Thursday, Mar. 25, 2004

Tribes seek larger judge panel in Kennewick Man case

By Anna King, Herald staff writer

Efforts by scientists to study the 9,300-year-old bones of Kennewick Man face further delay because four Northwest tribes have filed a new court action.

The Native American tribes have asked the 9th U.S. Circuit Court of Appeals to rehear the case with a larger panel of 11 judges. An earlier ruling by three judges with the court gave the scientists clearance to study the ancient remains.

Tribal members have argued the Native American Graves Protection and Repatriation Act requires the remains to be given to the tribes for reburial. In the new motion, the tribes say the term "Native American" was not defined correctly by the panel of three judges.

In a Feb. 4 decision, the three judges upheld a 2002 ruling that there was no substantial evidence that Kennewick Man's remains are Native American as defined by the act. The ruling said there was no evidence "that Kennewick Man and modern tribes share significant genetic or cultural features."

Representatives for the scientists and tribes said Wednesday that it's unlikely the appeals court will hear the case again.

"It's a long shot, but the tribes believe this case is incredibly important and they think the 9th District will agree," said Rob Roy Smith, an attorney representing the Nez Perce, Umatilla, Yakama and Colville tribes.

If the motion is denied, the tribes plan to appeal to the U.S. Supreme Court, Smith said. He said the tribes believe the Kennewick Man case will have broader implications for how human remains and artifacts will be dealt with in the future.

"The tribes believe that this is a case of exceptional national importance," he said. "The tribes still believe that these remains are those of their ancestor."

Alan Schneider, an attorney for the eight scientists seeking to study the remains, said there is little evidence to support the tribes' claim that the skeleton is an ancient relative.

"The statute is very clear that you have to prove a relationship between the skeleton and the modern American Indians or their culture," he said.

James Chatters, the Richland archaeologist who recovered many of Kennewick Man's bones from the river bank in Columbia Park in 1996, said it's highly unlikely the skeleton could be the modern tribes' ancestor.

"We know from extensive archaeological study that human populations were migrating frequently around the world," he said. "The chances of any one group of Native Americans staying put in one place for that long is practically zero."

It's been about eight years since the skeleton was found, and time is running out for some of his colleagues to study Kennewick Man, Chatters said. "Some of the plaintiffs in this case might not last that long."

Chatters said because so few skeletons of this age ever have been found, Kennewick Man is of great importance to science. "He's one of those individuals that is in essence a messenger from the past," he said.

Kennewick Man's remains are now stored in the University of Washington's Burke Museum in Seattle.