[Aztlan] Kennewick Man

Tue May 9 19:20:38 CDT 2006

There's a story in the news today that seems as though it
would involve similar issues if it were a legal case, which
it isn't. It seems like a question of whether 1) there's a skull
in the Yale fraternity, 2) it's an old guy, and 3) it's Harlan
Geronimo's relative. It seems quite different than Kennewick
in the sense that it could be a matter of establishing
paternity, not descent from long-ago Europeans or Ainu.
That's if the question is just whose skull if anybody's is
still in the fraternity. Scientists aren't the only ones who
collect other people's bones. (It's apparently not NAGPRA
since the fraternity is a private organization.)
Noninvasive testing seems like a possibiity since there are many
photographs of Geronimo and there's software for
comparing ID photos.
Below are links to news accounts including two different
Apache views, in the Hartford Courant and on Associated
Press.
Susan Gilchrist

Yale's Tale Of Skull Gets New Backing
<http://www.courant.com/news/local/hc-skullbones0509.artmay09,0,3995631.story>(The
Hartford Courant 5/9)
Username: *indianz at indianz.com*, Password: *indianzcom*
http://www.courant.com/news/local/hc-skullbones0509.artmay09,0,3995631.story

http://news.yahoo.com/s/ap/geronimo_s_bones

On 5/9/06, Margarita B. Marin-Dale <inka1box at yahoo.com> wrote:
>
> Bertram is absolutely right.  A federal appellate court will decide only
> what's before the court and cannot render an advisory opinion. Everything
> else will have to wait until there's another case and controversy.  Let's
> hope that whatever case appears next is a better test case for the NAGPR.
>
>   Still, I would like for us to consider the issue which I raised in my
> previous posting about balance and honoring the religious traditions of
> Native Americans.  I find that we are predisposed in our society to view
> law, policy, and sociocultural and economic issues from a rational,
> scientific, and Western European perspective.  In the foreign policy arena,
> in particular, this rigidity leads to conflict and a great deal of cultural
> misunderstanding.  However, in my view, there are other perspectives that
> are equally valid and worthy of consideration, even if they are very
> different than our own.  How we honor those perspectives is still a subject
> of much debate, but I think it starts with having an open mind and
> acknowledging that there are many different ways to view the world.  Ours is
> but one way, and not always the "right" way.  I don't wish to get off topic,
> so I'll just leave this as food for thought  . . .
>
>   Thanks to everyone who replied to my postings on and off the list.
>
>
> Huq p'unchaukama (Quechua: "until another day"),
>
>   Margarita
>
>
> Bertram Perkel <bperkel29 at comcast.net> wrote:
>   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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>
>
>
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