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INTRODUCTION
On its surface, Bonnichsen v. United States is an administrative law case, reviewing a decision by the Secretary of the Interior regarding the appropriate reach of a specific set of legislative and regulatory rules. As such, Judge Gould, writing for a panel of the Ninth Circuit of the United States Court of Appeals (Ninth Circuit) decided that the secretary's office had overstepped its bounds; in short, its interpretation of the rules in question was not reasonable. But underneath the legal categories, Bonnichsen is a much more complicated and politically charged case. It is about competing conceptions of history and spirituality. It is about sovereignty (although that word is not uttered once in the decision, aside from reciting a definition of Native Hawaiians) and the clash of cultures. It is less about the standards for decision making and more about who the appropriate decision makers are. It is a case about a man who lived 9,000 years ago and about how today we should understand his cultural identity.
Below the administrative law veneer, Bonnichsen is about the identity of Kennewick Man or Ancient One , a 9,000-year-old, nearly complete skeleton found in the Columbia River Basin almost a decade ago. The primary issue for the secretary, and subsequently the federal courts, was whether the remains fell within the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) that, among many other things, requires that ownership and control of Native American skeletal remains found on federal land be granted to the Indian tribe with the "closest cultural affiliation." The secretary decided that Kennewick Man fell within NAGPRA; the federal courts, at the urging of a collection of scientists headed by Robson Bonnichsen, all "experts in their respective fields," decided that it did not. The following case note explores the Bonnichsen decision. The first section covers the basic details of Bonnichsen-- the essential facts and its lengthy and somewhat contentious legal history. The second section looks more closely at the legislation at the heart of the case, the Native American Graves Protection and Repatriation Act. The final section focuses on the use of time and place to determine affiliation and what I consider to be the most serious flaw of the decision--the Court's failure to...