The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Saturday, February 07, 2004

Kennewick Man: science wins over mumbo-jumbo - and by hand of the Ninth Circuit

I'm no expert in these matters: but I get the impression that, of the Federal Circuit Courts of Appeals, the Ninth is viewed as the last refuge of McGovernism.

So, knowing the Kennewick Man case was drifting up for their consideration, expectations were on the floor. (I think you'll find it less than eighteen months ago that I was hopeful of diversity as a ground for affirmative action being killed off by the Supremes in the Michigan University cases, Grutter and Gratz. Once bitten...)

However - though UMich was a bust, by way of consolation, the hippies of the Ninth Circuit have come through on Kennewick.

Via Howard Bashman, the opinion of the court (PDF) in Bonnichsen v US is a crisp, clear vindication of the position of the scientists on every point - so far as a skim can reveal.

In just 30 pages of pretty untricksified prose, the claims of the Indians are demolished. And the role of the Secretary of the Interior in the affair is trashed.

(The determination of the Secretary that KM was Native American for NAGPRA purposes was made by Bruce Babbitt on January 13 2000. Why on earth did the Bush administration when it came in not deny all support for the actions of Babbitt, and join the side of the scientists?

Bush spends money like water, does nothing to kill off affirmative action when he can, and pursues a case like Kennewick: what kind of conservative is this guy?)

The case was remitted to the District Court: which means more argy-bargy, no doubt, before science can do its stuff.

One matter that needs sorting out, mentioned on p11a, in note 10: the Fahrenheit 451 depositing of - it says - 2 million pounds of rubble on the site of the discovery by the US Army Corps of Engineers. The intention clearly was to prevent any more discoveries that might be embarassing to the Indians and their political poodles [1]; coupled with a good dollop of spite.

Whilst the Man is clearly first on the agenda, not much further down is to force the Corps to remove - or, safer, to pay for a third party to remove - the debris they dropped on the site.

  1. The Indian casino racket, I'm happy in my own mind that I've sussed. But the whole NAGPRA thing, I don't get. I can see one or two states - South Dakota is the obvious example - where the Indians might have some leverage. But generally? But, then, I can't see why Bush couldn't have taken that free swing against affirmative action in the UMich case.


Before champagne corks pop: there crosses my mind the possibility (in theory - the Federal Rules of Procedure are a closed book to me!) that the Ninth Circuit could rehear the case en banc.

If so - well, the scientists can't do any better than they have...

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