State Bar of Texas | American Indian Law

Although there may be some dispute as to what the biggest development in Indian Law was in 2002, none would say that the decision on “Kennewick Man” was minor. Although perhaps not as well known outside of Indian and scientific circles, the decision in the case of Bonnichsen v. USA,(1) was anxiously awaited by both camps. The case involved the discovery of “a human skull and scattered bones” along the Columbia River, near Kennewick, Washington, in July of 1996. Although initially believed to be the bones of some “early European settler or trapper,” upon further examination, “the remains revealed characteristics inconsistent with those of a European settler, yet also inconsistent with any American Indian remains previously documented in the region.” Radiocarbon dating determined that “Kennewick Man” was between 8,430 and 9,200 “calendar years” old.(2)

At issue in the case was the application of the Native American Graves Protection and Repatriation Act (NAGPRA) which, inter alia, confers standing among “lineal descendants” and “Indian tribes” to claim “Native American” remains for repatriation. Certain tribes had asserted claims to the remains of “Kennewick Man” for a religious reburial. They were opposed by a few scientists who wanted the remains for further study, because to the scientists, the remains were “an irreplaceable source of information about early New World populations.” “Kennewick Man” was about to be transported to the Smithsonian Institution by a group of scientists (that included three of the future plaintiffs in the case), when the U.S. Army Corps of Engineers (Corps), citing NAGPRA, stepped in and seized the remains. The Corps halted further testing and decided to give the remains to the Indian claimants in accordance with NAGPRA. The Plaintiffs filed suit to stop the return of the remains to the Indians and to secure permission for themselves to study the remains. The trial court (Magistrate Judge Jelderks) vacated the decision of the Corps and remanded the case to them with instructions. By inter-agency agreement, the Department of the Interior (DOI) assumed responsibility for a NAGPRA determination from the Corps, and the DOI awarded the remains to the “coalition of the Tribal Claimants.” The trial court didn’t like the decision of the DOI any better than the prior decision of the Corps and issued a 73-page opinion and order in favor of the plaintiffs. Magistrate Jelderks wrote that the “defendants have had ample opportunity to develop and fairly evaluate the record and to make an unbiased decision, and there is no reason to believe that another remand would yield a different approach or result.”

The case turned on the definition of “Native American.” Quite simply, if the remains were determined to be “Native American” then NAGPRA applied. Although “Native American” is defined in NAGPRA,(3) both the DOI and Judge Jelderks felt it was necessary to add their respective interpretations to the statutory definition. The DOI added an elaboration to the definition which made any and all pre-Columbian remains or objects “Native American” regardless of whether they were biologically or culturally related to present day tribes. Judge Jelderks’s Opinion, on the other hand stated:

By inserting the words “presently existing” into his definition of “Native American” Judge Jelderks took “Kennewick Man” out of the purview of NAGPRA because the remains could not be “Native American”under the trial court’s definition. The trial court decided that the Archaeological Resources Protection Act applied instead of NAGPRA and the trial court enjoined the transfer of the remains to the tribal claimants. The plaintiffs were given permission to study the remains.

However, further study of Kennewick Man won’t be anytime soon, if at all. In a surprising development, Judge Jelderks recently reversed himself and allowed the intervention of four tribes after he previously denied an intervention request by the Yakama Tribe in August of 2000. Those tribes have given notice of appeal, and the Department of Justice also gave notice of appeal on the deadline date of Oct. 29, 2002. Attorneys for both sides estimate the appeals process to the U.S. Supreme Court will take about four years.

Author’s Personal Perspective — Indian people take graves protection and repatriation very seriously. It is impossible to convey the profundity of anger, indignation, and sorrow that this issue engenders. The “Kennewick Man” situation is but a high profile reminder of the vast and miserable predicament of the American Indian, which for many is just another broken promise by the government. To others, all this case shows is a shift in rationale, where science has become a proxy for race and all that a few self-appointed guardians of the Western scientific tradition need to do to prevail is step in and invoke “Manifest Testiny.” That is readily apparent from the court’s opinion, which seems indulgent and star-struck when speaking of the scientists.

To this American Indian, the violation of ancestral remains can only be justified in the collective American psyche when perpetrated on people who have been reduced to a dehumanized caricature, a la Chief Wahoo of the Cleveland Indians.(5) Today’s society doesn’t tolerate similar insults to other racial and ethnic groups, yet with Indians, it is not only acceptable, but it is sanctioned.(6) Like those who deny the Holocaust happened, most Americans live in a state of denial about the unspeakable genocide that took place in this country which they conveniently overlook because it involved “savages.” It is this kind of denial, along with an absence of a perception of Indian people as real human beings, that allows the treatment of Indian ancestors as nothing more than scientific experiments waiting to happen.

Texas is a grave robbing-friendly state. Less than two percent of all land in Texas is federal land, so NAGPRA has very little application for new “finds.” While a few state statutes ostensibly purport to protect unmarked graves, they are unenforceable. Attempts at legislation go back to a Gov. Clements veto. State legislation is desperately needed. I have personally been working for graves protection legislation in Texas for almost 10 years, and not just for Indian graves. Many Hispanic and African-American graves are unmarked in Texas as well, having been denied a cemetery burial in a racially segregated Texas. Sadly, Texas remains one of a few states with no real legal protection in this area. That needs to change.

Case No. 96-1481-JE, In The United States District Court, For The District Of Oregon.
DNA testing was also done, but was unsuccessful.
“Native American” means of, or relating to a tribe, people, or culture that is indigenous to the United States.” 25 U.S.C. § 3001(9).
The trial court’s definition is problematic because in some instances, Indian remains would never be “Native American” remains unless an extant tribe exists to which they could be linked. Relatively recent (post-Columbian) remains may be found that could only be linked to extinct tribes, and although they might clearly be Indian remains, they would not be “Native American” under Judge Jelderk’s definition. Those remains would not be covered by NAGPRA which would be a truly ridiculous result.
Although I wouldn’t ordinarily recommend a white supremacist website, the reader might want to go to www.resist.com and view some of the caricatures of African-Americans, Hispanics, and Jews, and then judge if Chief Wahoo is any different in kind to the horrible cartoon depictions found at that site. I apologize in advance for listing the site, but I know of no other way to properly put Chief Wahoo into context.
I am familiar with those who say that those caricatures are meant to honor Indians. I reply that if anyone wants to honor Indians, they should work to see that the government honors its treaties with the Indians. That type of honor would be acceptable.

A LEGAL PERSPECTIVE