Thursday, Jun. 21, 2001

Judge closes debates on ancient bones

By Chris Mulick Herald staff writer

PORTLAND - Consider the "totality of the circumstances" rather than looking for indisputable proof Kennewick Man is linked to modern tribes, attorneys for the federal government and Native Americans urged a federal judge Wednesday.

Tribal attorneys also repeated arguments that the Department of Interior's experts, not the courts, have the expertise to best decide what to do with the ancient skeleton.

But U.S. Magistrate Judge John Jelderks continued a thorough line of questioning on both issues before wrapping up the two-day oral argument stage of a five-year case now apparently in its final stages.

With appeals a forgone conclusion, Jelderks is taking his time to study the arguments, mindful of the ramifications his actions may have.

"The case is going to take a significant amount of amount of additional work," he said at day's end, noting he hopes to clear up gray areas so "it's clear what I've done and why I've done it."

Attorneys were given two weeks to file briefs addressing what effect a recent U.S. Supreme Court ruling will have on the case.

As he did Tuesday, Jelderks pressured attorneys representing the Interior Department, which last year decided to give the bones to the tribes for burial, to present specific evidence clearly linking Kennewick Man to modern peoples.

But government attorney David Shuey said the Native American Graves Protection and Repatriation Act does not require "shared group identities" needed to create a "reasonable connection" between the 9,200-year-old bones and Native Americans to be exact or scientific.

"There's no generally accepted definition," said Walter Echohawk, an attorney representing the National Congress of American Indians who helped draft the law.

"This was a term that was made up for the purpose of this legislation. This 'reasonable connection' can neither be proved nor disproved."

He urged Jelderks to consider the geographic and oral evidence passed down through the generations in the form of stories to suggest the presence of Native Americans in the region at the time of Kennewick Man's life.

Attorneys for the scientists hoping to study the bones have argued there is a 5,500-year gap between the time Kennewick Man roamed the Mid-Columbia and the time other groups began to populate the area.

Jelderks said even if the Native American stories were assumed to be true, they don't automatically "prove there is a shared group identity between Kennewick Man's remains and the claimant tribes."

The issue over whether the bones can be positively linked to any one tribe should be rendered moot, tribal attorneys said, again arguing the government has the proper expertise to handle such decisions.

"The only expert sitting before the court today is the Department of Interior," insisted Rob Smith, representing the Nez Perce Tribe.

But Jelderks indicated he's not convinced a direct link between Kennewick Man and modern tribes shouldn't have to be established.