishing aboriginal title to lands is "arbitrary and capricious, contrary to law, in excess of the Secretary's authority."
  • "The Secretary's finding that the Tribal Claimants have satisfied the cultural affiliation requirement of [NAGPRA] is arbitrary and capricious, and must be set aside."

Is Kennewick Man a "Native American"?

Jelderks observes that the "plain language" of the law requires that there be "some relationship between remains or other cultural items and an existing tribe, people, or culture that is indigenous" to the United States, before those remains can be subsumed under NAGPRA. Jelderks concludes that the available evidence does "not support a finding that Kennewick Man is related to any particular identifiable group or culture, and the culture to which he belonged may have died out thousands of years ago." Therefore, "the Secretary did not have sufficient evidence to conclude that the Kennewick Man remains are 'Native American' under NAGPRA." This aspect of the ruling may have far-reaching implications for the applicability of NAGPRA to human remains more than a few hundred years old. It is important to note that Jelderks does not assert that Kennewick Man is not a Native American ancestor. He merely points out that the Secretary had not demonstrated that he is an ancestor of modern Native Americans. Jelderks states, moreover, that it would be surprising if pertinent evidence could be marshaled that would link remains more than 9,000 years old to any particular modern tribe.

Did the Coalition of Native American tribes have proper standing under NAGPRA to make a valid claim to repatriate Kennewick Man?

Jelderks addresses a number of technical points concerning Babbit's cultural affiliation determination that deserve mention. First of all, the Secretary concluded that the coalition of four federally recognized Indian tribes, and one group that is not federally recognized, constituted a proper claimant under the terms of NAGPRA. Jelderks observes that this "contradicts the plain language of the statute, which identifies the appropriate recipient in the singular as 'the Indian tribe . . . which has the closest cultural affiliation.'" Jelderks states that the Secretary's interpretation

could render part of the statute meaningless. Carried to the logical end, coalition claims would effectively eliminate the statutory requirement that cultural affiliation be established with a particular modern tribe. The more members in a coalition, the greater the likelihood that the remains or objects are affiliated with some member of the coalition, despite a lack of evidence establishing affiliation with any particular member of the coalition.

Jelderks also criticizes Babbit's determination that the tribal coalition had a legally sufficient claim to Kennewick Man based upon the fact that they once occupied the land where his remains were found. NAGPRA requires that the land claim must have been upheld by a "final judgement" of the Indian Claims Commission (ICC). The land in question here was not included in any such final judgment by the ICC. Jelderks wryly notes that this "should have been the end of the matter," but the Secretary "misconstrued" the law and "erred in interpreting [it] in a manner that would apply it to situations not included within its plain language." Jelderks determines the Secretary's actions were "arbitrary and capricious, contrary to law, in excess of the Secretary's authority."

Are the Native American tribes requesting the repatriation of Kennewick Man demonstrably culturally affiliated with him?

NAGPRA states that a finding of "cultural affiliation" with human remains, such as Kennewick Man, requires proof of "a relationship of shared group identity which can reasonably be traced . . . between a present day Indian tribe . . . and an identifiable earlier group" to which the deceased person belonged. Jelderks concludes that Secretary Babbit's determination that Kennewick Man was culturally affiliated with the tribal coalition "cannot be sustained":

The Secretary: (a) did not adequately determine 'an identifiable earlier group' to which the Kennewick Man allegedly belonged, or even establish that he belonged to a particular group, (b) did not adequately address the requirement of a 'shared group identity,' (c) did not articulate a reasoned basis for the decision in the light of the record, and (d) reached a conclusion that is not supported by the reasonable conclusions of the Secretary's experts or the record as a whole.

The Decision

For all these reasons, Jelderks concludes that "NAGPRA does not apply to the remains of Kennewick Man." Since Jim Chatters's original investigation of the Kennewick Man site was done under the terms of a permit issued by the Army Corps of Engineers in accordance with the Archaeological Resource Protection Act (ARPA), Jelderks has determined that this was the relevant federal law for determining the disposition of the remains. He notes that research conducted under ARPA must be "undertaken for the purpose of furthering archaeological knowledge in the public interest" and that a requirement of ARPA is that "objects be curated and preserved after excavation or removal." Therefore, Jelderks has ordered that "[the scientists'] request for access to study be granted, subject to the type of reasonable terms and conditions that normally apply to studies of archaeological resources under ARPA."

Response of Scientists

In a statement released on the Web pages of the Friends of America's Past, the scientists' attorneys report that "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."

In an interview with Archaeology magazine, James Chatters, the first scientist to encounter the remains of Kennewick Man (but not a plaintiff in the litigation), says that, on learning of the decision, he "experienced a tremendous feeling of relief, followed by a sense of validation that taking a stand for science, and advocacy for Kennewick Man, had been the right things to do."

Robert Kelly, the President of the Society for American Archaeology, says that "Judge Jelderks' decision in the Kennewick case will go a long way toward restoring the balance between the interests of science and those of Native Americans that Congress mandated when it passed NAGPRA."

Response of Native Americans

In the wake of Jelderks's decision, the Confederated Tribes of the Umatilla Indian Reservation expressed their disappointment in a public statement that drastically exaggerated the scope of the ruling. The Umatilla stated their concern that the decision "removes any barriers that would prevent the Plaintiff scientists from demanding access to all Native American human remains, for their scientific needs, regardless of whether the remains were 20 or 20,000 years old." Subsequently, the Umatilla joined with the Colville, Yakima, and Nez Perce Indians in appealing the decision. Nez Perce attorney Rob Roy Smith says, "This is just the beginning of a long appeal road. We are committed to getting a successful resolution."

Susan Shown Harjo, a Cheyenne and Hodulgee Muscogee writing for Indian Country Today, harshly criticizes the decision. She writes that Jelderks was "overwhelmed" by the extensive court record and implies his decision was influenced by ulterior motives:

The Jelderks have been in Oregon for more than a century on land that used to belong to Native Peoples. . . . He was a country lawyer and a fledgling judge at a time when Oregon and Washington were fighting most ferociously to keep Indians from fishing on the Columbia and throughout the Pacific Northwest.

Such criticisms of Jelderks are unwarranted and amount to little more than spiteful innuendo. The fact that he took 14 months to review the evidence is a reflection of his thoughtful deliberation and thoroughness.

Response of the Department of the Interior

The Department of the Interior has, so far, issued no public statement regarding Jelderks's decision. It has appealed the ruling, however.

And so the bizarre odyssey of Kennewick Man continues. Jelderks's ruling is a clear victory for science and a setback for those who seek to use NAGPRA to end all study of ancient human remains in the United States. The force and thoroughness of Jelderks's decision make it unlikely that it will be overturned on appeal. The Confederated Tribes of the Umatilla Indian Reservation, and the other Native American tribes involved, are, however, passionately committed to protecting what they regard as the graves of their ancestors. They have expressed their intention to appeal the decision all the way to the U.S. Supreme Court if need be. They fear that this decision subverts NAGPRA and gives "complete control over Native American ancestral human remains to scientists."

The Society for American Archaeology, in a press release responding to Jelderks's decision, asserts that it

does nothing to undermine NAGPRA's objectives as they were intended by Congress. However, as the first judicial review of key legal issues, it provides an urgently needed corrective to the expansive interpolations of the Act that have been too often employed by federal agencies and museums.

NAGPRA was intended to effect a compromise between the rights of Native Americans to protect the graves of their ancestors and the equally legitimate rights of scientists to contribute to our understanding of the ancient world by studying human remains such as Kennewick Man. Secretary Babbit, and like-minded federal bureaucrats, were the ones who attempted to subvert the NAGPRA compromise by illegally deciding to surrender the bones of Kennewick Man to a coalition of tribes, none of whom were demonstrably related to this Ancient One. Jelderks's decision restores the balance that Congress originally intended for NAGPRA and recognizes the rights of scientists to listen to Kennewick Man's "voice made of bone."

The full text of Jelderks's decision can be found on the Friends of America's Past Web site www.friendsofpast.org/ (where future updates on the appeals process will also be posted). Other useful sources of information are the Tri-City Herald Kennewick Man Virtual Interpretive Center at www.kennewick-man.com/ and the National Park Service Kennewick Man pages www.cr.nps.gov/aad/kennewick/ index.htm. One of the best sources of background information on the Kennewick Man story is Jim Chatters's book Ancient Encounters: Kennewick Man and the First Americans (New York: Simon and Schuster, 2001).


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