[Aztlan] Kennewick Man

[Margarita B. Marin-Dale]

Listeros, 
   
  Notwithstanding the merits of the Kennewick Man case, this seems to be a case of faulty reasoning and bad lawyering on the part of the DOI and the U.S. Army Corps of Engineers.  As Bertram pointed out, the DOI took the extreme position, in contravention with the direct language of the NAPGR, that human remains are presumptively Native American if proper age and geography are established, “and, irrespective of whether some or all of these groups were or were not culturally affiliated or biologically related to present-day Indian Tribes.”  (Lower Court Opinion, 25). 
   
  Yet, under the meaning of the Act, at a minimum, a Native American must show a cultural relationship between the remains in question and a present-day tribe, people, or culture indigenous to the U.S. (LCO, 30).  Proving the latter appears to be multi-faceted.  Cliff has previously pointed out that the statute permits the introduction of all kinds of evidence to prove cultural relationship.  Regulations promulgated by the DOI clarify that cultural affiliation must be established by a “preponderance of the evidence” (a lower standard than the appellate court had proposed) through the following forms of evidence: geographical, kinship, biological, archaeological, linguistic, folklore, oral tradition, historical evidence, and/or other information or expert opinion. (LCO, 30).  So, in response to Marcelo’s original question, biological, and presumably genetic, evidence may be introduced to prove cultural affiliation under the meaning of the Act.
   
  As Bertram stated, courts generally defer to agency findings unless the agency has acted in an arbitrary and capricious manner.  In this case, there was ample evidence of arbitrary behavior: the DOI had unilateral communications with other agencies and the Tribal Claimants, and had given the Tribal Claimants advance copies of key reports without providing copies or notifying the scientists; the Secretary had not been a neutral and unbiased party, and had prevented the scientists from meaningfully participating in the decision-making process; and so forth.  Similarly, the Army Corps of Engineers had apparently buried the discovery site under two million pounds of rubble and dirt (!) to prevent further study of the site.  It had also contributed to the deterioration of the remains by not implementing proper environmental control measures to preserve Kennewick Man’s “potential scientific value.” (LCO, 8).  Additionally, it had permitted the Tribal Claimants to visit the
 remains and conduct religious ceremonies without notifying the scientists or the court.  The latter actually hurt their case, because the labs were unable to isolate uncontaminated DNA within the time frame allotted by the court (?) and the DOI. (LCO, 16)  The Corps apparently also failed to adequately safeguard the remains.  Two femur bones were stolen from Kennewick Man and were not recovered until 5 years later (!).   
   
  These actions alone were probably enough to set aside the action of the DOI, but the court went ahead and decided the case on the merits!
   
  As to the standard of proof, it still seems very nebulous.  The language of the NAGPR says the claimant must prove cultural affiliation by a “preponderance of the evidence”; the lower court states “some relationship,” and the appellate court “substantial relationship.”  So, which is it?
   
  Moreover, as an “indigenista” at heart, I must ask how the requirements of the NAGPR can protect the burial rites of Native Americans if, as in this case, non-invasive evidence is insufficient.  For obvious reasons, Kennewick Man is probably not a good test case.  But, assuming some remote, yet tenuous, cultural affiliation, how do we balance scientific study with the claims of many Native Americans that handling, viewing, or even photographing the remains is invasive on religious grounds?
   
  Clearly, these court decisions, and even our own discussions, are tipped in favor of science and proving evidentiary connections; yet, where is there a place in this process for honoring indigenous practices and cultural affiliations that cannot be scientifically proven (at least not from our Western perspective)?  More important – what happens to Kennewick man after the scientists are done?  Will the Tribal Claimants who allege kinship with him be allowed to bury him in accordance with their burial customs?
   
  Saludos,
   
  Margarita
   
               
   

		
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