UPDATE: Here is the Plaintiffs' statement on Tribal Motion to Intervene. Apparently, the tribes are making exactly the same arguments that failed in all previous hearings and appeals:
On Wednesday afternoon, they filed a new motion in federal district court asking permission to intervene as a full party in any further proceedings in the Kennewick Man lawsuit (Bonnichsen et.al. v. U.S., D.Or., cv 96-1481). Their motion asserts that the skeleton is the remains of an Indian who was one of their ancestors, and that they have a legal right to participate in all decisions relating to the skeleton s treatment and ultimate disposition. An affidavit from Armand Minthorn filed in support of the motion, states: "We know this to be the case from our oral traditions and our beliefs."
Here is a link to the tribes' motion and other communications, which I haven't time to read right now; comments later.
UPDATE UPDATE: Well, I looked over the linked communications; they confirm my initial assessment above. Summary: "the courts have ruled that we have no demonstrable genetic or cultural affiliation to the Kennewick Man but we have the right to control and limit the study of his remains because he is our ancestor."
No, really. Go ahead, read the linked documents. I kid you not. (E.g., "The Tribes do not seek to relitigate issues previously decided by the Ninth Circuit. Quite the contrary, the Tribes seek party status to ensure that their interests are considered concerning study plans for the remains and the possible excavation of the remains burial site. Only through full participation in this case can the Tribes work with the parties towards achieving the Tribes goal of reinterment of [the] human remains with the Tribes once the permitted studies are concluded.")
Anyone taking bets on whether the judge is going to get pissed off enough to impose sanctions?
Posted by: Carey Gage on September 09, 2004
I did think of that, but I don't know enough about the legal procedures to know if and how that works. From a layman's view, I can easily envision a judge leaning over the bench and barking "Excuse me? What the hell did I just tell you? Am I talking to the wall here?"
Posted by: Moira on September 09, 2004
It's likely the tribes expect Jelderks to deny this motion. They will likely immediately to appeal to the 9th Circuit with a request to stay study until the issues are resolved. More briefs, more out-of-pocket expenses for the scientists just to keep the hope for study alive.
Posted by: Friends of America's Past on September 10, 2004
If what the tribes expect is to impose delay and expense on the studies, then, as noted above, they need a stay pending appeal. No stay, no delay. Given that the issue has been litigated (both at the trial level and in the appellate court, with the tribes declining an appeal to SCOTUS), granting such a stay would make zero sense to me.
To obtain the stay, they would have to show that there is some significant likelhood of success on appeal. But they already lost once on these very issues. They are bound by that prior loss on the issues decided by the trial and appellate courts.
Because they apparently have not (and therefore presumably cannot) raise any new issues, the tribes ability to delay the matter is rapidly coming to an end. Cute lawyer tricks only get you so far.
Posted by: Carey Gage on September 10, 2004
One hopes so. The ploy here, as far as I can make out, is to try to hang, on the ostensibly vaguer and broader ARPA statutes, the same arguments that failed under NAGPRA. This is the basis of the song-and-dance about "of course we're not relitigating the NAGPRA-based decisions". In other words, "if we can't get privileged status for our religion via NAGPRA, we'll try again via ARPA." (An amusing side-note is the seeking of relief for the Corps of Engineers' burial of the discovery site - written up as if the scientists had something to do with that.)
Posted by: Moira on September 10, 2004