Friends of America's Past

The Kennewick Man Case | Press Releases & Public Statements

Plaintiffs Statement on Judge's Decision

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August 30, 2002

Kennewick Man/Court Decision

A court decision has been entered in the Kennewick Man lawsuit (Bonnichsen v. U.S., Civil No. 96-1481JE, District of Oregon). In a 73 page opinion released this afternoon, the federal trial court set aside former Interior Secretary Babbitt's decision to classify the 9400 year-old Kennewick Man skeleton as Native American and to give it to a coalition of Columbia River Indian claimants. The court has also ruled that the suing scientists will be allowed to study the skeleton and that the Army Corps violated the National Historic Preservation Act when it buried the skeleton's discovery site. Some of the highpoints of the court's decision are:

"I conclude that the final decisions challenged here were not made by neutral and unbiased decision makers in a fair process as is required under the APA." Opinion & Order at p. 23

". . . it appears that a remand with instructions to fairly reevaluate the issues again would be futile." Opinion & Order at p. 25.

"The Secretary erred in defining "Native American" to automatically include all remains predating 1492 that are found in the United States." Opinion & Order at p. 29.

"The term "Native American" requires, at a minimum, a cultural relationship between remains or other cultural items and a present-day tribe, people, or culture indigenous to the United States. A thorough review of the 22,000-page administrative record does not reveal the existence of evidence from which that relationship may be established in this case." Opinion & Order at p. 30.

"Based on a careful review of the record, I conclude that the Secretary's cultural affiliation determination cannot be sustained." Opinion & Order at p. 38.

"The Secretary misconstrued § 3002(a)(2)(C) to include cases in which no valid final judgment established aboriginal title, and misinterpreted the statue by applying it to cases in which the ICC had specifically found that the tribe failed to establish its aboriginal title. The statute cannot be construed in this manner." Opinion & Order at p. 64.

"In sum, I conclude that the Corps violated NHPA requirements that the views of "interested parties" be considered, that potential loss of archaeological data be mitigated, and that the potentially negative effects of the project be fully and carefully considered." Opinion & Order at p. 68.

"Allowing study is fully consistent with applicable statues and regulations, which are clearly intended to make archaeological information available to the public through scientific research. Allowing study is also consistent with the usual practice of federal agencies under circumstances in which NAGPRA does not apply." Opinion & Order at p. 72

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. However, the legal controversy over the fate of the skeleton may not end with this decision. The Department of Justice could challenge the decision through various procedural motions or appeals. The scientists' attorneys estimate that government expenditures on the lawsuit and related matters may already exceed $3,000,000.

Download the opinion [316k PDF]

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