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Nebraska Law Review Volume 84 | Issue 1 Article 3 2005 Kennewick Man, Kinship, and the "Dying Race": The inN th Circuit's Assimilationist Assault on the Native American Graves Protection and Repatriation Act Allison M. Dussias New England School of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Allison M. Dussias, Kennewick Man, Kinship, and the "Dying Race": The Ninth Circuit's Assimilationist Assault on the Native American Graves Protection and Repatriation Act, 84 Neb. L. Rev. (2005) Available at: https://digitalcommons.unl.edu/nlr/vol84/iss1/3 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. Allison M. Dussias* Kennewick Man, Kinship, and the "Dying Race": The Ninth Circuit's Assimilationist Assault on the Native American Graves Protection and Repatriation Act TABLE OF CONTENTS I. Introduction .......................................... 56 II. Documenting the Dying Race: Imperial Anthropology Encounters Native Americans ......................... 61 III. Let My People Go: The Native American Graves Protection and Repatriation Act and its Application to the Ancient One ...................... ............... 74 A. Understanding NAGPRA and its Key Goals ........ 74 B. Parsing the Statute-The Who, What, When, and W here of NAGPRA ................................ 77 1. Definitions and Coverage ...................... 77 2. Ownership and Control Priorities .............. 79 3. Post-NAGPRA Discoveries and Repatriation of Pre-NAGPRA Collections ...................... 84 C. The Discovery of the Ancient One and the DOI's NAGPRA Decision ................................. 87 1. The DOI's Native American Determination ..... 88 2. The Cultural Affiliation Analysis ............... 94 a. Archaeological Data Report ................ 97 b. Traditional Historical and Ethnographic Information Report ......................... 99 c. Linguistic Information Report .............. 102 d. Bio-Archaeological Information Report ...... 104 3. The DOI's Cultural Affiliation Conclusion ...... 105 © Copyright held by the NEBRASKA LAW REVIEW. Professor of Law, New England School of Law. A.B. 1984, Georgetown Univer- sity; J.D. 1987, University of Michigan. The author is grateful to Govind P. Sreenivasan for his thoughts on this Article and for his patience through many discussions of it. NEBRASKA LAW REVIEW [Vol. 84:55 IV. They Blinded Me with Science: Bonnichsen v. United S tates ................................................ 107 A. The Empire Strikes Back: Imperial Anthropology Lays Claim to the Ancient One .................... 107 1. The Plaintiffs' Claim-Science Battling R eligion ....................................... 110 2. The Tribal Claim-We Are Still Here .......... 116 B. The Court of Appeals Opinion in Bonnichsen v. United States ..................................... 126 1. Setting the Stage .............................. 130 2. What's in a Name? .... 131 3. Redefining "Native American" ................. 133 4. Rejecting Disinterested Experts' Opinions ...... 138 5. Denying Cultural Affiliation ................... 143 6. The Panel's Conclusion ........................ 149 C. The Aftermath and Impact of the Bonnichsen D ecision ........................................... 150 V . Conclusion ............................................ 156 VI. Postscript ............................................. 161 These tough men had to rely so much on this quiet, gentle woman who could translate,who could find medicinal herbs, who could look for landmarks.... Americans today could probably use such a level-head guide.... We exist in uncertain times, times of change, times of danger.... Maybe our Native Amer- ican culture will be needed again to help lost Americans survive when the tele- vision lights dim and the oil runs out. That is the Indian strength-we know how to survive. - Randy'L He-dow Teton, Shoshone Bannock1 I. INTRODUCTION On October 20, 1805, Meriwether Lewis and William Clark took a break from their travels along the rapids of the Columbia River to sat- isfy their curiosity about the burial practices of the local people with whom they had been trading and socializing. 2 Entering a sixty-foot- 1. Colin Nickerson, Disquiet on an American Trail: Along Lewis and Clark's Route, Pride in Nation Mixed with Anxiety, BOSTON GLOBE, July 4, 2004, at Al. 2. See THE JOURNALS OF LEWIS AND CLARK 257 (Bernard DeVoto ed., Houghton Mif- flin 1997) (1953) [hereinafter LEWIS AND CLARK]. The previous day, the "Corps of Discovery" had visited the residents of a group of lodges and were well received after their traveling companion Sacagawea's presence in the party was made known. Id. at 256. Later in the evening, they encountered about 100 Indians. Id. at 257. Members of the Corps smoked with the Indians, who had brought the Corps needed wood, and Corps members Peter Cruzatte and George Gibson en- tertained by playing the violin, "which delighted them greatly." Id. Cruzatte was the "son of a French father and Omaha mother"; he was able to converse in sign language and Omaha. STEPHEN AMBROSE, UNDAUNTED COURAGE: MERIWETHER LEWIS, THOMAS JEFFERSON, AND THE OPENING OF THE AMERICAN WEST 138 (1996). Sacagawea's role in the expedition was ultimately commemorated by the govern- 2005] KENNEWICK MAN, KINSHIP, & THE "DYING RACE" 57 long "Indian Vault" constructed of planks of wood and pieces of canoes, they found large numbers of piled bones, a circular arrangement of skulls on mats, and more recently deposited bodies wrapped in leather robes. The remains were accompanied by fishing nets, baskets, skins, horses' skeletons, and other funerary objects.3 Lewis and Clark's investigation of this burial site was but one in- stance of the many un-consented Euro-American entries into Native American graves that were to occur in the lands over which the United States claimed authority by virtue of the Louisiana Purchase. While Lewis and Clark apparently took nothing with them from the burial chamber that they had encountered, those who came after them usually lacked such scruples. Indeed, to the American anthropologists and other similarly minded social scientists whose profession was tak- ing shape as the nineteenth century progressed, grave robbing was precisely the reason for the burial explorations in which they engaged. They were committed to "proving" the inferiority of Native Americans to Euro-Americans through physical comparisons, which required ex- amination of Native American skeletal remains. They were convinced that the indigenous inhabitants of the continent, burdened by their innate inferiority compared to European-derived American civiliza- tion, could not long survive, and therefore were a "dying race." This belief precipitated a flurry of activity aimed at documenting Native Americans' presence through anthropology, ethnology, and similar fields while some of them still remained. Eventually, it was believed study of Native Americans would be within the purview of only those who studied extinct cultures. That they were a doomed people would not have crossed the minds of the members of the Nez Perce Tribe who had welcomed Lewis and Clark and their "Corps of Discovery" to Nez Perce territory in the Fall of 1805. If the Nez Perces had speculated about anyone's chances of survival at that point, it would probably have been the survival odds of Lewis, Clark, and their party that occupied their thoughts. First of all, the Nez Perces would have known that the Corps of Discovery had had very little success in hunting in recent weeks, and that the fish, roots, and berries that they were able to purchase from the Nez Perces ment by the inclusion of a representation of Sacagawea and her infant son on the "Golden Dollar." See U.S. Mint, Design Specifications for Golden Dollar, at http:l www.usmint.gov/mint-programs/golden-dollar-coin/index.cfm?action=golden- dollar-specs (last visited Aug. 5, 2005); see also generally Richard R. Holey III, Dueling Dollars: The Story of Sacagawea's Journey, 5 N.C. BANKING INST. 579 (2001). The expedition of the Corps of Discovery is commemorated on the Mis- souri quarter, which was issued as part of the "50 State Quarters Program." See U.S. Mint, Missouri, at http://www.usmint.gov/mint-programs/50sq-program/ states/index.cfm?state=MO (last visited Aug. 5, 2005). 3. See LEWIS AND CLARK, supra note 2, at 257-58. NEBRASKA LAW REVIEW [Vol. 84:55 saved the Corps from starvation. 4 Also, the Corps had been forced to linger on Nez Perce land because many of its members were critically ill from dysentery and too weak to ride a horse or walk; 5 they could hardly have inspired awe as the emissaries of a superior civilization. Indeed, at this point the very survival of the Corps and their mission rested in the hands of the Nez Perces. They could easily have overpow- ered the weakened party and seized the Corps's weapons, which at that time amounted to the biggest arsenal west of the Mississippi River. They did not. Nez Perce oral history reveals that when mem- bers of the tribe first encountered ill members of the Corps, they did consider killing them for their weapons. The party was spared through the intervention of Watkuweis ("Returned from a Far Coun- try"), who had lived with white traders in Canada for several years following her capture by Blackfeet Tribe members.

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