Friday, Sep. 27, 2002

Tribes try to appeal ruling on Kennewick Man bones

By Mike Lee Herald staff writer

Four Northwest tribes are attempting to appeal a federal court ruling that allows study of Kennewick Man's 9,000-year-old remains.

Tribal lawyers Thursday said that the U.S. government no longer adequately represents Indian interests and asked for the right to appeal the high-profile decision, which addresses pivotal aspects of the Native American Graves Protection and Repatriation Act.

"(Tribes) are adversely affected both by the disposition of this case, as well as the breadth of the opinion, which calls into question the remedial purposes of NAGPRA," said lawyers for the Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Yakama Nation and the Confederated Tribes of the Colville Reservation.

On Aug. 30, however, U.S. Magistrate Judge John Jelderks ruled in favor of the scientists and gave them 45 days to prepare a study plan for the near-complete skeleton, which is deemed an important piece of evidence in the effort to understand how native people settled the Americas.

It's long been expected Jelderks' opinion would be appealed, but federal officials have made no public announcement of an appeal, to the alarm of Indian leaders.

"Without a timely appeal of the court's decision, the (tribes) have no ability to preserve their rights and ensure the return of the human remains to the tribes," their lawyers said.

"The court's decision has and will continue to adversely affect the (tribes') interests by subjecting the remains to additional unwarranted invasive studies," they said, noting federal lawyers missed the deadline for requesting the court to withdraw or amend its judgment and federal agencies failed to move for a stay of the ruling pending an appeal.

Even if the government does appeal to the 9th Circuit Court, tribal lawyers said it's "uncertain whether federal defendants are capable and willing to raise the same issues on appeal" as the tribes.

The tribes have more at stake than the government, which suffered an embarrassing loss in Jelderks' court. Indians across the country fear the ruling will erode graves protection laws Congress imposed in 1990 to end decades of abuse at Indian burial sites.

The group of scientists has until the middle of next month to submit a study plan. It's expected to involve more than a dozen experts and be performed at the Burke Museum at the University of Washington, where the bones are being stored.

The Portland attorney for the scientists could not be reached late Thursday afternoon to respond to the tribal request.