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The Kennewick Man Case | News & CommentSummary of Plaintiffs' Opening MemorandumFor those who are not familiar with legal proceedings, the judge need rule in favor of any one of the eight complaints in the scientists' memorandum for the scientists to be successful. That they have eight legally justified complaints is a measure of how unreasonable the government conduct has been in denying these scientists due process. Summary of Plaintiffs' Opening Memorandum In August 1996, the government decided to give the Kennewick Man skeleton to a Coalition consisting of four Columbia Plateau tribes and one unrecognized band. When scientists were told that their requests to study the skeleton would not be processed until after the transfer was completed, eight of them began this lawsuit in federal court. On June 17, 1997, the Court remanded the case to defendants with instructions to gather additional evidence, take a fresh look at the issues involved, and reach a new decision that is consistent with the law and evidence. In September 2000, defendants reaffirmed the earlier decision to give the skeleton to the Coalition, and denied the scientists' study requests. The scientists argue in their opening memorandum to the Court that these decisions should be set aside for one or more of the following reasons. No one knows who Kennewick Man was, what language he spoke, how he died or whether he has any living descendants. Nonetheless, defendants have classified him as Native American solely because he predates 1492. This 1492 Rule is contrary to the language and intent of NAGPRA, was improperly adopted, and would unreasonably bring into NAGPRA's ambit ancient remains and objects that have no demonstrated relationship to present-day American Indians. Defendants decision that the skeleton is 'culturally affiliated" to the Coalition is contrary to law. Defendants ignored the fact that NAGPRA does not authorize such group repatriations, and their reliance upon oral tradition was misguided. Even if one accepts the Coalition's claims that its members have always lived in the region, it does not follow that Kennewick Man is one of their ancestors or that he has a "shared group identity" with them. Defendants also improperly relied upon a non-precedential Indian Claims Commission case settlement, they failed to consider all contrary evidence on affiliation, and they failed to provide a rational basis for their decision. Defendants' decision makers had ex parte contacts with the White House and with the government's trial attorneys even though Interior was earlier reprimanded for engaging in such conduct in another case. Defendants' decisionmakers also had ex parte contacts with the Coalition. Defendants withheld the substance of many of these contacts from the record, and refused to give plaintiffs a fair opportunity to participate in the decisionmaking process. They coached the Coalition on how to present its claims and applied an improper presumption in favor of the Coalition's claims. The scientists also argue that the decisionmakers were biased. Defendants ignored the Constitution's requirement that church and state be kept separate. They accepted the "truth" of the Coalition's religious beliefs, and used those beliefs as proof of prehistoric events contrary to known scientific information. They also used religious beliefs as a basis for denying plaintiffs access to the skeleton, and for denying access to the discovery site and government-held information. Defendants failed to give serious consideration to plaintiffs' claims that they have First Amendment and statutory rights to study the skeleton. In other situations, scholars are routinely allowed to study prehistoric skeletal remains and objects found on federal land or held in government collections. Skeletons are like books whose stories can be "read" by trained eyes, and it is not for the government to determine which of these stories can be read and who can do the reading.. Defendants buried the skeleton's discovery site without giving plaintiffs an adequate opportunity to receive information and provide input about the project. They also failed to properly investigate the site and the potential adverse effects of the site cover-up. The scientists also contend that there were other alternatives available that would have cost less than the $166,000 spent on this project, and that would not have impacted the site's scientific values. Defendants have not shown appropriate concern for the skeleton's safety. No long-term preservation plan has been developed, and defendants have allowed the storage area's relative humidity to fluctuate and to fall as low as 16.9%. Low relatively humidity can damage skeletal collections by causing bones to crack and deteriorate. Defendants violated the Freedom of Information Act ("FOIA") by withholding relevant information from plaintiffs about the skeleton and its discovery site. More than three years after plaintiffs appealed the denial of their first FOIA request, defendants have not reached a decision on that appeal or even set a decision date. Other appeals remain undecided. When documents were produced, their disclosure was incomplete or tardy. The scientists urge the Court to avoid another remand of the case to defendants for a third round of administrative proceedings. In circumstances such as these, the Court has the inherent authority to decide the substantive issues itself in order to protect a party from further agency delay or abuse. Such authority includes the power to order that plaintiffs be given access to study the skeleton and such other relief as the Court deems appropriate. July 28, 1996 August 26, 1996 August 28, 1996 September 17, 1996 October 16 1996 October 24, 1996 February 19, 1997 June 27, 1997 September 5, 1997 August 25, 1997 August 26, 1997 October 1, 1997 October 16, 1997 October 29, 1997 November 10, 1997 December 13/17, 1997 December 23, 1997 December 23, 1997 March 10, 1998 March 17, 1998 March 24, 1998 March 25, 1998 April 4, 1998 April 4, 1998 April 6, 1998 April 27, 1998 May 29, 1998 June 12, 1998 July 1, 1998 July 13, 1998 September 29, 1998 October 20, 1998 October 28/29, 1998 October 29, 1998 November 13, 1998 February 25, 1999 July 1, 1999 September 8, 1999 September 14, 1999 September 21, 1999 October 15, 1999 January 13, 2000 January 13, 2000 January 31, 2000 March 8, 2000 April 24/28, 2000 May 8, 2000 May 26, 2000 August 2, 2000 September 21, 2000 September 21, 2000 September 25, 2000 October 4, 2000 October 25, 2000 December 1, 2000 January 2, 2001 January 9, 2001 January 22, 2001 February 1, 2001 February 5, 2001 February 6, 2001 April 2/3, 2001 April 16, 2001 May 17, 2001 June 4, 2001 June 19, 2001 Return to News & Comment |
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