Thursday, Feb. 05, 2004

Study of old bones upheld

By Chris Mulick, Herald Olympia bureau

A federal appeals court on Wednesday upheld an earlier ruling allowing scientists to study the 9,300-year-old Kennewick Man skeleton that was discovered in 1996 along the shores of Columbia Park.

Once the judgment is entered, American Indian tribes will have 45 days to ask the 9th U.S. Circuit Court of Appeals to reconsider its decision. They also will have 90 days to ask the U.S. Supreme Court to review the matter.

Representatives from the four tribes who filed the appeal still were reviewing the opinion Wednesday afternoon and had limited response.

"We're extremely disappointed," said Rob Smith, an attorney for the Confederated Tribes of the Colville Reservation. "It's a real blow to cultural resource protection in Indian country."

"The 9th Circuit turned the statute on its head," he told The Associated Press. "The law Congress passed gives tribes the right to prevent the study of remains. What the 9th Circuit seems to have done is to require the tribes to prove the remains are Native American before the statute applies."

"We will be considering all legal avenues," said Marley Hochendoner, a spokeswoman for the Nez Perce Tribe.

Alan Schneider, an attorney for the eight scientists seeking to study the skeleton, called the three-judge panel's decision an "overwhelming victory for the plaintiff scientists. As I see it, the 9th Circuit didn't even see it as a close call," he said.

"If I could do handstands, I would do handstands," said colleague Paula Barran.

The federal government determined Kennewick Man to be "culturally affiliated" with modern Northwest tribes in 2000 and attempted to give the bones to the tribes for reburial.

But eight anthropologists hoping to conduct research on the skeleton sued, arguing Kennewick Man can't be proved to be a lineal descendant of existing tribes.

U.S. Magistrate Judge John Jelderks agreed in his ruling last August, but the tribes appealed.

The tribes challenged his 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.

In the appeals court opinion issued Wednesday, Judge Ronald Gould wrote that the federal government had applied an "extreme interpretation" of the law to remains "that have at most a tenuous, unknown, and unproven connection" to modern tribes.

"No cognizable link exists between Kennewick Man and modern Columbia Plateau Indians," Gould wrote.

Theoretically, scientists could be studying the bones within three or four months once the federal government approves study plan.

Proposed tests, which likely would take about two weeks to complete, 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.

Afterward, the federal government 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 such a quick resolution is unlikely. The tribes, who consider the bones to be sacred, could choose to ask the same three-judge panel to hear the case again or ask an 11-member panel of 9th Circuit judges to take it up.

Or they could appeal directly to the U.S. Supreme Court, which then would decide whether to consider the matter at all.

"The case is quite far from over," Schneider said.