The Facts

The facts of Bonnichsen are by now well known, popularized by a wide array of newspaper write-ups, lengthy expositions in the New Yorker, Time, and Newsweek magazines and a PBS special, not to mention a long list of scholarly articles.⁷

In July of 1996, a group of teenagers discovered skeletal remains on federal land in the Columbia River Basin near the small town of Kennewick, Washington. Shortly after and pursuant to the Archaeological Resources Protection Act (ARPA) of 1979, the remains were turned over to an anthropologist, Dr. James Chatters. An initial examination of the facial bone structure led Chatters and others to believe that the skeleton was that of an early European settler, but the discovery of a small stone projectile point embedded in the hip bone of the skeleton suggested that the remains were much older. A radiocarbon analysis estimated the age of the skeleton to be between 8,340- and 9,200-years old.

Shortly thereafter and just before the remains were to be sent to the Smithsonian for further analysis, the Native American tribes from the Columbia River area demanded that they be handed over for reburial pursuant to NAGPRA. The Army Corps of Engineers (Corps) agreed and by mid-September had filed an official Notice of Intent to Repatriate Human Remains pursuant to the requirements laid out in NAGPRA. At the same time, the Corps ordered an immediate stop to all scientific study of the remains. A group of scientists, now led by Robson Bonnichsen, director for the Study of First Americans at Oregon State University, requested access to the skeleton for ongoing studies but were refused and finally turned to the courts in October 1996. Thus began the litigation that eventually led to the decision in Bonnichsen.⁸

The Litigation

In the first opinion issued regarding the disposition of the Kennewick Man, the United States District Court for the District of Oregon (a Magistrate operating under the District Court) rejected the Corps' motion for summary judgment, threw out the Corps' initial decision regarding the remains, and remanded the matter back to the Corps. That decision was in June 1997. In March 1998, the Corps entered into an agreement with the Secretary of the Interior assigning responsibility to the secretary for determining whether the remains were Native American under NAGPRA.

After extensive study, the secretary's experts concluded that the remains were “unlike those of any known present-day population, American Indian or otherwise.”⁹

But they also stated that this did not rule out the possibility of a biological/ancestral connection to modern American Indians. Based on this information, oral histories, the age of the remains, and the geographic location of their discovery, the secretary announced on January 13, 2000, that the remains were Native American as defined by NAGPRA. Subsequently, the secretary also determined that they were culturally affiliated with the present-day Indian tribes and awarded the Kennewick Man remains to a coalition of tribal claimants.¹⁰

The scientists filed an amended complaint challenging the secretary's decision and seeking further study of the remains. The District Court again ruled in their favor, finding that the “secretary did not articulate a cogent rationale that supports his finding of cultural affiliation.”¹¹

In particular, Judge Jelderks objected to the secretary's reliance on a geographic connection and the oral traditions of the tribal claimants. Whereas the oral traditions provided by the tribal claimants were considered an important source of evidence by the secretary, in particular stories often corresponding to known geological events, and the general absence of migration stories, Judge Jelderks decided they did not hold up against the arbitrary and capricious standard—the applicable standard in reviewing an agency decision. In short, the secretary had no rational basis for his decision. The secretary and the tribal claimants appealed.

The Decision

Judge Gould began with two standing issues. The first of these issues was quickly dealt with and is not worth mentioning here, but the second is worth a brief accounting. The tribal claimants had argued that the plaintiffs did not have standing because they “do not seek to invoke interests within the ‘zone of interest’ that NAGPRA protects.”¹²

In other words, NAGPRA was passed to protect the interests of Native Americans, and so the plaintiffs and their claims fall outside NAGPRA. Furthermore, the plaintiffs were seeking to prevent rather than compel repatriation under NAGPRA, a cause of action that the tribal claimants argued was not contemplated. Drawing on the broad language in NAGPRA's enforcement and jurisdiction provision, Judge Gould rejected the limited jurisdiction arguments, finding that the words, “any action” brought by “any person alleging a violation” were sufficient to encompass the plaintiffs and their cause of action.

The remainder of the decision is devoted to a review of the secretary's decision. As stated at the outset, the review is governed by standards established under the Administrative Procedures Act (APA), which permit a Court to set aside an agency decision if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”¹³

The focus of the Court's analysis was the secretary's decision that the Kennewick Man remains are Native American as defined under NAGPRA. The secretary's decision can be divided into three areas of analysis: the scientific information, oral histories, and legislative intent.

The scientific evidence regarding the origins and cultural affiliations of the Kennewick Man was consistently ambiguous. Dr. Kenneth Ames, one of the secretary's experts, stated that, “the empirical gaps in the record preclude establishing cultural continuities or discontinuities particularly before about 5000 b.c.” In other words, there are no clear lines that can be drawn between Kennewick Man and any current populations. When coupled with oral histories “highly suggestive of long-term establishment of the present-day tribes”¹⁴

and lacking in any migration stories, the secretary seemed comfortable resolving this ambiguity in favor of the tribal claimants.

All of this, according to the secretary, is consistent with NAGPRA, given that NAGPRA does not explicitly require proof of a connection with a current tribal group. The definition provided by NAGPRA—human remains are Native American if they are “of, or relating to, a tribe, people, or culture that is indigenous to the United States” (U.S.C. § 3001(9))—can, according to the secretary, be interpreted as specifying current or past “tribes, peoples, and cultures.” The secretary found support for this interpretation in the fact that NAGPRA sets out a two-step inquiry for the return of remains. First, one must determine whether remains are Native American, and only then does one move to a more specific cultural-affiliation analysis. If the definition of Native American requires proof of a connection with a specific present-day group, the cultural-affiliation analysis, according to the secretary, becomes redundant. If the language of the definition leaves any remaining ambiguity, the secretary cites the “Indian canon of construction” requiring “doubtful expressions” in legislation enacted for the benefit of Native Americans to be interpreted in their favor.¹⁵

In short, in the absence of any definitive information ruling out the possibility of Native American connections, the secretary decided to err in favor of the tribal claimants, using oral histories and geography (the location is the traditional land of the tribal claimants) to tip the balance. Given the uncertainties, a contrary decision might have been reasonable, but the secretary's decision in favor of the tribal claimants appears, given the circumstances, to have been equally reasonable. The matter could have gone either way.

The Court's objection to the secretary's decision begins with his interpretation of NAGPRA. Whereas the secretary read expansively the definition of Native American remains to cover remains associated with indigenous peoples, whether past or present, Judge Gould interpreted the phrase “that is indigenous to the United States” to limit the definition to remains associated with a “presently existing tribe.”¹⁶

Judge Gould writes that this meaning of the definition is so clear, so unambiguous, that the absence of the present tense that is in the definition of Native American found in the regulations under NAGPRA is not given any weight.¹⁷ The clarity in the definition is, according to Judge Gould, so apparent that it was not necessary to fall back on the Indian canon of construction partially relied upon by the secretary. In fact, the definition is so unambiguous that no argument raised by the secretary or the tribal claimants was capable of raising even a hint of doubt—human remains fall under NAGPRA only if it can be proven that they are associated with a presently existing tribe.

The Court finds support for this interpretation in the judge's understanding of the purpose and intent of the human remains provisions under NAGPRA. According to Judge Gould, NAGPRA was passed with the intent of respecting “the burial traditions of modern-day American Indians…. NAGPRA was intended to benefit modern American Indians by sparing them the indignity and resentment that would be aroused by the despoiling of their ancestors' graves and the study or display of their ancestors' remains.”¹⁸

For the Court, NAGPRA is focused on the interests of modern Native Americans and those identifiably associated with them.

On top of the plain meaning and intent arguments, Judge Gould layers one more idea, that, for lack of a better label, I will call his commonsense argument. He argues that the logical conclusion of the secretary's argument is that any pre-Columbian remains found within the United States would have to be classified as Native American. This, he argues, clearly was not the intention of Congress and would indeed be a patently absurd result: “the government's unrestricted interpretation based solely on geography, calling any ancient remains found in the United States Native American if they predate the arrival of Europeans has no principle of limitation beyond geography. This does not appear to be what Congress had in mind… .”¹⁹

So Judge Gould, writing for the Court, saw things very differently from the secretary and the tribal claimants. In his judgment, NAGPRA demands a more definitive connection, a “significant relationship” between human remains and “presently existing” Native Americans. Human remains with uncertain or ambiguous origins automatically fall outside the definitions set out in NAGPRA. In short, the Court's position wasn't just that the plaintiffs had a stronger argument; they had the only reasonable argument.

Once NAGPRA was removed from the analysis, the case was remanded so that the District Court could determine an appropriate plan of scientific study under ARPA. At present, there is still no approved plan of study, although it appears that the scientists are close to having this settled.²⁰

The tribal claimants continue to argue that they should have a voice in the process.²¹ This is, of course, a much broader issue than just the Kennewick Man. Federal agencies and federally funded institutions falling under the jurisdiction of NAGPRA have large numbers of “culturally unidentifiable” remains, and Native American communities are uncertain and suspicious about what will happen to them in the wake of the Kennewick Man decision. They have voiced strong opposition to a new set of regulations for the “disposition of culturally unidentifiable human remains.”²²

NAGPRA as Human Rights Legislation

NAGPRA was quite clearly conceived as human rights legislation.²⁵

It was designed to rectify the violations of the “civil rights of America's first citizens.” Congress pursued this human rights initiative legislatively by encouraging a dialogue between federally funded institutions, specifically museums, and Native American tribes. As stated by Senator Inouye, “[f]or museums and institutions which have consistently ignored the requests of Native Americans, this legislation will give Native Americans greater ability to negotiate.”²⁶ As human rights legislation, NAGPRA covers much more than just human remains, it covers a range of things typically understood as being associated with cultural rights, all falling under the label cultural items: human remains, associated and unassociated funerary objects, sacred objects, and cultural patrimony. Each category has a separate process for identification and repatriation.

The scope of NAGPRA is truly significant, and this in and of itself made it historic legislation. But what is most unique and impressive about NAGPRA is that it expressly chose to privilege the views of Native Americans. For example, what falls within the category of cultural patrimony is left up to the “Native American group or culture”—it is what the group in question claims is of “ongoing historical, traditional, or cultural importance” and what it considers to be “inalienable.” (U.S.C. § 3001(3)(D)) This definition depends on Indian, not common law, property institutions²⁷

as well as Indian claims of cultural significance. It seems utterly uncontroversial to allow Native American tribes to define what is significant to them in their own terms, but prior to NAGPRA, Native Americans did not have any federally recognized right to control representations of their identities as expressed in their material culture, and claims with respect to their cultural heritage were routinely ignored.²⁸ It is this aspect of NAGPRA, more so than the scope of its application, that marks it as significant human rights legislation.

The same shift is evident in the provisions dealing with human remains. An Indian tribe can demand the return of human remains if it can prove that they are culturally affiliated. In an effort to prove cultural affiliation, claimants can rely on “geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral traditional, historical, or other relevant information or expert opinion.” (U.S.C. § 3005(a)(4)). As with the provisions relating to cultural patrimony, these provisions clearly recognize the value of Indian perspectives and the importance of such perspectives in resolving disputes over human remains.²⁹

Whereas Judge Gould found the oral histories of the tribal claimants to be inherently unreliable, NAGPRA expressly specified that such testimony should be given the same evidentiary value as traditional scientific or historical evidence.

Congress even recognized the possibility of a Kennewick Man situation arising and specified that a failure of the scientific record to fully support tribal claims should not necessarily defeat the claims in question.

While this statement does not on its own merit decide the disposition of the Kennewick Man, it does indicate that scientific and historic information, or the lack thereof, should not defeat tribal claims. At the very least, reliance by the secretary upon oral history as part of the “overall evaluation of the totality of the circumstances” should rise to the level of reasonable, given the express intentions of Congress.

In short, one of the most important aspects of NAGPRA, one that is a necessary component of its status as human rights legislation, is that it gives Native Americans the freedom to construct their own claims. It gives them a voice in matters that pertain to the well being of their cultures rather than leaving questions about cultural identity in the hands of others. It creates new space for collective and cultural agency, and as such, it is as much about sovereignty as it is about the disposition of cultural heritage and human remains. It is this aspect of NAGPRA that the Court in Bonnichsen failed to recognize. This failure was not in the fact that the tribal claimants lost but in the failure of the Court to show any respect for the alternative perspective of the tribal claimants as voiced through their oral histories.

It is worth noting that this interpretation of NAGPRA (its focus on increasing the profile of Native American perspectives) has also been praised by some individuals and groups in the museum and scientific communities. These groups are of the view that NAGPRA encourages a productive partnership with Native American communities, quelling the hostility that has marked their relationship in the past. Giving Native Americans a stronger voice in the process is, according to this view, better for everyone. A recent statement by the World Archaeological Congress (WAC) in support of Senator Campbell's proposed amendment to NAGPRA is a good example of this attitude. After recognizing that the proposed amendment is “consistent with the spirit of the original NAGPRA legislation and is simple good sense,” Dr. Claire Smith, President of the WAC went on to state:

The Relevance of Oral Tradition

It is important to recognize that the Court's comments extended to oral tradition in general, not the specific stories relied upon in the Kennewick Man case. Judge Gould stated, “because the value of such accounts is limited by concerns of authenticity, reliability, and accuracy, and because the record as a whole does not show where historical fact ends and mythic tale begins, we do not think that the oral traditions … were adequate to show the required significant relationship.”³²

This is a commonly held opinion of oral tradition,³³ but it may be overstated. John Borrows writes:

The point of this is not to show how Native American perspectives voiced through oral traditions live up to the standards of conventional written historical analysis but rather to point out that “all historical observation and interpretation, oral and written, is colored by differential life experience and training.”³⁵

In its embrace of oral tradition and Native American perspectives, NAGPRA was a move toward recognizing the equal status of such perspectives. The same process is evident in other jurisdictions, most notably in Canada, where in Delgamuukw v. British Columbia, the Supreme Court stated that oral histories should be accepted on an “equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.”³⁶ It is this process, this acceptance of Native perspectives that made NAGPRA so promising and that has been so seriously undermined by the Bonnichsen decision.

In his book Who Owns Native Culture? Michael Brown writes convincingly about the need to find mechanisms to resolve cultural disputes that rely on open discussion and negotiation, rather than rights and property concepts. In fact, he criticizes the tribal claimants and Indian activists in the Kennewick Man case for their statements rejecting the relevance of any other histories. I agree with Brown when he states that “[t]he reality of pluralist democracy is that groups living together must be free to talk about one another's history and culture,” but this is a two-way street.³⁷

NAGPRA tried to ensure that histories, in particular oral histories, from Indian perspectives would be shared and listened to. The reality is that the American legal system is not interested in listening—the oral histories of Native Americans are “stories that legal ears [cannot] hear.”³⁸ The Court in Bonnichsen rejected NAGPRA's attempt to change this, preferring instead to continue the privileged status of the written and documented histories of others.

NAGPRA as Federal Indian Legislation

Finally, the other aspect of NAGPRA that the Court in Bonnichsen fails to acknowledge is that it is federal Indian legislation. It falls within that part of the U.S. Code, Title 25, that deals with the multifaceted trust relationship between the federal government and Indian tribes. This trust relationship has “given rise to the principle that enactments dealing with Indian affairs are to be liberally construed for the benefit of Indian people and tribes.”³⁹

As previously noted, the Court recognized the existence of such a principle but found it to be inapplicable, because the Court had already decided that NAGPRA itself was inapplicable. In other words, Judge Gould ruled out an application of the principle when it seemed most relevant—at the stage of determining whether NAGPRA applied. The conflicting definitions of Native American found in the legislation and in the regulations, not to mention the different ways in which the legislative definition could be interpreted, presented an appropriate opportunity to apply the interpretive principles advanced by the secretary. But in deciding that NAGPRA's definition was unambiguous, despite the conflicts just mentioned, the Court effectively foreclosed any possibility of viewing the matter as one relating to Indian affairs.

The Court's refusal to recognize this aspect of NAGPRA is further evinced by its expansive notion of NAGPRA's “zone of interests.” NAGPRA is not, according to Judge Gould's opinion, limited to protecting the interests of Native Americans: “The Tribal Claimants urge that Congress enacted NAGPRA only with the interests of American Indians in mind, so only American Indians or Indian tribes can file suit alleging violations of NAGPRA. We reject this argument.”⁴⁰

The Court's interpretation of the expansive language in NAGPRA seems technically correct: “any action brought by any person” is broad language. Having said that, it is also hard to escape the fact that NAGPRA was passed with Native American interests in mind. All of the legislative history indicates that this was the clear intention of the legislation.⁴¹ Reconciling the broad language with the clear intention of the legislation is not easy, but the Court seemed uninterested in doing so, preferring instead to ignore the clear intent. The somewhat strange reversal of fortunes brought about by the Court's interpretation of jurisdiction and standing is made all the more perverse by the fact that the standing of the coalition of tribal claimants was called into question, whereas the scientists were described in glowing and respectful terms.⁴² These are not easy issues with clear-cut answers, but it is disappointing that the Court did not think it relevant to consider the broader purposes and intent of NAGPRA as federal Indian law in trying to resolve them.

When one adds up these various elements of the Court's decision—its rejection of oral histories, its refusal to apply Indian canons of construction, its questioning of the status of the tribal claimants, its assertion that NAGPRA's provisions go beyond protecting American Indian interests—it is apparent that the Court has a conception of NAGPRA that eviscerates NAGPRA's fundamental intent as human rights legislation, designed to recognize and legitimate Native American perspectives on matters that are of fundamental importance to them. The human rights intent of NAGPRA does not mean tribal claims should not be scrutinized—NAGPRA did not establish absolute rights for Native Americans over all disputed objects and remains. But it did recognize the value of their collective voices and the harm that has been done to Native American communities from centuries of ignoring them. The secretary understood this, and so he engaged in a serious analysis weighing all the evidence, including that presented by the tribal claimants, and then resolved a set of ambiguous facts in their favor—an approach that hardly seems unreasonable given the explicit language and intent of NAGPRA.