Thursday, Sep. 11, 2003

Kennewick Man decision passed to new court

By Annette Cary

PORTLAND -- Seven years after the skeleton of Kennewick Man was fished from the shallows of the Columbia River, another court took up the task Wednesday of deciding its future.

The U.S. 9th District Court of Appeals will decide whether the 9,000-year-old skeleton may be studied by scientists as a lower court ruled or whether the bones must be turned over to Northwest tribes.

At issue is whether Kennewick Man is legally a Native American. If he is, he falls under a 1990 federal law intended to return the remains of ancestors, some only a few generations past, to the tribes and protect tribal graves from looting.

But if the court decides that Congress intended only people who could be linked biologically or culturally to present day tribes to be considered Native American, the bones could fall under another law covering archaeological finds and encouraging the study of the bones.

"(The decision) has a far-reaching effect," said Rob Roy Smith, who spoke at the hearing for the Colville, Nez Perce, Umatilla and Yakama tribes.

The U.S. Department of Justice also appealed the lower court's decision to let eight anthropologists study the skeleton.

At stake is not just what might happen to the bones of Kennewick Man, but also a precedence for whether other ancient bones may be studied or should be returned to tribes under the Native American Graves Protection and Repatriation Act, or NAGPRA.

"It is not generally accepted in science" for bones that are more than 2,000 or 3,000 years old, interrupted Judge Ronald Gould, one of three judges considering the case.

Scientists who briefly studied the bones when they were found concluded the narrow skull more closely resembled the Polynesians or the Ainu, an aboriginal Japanese people, than modern Native Americans.

"Preliminary studies suggested this was unlike anything seen before except in very, very small handfuls," said Paula Barran, representing the scientists.

Scientists are interested in studying the bones, both as one of the most complete ancient skeletons found in North America and also to see if it represents an unknown source of migration to North America. The traditional theory is that people walked from Asia across a land bridge to North America.

The tribes believe that the stories passed down from generation to generation show that their ancestors, including the Ancient One as they call Kennewick Man, were the original inhabitants of North America.

"Our oral histories go back 10,000 years," said Armand Minthorn, of the Confederated Tribes of the Umatilla Indian Reservation, after the hearing.

Congress did not have any limit in time in mind when NAGPRA was written, said U.S. attorney Ellen Durkee.

But contextual information, such as artifacts found with bones, also could be considered to decide whether the bones are Native American or not, she said.

"Wasn't that problem caused by the Army Corps of Engineers?" Gould asked. The Corps buried the embankment where the bones likely were buried before they washed into the Columbia River under tons of rock in 1998.

Attorneys for scientists believe that the tribes bear the burden of proving that remains have a biological or cultural connection to modern American Indians. NAGPRA requires that remains be returned to tribes if they can "show cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical or other relevant information or expert opinion."

"The words of the statute clearly require proof," said Alan Schneider, an attorney for the scientists, after the hearing.

But supporters of the tribes' bid say the law was intended to be broad.

"What was Congress thinking?" Durkee asked. "It was trying to get the tribes a seat at the table."

The tribes do not object to testing, Minthorn said.

"With Kennewick Man tests were done without our permission," he said after the hearing. "We are not against science. We are not against technology.

"But technology should not dictate what is done and who makes the decisions."

Scientists briefly studied the bones before the Corps claimed them and announced they would be turned over to the tribes. After the eight scientists filed suit, the Corps ordered more scientific tests to determine a link between the bones and modern tribes.

Most of the tests scientists would like to perform if they are given access to the bones involve taking measurements and photographs and would not consume bone, Barran said. A small amount of bone was destroyed for the first radiocarbon dating to establish the age of the bones, and much more was destroyed when the government ordered multiple tests to confirm the age.

However, if the appeals court agrees with the lower court that scientists have the right to study the skeleton, any work may yet be years away.

The three-judge panel of the appeals court that heard arguments Wednesday may not make a ruling for up to a year. It must study legal documents that totaled 22,000 pages before the appeal, plus hundreds of pages filed by the three parties involved in the case and other interested parties, including other tribes and museums.

Whatever decision the panel of judges make, the losing side is likely to ask for a reconsideration by the entire 9th Circuit Appeals Court.

Ultimately, the case could end up before the U.S. Supreme Court. It's a step both sides have said they're willing to take, if needed.