Wednesday, Sep. 04, 2002

Experts hoping for chance to study Kennewick Man

By Mike Lee Herald staff writer

A group of eight eminent scientists and their colleagues is starting to prepare a plan to study Kennewick Man following a judge's ruling that overturned a federal agency decision to block independent study of the ancient skeleton.

The scientists' proposal is likely to include an effort to piece together the remains - something that wasn't done in earlier government-sponsored studies - to discern any secrets the rebuilt body may hold.

"Our study team will look at the entire skeleton - as much as he can be reassembled - and say how the different colorations ... bone fragments ... and weathering patterns relate to each other," said Alan Schneider, a Portland lawyer who represents the scientists. "What do they tell us?"

Scientists also plan to remeasure the bones to check the accuracy of the government's study. It's all part of an effort to learn more about early inhabitants of the New World.

"What we can get is a good comprehensive foundation of information about the skeleton," Schneider said, "so as more skeletons are studied we can get a more comprehensive view about what happened in the peopling of the Americas."

Jelderks told the scientists to submit a study plan to the government within 45 days.

Schneider expects his clients' study will involve more than a dozen experts and will be performed at the Burke Museum at the University of Washington. The bones have been stored there for the last few years.

As the Kennewick Man case unfolded, it has been assumed by many observers that the issues are important enough that either the government or the scientists would appeal a losing decision in Jelderks' court. In the wake of a scathing legal loss, however, it's not clear how much interest the Bush administration has in pursuing the costly case left over from the Clinton era.

Said Schneider: "I wouldn't be surprised if they did (appeal) and I wouldn't be surprised if they didn't. We are mentally prepared to defend it all the way to the Supreme Court."

The central component of Jelderks' decision was that the government could not reasonably assert that the 9,000-year-old Kennewick remains were linked to a modern tribe under the 1990 Native American Graves Protection and Repatriation Act, or NAGPRA.

The judge's 73-page opinion dismantles almost everything about the government's arguments that the remains are legally Native American.

Jelderks wrote that the government gave "only cursory consideration" to applicable laws, failed to explain illogical conclusions or misinterpreted federal statute in a way that makes its application absurd.

"The Secretary (of the Interior) did not articulate a cogent rationale that supports his finding of cultural affiliation," Jelderks said. "The secretary neither identified the earlier group to which the Kennewick Man belonged nor explained how he inferred a 'shared group identity' over a span of 9,000 years between the tribal claimants and this unknown earlier group."

"Under the (government's) interpretation, possibly long-extinct immigrant peoples who may have differed significantly - genetically and culturally - from any surviving groups, would all be uniformly classified as Native American based solely upon the age of their remains," he wrote.

The Society for American Archaeology, which helped draft NAGPRA in 1990, said in a news statement that it "welcomes the clarity the court's opinion will bring to how NAGPRA is interpreted in the future."

The society added, "The decision sets many important precedents that will balance the legitimate interests of tribes in reclaiming the remains of direct ancestors with the equally legitimate public interest in understanding the human past."

The federal decision to give the bones to tribes was the result of federal bureaucrats biased in favor of the American Indians, said the judge. "(The government's) procedures, actions and decisions have consistently indicated a desire to reach a particular result," he wrote.

Such bias was shown by what Jelderks said was largely undisputed evidence that federal agency decision makers secretly gave tribal leaders advance copies of documents and secretly met with tribal leaders at a critical time in the decision-making process, which he said allowed tribes the ability to influence agency leaders.

Jelderks also took the Corps of Engineers to task again for its 1998 efforts to bury the Columbia Park site where Kennewick Man was found, despite its possible benefit in sorting out the archaeological puzzle he left behind.

"It appears the tribal claimants' concern about further site investigation was the principal factor in the decision to cover the site," Jelderks said. "This action was consistent with (the government's) approach throughout the litigation, which has been marked by an appearance of bias."