367 F.3d 864 (9th Cir. 2004), 02-35994, Bonnichsen v. United States

Docket Nº:02-35994, 02-35996.
Citation:367 F.3d 864
Party Name:Robson BONNICHSEN; C. Loring Brace; George W. Gill; C. Vance Haynes, Jr.; Richard L. Jantz; Douglas W. Owsley; Dennis J. Stanford; D. Gentry Steele, Plaintiffs-Appellees, v. UNITED STATES of America; United States Army; United States Army Corps of Engineers; David A. Fastabend; Francis P. McManamon; Edward J. Kertis; Thomas E. White; Gale A. Norton
Case Date:February 04, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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367 F.3d 864 (9th Cir. 2004)

Robson BONNICHSEN; C. Loring Brace; George W. Gill; C. Vance Haynes, Jr.; Richard L. Jantz; Douglas W. Owsley; Dennis J. Stanford; D. Gentry Steele, Plaintiffs-Appellees,

v.

UNITED STATES of America; United States Army; United States Army Corps of Engineers; David A. Fastabend; Francis P. McManamon; Edward J. Kertis; Thomas E. White; Gale A. Norton; Craig Manson; Robert B. Flowers; National Park Service; United States Department of the Interior, Defendants-Appellants,

Nez Perce Tribe of Idaho; Confederated Tribes of the Umatilla Indian Reservation; Confederated Tribes & Bands of the Yakama Indian Nation; Confederated Tribes of the Colville Reservation; Society for American Archaeology; National Congress of American Indians, Wanapum Band, Defendants-Intervenors.

Robson Bonnichsen; C. Loring Brace; George W. Gill; C. Vance Haynes, Jr.; Richard L. Jantz; Douglas W. Owsley; Dennis J. Stanford; D. Gentry Steele, Plaintiffs-Appellees,

v.

United States of America; United States Army; United States Army Corps of Engineers; David A. Fastabend; Francis P. McManamon; Edward J. Kertis; Thomas E. White; Gale A. Norton; Craig Manson; Robert B. Flowers; National Park Service; United States Department of the Interior, Defendants,

Nez Perce Tribe of Idaho; Confederated Tribes of the Umatilla Indian Reservation; Confederated Tribes & Bands of the Yakama Indian Nation; Confederated Tribes of the Colville Reservation, Defendants-Intervenors-Appellants.

Nos. 02-35994, 02-35996.

United States Court of Appeals, Ninth Circuit

February 4, 2004

Argued and Submitted Sept. 10, 2003.

Amended April 19, 2004.

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Ellen J. Durkee, Environment & Natural Resources Division, Department of Justice, Washington, D.C., for the defendants-appellants.

Thomas P. Schlosser and Rob Roy Smith, Morisset, Schlosser, Jozwiak & McGaw, Seattle, WA, Melissa Compobasso, Nespelem, WA, for intervenor-appellant Confederated Tribes of the Colville Reservation.

Naomi Stacy, Pendleton, OR, for intervenor-appellant Confederated Tribes of the Umatilla Indian Reservation.

David J. Cummings, Lapwai, ID, for intervenor-appellant Nez Perce Tribe.

Thomas Zeilman and Tim Weaver, Toppenish, WA, for intervenor-appellant Yakama Nation.

Joseph P. Siofele, Pro Se, Moreno Valley, CA, appellant.

Alan L. Schneider, Paula A. Barran, Barran Liebman, LLP, Portland, OR, for the plaintiffs-appellees.

Bradley K. Baker, Porter, Wright, Morris & Arthur, LLP, Columbus, OH, for the amicus Ohio Archaeological Council.

S. Shawn Stephens, Locke Liddell & Sapp, LLP, Houston, TX; Joe H. Thrash, Assistant Attorney General, Austin, TX, for the amicus Texas Historical Commission.

Walter Echo-Hawk, Native American Rights Fund, Boulder, CO; Jack F. Trope, Association of American Indian Affairs, Rockville, MD, for the amici Association of American Indian Affairs and Morning Star Institute.

Michael J. Fanelli, Covington & Burling, Washington, D.C., for the amicus Society for American Archaeology.

Sherry Hutt, Pro Se, Paradise Valley, AZ, amicus.

Ellis J. Neiburger, Waukegan, IL, for the amicus Ethnic Minority Council of America.

Christopher A. Amato, Albany, NY; Joseph J. Heath, Syracuse, NY, for the amicus Haudenosaunee Standing Committee on Burial Rules and Regulations.

Dr. Andrei Simic, Pro Se, Los Angeles, CA; Dr. Harry Glynn Custred, Jr., Pro Se, Hayward, CA, amici.

Timothy Sandefur, Sacramento, CA, for the amicus Pacific Legal Foundation.

Dr. Ives Goddard, Pro Se, Washington, D.C.; Dr. William Shipley, Pro Se, Santa Cruz, CA, amici.

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Appeal from the United States District Court for the District of Oregon John Jelderks, Magistrate Judge, Presiding. D.C. No. CV-96-01481-JE.

Before: ALDISERT,[*] GRABER, and GOULD, Circuit Judges.

ORDER

The opinion published at 357 F.3d 962 (9th Cir. 2004) filed on February 4, 2004 is amended so that footnote 20 should read:

In so holding, we necessarily determine that no reasonable person could conclude on this record that Kennewick Man is "Native American" under NAGPRA. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) (holding that under the substantial evidence standard the reviewing court "must decide whether on this record it would have been possible for a reasonable jury to reach the [agency's] conclusion").

With this amendment, the Petition for Rehearing is DENIED.

The full court has been advised of the Petition for Rehearing En Banc and no judge of the court has requested a vote on the Petition for Rehearing En Banc. Fed. R.App. P. 35. Appellant's Petition for Rehearing En Banc is also DENIED.

No further petition for rehearing or rehearing en banc will be accepted in these cases.

IT IS SO ORDERED.

OPINION

GOULD, Circuit Judge:

This is a case about the ancient human remains of a man who hunted and lived, or at least journeyed, in the Columbia Plateau an estimated 8340 to 9200 years ago, a time predating all recorded history from any place in the world, a time before the oldest cities of our world had been founded, a time so ancient that the pristine and untouched land and the primitive cultures that may have lived on it are not deeply understood by even the most well-informed men and women of our age. Seeking the opportunity of study, a group of scientists as Plaintiffs1 in this case brought an action against, inter alia, the United States Department of the Interior, challenging various Indian tribes'2 claim to one of the most important American anthropological and archaeological discoveries of the late twentieth century, and challenging the Interior Department's decision honoring the tribes' claim. The discovery that launched this contest was that of a human skeleton, estimated by carbon dating to be 8340 to 9200 years old, known popularly and commonly as "Kennewick Man," but known as "the Ancient One" to

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some American Indians3 who now inhabit regions in Washington, Idaho, and Oregon, roughly proximate to the site on the Columbia River at Kennewick, Washington, where the bones were found. From the perspective of the scientists Plaintiffs, this skeleton is an irreplaceable source of information about early New World populations that warrants careful scientific inquiry to advance knowledge of distant times. Yet, from the perspective of the intervenor-Indian tribes the skeleton is that of an ancestor who, according to the tribes' religious and social traditions, should be buried immediately without further testing.

Plaintiffs filed this lawsuit seeking to stop the transfer of the skeleton by the government to the tribes for burial, and the district court held in favor of the scientists-Plaintiffs.4 The Secretary of the Interior and the intervenor-Indian tribes appeal. We have jurisdiction under 28 U.S.C. § 1291 and affirm the judgment of the district court barring the transfer of the skeleton for immediate burial and instead permitting scientific study of the skeleton.

I

In July 1996, teenagers going to a boat race discovered a human skull and bones near the shore of the Columbia River just outside Kennewick, Washington.5 The remains were found on federal property under the management of the United States Army Corps of Engineers ("Corps") and, at the request of the county coroner, were removed for analysis by an anthropologist, Dr. James Chatters, pursuant to an Archaeological Resources Protection Act of 1979 ("ARPA"), 16 U.S.C. §§ 470aa-470mm, permit. Because of physical features such as the shape of the skull and facial bones, anthropologists at first thought the remains were those of an early European settler. But the anthropologists then found a stone projectile point embedded in the skeleton's upper hip bone. The object's design, when viewed with x-rays and CT scans of the hip, resembled a style that was common before the documented arrival of Europeans in the region. Further study of the remains revealed characteristics unlike those of a European settler, yet also inconsistent with any American Indian remains previously documented in the region. A minute quantity of metacarpal bone was radiocarbon dated. The laboratory estimated the age of the bones to be between 8340 and 9200 years old.6

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The skeleton attracted attention because some of its physical features, such as the shape of the face and skull, differed from those of modern American Indians. Many scientists believed the discovery might shed light on the origins of humanity in the Americas. On August 31, 1996, Dr. Douglas Owsley, Division Head for Physical Anthropology at the Smithsonian Institution in Washington, D.C., made arrangements for Dr. Chatters to bring this important find to the Smithsonian's National Museum of Natural History for further study.7

Indian tribes from the area of the Columbia River opposed scientific study of the remains on religious and social grounds.8 Four Indian groups (the "Tribal Claimants") demanded that the remains be turned over to them for immediate burial. The Tribal Claimants based their demand on the Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. § 3001 et seq. The Corps agreed with the Tribal Claimants and, citing NAGPRA, seized the remains on September 10, 1996, shortly before they could be transported to the Smithsonian. The Corps also ordered an immediate halt to DNA testing, which was being done using the remainder of the bone sample that had been submitted earlier for radiocarbon dating. After investigation, the Corps decided to give the remains to the Tribal...

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