KENNEWICK MAN CASE: REINHOLD CLINTON REVIEWS THE COURT'S 27 JUNE OPINION
On June 27th, 1997 the United States District Court for the District of Oregon, issued a 52 page opinion with accompanying Order. The following represents the court's ruling, and then my interpretation of the opinion, which I have attempted to convey in a condensed version in terms that non-lawyers can readily understand.The issues the court first addressed were the defendants' motion for summary judgement and the plaintiffs' motions for an order allowing them to study the remains. The court denied the defendants' motion for summary judgement, concluded the plaintiffs had standing to maintain the action, and that the action had not been mooted. Furthermore, that the prior decisions by the Corps of Engineers concerning the remains should be vacated, with the matter being remanded back to the Corps for further consideration. The action was stayed pending the completion of the administrative proceedings. The court retained jurisdiction. The plaintiffs' request for permission to study the remains while this action is pending was denied without prejudice (even while the judge in open court recommended that the remains be studied and stated that the request to study the skeleton should be considered again by the Corps, on remand, in addition to other issues which are addressed below).
STANDING
To satisfy the case or controversy requirement of Article III, which is the constitutional minimum of standing, a plaintiff must demonstrate that (1) he or she has suffered an injury; (2) that there is a connection between this and the conduct complained; and (3) it must be likely that the injury will be addressed by a favorable decision.
Plaintiffs bear the burden of establishing these elements.
The court did not address the Asatru Folk Assembly's standing element by element because as the court noted the defendants chose instead to concentrate on the scientist plaintiffs with respect to this issue. After the court established that the scientist plaintiffs met the 3 requirements of Article III, it next addressed the AFA's standing. The court stated, "I conclude that, regardless of the ultimate merits of their claims or of the legal theories upon which those claims are based, the Asatru plaintiffs have adequately alleged an injury in fact, fairly traceable to the conduct of the defendants, that would likely be traceable to the conduct of the defendants, that would likely be addressed by a favorable decision. Accordingly, they have standing to maintain this action".
The court also denied the defendants' motion to dismiss plaintiffs' action for not being ripe. An issue that is not ripe in the context of an administrative proceeding means that no final decision has been reached. The court held that indeed a number of final decisions had been made by the Corps regarding the disposition of the skeleton.
In deciding what to do now that the court recognized that the plaintiffs had standing to pursue their claims and that the case was ripe, the court vacated the prior decision of the Corps and remanded the matter back to them for further consideration. What this means is that the court found the Corps' earlier decision-making to be flawed, and that the Corps was being asked by the court to fully reopen the matter, take a look at all the evidence again, to reach a decision that is based on all the evidence, and to provide a clear statement of what the agency has decided, and the reasons for that decision.
The court retained jurisdiction of the remains. This means that the ultimate disposition of the remains are still under court authority.
PLAINTIFFS' MOTION TO STUDY THE REMAINS
In addressing this issue, the court did not rule on whether or not there was a First Amendment right or not. Looking at its rationale and the cases cited, I would have to opine that the court is saying that the question is balanced on both sides. There are valid reasons for recognizing a First Amendment right and equally valid reasons for not doing so, with respect to this particular set of facts in the case at hand. However, the court did order the Corps to reconsider the issue.
PLAINTIFFS' EQUAL PROTECTION CLAIMS
In my opinion the AFA has a much better Fourteenth Amendment argument than the scientists according to the opinion. As the court stated, "Both sets of plaintiffs have asserted claims regarding the constitutionality of NAGPRA, its enabling regulations, and the actions taken thereunder. If I understand their allegations correctly, the Asatru plaintiffs contend that they are being discriminated against because the NAGPRA regulations permit only an Indian tribe to file a claim for the remains, notwithstanding that non-Indians (i.e., the Asatru plaintiffs) may have a closer relationship to the remains. I have more difficulty understanding the contentions of the Bonnichsen plaintiffs on this issue (emphasis mine)." The court then enters a lengthy explanation of why the scientists have failed to demonstrate unequal treatment. At one point the court even states that the scientists will have an "uphill battle" trying to convince the court on this issue.
REMAND ISSUES FOR CONSIDERATION
The court remanded the following issues to be considered by the Corps:
1. Whether the remains are subject to NAGPRA;
2. What is meant by the term Native American and indigenous in the context of NAGPRA and the facts of the case;
3. Whether, if there was more than one wave of ancient migration to the Americas, or if there were subpopulations of early Americans, NAGPRA applies to the remains or cultural objects from a population that failed to survive and is not directly related to modern Americans;
4. Whether NAGPRA requires a biological connection between the remains and a contemporary Native American tribe;
5. Whether there has to be any cultural affiliation between the remains and a contemporary Native American tribe- and if yes, how that affiliation is established if no cultural objects are found with the remains;
6. The level of certainty required to establish such a biological or cultural affiliation, e.g. possible, probable, clear and convincing, etc.;
7. Whether any scientific studies are needed before the Corps can determine whether these particular remains are subject to NAGPRA, and if so, whether such studies are legally permissable;
8. Whether there is evidence of a link, either biological or cultural, between the remains and a modern Native American tribe or to any other ethnic or cultural group, including those of Europe, Asia, and the Pacific Islands;
9. Whether the study provisions of 25 USC 3005 (b) are limited to objects that were in the possession or control of a federal agency or museum prior to November 16, 1990;
10. Whether there is any law that permits study of these remains;
11. Whether scientific study and repatriation of the remains are mutually exclusive, or if both objectives can be accomodated;
12. What law controls if the remains are not subject to NAGPRA;
13. What happens to the remains if no existing tribe can establish a cultural affiliation;
14. Whether the plaintiffs have a right under the First Amendment to study the remains;
15. Whether there is any merit to the contention of Asatru plaintiffs that non-Indians should be permitted to file a claim to the remains, or any merit to the equal protection arguments asserted by the plaintiffs;
16. What role if any the NAGPRA Review Committee should play in resolving the issues presented by this case; and
17. Whether NAGPRA is silent on important issues raised by this case, and whether Congressional action will be required to clarify the law regarding "culturally unidentifiable ancient remains".This could concievably be a case where the Corps continues to render faulty decisions. The court would then keep remanding the case back until at a certain point, the court could decide the Corps was acting in bad faith. At that point the court could order a Hearing to rule on the ultimate disposition of the remains. In my opinion, that is the most likely scenario, barring Congressional intervention, given the Corps' conduct to date.
Judging by the tenor of the opinion the court is very unhappy with the Corps' actions to date and will want some solid answers to the issues on remand.
The AFA and scientists must present the Corps with all the arguments they intend to use, as requested by the court, and to make any record below that is needed to support these contentions. This amounts to a Catch 22. Part of the AFA's argument is that we have a closer relationship genetically to the remains than the Indians. If, however, the only conclusive way to demonstrate this is by testing the remains, how are we to make a record in support of our argument? In my opinion the court will finally force the question of testing on the Corps either by endless remands or by a Hearing.
Background on the case- including links to the Asatru Folk Assembly's statements and a Washington Post article
Background from the Tri-City Herald
The following is a reprint of a post entitled Odinic Rite, Biology, and Kennewick from alt.religion.asatru, written by Heimgest, the Director of the Court of Gothar of the Odinic Rite. It was originally posted on 6 April 1997. Its continued relevence is clear....There is nothing that more clearly defines a Folk's identity, than it's natural religion", from "Interview With a Gothi" (Irmin 1996)
The ongoing controversy surrounding the "Kennewick Man" and the larger issue of biology and Odinism (as we commonly speak of it in Europe) is of importance and concern to the Odinic Rite collectively and to each member personally; the OR gives full and unhesitating support to the AFA, and to all parties in accord with thir action. If "Kennewick Man" becomes the firebrand that creates radical revision of contemporary archaeological theory, and upheavels in the ranks of Asatruar and Odinists as they are forced to more deeply examine their religious natures, then so much the better!
It must be made crystal clear- Odinism is definitely not for everyone. Like all organic religions, Odinism is ethno-centric. It is tribal, a Folk religion. It is an expression of our biological and spiritual link with the Gods whose creative forces brought us into being. We are directly linked with them in a symbiotic process. Odinism is the shared experience of our folk unit and how that has interacted with the other manifestations of God Forces- the land, the weather...Each component of existence has a unique and definite role to play. In achieving that, there is harmony and balance, the chain of nature is complete. If the links break, the unbalance begins.
Of course, the Judeo-christians "ungodded" Nature and the results of this are clear today. Via Odinic practice we also connect with our ancestral spirits, be they in Europe, beneath the seas, or on the western coast of Vinland- if that is where they once were! We say...let's find out!
UMATILLA TRIBE SECRETLY GIVEN ACCESS TO KENNEWICK MAN BY ARMY CORPS OF ENGINEERS
Wednesday, July 30th- Portland's major newspaper, The Oregonian, confirmed today that the Umatilla Indians have been granted special access to the Kennewick Man by the Army Corps of Engineers. Richard Hill, the reporter for the newspaper covering the story, stated that when he first approached Duane "Dutch" Meier, the public affairs spokesperson for the Corps, Meier informed him that he "wasn't aware" such things had been going on. "If I am in error, I would be taken back and surprised", stated Meier. Later, after conferring with other Corps officials, Meier informed Hill that the Indians had indeed been given special access on five occasions to perform religious rites in the repository room where the remains are stored. What is even more surprising is that it was learned at one of the visits by the Indians that they were even allowed to handle the bones of Kennewick Man! One can imagine any one of a number of dangers associated with this practice. Both myself and the attorney for the scientists voiced our outrage at this deception by the Corps.
Since the case has been placed on stay, no motion practice is allowed so an injunction to prevent this sort of thing from reoccuring is not anticipated. However, both plaintiffs believe these actions by the Corps will only strengthen their respective cases. By allowing the Indians secret access to Kennewick Man, the Corps has demonstrated the following:
1. A preconcieved mindset that has already determined the Kennewick Man to be of Indian ancestry, ignoring a vast body of scientific information to the contrary. This is precisely the same type of decision-making the court stated was flawed.
2. Giving preferential treatment to the Indians, which translates to discrimination to the non-Indian plaintiffs.
3. Possibly exhibiting religious discrimination towards the AFA plaintiffs. One thing to keep in mind about the demise of RFRA (Religious Freedom Restoration Act) is that if the government targets a religious group for discrimination, then a claim alleging religious discrimination still has teeth.
The AFA has decided to seek access to the Kennewick Man in order to perform religious rites as a result of this newly acquired information.
Dr. James Chatters, the prominent anthropologist who has spent more time examining Kennewick Man than anyone else has made the following statements:
1. When Kennewick Man was alive he would have probably looked like a cross between an Ainu and Chatter's Scandinavian father-in-law.
2. That a cast of Kennewick Man made with the use of holographic imaging shows Kennewick Man as looking very similar to the television series Star Trek's Captain Picard.
3. That if Kennewick Man were alive today he would blend right into a European population.
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