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The Kennewick Man Case | News & CommentCourt Ruling In Kennewick Man CaseAlan Schneider, co-counsel for the Bonnichsen lawsuit, wrote this article in the late summer, 1997. A modified version was published in the Anthropology Newsletter September 1997. We have posted this because we feel it explains the early Court decisions in the case, which are still in effect. A federal court has set aside all decisions made to date by the U.S. Army Corps of Engineers concerning treatment and disposition of the ancient skeleton known as "Kennewick Man." Discovered on Army Corps property in July, 1997, the 9300 year old skeleton was originally thought to be the remains of an early Caucasian settler or trapper. When radiocarbon testing established its true age, the Army Corps stopped all further study and announced plans to repatriate the skeleton under the Native American Graves Protection and Repatriation Art of 1990 (the "Repatriation Act" or "NAGPRA"). These decisions have been challenged in a lawsuit filed by eight scientists in U.S. District Court in Portland, Oregon (Bonnichsen et.al. versus U.S., Civil No. 96-1481 JE). See background articles in January 1997 AN, p. 9, and February 1997 AN, p. 18. In a 52 page opinion issued on June 27, 1997, federal magistrate John Jelderks ordered the Army Corps to reopen its consideration of the issues presented by the case, to gather additional evidence, and to reach a decision that is consistent with the facts and law. This first-of-a-kind opinion sets a number of important precedents concerning the rights of private parties and agency responsibilities under NAGPRA. Some of its more significant points include the following: Who can Sue?A critical issue in this case was the question of whether non-tribal parties such as the Bonnichsen plaintiffs can have the necessary standing (i.e., the right) to challenge federal agency repatriation decisions. Throughout the case, the government has argued that the requisite standing requirements were not met, and therefore the scientists' claims should be dismissed. The court's opinion flatly rejects those arguments. This ruling has profound implications for future interpretation and enforcement of NAGPRA (and possibly state repatriation laws). If followed by other courts, it means that repatriation decisions will no longer be the private business of the repatriating agency (or museum) and the tribes claiming the remains or objects in question. Instead, those decisions can be challenged by outside parties who might be adversely affected by the repatriation. In addition to scientists, such parties could include Native Americans who are not members of a recognized tribe. How to Make Decisions?The court's opinion is also significant because it represents the first time that an agency or museum repatriation decision under NAGPRA has been set aside by a court. As a general rule, courts will overturn decisions by an administrative agency only if they are "arbitrary and capricious." In the present case, the court found that the Army Corps' decision making process was so flawed its decisions could not be allowed to stand. "Here, the agency clearly failed to consider all of the relevant factors or all aspects of the problem. The agency acted before it had all of the evidence or fully appreciated the scope of the problem. The agency did not fully consider or resolve certain difficult legal questions. The agency assumed facts that proved to be erroneous. The agency failed to articulate a satisfactory explanation for its action. By the agency's own admission, any decision in this matter was premature." Ct. Opinion at 31. Because administrative agencies are supposed to be the primary fact finding body in situations of this kind, the court remanded the case to the Army Corps for further consideration and analysis. The court's directions to the Corps in this regard were as follows: "* * * I am directing the Corps of Engineers to fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved, and to eventually reach a decision that is based upon all of the evidence, that applies the relevant legal standards, and that provides a clear statement of what the agency has decided, and the reasons for that decision." Ct. Opinion at 32. What are the Key Issues?The court's opinion sets out a long list of specific issues to be considered by the Army Corps as part of its deliberations on remand. Although &e court did not expressly order that the Corps must address these issues, the tenor of its opinion leaves little doubt that a failure to do so will put any new decision in jeopardy. One of the most critical issues in this case is the question of what is meant by the terms "Native American" and "indigenous" as used in NAGPRA and as applied to the particular facts of the Kennewick Man skeleton. In this regard, the court made the following observations: "It is not easy to apply the concept of "indigenous" to remains as ancient at issue here, at least given the present state of knowledge regarding the origins of humanity in the Americas. Indian legends often recount that their ancestors arose from the earth, or have always occupied this continent, which truly would be 'indigenous.' * * * * However, even assuming the ancestors of present day Native Americans have always been here, as the amici contend, that is itself does not preclude the possibility that non-Indians could also have been present in the Americas at some earlier date. * * * * On the other hand, conventional scientific theory is that modern Native Americans are descended from immigrants who came to the Americas from other continents. If that is true, then were these original immigrants (who were born elsewhere) "indigenous"? Were their children (born here of immigrant parents) "indigenous"? The analysis is further complicated if there was more than one wave of ancient immigration to the Americas, or off-shoots from the primary group(s).). If there were sub-populations whose members survived for a time in North America - perhaps hundreds or even thousands of years -- but eventually became evolutionary "dead ends," i.e.,., all descendants of the group eventually died, leaving no one who today is directly descended from them, would a member of such an extinct sub-population be considered "indigenous"? Would they be considered "Native American"? It is essential to define what is meant by "indigenous" and "Native American" for purposes of NAGPRA." Ct. Opinion, fn 24 at p. 45-46. Other questions listed by the court include the following:
With respect to the last issue, the court observed: "The record suggests that the preliminary tests and studies were never completed. If so, the agency may be unable to determine whether these remains are Native American without performing at least some tests and examinations. Among other things, the Corps may want to ensure that the remains really are over 9,000 years old. * * * * The Corps may also want to determine whether there are any tests (e.g., DNA tests) that might establish a link (or the lack thereof) to a modern Native American Tribe or to any other ethnic or cultural group." Ct. Opinion, fn. 28 at p. 48. What are the Standards for Analysis?The court's opinion also provides some important insights concerning what level of factual analysis and reasoning will be considered acceptable in situations of this kind. In response to the government's argument that the skeleton can be presumed to be Native American because it was found in a known Indian burial site, the court observed that this claim was disputed by plaintiffs. Moreover, there was no evidence to indicate whether Kennewick Man was intentionally buried at this location, or whether he was washed there by river currents. Ct. Opinion, fn. 26 at p. 47. Likewise, the court rejected the government's argument that the skeleton must be Native American since the projectile point in its hip was of a type thought to have been used by Native Americans: "However, this also could be seen as proof that the man was not of Native American ancestry, but was part of a competing group - which might tend to explain how he ended up dead with a spear embedded in his side. His group might have lost the competition, while the projectile makers survived and gave birth to succeeding generations. I express no opinion as to which historical view, if either, is correct. My point is simply that it is not enough to take one fact out of context and use it to support a pre-determined hypothesis. On remand, the Corps must critically examine all of the evidence in the record as a whole, and make specific findings that are supported by reliable evidence." Ct. Opinion, fn. 26 at p. 47. The court also rejected any inference based solely upon the age of the skeleton. Since the possibility exists that non-Indian groups may have inhabited the Americas during early periods, "* * * the age of the remains is not, by itself, conclusive proof that these remains are related to contemporary Native Americans." Ct. Opinion, fn. 24 at p. 46. Is There a Right to Study?The court did not reach a decision on the question of whether plaintiffs and other scientists have a Constitutional or statutory right to study ancient remains and archaeological objects held in agency and museum collections. However, the court did observe that the issue warrants greater consideration than the Corps has given it to date. In this regard, the court observed: "The First Amendment is not limited to "speech" per se. It protects both the right to send and also to receive information. Defendants acknowledge that the First Amendment limits the government's power to suppress knowledge by removing books from a library, but argue that the government has no affirmative obligation to facilitate the dissemination of knowledge by writing and publishing books. That misconstrues plaintiffs' argument." "Plaintiffs' contention is that to the trained eye the skeletal remains are analogous to a book that they can read, a history written in bone instead of on paper, just as the history of a region may be "read" by observing layers of rock or ice, or the rings of a tree. Plaintiffs are not asking the government to conduct the tests and publish the results. Plaintiffs simply want the government to step aside and permit them to "read that book" by conducting their own tests. A closer analogy would be a lawsuit brought by scholars seeking access to the Nixon tapes or presidential papers, or the Pentagon Papers, so the scholars may conduct research and publish their own findings." Ct. Opinion at 33-34. The court stated that "if necessary" it would rule on plaintiffs' study claims after the Army Corps has completed its deliberations on remand. What's Next?For the time being, the scientists' lawsuit has been "stayed" pending the completion of the Corps' administrative proceedings. However, the court has retained jurisdiction over the case. Upon conclusion of the Corps' proceedings,, the court will then review whatever decisions are reached by the Corps concerning repatriation of the skeleton and plaintiffs' study requests. Although the court did not issue a set deadline for completion of the Corps' proceedings, it did state that it expected the Corps to "proceed expeditiously." Status reports must be filed every three months commencing on October 1,1997. In the interim, the Corps may retain custody of the skeleton and it must continue to store the skeleton "in a manner that preserves their potential scientific value." Postscript
After many requests and finally at the direction of the Court,
Plaintiffs' representatives were allowed to inventory the skeleton and
evaluate it's condition on October 28-29, 1998, sixteen months after the
actions of the Court described in this article. The Kennewick Man
skeleton is now rehoused at the Burke Museum, in Seattle, Washington,
and remains in the custody of the Army Corps of Engineers. Plaintiffs
are waiting for the government to decide if they will be allowed to
conduct independent studies.
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