Wednesday, Apr. 21, 2004

Court rejects tribes' appeal in Kennewick Man case

By Chris Mulick, Herald staff writer

A federal appeals court has rejected a request by four Northwest Native American tribes that it rehear a case involving the fate of the 9,300-year-old Kennewick Man remains.

The tribes now have 90 days to determine whether to appeal to the U.S. Supreme Court.

"The end of the road is in sight now," said Alan Schneider, a Portland attorney for eight scientists who are seeking to study the skeleton. "Even if the Supreme Court takes the case, we ought to have a final decision in two years."

Schneider believes it's unlikely the Supreme Court would reject the U.S. 9th Circuit Court of Appeals' decision in its entirety. "I would give it very, very low odds," he said.

Rob Smith, an attorney for the Confederated Tribes of the Colville Reservation, called the decision, which was issued Monday, a "staggering blow." He added, "The tribes believe the 9th Circuit got it wrong."

The federal government in 2000 determined that the Kennewick Man skeleton, discovered along the banks of the Columbia River in 1996, was "culturally affiliated" with modern Northwest tribes and attempted to give the bones to the tribes for reburial.

But the anthropologists sued, arguing Kennewick Man can't be proved to be a lineal descendant of existing tribes. U.S. Magistrate Judge John Jelderks agreed and the appeals court upheld the decision.

The tribes have challenged Jelderks' contention that Kennewick Man does not meet the legal definition of Native American as outlined by the Native American Graves Protection and Repatriation Act as the federal government argued. That law is intended to return the remains of ancestors to the tribes and protect tribal graves from looting.

But the tribes are now beginning to run out of legal alternatives.

"We're starting to get relief that at some point we'll get to study the bones," Schneider said.

Such study could include digital imaging of the skull to create 3-D and computer images that can be compared with other skulls. Also, chemical testing of bone "microsamples" would show the range of proteins in the skeleton, a critical element if the bones were to undergo additional DNA or radiocarbon analysis.

The federal government eventually would place the bones in a proper repository, such as the Burke Museum in Seattle, where the skeleton currently resides, or the Smithsonian Institution in Washington, D.C.

But the tribes hold out hope none of that will take place. "It's not over yet," Smith said.