Wednesday, Apr. 18, 2001

Judge reviewing Kennewick Man bones decision

By Mike Lee Herald staff writer

Scientists are relying on constitutional protections to win their case for studying Kennewick Man, according to court documents released Tuesday.

But the judge may never address key issues such as separation of church and state if he finds the government has violated too many procedural laws in handling the 5-year-old case.

"If this were a baseball game, (the government) could be called out for not touching first base, second base, third base or home plate," said Alan Schneider, a Portland lawyer representing scientists suing for the right to study the ancient skeletal remains found in Kennewick in 1996. "I don't even think they were in the infield."

As expected, Barran and Schneider asked Magistrate Judge John Jelderks to reverse the Interior Department's finding that Kennewick Man should be returned to American Indian tribes without more study.

After the near-complete 9,000-year-old skeleton was found inadvertently in Columbia Park, a coalition of five Northwest tribes claimed the bones, saying they are from an ancestor and should be buried. But eight prominent scientists from universities and the Smithsonian sued for rights to study the remains in a case that has drawn international attention.

Perhaps the most intriguing new argument offered by the scientists' lawyers Tuesday was that the government's decision to give the bones to tribes violates the First Amendment, which prevents Congress from making laws "respecting an establishment of religion."

"They accepted the 'truth' of the (tribes') religious beliefs and used those beliefs as proof of prehistoric events contrary to known scientific information," said court papers, noting many of the scientists are professors. "The Constitution does ... not permit government to require that teaching and learning be tailored to the principles of any religion or dogma."

Among the other arguments offered by the scientists:

-- Federal officials charged with handling the remains had "improper" contacts with tribal leaders, the White House and federal lawyers who were trying to defeat the scientists in court. "The decision makers were biased," Barran and Schneider said. "They coached (the tribal) coalition on how to present its claims and applied an improper presumption in favor of the coalition's claims."

-- The government's decision that Kennewick Man is legally "Native American" is flawed because it's based solely on him predating Columbus' discovery of the Americas, the lawyers said. They argue the government's application of the graves protection law starting in 1492 is arbitrary and appears to be based on a letter by an agency official.

"It is implausible that Congress intended to leave such a significant policy issue to be decided by a letter from one National Park Service employee," court papers say.

-- Also, said Barran and Schneider, the tribal coalition is not a legal entity that can receive the bones. "Defendants ignored the fact that (graves protection law) does not authorize such group repatriations," they said.