[Aztlan] Kennewick Man

Tue May 9 09:43:57 CDT 2006

   In view of the apparent interest of the List in the Kennewick case, I 
think it might helpful in looking at what the Court of Appeals did in 
that case, to understand what it did not do and would not do. As Miles 
Davis would note, one should also listen to the "music" between the 
notes as well as the notes themselves to fully understand and 
appreciate the piece.
   As a matter of traditional appellate jurisprudence, a court will go 
to great lengths to decide only what is specifically before it and even 
then, further limit themselves by speaking only to the particular 
question whose answer is required for the decision. While there are 
exceptions to this basic appellate practice, they generally relate to 
important matters which can reasonably expected to arise in the 
immediate near term or deal with issues of profound public importance. 
Neither of these conditions appear to be extant in the Kennewick case. 
This principal can be summed up under the rubric that a federal court 
"does not render advisory opinions" and will allow the 'law" in a 
particular area to develop case by case. This is why so he Kennewick 
case does not satisfy the understandable wish for guidance as to what 
the NAPGR means or how it may be applied or construed in the future. 
All we have are some broad hints and knowledge that the extremes are 
not acceptable. Everything else is left to reasoned speculation until  
some future parties are once again in conflict as to the application of 
this statute in a particular case and that conflict is again brought to 
the courts to resolve.
Bertram Perkel
On May 7, 2006, at 1:36 AM, Margarita B. Marin-Dale wrote:

> 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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