The Kennewick Man Case | News & Comment

The Kennewick Hearing: June 19-20, 2001

A brief summary

The Court spent a full day and into the afternoon of a second day to establish a clear understanding of the views and interpretation of key terms and concepts held by the various parties. The judge set the guidelines for the hearing with a statement that he would address issues of his concern one at a time. He also stated that his opinion would take some time to write, as he was fully aware that his opinion would create precedent beyond this case. The first topic, which lasted into the afternoon, was a discussion of the question: What is a Native American?

On the second morning, the judge began by showing a slide with statements of his understanding of the various positions on the meaning of the term Native American (as gleaned the day before). He gave each party the opportunity to correct or modify his understanding of their positions. When all were satisfied that the judge had captured their intended meaning, he moved to the next topic of concern: cultural affiliation. Among many questions, he asked: What does it mean to have a 'shared group identity'? After considerable discussion he continued to probe, asking what prior group the government identified to establish a link with claiming tribes. And, on what evidence did they associate the Kennewick Man with that earlier group?

While there was some time to address Due Process issues, the Court seemed satisfied with the briefs submitted earlier by all parties. The judge did note again, as he has in the past, that the government's job for determining cultural affiliation might have been easier if they had not buried the discovery site.

Throughout the proceedings, one could imagine a similar process of a law school professor thoughtfully questioning the class and following up to probe the logic of the responses. He frequently used his own scenarios to frame his questions clearly. The judge was thorough, thoughtful, and perceptive as he listened to all the views on each topic: those of the scientists, government, the claiming tribes, the National Congress of American Indians, and the Society for American Archaeology.

What's next

The transcript of the two-day hearing will be available in about a month. We will post quotes from this transcript, but will not have permission to post the entire transcript.

Magistrate Jelderks said that his opinion will be forthcoming in the weeks to come. We will post the entire opinion when it is filed. Due to the complexity of the issues, knowledgeable people suggest that the opinion will not be finished in less than three weeks and expect it will be more like six weeks.

The steps that follow will depend on his opinion.

Our Comment

We are delighted that the Court has chosen to address the tough issues in this case. We are confident that Magistrate Jelderk's opinion will be fair, well reasoned, and based upon the law.

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