[Aztlan] Kennewick Man

Thu May 4 20:58:00 CDT 2006

Bertram Perkel
On May 4, 2006, at 5:44 PM, Michael Finley
> 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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