[Aztlan] Kennewick Man

Thu May 4 07:10:45 CDT 2006

Nice comments. I was somewhat limited in my previous posts by my ability (or
lack of it) to express North American legal concepts in Spanish. I also
should admit that I haven't re-read the decisions for the purpose of this
discussion. 

I like the Kennewick Man decision, not because I approve of the outcome, but
because it seems to me to be a very fair reading of the law and the evidence
in the case. 

I think the answer to both Questions 1 and 2 is: tribes should continue
doing what they've been doing in the overwhelming majority of their
successful NAGPRA cases; that is, they should continue to marshal
archaeological, ethnological, ethnohistorical, linguistic, and oral history
evidence to demonstrate a cultural affiliation to certain bodies of
archaeological materials. These methods (essentially, the so-called direct
historical approach of Julian Steward) are 1) well-established in
archaeology and 2) do not require a scientific examination of skeletal
remains.

The problem really arose in the Kennewick Man case, I think, because of the
great age of Kennewick Man. Because of its great antiquity and the
exiguousness of the archaeological record, there was little or no evidence
that could link the remains to the modern tribes in the area. I think
archaeologists and other scientists were rightly skeptical about their (our)
own ability to trace cultural affiliation back so far on such weak evidence.
If you read the determination of cultural affiliation written by the
Departmental Consulting Archaeologist in this case, you will notice that it
carefully traces the claimants' history in the area, but cannot offer any
concrete evidence of a connection back as far as the Late Paleoindian or
Early Archaic period. They could not cite any helpful evidence because there
really isn't any.  There are too many gaps in the archaeological record.

In the case of younger materials, it is often possible to trace cultural
affiliation through the style of material culture. So, for example,
Ancestral Puebloan materials are generally considered affiliated with the
modern Puebloan peoples. Mississippian archaeological materials are
generally considered affiliated with the modern tribes of the Southeastern
U.S. such as the Choctaw, Chickasaw, Creek, and Cherokees.

That's not to say that guidance from the court would not have been helpful.
It would have been nice, I'm sure. Among practitioners who have been
involved in NAGPRA cases, the law often seems poorly written and confusing.
I've worked on NAGPRA cases where a roomful of attorneys could not figure
out what to do even though all the principals, in an excess of good will,
agreed on the outcome they wished for.

Cliff

Clifford T. Brown
Assistant Professor
Florida Atlantic University
777 Glades Road
Boca Raton, FL 33431
(561) 297-3232
ctbrown at fau.edu

-----Original Message-----
From: aztlan-bounces at lists.famsi.org [mailto:aztlan-bounces at lists.famsi.org]
On Behalf Of Margarita B. Marin-Dale
Sent: Wednesday, May 03, 2006 5:16 PM
To: Aztlan2
Subject: Re: [Aztlan] Kennewick Man

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/AAFB80F54839DD2D88256E300069
CF95/$file/0235994.pdf?openelement

  Any thoughts?

  Margarita B. Marin-Dale
  American University

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