[Aztlan] Kennewick Man

[Margarita B. Marin-Dale]

Sam,
   
  Thank you for your consideration and support on the issue of balanced representation and discussion of issues concerning Native Americans. 
   
  As we speak, the Fifth Session of the United Nations Permanent Forum on Indigenous Issues is being held at the United Nations in New York, bringing together thousands of indigenous peoples from all over the world, including the Americas.  Yet, to date I haven't seen any film footage nor heard a word about these proceedings in the media.     
   
  "The UN Permanent Forum on Indigenous Issues is an advisory body to the Economic and Social Council, with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights."
   
  If someone has seen any news articles detailing these proceedings, kindly advise.
   
  Margarita    
   
   
  
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 
To: Bertram Perkel 
Cc: Aztlan2 
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 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
>
>
>
>
>
> ---------------------------------
> Love cheap thrills? Enjoy PC-to-Phone calls to 30+ countries for 
just
> 2¢/min with Yahoo! Messenger with Voice.
> _______________________________________________
> Aztlan mailing list
> Aztlan at lists.famsi.org
> http://www.famsi.org/mailman/listinfo/aztlan
>



__________________________________________________
Do You Yahoo!?
Tired of spam? Yahoo! Mail has the best spam protection around
http://mail.yahoo.com
_______________________________________________
Aztlan mailing list
Aztlan at lists.famsi.org
http://www.famsi.org/mailman/listinfo/aztlan




		
---------------------------------
Yahoo! Messenger with Voice. Make PC-to-Phone Calls to the US (and 30+ countries) for 2¢/min or less.