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The Kennewick Man Case | News & Comment

Government's Shell Game with Kennewick Man continues

After nearly seven years of defending their position that the Kennewick Man skeleton was culturally affiliated to the claiming tribes, the federal government has shifted tactics in its appeal to the Ninth Circuit. The Department of Justice now tells the Court that these remains do not have a qualified claimant. In their final response in the appeals briefing process, filed on July 1, 2003, they state on page 3:

" is important to clarify what is and is not at stake in light of the government's decision not to defend on appeal its earlier determination awarding the Kennewick Man remains to the tribal claimants and consequent current position that these remains should be treated as Native American remains without a qualified claimant."

This statement suggests that the agencies involved (DOJ, DOI, Army Corps) now recognize that former Secretary of the Interior Babbitt was wrong when he decided to give the 9400-year-old skeleton to the tribal coalition. By not defending Babbitt's determination, the statement also suggests that the agencies now recognize that:

-- They never had sufficient information to culturally affiliate the skeleton to the tribal coalition, as NAGPRA requires.

-- The tribes did not have a solid claim based upon the location where the skeleton was found.

-- Group claims like those of the tribal coalition are not proper under NAGPRA

The new position is contrary to the claims they argued so firmly in Federal District Court as recently as their reply brief of May 2000:

"To prove cultural affiliation, the standard the claimant must meet and the federal agency must apply is a preponderance of evidence. Here, taking into account the tribal claimants' oral history that they had always inhabited this area, as well as the absence of any migration stories, and all of the other relevant evidence, the Secretary determined that there was a shared group identity between the earlier group and the present day claimants. DOI AR 904 at 10015."

They also argued that even though NAGPRA requires a final Indian Claims Commission judgment to establish aboriginal lands, factual findings were enough to establish the tribes as legal claimants in this case. (DOI AR 908 at 10086)

Finally, although they admitted that NAGPRA doesn't explicitly state that cultural affiliation can be found to exist with multiple tribes, DOI's regulations interpreting NAGPRA state that "...such affiliation may be established with a group of present day Indian tribes filing a joint claim." The Wanapum Band, who are not federally recognized, were included in the claim because the other tribes 'did not object'.

One wonders why it took a pounding in court to convince the government to reassess its position.

The scientists filed the original lawsuit in 1996 because of an agency's flawed decision-making process. The scientists sought assistance from the Court because, in their view, the Army Corps of Engineers had acted arbitrarily in their decision to repatriate the remains without meeting NAGPRA requirements for affiliation. Although the record shows the DOI was informally advising the Army Corps from the beginning on NAGPRA, agency involvement was formalized in 1998 when the Corps enlisted the Department of the Interior to establish cultural affiliation. The case dragged on, as the Department of the Interior worked with the tribes to justify the Corps' position. The Oregon District Court found the DOI's final determination arbitrary and ruled in favor of the scientists in August 2002.

So what is their appeals strategy? As the Department of Justice states in their July 1 response brief to the 9th Circuit, their current position is that these remains are without a qualified claimant. The agencies now argue that the remains should be found to be Native American, paving the way to repatriate them under NAGPRA's section dealing with unidentified remains. They fail to mention to the Court the fact that the Department of the Interior has not managed to finalize regulations on how to handle unidentified remains. NAGPRA was enacted nearly 13 years ago in 1990.

In the meantime, the agency shell game continues. The government's appeal focuses on the Court's rejection of agency interpretation of the term "Native American". What will happen to the scientists' original complaint that the agencies' decision-making process was flawed? The legal remedy rests with the 9th Circuit.

Congress needs to hear a clear message: agencies must be held accountable for their decisions and actions. The Army Corps, the Department of the Interior, and the Department of Justice have spent millions of tax dollars defending untenable actions for seven years, only to shift to another untenable tactic. (see Schneider, Kennewick Man: The Three Million Dollar Skeleton at

You can help. Write to your congressional representatives to insist on agency accountability. Recommend an immediate review of the decision-making process and the excessive costs associated with defending an ill-founded position. Congress must hold the bureaucrats in Washington DC and in Washington State accountable for their actions in the Kennewick Man case.

Please take a few minutes to email your comments to Senators and Representatives on Capitol Hill (email addresses) and newspaper editors in your area.

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