[Aztlan] Kennewick Man

Wed May 3 16:16:16 CDT 2006

Marcelo, Clifford, and Listeros,

  First of all, I believe the court decisions in the case of the study of Kennewick Man probably reached the correct outcome: it would have been a travesty for the scientific community not to be able to analyze such an important archaeological find that had the potential of shedding additional light on the origin of the Native peoples of the Americas. 

  However, as a follow-up to Clifford and Marcelo's discussion on the standard of proof (whether genetic or cultural) in the case of Kennewick Man, it seems to me that the standard set forth by the appellate court is somewhat unclear and leaves a number of open questions.  For example:

  1.  What must Native Americans do to prove that ancient human remains are "substantially related to a pre-existing Native American tribe, people, or culture of the U.S.?" (The standard established by the appellate court in the case of Kennewick Man.)

  2.  And, if scientific analysis is required to prove substantial relationship, in order to satisfy the requirements of question #2, doesn't that, in fact, contravene the purpose or purposes of the NAGPR, and possibly other laws, which aim to protect the social and religious traditions -- including burial traditions -- of Native Americans, many of which prohibit tampering with human remains of any kind?

  As many of you know, the jurisdiction of appellate courts in the U.S. only extends to questions of law, and not questions of fact, so the most important question before the Ninth Circuit Court of Appeals in the Kennewick Man case was whether the Secretary of the Interior's decision to transfer Kennewick Man to the Tribal Claimants arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law?  (If yes, then the court would have to set aside the Secretary's determination to transfer the remains to the Tribal Claimants and affirm the decision of the lower court.) 

  With respect to this question, the Secretary of the Interior had argued that Kennewick Man was a "Native American" under the meaning of the NAGPR because the remains were "of, or relating to, a tribe, people, or culture that is indigenous to the United States."  To reach this determination, the Secretary relied on the age of the remains, and the fact that the remains were geographically found in the United States.  The Secretary had also stated that a "preponderance of the evidence" showed that Kennewick Man was "culturally affiliated" with present-day Indian tribes.

  The appellate court, however, determined that the Tribal Claimants had shown NO relationship between Kennewick Man and their tribes, and thus, the lower court was correct in its determination that NAGPR did not apply.  (Opinion, p. 21)  It held that in order for the NAGPR to be triggered in this case, the record had to prove that the human remains "bear some relationship to a presently-existing tribe, people, or culture," of the U.S. (Opinion, p. 19)  Elsewhere in the opinion, the court stated a somewhat higher standard -- that the NAGPR required that "human remains bear a significant relationship to a presently-existing tribe, people, or culture to be considered Native American," and affirmed the decision of the lower court. (Opinion, p. 22)  However, the court did not supply any information as to how such significant relationship might be proven.    

  The court also argued that the age of the remains alone could not be determinative, because in such a case, all remains predating the European arrival would be "presumptively" Native American, even if such a tribe were extinct and/or had no relationship to any existing Native American tribe.  It also argued that geography alone could not be determinative, because in that case, any remains found in the U.S. would automatically be categorized as "Native American" under the meaning of the Act.  (The court contrasted the provisions of the NAGPR with those of the "Native Hawaiian" statute, which required a Native Hawaiian to be a descendant of "the aboriginal people, who prior to 1778, occupied and exercised sovereignty in the area that now constitutes Hawaii."  In the case of the Hawaiian statute, it argued, that Congress designated a specific geographic area to which the statute would apply.)

  A copy of the full opinion of the appellate court may be found at:      

  http://www.ca9.uscourts.gov/ca9/newopinions.nsf/AAFB80F54839DD2D88256E300069CF95/$file/0235994.pdf?openelement

  Any thoughts?

  Margarita B. Marin-Dale
  American University

__________________________________________________
Do You Yahoo!?
Tired of spam?  Yahoo! Mail has the best spam protection around 
http://mail.yahoo.com 