[Aztlan] Kennewick Man

Thu May 4 16:44:20 CDT 2006

Despite Betram's comment, I have say, as a lawyer,  that there are often 
two sides to questions of statutory interpretation! However, the 
appellate decision in the Kennewick Man case is about as clear as this 
sort of thing gets. The ambiguities  pointed out by Margarita  do not 
seem to me to be grave (no pun intended) difficulties.

The decision is based on interpretation of NAGPRA, and more 
specifically, on a finding that the Secretary of the Interior erred in 
interpreting NAGPRA. This finding then allowed the court to apply the 
correct interpretation to the evidence that had been presented in 
earlier proceedings.   The  apparently limited jurisdiction of the 
appeal court to questions of law is more apparent than real in cases 
like this, because once error is law is found, the evidence can be 
considered. 

The principal  legal finding is that NAGPRA defines Native American 
human remains to mean  human remains that are "of or related to" a 
"presently existing tribe, culture, or people that is indigenous to the 
US." The Secretary erred in bringing all  pre-contact  remains within 
the definition. 

Equally imprtant, the court did try to give some guidance in 
determining  "what kind" and "how strong" a  "relationship" with a 
presently existing tribe is required.  It noted that the purpose of the 
rule is to respect burial customs of modern-day tribes and accord 
dignity to the remains of ancestors of modern-day peoples.  In a 
straightforward case, say 19th C. Lakota human remains, there is no 
problem. The idea of "relationship" comes into play to extend the scope 
of the rule to ancestors of present tribes. Although the court does not 
say so in so many words, it implies that if a relationship is strong 
enough to make interference with the remains disrespectful to putative 
genetic or cultural decendants, NAGPRA applies. This will of course be a 
matter of judgment in individual cases: If respect is the key notion, it 
is hard to be more specific, but the notion is not open-ended, and the 
court was clear that age alone is not enough, nor is geography.

In addition,  the court's handling of the evidence suggests some highly 
relevant considerations. It found that, as a threshold requirement,  
there must be genetic or cultural continuity between the remains and a 
present day tribe.     In this case,  because cultures of  modern tribes 
in the area cannot be traced back more than 5000 years, less than the 
apparent age of Kennewick Man, and because of the genetic uniqueness of 
the remains, the relationship could not be established. The court did 
not rule out oral history  as a  means of demonstrating relationship,  
but  took the position that oral history must  provide some specific 
evidence of relationship (not, for example, "we have always lived here," 
or in this case, "oral history tells of no previous inhabitants."),  
and, I think it is fair to say,  the court suggested that oral history 
is strong evidence only if corroborated by other evidence, such as 
archeology.

The court also clearly implied that preliminary investigation of remains 
is required to determine if  NAGPRA applies. Obviously, the affiliation 
of remains will be clear almost as soon as they are unearthed in many 
cases. But if a tribe asserts control  over remains, its claim must 
stand or fall on available evidence, and if it attempts to restrict 
investigation in difficult cases, it risks an adverse finding because 
there may not be enough obvious evidence to establish a relationship. In 
this case, the court noted quite deliberately (I think)  that there was 
scanty evidence because of limited investigation, and thus little to 
erect an argument of relationship to the claimants. While this falls 
short of technically placing  the legal burden of proof on the tribe 
asserting a relationship, it suggests a practical or evidentary burden 
that must be met by the claimants.

Of course, in some respects Kennewick Man was actually an easy case 
because of his great age and genetic uniqueness.  Applying  the  Court's 
logic to say, the Mound Builders or the  Anasazi is obviously more 
difficult. In the hard cases, I'd suggest that disputes between 
archaeologists about cultural history, and interpretation of oral 
histories will be the problem areas.  Quaere:  Would a marked change in 
burial customs  break the  relationship  on grounds that  what is now 
regarded as disrepectful  was  not so regarded  by the ancestors?

Michael Finley

Margarita B. Marin-Dale wrote:

>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
>
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