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Ancient Remains Trigger a Modern Court Battle

June 14, 2004

In a high-profile legal tussle over 9,200-year-old human remains, one of the most prominent attorneys is 28-year-old Rob Roy Smith J.D. ’00.

Smith, just four years out of law school, plays a leading role in the Kennewick Man case, a protracted court contest with profound consequences for Indian tribes seeking ownership of cultural artifacts and ancient remains. 

Smith speaks passionately about being in the thick of a historic case and about practicing Indian law, a field marked by growing relevance, a broad purview, and a high frequency of precedent-setting cases. “If being an attorney gets you up the morning,” Smith says, “then doing Indian law is the coffee, because it really gets you going.”

When he came to Lewis & Clark Law School fresh from the College of the Holy Cross in Worcester, Massachusetts, Smith didn’t expect to someday call Indian law the “beacon” of his career. He chose Lewis & Clark for its top-flight environmental law program, and he stayed true to his natural-resource interests through six semesters and summer internships with Defenders of Wildlife and Earthjustice Legal Defense Fund. But soon after graduation, Professor of Law Michael Blumm encouraged him to apply for an opening with the Nez Perce, a 3,300-member Indian tribe based in north-central Idaho.

During interviews and visits to the tribe’s reservation in Lapwai, Idaho, Smith found that the people were warm and the cause was just. He accepted a job as one of five attorneys who report to the Nez Perce’s nine-member executive committee.

For a white person from Jersey City, New Jersey, Smith was afforded a rare look inside Native American culture. More than half of the tribal personnel were Native American. His first case involved representing the Nez Perce health clinic in an employment dispute based on tribal law, a unique blend of community-oriented Native American traditions and Western legal principles. He was exposed to racism and ignorance of Indian culture—the former exemplified by a Caucasian woman in the grocery store who shunned him after learning the identity of his employer, the latter by a telemarketer who said he thought Indians were long gone. 

“It’s not too often you get to live in one community and work in a totally separate one,” says Smith, who commuted to the reservation from the towns of Lewiston and Moscow during his tenure with the Nez Perce. “But it gives enormous perspective on the world.”

As a Nez Perce tribal attorney, Smith drafted a bill that permitted Native American speakers—many of them tribal elders with no formal training—to teach native languages in public schools, and helped pass a 2002 ballot initiative to secure the future of Indian gaming in the state. When an antigaming group tried to block the ballot measure, Smith and lawyers for the state successfully argued the case before the Idaho Supreme Court.

To Smith, the law is a human-rights act intended “to right centuries of wrongs perpetuated against Indian tribes and Indian remains.”

Most significantly during his time with the Nez Perce, Smith began toiling on the case that so far has dominated his young legal career: Kennewick Man. The case centers on the remains of a 9,200-year-old male discovered in July 1996 along the banks of the Columbia River near Kennewick, Washington. Local Indian tribes, including the Nez Perce, said the remains were those of an ancestor, whom they named Ancient One. They laid claim to the remains under a 1990 federal law that protects Indian artifacts, and planned to rebury them according to tribal custom. Anthropologists, however, wanted to study the skeleton, the oldest found in the Northwest, and sued the U.S. Army Corps of Engineers to prevent them from delivering the bones to the tribes.


Smith entered the scene as the protracted legal wrangling entered its fifth year. At the heart of the dispute is the Native American Graves Protection and Repatriation Act, or NAGPRA, which provides a process for museums and federal agencies to return important Indian cultural items to descendants and culturally affiliated tribes. To Smith, the law is a human-rights act intended “to right centuries of wrongs perpetuated against Indian tribes and Indian remains.” scientists, however, question whether the law should apply at all to the Kennewick Man case, since some studies of the remains suggest he was of Southeast Asian origin. The courts first threw the matter back into the hands of the federal government, asking the U.S. Department of the Interior to study the remains further and render a decision.

“It’s like being in front of a shooting gallery. You have to think fast on your feet and know your case,” he explains. “Fortunately, I’d lived this case for the last three years.”

In September 2000, shortly before Smith’s tenure with the Nez Perce began, then–Interior Secretary Bruce Babbitt concluded that Kennewick Man was related to the tribes. “While some gaps regarding continuity are present,” Babbitt announced, “[the Department of the Interior] finds that, in this specific case, the geographic and oral tradition evidence establishes a reasonable link between these remains and the present-day Indian tribe claimants.”

But the scientists, who wanted to conduct their own studies of the remains, quickly amended their original complaint, and in June 2001 Smith joined U.S. attorneys in delivering oral arguments in Portland before U.S. Magistrate John Jelderks.

In August 2002, Jelderks awarded custody of the remains to the scientists, saying the government had not proved that Kennewick Man was an ancestor of the mid-Columbia tribes. A few months after Jelderks’ ruling, Smith took a job with Morisset, Schlosser, Jozwiak & McGaw in Seattle, one of a handful of U.S. law firms devoted exclusively to Indian law. He became the third Lewis & Clark Law School alum among the firm’s seven lawyers, and he continued to work on the Kennewick Man case—now representing the Confederated Tribes of the Colville Reservation, another of the tribes seeking joint ownership of the skeletal remains.

As the nearly 400 bones and bone fragments sat in the Burke Museum at the University of Washington in Seattle, about five miles from Smith’s office, the appeals continued. “The case is a microcosm of the struggles that tribes face today,” says Smith. “Tribes must battle to explain their rights to the non-Indian community, to fight off exploitation from the scientific community, and to assert their sovereignty against state and federal governments that are usually opposed to their interests.”

Last September 10 was the biggest day of Smith’s career. On that day, he argued the tribes’ case before three judges on the 9th Circuit Federal Court of Appeals in Portland. He had risen to become, in effect, the lead attorney fighting for tribal rights to Kennewick Man’s remains, and he felt both deeply honored and scared. “It’s like being in front of a shooting gallery. You have to think fast on your feet and know your case,” he explains. “Fortunately, I’d lived this case for the last three years.”

On February 4 of this year, however, the three-judge panel from the 9th Circuit ruled that the evidence did not support the federal government’s determination that Kennewick Man is Native American, and on April 19 the full court refused the tribes’ request for a rehearing. Now, the tribes have until mid-July to decide whether to appeal to the U.S. Supreme Court or to return before Judge Jelderks to debate issues such as the scope of the anthropological studies and the fate of the site where the remains were found.

Smith is disappointed by this latest setback, but he argues that despite the legal losses, the tribes have advanced their fight to protect the rights of their ancestors. “Before the discovery of the Kennewick Man, most of the country and the world did not understand the hurdles Indian tribes face when they seek to protect their cultural identity. Now, thanks to the international attention this case has received, more people understand tribal sovereignty, more people understand the importance of tribal cultural resource protection, and, hopefully, more people understand why this issue is so important to tribal members,” says Smith. “If we have opened a few peoples’ eyes to the tribes’ plight, this case is a victory.”

Dan Sadowsky is a freelance writer in Portland. 

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