Has Oregon Tightened the Perceived Loopholes of the Native American Graves Protection and Repatriation Act?--Bonnichsen v. United States

American Indian Law Review Volume 28 | Number 1 1-1-2003 Has Oregon Tightened the Perceived Loopholes of the Native American Graves Protection and Repatriation Act?--Bonnichsen v. United States Michelle Sibley Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Michelle Sibley, Has Oregon Tightened the Perceived Loopholes of the Native American Graves Protection and Repatriation Act?--Bonnichsen v. United States, 28 Am. Indian L. Rev. 141 (2003), https://digitalcommons.law.ou.edu/ailr/vol28/iss1/4 This Note is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . NOTES HAS OREGON TIGHTENED THE PERCEIVED LOOPHOLES OF THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT? - BONNICHSEN V. UNITED STATES Michelle Sibley* I. Introduction In our nation's past, the trade in Native American artifacts was a profitable business.' This lucrative trade often led to egregious abuses of American Indian remains and burial sites.2 In 1990, Congress enacted the Native American Graves Protection and Repatriation Act3 (NAGPRA or the Act) with a twofold purpose: to return to Native American tribes all remains and artifacts being housed in museums or any remains or artifacts found on public lands and to ensure that Native American burial sites would be protected in the future. 4 NAGPRA requires all Native American remains and artifacts in the possession of federal agencies and museums be cataloged and that all tribes culturally affiliated with the artifacts or remains be notified.5 After the tribes have been notified, the artifacts or remains must be returned to any lineal descendant or culturally affiliated tribe who makes a claim to them.6 Any Native American remains or artifacts found on federal or tribal lands after the date the Act was promulgated are owned and/or controlled by the lineal descendants, the tribe who owns the land where the remains or artifacts were * Third-year student, University of Oklahoma College of Law. 1. Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and RepatriationAct: Background and Legislative History, 24 ARIZ. ST. L.J. 35, 39-45 (1992). 2. Sandra B. Zellmer, Sustaining Geographiesof Hope: CulturalResources on Public Lands, 73 U. CoLO. L. REv. 413, 440 (2002). 3. 25 U.S.C. §§ 3001-3013 (2000). 4. Wendy Crowther, Native American Graves Protection and Repatriation Act: How Kennewick Man Uncovered the Problems in NAGPRA, 20 J. LAND RESOURCES & ENVTL. L. 269,269 (2000). 5. See Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3003 (2000). 6. See id. § 3005. Published by University of Oklahoma College of Law Digital Commons, 2003 AMERICAN INDIAN LA W REVIEW [Vol. 28 found, or whichever tribe has the closest cultural affiliation to the remains or artifacts. 7 This note traces the application of NAGPRA to a set of remains found in Benton County, Washington, the so-called Kennewick Man. The note will follow the case of the Kennewick Man from first discovery to repatriation of his remains to a coalition of Pacific Northwest Indian tribes. The note will then review the subsequent litigation filed by a group of scientists who wished to study the remains, including the August 30, 2002, decision by a United States Magistrate Judge that held that the plaintiff scientists would be allowed to study the remains of Kennewick Man. Part II of the note details the facts which led to the filing of Bonnichsen v. United States8 and looks at the history of the proceedings. Part 11 explores the issues and claims addressed by the parties in Bonnichsen 111' and analyzes how a United States Magistrate Judge applied NAGPRA to the legal dispute surrounding the Kennewick Man. Part IV concludes the note. II. Statement of the Case A. Facts In July 1996, two college students found a skull on the banks of the Columbia River near Kennewick, in Benton County, Washington."° The land on which the skull was found was federal land under the control of the U.S. Army Corps of Engineers" (the Corps). The two students notified the sheriff's office in Benton County, and the sheriffs office called in the Kennewick police.' 2 During an investigation by the Kennewick police, several more bones were found, so the county coroner was brought into the investigation. 3 The coroner then contacted a local anthropologist, Dr. James Chatters (Dr. Chatters), to help with the investigation. 4 7. See id. 8. 969 F. Supp. 614 (D. Or. 1997). For the duration of this note, this case will be referred to as Bonnichsen L 9. Bonnichsen v. United States, 217 F. Supp. 2d 1116 (D. Or. 2002). For the duration of this note, this case will be referred to as Bonnichsen Ill. 10. John Stang, Skull Foundon Shore of Columbia,TRI-CrrY HERALD (Kennewick, Pasco & Richland, Wash.), July 29, 1996. 11. Crowther, supra note 4, at 276. 12. Id. 13. Id. 14. Id. https://digitalcommons.law.ou.edu/ailr/vol28/iss1/4 No. 1] NOTES When Dr. Chatters visited the site, he found a nearly complete skeleton.15 Based upon an initial examination of the remains, Dr. Chatters determined that the remains were from "an early white pioneer,"' 6 who was in his forties or fifties when he died.' 7 However, the "preliminary examinations raised more questions than they answered about the ethnic background of" the skeleton, so one of the bones was then subjected to radiocarbon testing." Based on this testing, the age of the skeleton was determined to be "between 9200 and 9600 years old."' 9 The remains became known as Kennewick Man, since they were found near Kennewick, Washington.20 B. History of Proceedings 1. U.S. Army Corps of Engineers - OriginalDecision to Repatriate Based upon the calculated age of the skeleton, 2' and since the federal land had been sold to the United States by the Walla Walla, Cayuse, and Umatilla Indian Tribes in 1855,22 the Corps notified several local tribes of the discovery of the remains.23 After the tribes received notification, five tribes joined together as a coalition (the Coalition) to claim the discovered remains as an ancestor to the local Native Americans. 24 The Coalition consisted of the following tribes: the Confederated Tribes of the Colville Reservation, the Nez Perce Tribe of Idaho, the Confederated Tribes of the Umatilla Indian Reservation, the Wanapum, and the Confederated Tribes and Bands of the Yakama Indian Nation. 25 Following NAGPRA, the Coalition sent a claim for 15. Id. 16. Id. at 277. 17. Id. at276. 18. Bonnichsen 1, 969 F. Supp. at 617. 19. Crowther, supra note 4, at 277. 20. John W. Ragsdale, Jr., Some Philosophical,Political and Legal Implications of American ArcheologicalandAnthropological Theory, 70 UMKC L. REV. 1, 46 (2001). (...truncated)