[Aztlan] Kennewick Man

Mon May 22 21:00:29 CDT 2006

Just a thought, another way to tell the story could be
that during WWI, a person in the Army claimed to have
stolen the skull of a POW, and sent somebody's skull
to the fraternity. It's not unusual for descendants/
successors to investigate and attempt to return war
souvenirs.
Susan

On 5/11/06, huehueteot at aol.com <huehueteot at aol.com> wrote:
>
> 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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> >
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