[Aztlan] Kennewick Man

Thu May 11 03:57:37 CDT 2006

Cliff:

  You are absolutely correct in your assessment of the situation except 
that NAGPRA wouldn't apply here because the skull was removed before 
the passage of the law in 1990. The laws governing theft of government 
property might apply but it would depend on when they were passed. I 
knew at one time but have since forgotten.

  The problem is that the Army isn't willing to even investigate the 
claim that the Skull is missing. The family has been urging them to do 
this for about twenty years but they won't even consider opening the 
tomb that Geronimo is supposed to be burried in. If they could do that 
then if there was a skull there they could evaluate whether it was 
Geronimo's or not and answer the question once and for all. If there 
was no skull there and other things missing another answer would be 
had. However, it does seem that the powers that be don't want the 
question answered either way. So most eforts to deal with the situation 
fail before beginning. Power and understanding do not always go 
together.

 Hugh G. "Sam" Ball

 And remember:

 "This too Shall Pass!

 -----Original Message-----
 From: Clifford T. Brown <ctbrown at fau.edu>
  To: 'Susan Gilchrist' <gilchrist.susan at gmail.com>; Aztlan 
<aztlan at lists.famsi.org>
 Sent: Wed, 10 May 2006 08:01:37 -0400
 Subject: RE: [Aztlan] Kennewick Man

  Actually, if this was stolen from Federal land, then it is federal 
property.
  Federal collections are subject to NAGPRA. The feds should go get it, 
and
 then either rebury or repatriate it.

  NAGPRA provides a list of priorities for repatriation claims. At the 
top of
  the list is “lineal descendants” as judged by the traditional kinship 
system
 of the tribe.

 We haven’t been discussing this as it does not seem relevant to the
  Kennewick case, but it would be relevant in the case of a recent 
historical
 figure. In such as case, genetic testing might well be relevant.

 Cliff

 Clifford T. Brown
 Assistant Professor
 Florida Atlantic University
 777 Glades Road
 Boca Raton, FL 33431
 (561) 297-3232
 ctbrown at fau.edu

 -----Original Message-----
  From: aztlan-bounces at lists.famsi.org 
[mailto:aztlan-bounces at lists.famsi.org]
 On Behalf Of Susan Gilchrist
 Sent: Tuesday, May 09, 2006 8:21 PM
 To: Margarita B. Marin-Dale
 Cc: Aztlan2
 Subject: Re: [Aztlan] Kennewick Man

 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.s
tor
 y>(The
 Hartford Courant 5/9)
 Username: *indianz at indianz.com*, Password: *indianzcom*

http://www.courant.com/news/local/hc-skullbones0509.artmay09,0,3995631.st
ory

 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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just
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