The Kennewick Man: An Example of the Federal Government Overstepping Its Legal Authority
“The law is reason free from passion…Man, when perfected, is the best of animals, but when separated from law and justice, he is the worst of all.” Aristotle, Works of Aristotle, Vol iii edited by David Ross (1948)
On Sunday, July 26, 1996, Will Thomas, 21, and Dave Deacy, 19, made a surprising discovery that would have significant ramifications for Native Americans and the US legal system.[1] On that day, they drove twenty minutes from their homes to the shores of the Columbia River near Kennewick, WA. The day’s agenda for these young men involved watching hydroplane racing while keeping cool, wading, and tubing along the Columbia River. “Hey, we have a human head!” one of them said after wading along the riverbank and stepping on what he thought was a large rock.[2] They decided to stash the skull on the riverbank until the races had concluded. After the races, Thomas and Deacy took the skull to a Kennewick police officer. Further excavations from the skull discovery site and scientific analysis revealed that they had discovered 8,410-year-old skeleton remains that were labeled the Kennewick Man at that time.[3] Then, the lawyers got involved.
This paper argues that the US Department of the Interior (DOI) overstepped its legal authority by burying the Kennewick Man discovery site. The evidence will show that the DOI did not follow the rules and intent of the US judicial process, the Native American Graves Protection and Repatriation Act (NAGPRA), the Administrative Procedure Act (APA), parts of the United States Code, and the US Constitution. The organization of this evidence comes in three parts. Part one outlines the legal definition of a Native American. The establishment of definitions allows opposing parties to settle their dispute following the guidance of legal precedent. Part two describes the background and structures of the US legislative, executive, and judicial frameworks used to resolve legal disputes. Part three uses a timeline analysis of the ways in which the DOI overstepped its legal authority, using the example of the Kennewick Man and its discovery site.
A country’s rule of law offers the framework for how its population can interact with one another. The Constitution of the United States in 1789 laid the foundation by which governing bodies and their population would settle disputes. America’s founders foresaw that the three governmental branches, legislative, executive, and judicial, needed a system of checks and balances within the rule of law. The art of politics and its actors, politicians, can challenge the benefits offered by the rule of law. Those challenges can be significant, as in the case of Nixon’s Watergate scandal or minor. These seemingly insignificant legal challenges are sometimes the most important yet remain unnoticed.[4] One such challenge is rooted in America’s complicated past with Native Americans. During the past 200 years, many legal, cultural, and monetary steps have been taken to reverse the harmful effects that Native Americans have endured. In 1990 Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA) to protect Native American cultural heritage objects. Unfortunately, all laws have unintended consequences. The Kennewick Man discovery started a legal battle between archaeologists, the Plaintiffs, and various Native American tribes and parts of the United States government, the Defendants. A country’s legal framework provides clear guidance for settling disputes.
The United States, through various governmental departments and laws, recognizes and utilizes terms such as Native American and American Indian without consistency.[5] However, the Department of Indian Affairs has clarified racial “authenticity” for an American Indian.[6] NAGPRA uses the term Native American, not American Indian. For judicial disputes, legal precedent exists on definitional phrases, affecting the outcome of a legal case.[7] For example, a common phrase without an accepted legal definition cannot affect a legal case outcome. The opposite holds when a common phrase, such as native American, has an accepted legal definition. Any legal meaning of a phrase requires legal precedent to have defined the phrase in question. Legal precedent, an idea that America’s founding fathers “borrowed” from England utilizing the concept of common law, requires the existence of a country with laws. In 1781, thirteen colonies in America agreed upon the Articles of Confederation, which brought them together as a country. This document acted as America’s first constitution. Eight years later, in 1789, America’s founding fathers replaced the Articles of Confederation with the Constitution of the United States, which acted as the basis for the rule of law and formation of a government. Settling legal disputes, such as the inconsistent definitions of a Native American or American Indian, within the US judicial system, stems from the foundations provided by the US Constitution.
The existence of a legal framework to settle legal disputes does not mean that those disputes are solved de facto. For example, how should the US legal system define a Native American or an American Indian? In the case of the DOI’s overstepping its legal authority to bury an archaeological discovery site, the first step looks to the law outlining the rules of engagement. The process started with the Antiquities Act of 1906, which protected Native American cultural objects.[8] This act left wide gaps in its provisions for protecting Native American cultural artifacts; as a result, Congress responded by passing the Archaeological Resources Protection Act of 1979. This act provided additional protection of Native American cultural objects, yet it lacked coverage regarding intangible cultural issues. Congress passed NAGPRA in 1990 to provide legislation concerning Native American cultural items and culture itself. Importantly for the discussion of this paper, NAGPRA defined Native Americans, stating that the term “means of, or relating to, a tribe, people or culture that is indigenous to the United States.”[9] Congress provided interpretive guidance on the geographical and legal definition of where and when the legal meaning of Native American is relevant. Per NAGPRA, a Native American “is indigenous to the United States.”[10] What is the origin of the legal definition of the words the ‘United States’? In the preamble to the US Constitution, the founding fathers wrote that they “do ordain and establish this Constitution for the United States of America,” effective March 4, 1789.[11] Although the American government and its branches use the terms Native American and American Indian without consistency, within the rule of law under NAGPRA and the US Constitution, the definition of a Native American began on March 4, 1789.
The law has two parts: (1) intent and (2) the aspect that Tiersma referred to as “textualization,” defined as laws’ provision of authoritative legal precedent in written form.[12] NAGPRA offers the legal definition of a Native American. What of NAGPRA’s intent? Scholars have argued that NAGPRA and subsequent legal decisions misconstrued the law’s intangible intentions.[13] For example, Senator John McCain described NAGPRA as offering Native Americans the “dignity and respect that our Nation’s first citizens deserve.”[14] Those comments were introductory statements made before the Senate, urging it to consider passing NAGPRA. When the Senate’s presiding officer called for amendments to the proposed bill, legislators did not add testimony or debate on these intangible intentions. To paraphrase the Greek philosopher Aristotle, the law is reason, free from passion.
The law needs time and nurturing to provide guidance and structure for settling disputes. The roots of America’s laws began with the founding fathers’ “borrowing” the basic tenets of English common law.[15] The Declaration of Independence of 1776 embedded a natural complexity in America’s legal system.[16] The Articles of Confederation in 1781 did not solve this complexity. Between 1781 and 1789, colonies began to question how “the constitution of the United States” should be defined since similar documents had existed for the colonies.[17] Their response was the adoption of the US Constitution in 1789. Article VI, clause 2 establishes the bedrock of the American rule of law within this document: the US Constitution supersedes states’ laws.[18] This Article works in tandem with other articles of the US Constitution in outlining the roles and responsibilities afforded to the three branches of the US federal government: legislative (Article I), executive (Article II), and judicial (Article III). The legislative branch passes federal laws defined as statutes and organized under the United States Code. The executive branch has “executive Power,” with the President utilizing and delegating that power.[19] The judicial branch rules on questions related to the interpretations of the US Constitution, federal laws, and statutes. Critical to the issue at hand, the DOI’s overstepping its legal authority was Congress passing the Administrative Procedure Act in 1946. This act requires the legislative and executive branches’ adherence to American legal rules — the US Constitution, United States Code, Code of Federal Regulations (CFR), and the Federal Register — and subsequent penalties for any violations.[20] The executive branch has fifteen departments, including the DOI and the Department of Defense (DOD), which exercise their delegated “executive Power.”[21] The nurturing and evolution of American laws over the last 232 years demonstrates that the DOI and DOD are constitutionally required to follow US federal judicial procedures and legislatively enacted statutes.
The US judicial system operates within a collaborative and integrated framework between the legislative and executive branches. The root of this system lies within the US Constitution. The American legal system distinguishes between federal and state law. Disputes falling under the jurisdiction of federal laws, such as the Kennewick Man case, are routed to the closest US District Court.[22] These courts offer entry points within which parties dispute interpretations of federal laws.[23] When one party disagrees with a US District Court opinion, that party may appeal to have the case considered by the US Court of Appeals.[24] Per the US judicial system, disputing parties, including federal departments such as the DOI, must refrain from any actions until all parties have exhausted their legal options.[25] The US Court of Appeals exists to solve two problems: (1) “application and interpretative errors” on national and state laws and (2) consideration of cases that need US Supreme Court participation.[26] All federal courts fall under Article III of the US Constitution. Judges sitting on the US District Courts and US Court of Appeals hold a lifetime position, protecting the independence of thought and action from the transitory political actors found in the legislative and executive branches. America’s founding fathers’ creation of a checks and balances system between the federal government’s judicial, legislative, and executive branches give legal disputes unbiased agreed-upon procedures for all parties involved in legal disputes.
The DOI’s decision to bury the Kennewick Man discovery site offers an example of the strategic legal approach taken over the entire Kennewick Man legal case, which Judge Jelderks defined as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[27] The Plaintiffs in this legal dispute were scientists, and the Defendants were various Indian tribes and parts of the US federal government. The following timeline provides evidence that the DOI overstepped its legal authority, using the example of the Kennewick Man and its discovery site.
On September 6, 1966, the Eighty-Ninth Congress created Title 5 of the United States Code, categorized as “Government Organization and Employees.”[28] These laws clarified the organization of the US federal government and provided rules and regulations for persons working for or within the federal government. They also established taking an oath of office as a requirement for persons working for the federal government, whether elected, appointed, or paid (i.e., those who “profit in the civil” service or uniformed services).[29] This oath requires those serving the federal government to support the US Constitution’s intent and interpretation.[30] As it relates to the Kennewick Man discovery site, those working under the DOI, DOD, Department of the US Army, the US Army Corps of Engineers (CORP), US District Court of Oregon, and US Court of Appeals Ninth District all took this oath of office. The United States Code Title 5 requires the US Constitution to guide the decisions made by individuals serving the federal government, whether elected, appointed, or paid.
Congress passed NAGPRA on November 14, 1990. NAGPRA started as a bill introduced in the Senate under the one-hundredth congressional session (Bill Number 100 S. 187). This bill did not move forward. The House of Representatives in the one-hundredth and first Congress introduced a similar bill (Bill 101 HR 5237). In the same Congress, the Senate introduced two bills (Bill 101 S. 1021 and Bill 101 S. 1980) that covered the same general issues as House Bill 5237. The introduction of bills for consideration follows hearings, debates, amendments to the original bill, and eventually merging Senate and House of Representative bills.[31] During the hearings, reports, and discussions, at no time were challenges made or raised by any party, including Indian tribes who participated in the hearings, regarding the definition of a Native American under the Native American Graves Protection and Repatriation Act US Code, Title 25, Section 3001.9.[32] These hearings, reports, and debates provide contextual intent on the purpose and concerns of any bill considered by Congress. As the Kennewick Man dispute rose through the judicial system, the DOI, the CORP, and their attorneys had access to those documents showing the law’s intent of NAGPRA.
Effective January 3, 1996, the DOI made corrections and amendments to NAGPRA, registered in the Federal Register, and implemented within the CFR Title 43, Part 10.[33] The Administrative Procedure Act (APA) provides federal government departments and agencies the authority to make corrections and amendments to national laws.[34] As relates to the DOI’s overstepping its legal authority, the DOI removed the verb “is” and replaced it with the preposition “to” but importantly retained the reference to the United States as part of the Native American definition.[35] This amendment changed the Native American definition from the passive to active voice, strengthening the DOIs intent.[36] Responses to the proposed NAGPRA changes and modifications from commenters did not offer dissent or comment on these word replacements. The final and corrected NAGPRA language kept the US Constitution-defined term for the country, United States, as part of the Native American definition.[37]
On September 10, 1996, forty-six days after the Kennewick Man discovery, CORP employees seized the Kennewick Man remains before their agreed-upon transfer to Smithsonian Institute. The Kennewick Man discovery in the Columbia River meant that jurisdictional decisions fell to the CORP. By mid-September 1996, Kennewick Man’s carbon dating results showed him a man approximately 8,400 years old found in America. NAGPRA gives the DOI the power to supersede all other federal agencies on decisions relating to NAGPRA.[38] On September 17 and again on September 24, 1996, the CORP published in a Kennewick, WA, newspaper the “Notice of Intent to Repatriate Human Remains” required under NAGPRA. The notices stated those seeking to counter the claim asserted by the DOI that the Kennewick Man fell under NAGPRA’s Native American definition had until October 23, 1996, to argue and present their position.[39] NAGPRA did not provide the CORP with authority to seize Native American human remains on September 10 as CORP allowed, per the public notices, as anyone had until October 23, 1996, to counter the DOIs claim. The Native American definition of the Kennewick Man was undefined even though the discovery site fell under federal law[40]. Those CORP employees who seized the skeletal remains did not follow their oath of office, as stipulated by the Administrative Procedure Act, § 3331, when taking control of Kennewick Man, remains.
On October 16, 1996, the scientists, frustrated by the CORP’s stonewalling, exercised their legal right to begin judicial proceedings against the CORP.[41] With the October 23, 1996, deadline fast approaching, the scientists initiated legal action against the United States and Department of the Army to be argued in the US District Court of Oregon. The Plaintiffs would argue on the stoppage of the Kennewick Man’s repatriation to the relevant Indian tribes until the completion of scientific studies and whether NAGPRA applied to the Kennewick Man.
US Magistrate Judge Jelderks wrote the opinion for the US District Court of Oregon on February 19, 1997, which sided with the Plaintiffs (i.e., the scientists) for the stoppage of the Kennewick Man repatriation and was undecided on whether NAGPRA applied to the Kennewick Man. The reasons for the ruling were procedurally based on the legal regulations outlined in the United States Code, which are published in the Code of Federal Regulations that require government employees to follow the intent of the US Constitution.[42]
In another opinion written by Judge Jelderks on June 27, 1997 (see Bonnichsen v. the United States), he also ruled for the Plaintiffs (i.e., the scientists). The opinion referenced the Defendants’ ill intent, procedural shortcuts, purposeful misinterpretation, and bending to Indian tribal pressure, all of which run counter to the rules and guidelines promulgated under the United States Code, Code of Federal Regulations, and the US Constitution.[43]
On March 24, 1998, an Interagency Agreement between the Department of the Army (representing the CORP) delegated future decisions regarding the Kennewick Man skeletal remains and its discovery site to the DOI. In April 1998, the DOI authorized the burial of the Kennewick Man discovery site.[44] NAGPRA defines what should occur when a cultural item(s) meets the definition of a Native American.[45] US district courts and not the DOI has jurisdiction over any alleged NAGPRA violations and final decisions.[46] The US District Court of Oregon had ruled that the definition of the Kennewick Man as a Native American remained undecided (see Bonnichsen v. the US, Dept. of the Army, 969 F. Supp. 614 [D. Or. 1997]; Bonnichsen v. the US, 969 F. Supp. 628 [D. Or. 1997]). If the Kennewick Man definition remained undecided, then the Kennewick Man discovery site definition remains undecided. Additionally, the DOI and the CORP exercised procedural deficiencies under the Administrative Procedure Act, US Code 5 (1946), § 551 et seq., § 706 et seq., § 3331 et seq., and the US Constitution (preamble, articles 1, 2 and 3). Therefore, the DOI overstepped its legal authority to bury the discovery site of the Kennewick Man.
This paper’s focus on the DOI’s overstepping its legal authority by burying the Kennewick Man discovery site did not consider non-legal motivations. To re-emphasize and paraphrase the Greek philosopher Aristotle, the law is reason, free of passion. Any society requires rules for its participants to exist cooperatively. In America, the expression of those rules exists in an “authoritative form” called the US Constitution.[47] As citizens of the oldest historical democracy, Americans should be vigilant to nurture this political ideology.[48] The fragility of the American democratic experiment depends on its population’s embracing civility, which, in part, depends on following rules, whether they seem to be significant or not. This requirement becomes most relevant for those in power within a democratic country. The burying of the Kennewick Man discovery site offers a worrying minuscule example of the US Department of the Interior, and by extension, the federal government, overstepping its legal authority.
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Administrative Procedure Act, US Code 5 (1946), § 500 et seq., § 551 — § 559 et seq., § 701 et seq., § 703, § 705, § 706 et seq., and § 3331 et seq.
Archaeological Resources Protection Act, US Code 16 (1979), §§ 1 et seq.
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Bonnichsen v. US, Dept. of the Army, 969 F. Supp. 614 (D. Or. 1997).
Bonnichsen v. US, 969 F. Supp. 628 (D. Or. 1997).
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Jones v. Clinton, 36 F. Supp. 2d 1118 (ED. Ark. 1999).
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____________ 62 Fed. Reg. August 1, 1997.
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[1] “Indian,” “Native American,” and “American Indian” terms references are based upon the accepted context of their customs and norms. See also Eva Marie Garroutte, Real Indians: Identity and the Survival of Native America, (Berkeley: University of California Press, 2003), 82–98.
[2] John Stang, “Skull Found on Shore of Columbia,” Tri-City Herald, July 29, 1996.
[3] Douglas W. Owsley and Richard L. Jantz, Kennewick Man: the Scientific Investigation of an Ancient American Skeleton, First Edition, (College Station: Texas A&M University Press, 2014), 59.
[4] A common expression “death by a thousand cuts” normally refers to small, almost insignificant blows taken by humans or businesses. Countries can experience similar type of small blows, which over time can weaken the societal fabric.
[5] Examples: (1) under the DOI exists the Native American Affairs Program referring to Native American and American Indian, (2) the 2010 Census Bureau refers to American Indians only, (3) Bureau of Indian Affairs refers to Native Americans and American Indians, (4) NAGPRA refers to Native American, and (5) the Archaeological Resources Protection Act (ARPA) refers to Indian Individuals.
[6] US Department of the Interior. Bureau of Indian Affairs. Frequently Asked Questions — Who is an American Indian or Alaska Native, (Washington, DC), Accessed July 27, 2021, https://www.bia.gov/frequently-asked-questions.
[7] See Jones v. Clinton, 36 F. Supp. 2d 1118 (E.D. Ark. 1999) and Peter M. Tiersma, “Did Clinton Lie?: Defining “sexual relations”.” Chicago-Kent Law Review 79 (3) 2004: 927–958.
[8] The Antiquities Act of 1906 formerly known as the “The Act for the Preservation of American Antiquities” created more issues with its definitions (e.g., skeleton Indian remains found on federal land or “object of antiquity”).
[9] Native American Graves Protection and Repatriation Act, U.S. Code 25 (1990), §3001.2.9.
[10] In NAGPRA there are forty-seven references to the phrase Native American and zero references to the phrase American Indian.
[11] “U.S. Constitution — Preamble.” Accessed July 30, 2021. https://constitution.congress.gov/constitution/.
[12] Tiersma, “Did Clinton Lie?: Defining “sexual relations”,” 927.
[13] S. Alan Ray, “Native American Identity and the Challenge of Kennewick Man,” Temple
Law Review 79, no. 1 (Spring 2006): 142–147.
[14] Senator McCain, speaking on HR. 5237 and S. 1980, 101st Cong., 2nd sess., Congresssional Record 136 (October 26, 1990): S 17173.
[15] Common law derives its power from legal decisions giving guidance. Statutes are federal laws passed by a legislative branch of government. America’s founding father took the principles of British common law incorporated into federal statutes. America’s judicial system uses the British common law structure.
[16] The Declaration of Independence stated that “the good People of these Colonies” and further stated “these United Colonies are, and of Right out to be Free and Independent States,” creating a friction of legal authority between the federal government and the states.
[17] Nikolas Bowie, “Why the Constitution Was Written Down,” Stanford Law Review 71, no. 6 (June 2019): 1503.
[18] United States. Department of State. Bureau of International Information Programs. Outline of the U.S. Legal System. (United States: U.S. Department of State. Bureau of International Information Program, 2004), 8. Within the US Constitution, Article VI, clause 2 left unanswered questions, subsequently answered in amendments, on states participation within the federal legal system.
[19] United States. Library of Congress. “U.S. Constitution Article II, Section 1, Clause 1. Constitution Annotated. Congress.gov.” Accessed July 28, 2021. https://constitution.congress.gov/constitution/article-2/.
[20] Federal laws are codified as statutes organized under the United States Code. The Code of Federal Regulations are the general and permanent rules and regulations published in the Federal Register (“contains Federal agency regulations, proposed rules and notices of interest to the public, executive order, proclamations and other Presidential documents”). https://www.archives.gov/federal-register/the-federal-register/about.html).
[21] U.S. Army Corp or Engineers fall under the U.S. Army regulations which subsequently fall under the Department of Defense regulations.
[22] “U.S. Constitution: Constitution Annotated: Congress.gov: Library of Congress.” Constitution Annotated. Accessed July 30, 2021. https://www.law.cornell.edu/constitution/tenth_amendment.
[23] Currently there are 94 U.S. District courts. Some states, such as Texas, New York, and California, have multiple district courts.
[24] Currently there are 12 U.S. Court of Appeals.
[25] Administrative Procedure Act, US Code 5 (1946), § 701.b.1, § 703, and § 705.
[26] United States, Outline of the U.S. Legal System, 34.
[27] Administrative Procedure Act, § 706 (1)(2)(A) and Bonnichsen v. U.S., Dept. of the Army, 969 F. Supp. 614 (D. Or. 1997), 626–627. The Kennewick Man legal dispute extended into another court case under the US Court of Appeals 9th District.
[28] Government Organization and Employees, US Code 5 (1966), §§ 1 et seq.
[29] Government Organization and Employees, § 3331.
[30] “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
[31] “How Our Laws Are Made,” US Congress, accessed August 2, 2021, https://www.congress.gov/help/learn-about-the-legislative-process/how-our-laws-are-made.
[32] US Congress, House, Committee on Interior and Insular Affairs, Providing for the Protection of Native American Graves, and For Other Purposes: report (to Accompany H.R. 5237), 101st Congress., 2d sess., 1990, H.R. 101–877, 1–33; US Congress, House, Committee, Protection of Native American Graves and the Repatriation of Human Remains and Sacred Objects; Hearings before the Committee on Interior and Insular Affairs. 101st Cong., 2nd sess., 1990, 1–321; US Congress, Senate, Select Committee on Indian Affairs, Providing for the Protection of Native American Graves and the Repatriation of Native American Remains and Cultural Patrimony (to Accompany S. 1980), 101st Cong., 2d sess., 1990 S. Rep 101–473, 2–16; and US Congress, Senate, Select Committee, Native American Grave and Burial Protection Act (Repatriation); Native American Repatriation of Cultural Patrimony Act; and Heard Museum Report: Hearings before the Select Committee on Indian Affairs. 101st Cong., 2nd sess., 1990, 1–603.
[33] Code of Regulations is the official legal print publication describing the general and specific rules published in the Federal Register by departments and agencies (e.g., DOI).
[34] Administrative Procedure Act, § 551 et seq.
[35] National Archives And Records Administration. Federal Register: 62 Fed. Reg. Aug. 1, 1997, 41293.
[36] “The passive voice can be ambiguous” and “Bureaucrats love to write in the truncated passive because it lets them hide in the fog; the reader cannot discover who is responsible for the action (or the lack of it).” Richard C. Wydick, Plain English for Lawyers, Fifth Edition (Durham: Carolina Academic Press, 2005), 30.
[37] National Archives And Records Administration. Federal Register: 60 Fed. Reg. Dec. 4, 1995, 62137–62139.
[38] Native American Graves Protection and Repatriation Act, U.S. Code 25 (1990), § 3011.
[39] Native American Graves Protection and Repatriation Act, § 3005 et seq.
[40] Native American Graves Protection and Repatriation Act, § 3002.a, § 3006 et seq.
[41] Bonnichsen v. U.S. 969 F. Supp. 628 (D. Or. 1997), 642–643.
[42] Bonnichsen V. U.S., Dept. of Army. 969 F. Supp. 614 (D. Or. 1997), 623–625.
[43] Bonnichsen v. U.S. 969 F. Supp. 628 (D. Or. 1997).
[44] US Department of the Army and US Department of the Interior. An Interagency Agreement Between DOA and DOI on the Delegation of Responsibilities for the Kennewick Human Remains [March 24, 1998], by Donald J. Barry and Jason L. Spiegel, (Washington, DC, 1998), http://doi.org/10.6067/XCV8KS6QDV.
[45] Native American Graves Protection and Repatriation Act, § 3011.
[46] Native American Graves Protection and Repatriation Act, § 3013.
[47] Tiersma, “Did Clinton Lie,” 927.
[48] Oldest.org. “Oldest Democracies in The World.” Accessed August 1, 2021. https://www.oldest.org/politics/democracies/.
