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Judge faults BLM for decision on ancient remains

Nev. tribe wants ancient remains 'to come home' (February 14, 2003)
Norton treads uncharted waters over remains (April 22, 2002)
A federal judge last Thursday ordered the Bureau of Land Management to reconsider its stance on the Spirit Cave Man, a 10,000-year-old ancestor claimed by Nevada tribes.

The BLM has been holding onto the remains of Spirit Cave Man since the 1940s. After years of study -- conducted over tribal objections -- the agency said the remains weren't "culturally affiliated" to present-day groups and couldn't be returned for reburial.

But in a 26-page decision, U.S. District Judge Larry R. Hicks said he BLM's refusal to repatriate the remains was "arbitrary and capricious." He ruled that the agency failed to weigh the scientific, cultural, historical and other evidence submitted by the Fallon Paiute-Shoshone Tribe, the lead claimant.

The Native American Graves Protection and Repatriation Act "requires BLM to fully and fairly consider this evidence and to uphold or reverse its determination based on reasoned and coherent discussion of the evidence and BLM's reasons for believing it or disbelieving it," Hicks wrote.

"This discussion never occurred, necessitating a finding that BLM's determination was arbitrary and capricious," the ruling continued.

Hicks also said BLM officials repeatedly delayed a repatriation decision during both the Clinton and Bush administrations. Rather than give the tribe a final answer, the agency simply "passed the issue up the chain of command" until the tribe was forced to file a lawsuit two years ago.

In the meantime, the NAGPRA Review Committee, a federally-appointed panel of tribal and scientific experts, blasted BLM for its handling of the case. The panel voted 6-1 in March 2002 that Spirit Cave Man should be returned to the tribes for reburial.

BLM ignored the recommendation but Hicks noted that NAGPRA only gives the committee an advisory role. However, he questioned why the agency sent the issue to the committee in the first place only to ignore its findings.

"While the court has held that the review committee's findings are not binding on either the BLM or the court, the relevant statutes do make those findings relevant and persuasive," Hicks wrote.

Hicks also rejected BLM's attempt to dismiss the case because regulations regarding culturally unaffiliated remains have not be finalized. "Allowing BLM to simply hold the bones leaves all parties in limbo," the judge said.

The Spirit Cave Man case is being closely watched in Indian Country and by others interested in the first Americans. The National Congress of American Indians, the Association on American Indian Affairs, the Morning Star Institute and the Medicine Wheel Coalition on Sacred Sites in North America submitted briefs in favor of repatriation.

The Friends of America's Past, one of the groups behind the controversial Kennewick Man case, and other groups and individuals filed briefs in opposition to repatriation. The Friends, in particular, noted a decision by the 9th Circuit Court of Appeals that remains older than 1492 cannot be considered "Native American" due to the way NAGPRA was written.

Hicks expressed no view on this argument but said BLM would have to weigh the issue in preparing a new decision on the Spirit Cave Man. Nevada is part of the 9th Circuit.

Retired Sen. Ben Nighthorse Campbell (R-Colorado) introduced an amendment to NAGPRA that would ensure ancient remains are considered "Native American." Scientists immediately opposed the proposal and it failed to pass before Campbell left office in December 2004.

Sen. John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee, reintroduced the amendment. But he too ran into opposition and it was put on the backburner after the Bush administration opposed changing NAGPRA.

"We believe that the 9th Circuit Court of Appeals correctly interpreted the law and the intent of Congress, which was to give American Indians control over remains of their genetic and cultural forbearers, not over the remains of people bearing no special and significant genetic or cultural relationship to some presently existing indigenous tribe, people, or culture," Paul Hoffman, an Interior Department official, said in Senate testimony in July 2005.

Court Decision:
Fallon Paiute Shoshone Tribe v. BLM (September 21, 2006)

Spirit Cave Man Documents:
Federal Register Notice | Determinaton of Spirit Cave Man | Spirit Cave Man: Biological Aspects

NAGPRA Amendment Bill:
S.536: Technical Corrections Act

Court Decision:
BONNICHSEN v. US (February 4, 2004)

Relevant Links:
Fallon Paiute-Shoshone Tribe -
Spirit Cave Man, The Reno Gazette-Journal - National NAGPRA -