Reflection on Jeldrek’s Judicial Decision and the Ninth Circuit's Decision in the Bonnichsen Litigation

Summary

The Bonnichsen litigation commenced shortly after the discovery of the Ancient One's (aka Kennewick Man) remains and involved several scientists suing the United States to keep the remains and use them for their claimed scientific purposes. Judge Jelderks, Magistrate Judge for the United States District Court in Oregon, found in favor of plaintiffs in 2002. His decision advances a skewed analysis of NAGPRA cultural affiliation claims that hinders tribal rights and serves as a deterrent for meaningful government-to-government consultations between sovereign tribes and their trustee, the United States. The U.S. Court of Appeals for the Ninth Circuit upheld Judge Jelderks' decision in a far more limited opinion published in 2004. I will focus on (1) Judge Jelderks' analysis, (2) how this decision impacted tribes' advocacy for repatriation of the Ancient One under NAGPRA, (3) how it may impact future tribal advocacy for repatriation, (4) the Ninth Circuit's more limited analysis, and (5) what a proper preponderance analysis of cultural affiliation claims should look like under NAGPRA, consistent with the statute and federal common law precedent on a preponderance burden of proof.

This Resource is Part of the Following Collections

• Society for American Archaeology 83rd Annual Meeting, Washington, DC (2018)

Keywords

Record Identifiers

Abstract Id(s): 21679