This article examines the Bonnichsen case and the Ninth Circuit's controversial and fundamentally flawed rewriting of the Native American Graves Protection and Repatriation Act (NAGPRA), in light of the history of Native Americans' encounters with anthropologists and of the goals that NAGPRA was intended to achieve. Part II discusses the history of anthropologists' activities involving Native Americans and the remains of their deceased kin, revealing the longstanding practices that NAGPRA was enacted to redress. This historical background provides the context in which NAGPRA must be understood and interpreted, and in light of which decisions under the statute should be made. Moreover, while contemporary anthropologists may claim that this history should be forgotten because it reflects attitudes that they believe their profession has repudiated, for tribal members who continue to be subjected to anthropologists' claims to the remains of their ancestors, this past is still very much a part of the present. Part III examines NAGPRA itself and the key determinations that need to be made when the statute is applied to human remains. Part III also discusses the DOI's application of the statute to the Kennewick remains. Part IV examines the views of the plaintiffs and the defendants in the Bonnichsen case and critiques the Ninth Circuit's 2004 decision in favor of the plaintiffs. A careful analysis of the court's language reveals much about the underlying attitudes and sympathies that shaped the outcome. This analysis also demonstrates how the court's approach to the case and the case's outcome both reflect continuing rejection and subordination of the Native American perspective that Congress, in enacting NAGPRA, established as being entitled to respect, and thus perpetuate the assimilationist attitude that for so long characterized government policy toward Native Americans. The Conclusion offers some final thoughts on the Bonnichsen decision and the future treatment of Native American remains, and on the continuing survival of the "dying race," against seemingly great odds.
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.
Available at: http://digitalcommons.unl.edu/nlr/vol84/iss1/3