[Aztlan] Kennewick Man

Sun May 14 11:07:53 CDT 2006

While I have some faith in the parameters and an emerging consensus 
which can grow out of a discussion of this nature among this group, I 
am afraid that whatever voices of reason there are in addressing this 
complicated issue will be smothered by the core of the debate which I 
anticipate will actually occur. The Secretary did not take the 
extremest position that he took because his staff's "independent" 
review of the question led them to that conclusion. Any reading of the 
face of the statute shows how tortured the Secretary's construction 
was.
So the question is, since Governmental agencies never want a decision 
of theirs overturned by the courts (a very high probability considering 
the interpretive stretch they made) why was this over reaching 
interpretation made? I suggest that it may have it's roots in two 
related things. First is the emerging political power of the 
Tribes----think gambling and money---and their willingness to use it 
aggressively---think Jack Abramoff. I think that the possibility that 
the Secretary was "influenced" to come to the conclusion he did is 
real. That does not bode well for the future decisions that the 
Secretary may be called upon to make in the future. I fear that these 
issues may not be resolved "on the merits" but will be decided 
polemically and politically by those who can get the Secretary's ear.
My fears for the direction that future cases may take puts a premium on 
a broad discussion within the archaeological community at the present 
time and broadening that discussion to include Native American 
historians, folk-lawists and political leaders. Hopefully, if that were 
done the Secretary would be presented with a consensus view which 
he/she could take into consideration when a difficult issue is 
presented.

Bertram Perkel
On May 13, 2006, at 1:34 AM, huehueteot at aol.com wrote:

> Margarita:
>
>  I would like to second your suggestion that open mindedness in 
> dealing with Native American claims under NAGPRA and other such laws 
> is absolutely necessary. Nowhere in this discussion have I seen any 
> consideration of the view point of the Native American Tribes in the 
> case or what, if any, evidence for their side there was. Open 
> mindedness would require consideration of both sides of an issue not 
> just the courts have spoken.
>
> Cheers,
>
> Hugh G. "Sam" Ball
>
> And remember:
>
> "This too Shall Pass!
>
> -----Original Message-----
> From: Margarita B. Marin-Dale <inka1box at yahoo.com>
> To: Bertram Perkel <bperkel29 at comcast.net>
> Cc: Aztlan2 <aztlan at lists.famsi.org>
> Sent: Tue, 9 May 2006 09:24:49 -0700 (PDT)
> Subject: Re: [Aztlan] Kennewick Man
>
>  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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