Bonnichsen v. United States - 367 F.3d 864 (9th Cir. 2004)

Rule:

The Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.S. § 3001 et seq., vests "ownership or control" of newly discovered Native American human remains in the decedent's lineal descendants or, if lineal descendants cannot be ascertained, in a tribe "affiliated" with the remains. 25 U.S.C.S. § 3002(a). NAGPRA mandates a two-part analysis. The first inquiry is whether human remains are Native American within the statute's meaning. If the remains are not Native American, then NAGPRA does not apply. However, if the remains are Native American, then NAGPRA applies, triggering the second inquiry of determining which persons or tribes are most closely affiliated with the remains.

Facts:

An ancient human skeleton was discovered by teenagers near the Columbia River in Washington. It was determined to be between 8340 to 9200 years old. The defendant Secretary of the Interior determined that the skeleton was Native American under the Native American Graves Protection and Repatriation Act (NAGPRA) and awarded it to the Indian tribes who lived near where it was found for immediate burial. The plaintiff scientists filed suit challenging the decision. The district court held that the Secretary improperly decided that the NAGPRA applied and that the scientists should have an opportunity to study the skeleton under the Archeological Resources Protection Act of 1979 (ARPA). Defendant Secretary of the Interior and intervenor Indian tribes appealed.

Issue:

Did the district court err in barring the transfer of the skeleton to the Indian tribes for immediate burial and in permitting the scientists to study the skeleton under the ARPA? 

Answer:

No.

Conclusion:

The court of appeals found that the NAGPRA's language required that human remains, to be considered Native American, bore some relationship to a presently existing tribe, people, or culture, and that because the record showed no relationship of the skeleton to the Indian tribes, the NAGPRA did not apply. The skeleton's age made it almost impossible to establish any relationship between it and presently existing American Indians, and local coroners initially believed it was European. Cranial measurements and features of the skeleton closely resembled those of Polynesians and southern Asians. Accordingly, the judgment barring the transfer of the skeleton to the Indian tribes for immediate burial and permitting the scientists to study the skeleton under the ARPA was affirmed.