Bonnichsen v. United States

367 F.3d 864 (2004)

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Nature of the Case

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Facts

Teenagers going to a boat race discovered a human skull and bones near the shore of the Columbia River. The remains were found on federal property under the management of the Army Corps of Engineers. At the request of the county coroner, the remains were removed for analysis by an anthropologist, Dr. James Chatters, pursuant to ARPA. Anthropologists at first thought the remains were those of an early European settler. 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 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. Many scientists believed the discovery might shed light on the origins of humanity in the Americas. Dr. Douglas Owsley at the Smithsonian Institution made arrangements for Dr. Chatters to bring this important find to the Smithsonian for further study. Indian tribes from the area of the Columbia River objected on religious and social grounds. They demanded that the remains be turned over to them for immediate burial. They cited the Native American Graves Protection and Repatriation Act (NAGPRA). The Corps of Engineers agreed with the Tribal Claimants and, citing NAGPRA, seized the remains. 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. The Corps decided to give the remains to the Tribal Claimants for burial. As required by NAGPRA, the Corps published a 'Notice of Intent to Repatriate Human Remains' in a local newspaper. Ps objected arguing that the remains were a rare discovery of national and international significance. Ps commenced this litigation. The district court denied the Corps' motion for summary judgment, finding that the Corps had 'acted before it had all of the evidence,' 'did not fully consider or resolve certain difficult legal questions,' and 'assumed facts that proved to be erroneous.' The Corps and the Secretary of the Interior entered into an agreement that effectively assigned to the Secretary responsibility to decide whether the remains were 'Native American' under NAGPRA and to determine their proper disposition. The Department of the Interior then assumed the role of lead agency on this case. The experts estimated that Kennewick Man was 5'9' to 5'10' tall, 45 to 50 years of age when he died, and 15 to 20 years old when the projectile point became embedded in his hip. Analysis of sediment layers where the skeleton was found supported the hypothesis that the remains dated back not less than 7600 years ago and Kennewick Man could have lived more than 9000 years ago. They concluded that Kennewick Man's remains were unlike those of any known present-day population, American Indian or otherwise. Relying solely on the age of the remains and the fact that the remains were found within the United States, the Secretary pronounced Kennewick Man's remains 'Native American' within NAGPRA's meaning. Ps filed an amended complaint challenging the Secretary's decisions. The district court again ruled in Ps' favor. The Secretary's decision was contrary to the Administrative Procedure Act on the ground that the Secretary improperly concluded that NAGPRA applies. Ps were given the opportunity to study Kennewick Man's remains under ARPA. Ds appealed.