On August 30, 2002, Justice John Jelderks, Justice Magistrate of the United States District Court in Portland, Oregon, handed down the long-awaited decision on the so-called Kennewick Man case. Jelderks found that the scientists must be allowed access to the skeletal remains, and that the remains must not be repatriated to the American Indian tribes cited in the court case. Jelderk's reasoning is quite interesting, and will no doubt have repercussions in future applications of legislation protecting archaeological resources.
Criticism of the Federal Government
As legal documents go, the Kennewick Man decision is clearly written, logically reasoned, and absolutely devasting in its criticism of the activities of the U.S. Corps of Engineers and Department of the Interior. But, that's really beside the point, to be honest, although it does make for some entertaining--or very painful--reading.The main gist of the argument is that the prevailing legislation that should have dictated what happened to the bones should have been the Archaeological Resources Protection Act (ARPA), not the Native American Graves Protection and Repatriation Act (NAGPRA).
Archaeological Resources Protection Act
ARPA, enacted in 1979, was intended to protect archaeological sites on federal lands. Under ARPA, the intent was to protect and conserve the archaeological materials for, basically, science. Artifacts found under ARPA are to be properly curated, and it is expressly stated that such materials be made available to qualified scientists.NAGPRA, enacted in 1990, was intended to see that archaeological and cultural materials associated with burials and other ceremonies that were found on federal lands would be returned to their original owners if they could be identified, that is, the American Indians who made them or their descendants. NAGPRA was particularly aimed at returning human remains and ceremonial goods, untold thousands of which languished in museums around the country. Written into NAGPRA is a mandate to the federal agency involved to discuss the issues concerning the repatriation with tribes. Nothing in NAGPRA discusses consultation with anyone else, and curation is not an issue.
Page 2: Specifics of the Jelderks Decision
