Bonnichsen v. U.S.

217 F.Supp.2d 1116

Robson BONNICHSEN; C. Loring Brace; George W. Gill; C. Vance Haynes, Jr.; Richard L. Jantz; Douglas W. Owsley; Dennis J. Stanford; and D. Gentry Steele, Plaintiffs, v. UNITED STATES of America; Department of the Army; U.S. Army Corps of Engineers; U.S. Department of the Interior; National Park Service; Francis P. McManamon; Ernest J. Harrell; William E. Bulen, Jr.; Donald R. Curtis; Lee Turner; Louis Caldera; Bruce Babbitt; Donald J. Barry; Carl A. Strock; and Joe N. Ballard, Defendants.

Civil No. 96-1481-JE.

United States District Court, D. Oregon.

August 30, 2002.

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Alan L. Schneider, Paula A. Barran, Barran Liebman LLP, Portland, OR, for Plaintiffs.

David F. Shuey, U.S. Department of Justice, Environment & Natural Resources Division, General Litigation Section, Washington, DC, Timothy W. Simmons, Assistant U.S. Attorney, Portland, OR, for Defendants.

OPINION AND ORDER

JELDERKS, United States Magistrate Judge.

Plaintiffs bring this action seeking judicial review of a final agency decision that awarded the remains of the "Kennewick Man" to a coalition of Indian tribes and denied the Plaintiffs' request to study those remains. Plaintiffs assert other claims based upon alleged statutory violations.

Plaintiffs seek to vacate the administrative decision which was made after an earlier decision was remanded to the agency for further proceedings. For the reasons set out below, I set aside the decision awarding the remains to the Tribal Claimants, enjoin transfer of the remains to the Tribal Claimants, and require that Plaintiffs be allowed to study the remains. Plaintiffs' request for other relief is granted in part and denied in part.

PARTIES

The Plaintiff scientists are highly regarded experts in their fields. Plaintiff Bonnichsen is Director of the Center for the Study of the First Americans at Oregon State University. Plaintiff Brace is Curator of Biological Anthropology at the University of Michigan Museum of Anthropology. Plaintiffs Gill, Haynes, Jantz, and Steele are anthropology professors. Plaintiff Owsley is division head for physical anthropology at the Smithsonian Institution's National Museum of Natural History. Plaintiff Stanford is Director of the Smithsonian's Paleo Indian Program.

The Defendants are the Army Corps of Engineers, the United States Department

of the Interior, the Secretary of the Interior, and other federal officials. Amici curiae have also participated.¹

I. BACKGROUND

A. Pre-Litigation Events

In July 1996, a human skull and scattered bones were discovered in shallow water along the Columbia River near Kennewick, Washington.² The remains were found on federal property under the management of the United States Army Corps of Engineers (Corps), and were removed pursuant to an Archeological Resources Protection Act (ARPA) permit dated July 30, 1996.³ Local anthropologists who examined the find at the request of the county coroner initially believed the remains were of an early European settler or trapper, based upon physical features such as the shape of the skull and facial bones, and certain objects which were found nearby.⁴

However, the anthropologists then observed a stone projectile point (aka "lithic object") embedded in the ilium (i.e., 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 this region. Further examination of the remains revealed characteristics inconsistent with those of a European settler, yet also inconsistent with any American Indian⁵ remains previously documented in the region.

To resolve this ambiguity, a minute quantity of metacarpal bone was radiocarbon dated. The laboratory initially estimated that the sample was between 9265 and 9535 calendar years old, COE 8715, but later adjusted that estimate to between 8340 and 9200 calendar years old after factoring in several corrections. COE 4030, DOI 10023.⁶

Human skeletons this old are extremely rare in the Western Hemisphere, and most found to date have consisted of very fragmented remains. Here, by contrast, almost 90% of this man's bones were recovered in relatively good condition, making "Kennewick Man"—as he was dubbed by the news media—"one of the most complete early Holocene⁷ human skeletons ever recovered in the Western Hemisphere." R.E. Taylor, Amino Acid Composition and Stable Carbon Isotope Values on Kennewick Skeleton Bone.

The discovery also attracted attention because some physical features, such as the shape of the face and skull, appeared to differ from modern American Indians. Many scientists believed the discovery could shed considerable light on questions such as the origins of humanity in the Americas. According to Plaintiff Dr. Douglas Owsley of the Smithsonian Institution, "[w]ell-preserved Paleo American remains are extremely rare. The Kennewick Man skeleton represents an irreplaceable source of information about early New World populations, and as much data should be obtained from it as possible." DOI 1585. Arrangements were made to transport the remains to the Smithsonian Institution for scientific study by a team including Plaintiffs Owsley, Jantz and Stanford. COE 7905, 9461-62.

Local Indian tribes opposed scientific study of the remains on religious grounds:

When a body goes into the ground, it is meant to stay there until the end of time. When remains are disturbed and remain above the ground, their spirits are at unrest.... To put these spirits at ease, the remains must be returned to the ground as soon as possible.

Joint Tribal Amici Memorandum (1997) at 4-5.

In response to arguments that scientific study could provide new information about the early history of people in the Americas, the Confederated Tribes of the Umatilla asserted, "We already know our history. It is passed on to us through our elders and through our religious practices." DOI 1376. "From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated here from another continent, as the scientists do." Id.

Five Indian groups (hereafter, the "Tribal Claimants")⁸ demanded that the remains be turned over to them for immediate burial at a secret location "with as little publicity as possible," and "without further testing of any kind." DOI 1256-57, 1373-76, 1380. The Tribal Claimants based their demand on the Native American Graves Protection and Repatriation Act, 25 USC § 3001 et seq. ("NAGPRA"), enacted in 1990.

Citing NAGPRA, the Corps seized the remains shortly before they could be transported to the Smithsonian for study. 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 for the radiocarbon dating earlier. After minimal investigation, 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.⁹

Plaintiffs and others, including the Smithsonian Institution, objected to the Corps' decision, asserting that the remains were a rare discovery of national and international significance. They questioned whether NAGPRA was applicable because certain skeletal traits did not resemble those of modern American Indians, and argued that the Tribal Claimants did not meet the statutory requirements to claim the remains. In late September 1996, several of the Plaintiffs asked Major General Ernest J. Herrell, Commander of the Corps' North Pacific Division, to allow qualified scientists to study the remains.

When the Corps failed to respond to these objections and requests, and evidenced its intent to repatriate the remains, Plaintiffs commenced this litigation.¹⁰ Plaintiffs have consistently sought two primary objectives: to prevent the transfer of the remains to the Tribal Claimants for burial, and to secure permission for Plaintiffs to study the remains.

It is undisputed that if the Tribal Claimants gain custody of the remains, they will prohibit all further scientific study and documentation of the remains, whether by Plaintiffs or by other scientists. See, e.g., DOI 3362, 3386.

B. First Phase of The Litigation

On October 23, 1996, this court held a hearing on Plaintiffs' request for a temporary restraining order. In lieu of a formal injunction, Defendants agreed to give Plaintiffs at least 14 days notice before any disposition of the remains to allow Plaintiffs time to seek relief from this court. Defendants later moved to dismiss this lawsuit. In an Opinion issued February 19, 1997, I denied the motion. Bonnichsen v. United States, 969 F.Supp. 614 (D.Or. 1997).

Defendants then moved to dismiss this lawsuit on the grounds that Plaintiffs lacked standing to maintain this action, that the claims were not ripe because the Corps had not made a final decision, and that the claims were moot because the Corps' earlier decision was no longer in effect. In an Opinion issued on June 27, 1997, I rejected each of those contentions. Bonnichsen v. United States, 969 F.Supp. 628 (D.Or.1997). In addition, I found "that the agency's decision-making procedure was flawed" and its decision "premature," that the Corps "clearly failed to consider all of the relevant factors or all aspects of the problem," "did not fully consider or resolve certain difficult legal questions," "assumed facts that proved to be erroneous," and "failed to articulate a satisfactory explanation for its actions." Id. at 645. I also questioned whether "the Corps has entirely abandoned its earlier decision and is now objectively considering the evidence and the law without any preconceived notions concerning the outcome." Id. at 641.

I vacated the Corps' earlier decision regarding disposition of the remains, and remanded the issues to the Corps for further proceedings....