## Facts

- In 1996, ancient human remains (commonly called “Kennewick Man”) were discovered on federal land near Kennewick, Washington, managed by the U.S. Army Corps of Engineers.
- Preliminary scientific analysis estimated the remains to be approximately 8,340–9,200 years old.
- Several Columbia River basin tribes claimed the remains for repatriation and reburial based on religious and cultural beliefs.
- The Army Corps and Department of the Interior treated the remains as subject to the Native American Graves Protection and Repatriation Act (NAGPRA) and determined a “shared group identity” between the remains and five claimant tribes.
- A group of scientists sought access to study the remains and challenged the federal determination under the Administrative Procedure Act (APA).
- The district court set aside the agency’s repatriation decision, enjoined transfer to the tribes, and ordered that the scientists be allowed to study the remains.

## Issues

1. Whether the remains were “Native American” under NAGPRA, making NAGPRA control their disposition.
2. Whether the agency’s findings of cultural affiliation and NAGPRA coverage were supported by substantial evidence and were lawful under the APA.
3. Whether the scientists had Article III standing to seek review of the repatriation decision and denial of access for study.

## Decision

- The Ninth Circuit affirmed the district court’s judgment (as modified by a later amendment).
- The court held that “Native American” under NAGPRA requires a relationship to a presently existing tribe, people, or culture.
- On the administrative record, no reasonable decisionmaker could find the necessary relationship between the remains and any present-day tribe; therefore, NAGPRA did not apply.
- Because NAGPRA did not apply, the remains were governed by the Archaeological Resources Protection Act (ARPA), allowing scientific study under the federal permitting framework.
- The scientists had standing because denial of access to study constituted a concrete injury traceable to the agency action and redressable by judicial relief.

## Legal Principles

- Under NAGPRA, “Native American” human remains must bear a demonstrable relationship to a presently existing tribe, people, or culture; geographic location alone is insufficient.
- Cultural affiliation under NAGPRA requires evidence of a “relationship of shared group identity” between remains and an identified modern tribal group.
- Under the APA, agency determinations must be supported by substantial evidence; generalized migration theories and uncorroborated inferences over many millennia may be inadequate on a given record.
- When NAGPRA does not apply to remains on federal land, ARPA and related federal land-management laws govern excavation and study through permits and scientific controls.
- Researchers may establish Article III standing where an agency decision denies access to study unique materials and a court order can remedy that denial.

## Conclusion

The Ninth Circuit rejected the federal government’s NAGPRA-based repatriation decision because the record did not show that the 9,000-year-old remains were related to any present-day tribe, and it allowed scientific study under ARPA while maintaining injunctive relief against transfer for tribal reburial.


Bonnichsen v. United States, 357 F.3d 962 (9th Cir. 2004), amended by 367 F.3d 864 (9th Cir. 2004)