Saturday, May. 19, 2001

Feds defend Kennewick Man bones ruling

By Mike Lee Herald staff writer

Final written arguments by federal lawyers show the Bush administration has maintained a strong defense of the government's decision to give Kennewick Man to Northwest tribes for reburial.

The Department of Justice rebutted allegations of improper contacts with tribal leaders, biased decision-making and constitutional violations, according to documents filed late Thursday.

"All of these contentions are without merit," federal lawyers said, reiterating their intention to interpret laws with deference to tribes.

Stephanie Hanna, spokeswoman for the Interior Department, said American Indian burial issues so far have not been a top priority for the few new political appointees at the agency, which is still understaffed at top levels. "My guess is that we would continue as we have" defending federal actions, Hanna said.

The 60-page document is the government's last chance to convince Magistrate Judge John Jelderks of its position before June 19 oral arguments in U.S. District Court in Portland. It's unclear whether Jelderks will question experts, listen to oral arguments or render a verbal ruling.

American Indians and scientists claimed the bones, sparking a suit by scientists demanding access to study the near-complete skeleton. The case has attracted international attention because it raises complex questions about tribal, religious and scientific rights.

After much delay and several studies of the bones, government experts ruled Kennewick Man was "culturally affiliated" with modern Northwest tribes who claimed him as an ancestor.

Those tribes praised the ruling, and they gained momentum earlier this month when the National Congress of American Indians also petitioned for the right to address the court. The congress helped develop the Native American Graves Protection and Repatriation Act, or NAGPRA, on which Kennewick Man decisions are based.

"This case raises important issues of first impression concerning the implementation of NAGPRA and will have a significant impact on the rights of Indian tribes in this nation to bury their dead - rights which non-Indians take for granted," the congress said in its court document.

The group is particularly concerned about the court's response to scientists' lawyers who challenge the federal decision on constitutional grounds. "The court's rulings on these issues will impact Indians and Indian tribes nationwide," said national Indian leaders representing 250 Indian tribes.

Scientists argue that the government's reliance on Indian oral tradition - which often is infused with religious teachings - violates separation of church and state doctrine. Also, they say, the Constitution allows them access to study the bones on the grounds that the government can't prohibit the dissemination of knowledge.

"The First Amendment provides no right to the public to inspect, without conditions, all the property in the custody of the United States," said federal lawyers.

And, they added, federal officials used "science-based methodology and other testable sources ... to gauge the credibility of culturally based evidence."