Wednesday, Jun. 20, 2001

No ruling for Kennewick Man

By Chris Mulick Herald staff writer

PORTLAND - A decision in the Kennewick Man case still is at least several weeks away.

And if Tuesday's hearing was any indication, government attorneys hoping to deliver the 9,200-year-old skeleton to Northwest tribes for burial have a lot of work to do.

With written arguments submitted weeks ago, many had speculated a ruling was imminent. But U.S. Magistrate John Jelderks used an entire day to pore over only part of the case.

"This is a case that deserves a carefully written opinion," Jelderks said at the end of the day, indicating it may be difficult to produce one within the next three weeks.

"I don't view that as window dressing," Jelderks said.

A crowd of what initially was about 100 showed up Tuesday to watch Jelderks and three teams of attorneys hash out the two most critical issues of the case - the definition of Native American and attempts to link Kennewick Man to modern peoples.

Jelderks grilled attorneys representing the Department of Interior the most on both counts. At issue is the interpretation of language in the North American Graves Protection and Repatriation Act.

Originally, the Interior Department determined Kennewick Man was both American Indian and culturally affiliated with the Colville, Umatilla, Yakama, Nez Perce and Wanapum tribes - all of which claimed him. That gave the agency grounds to turn over the bones to the tribes.

Paula Barran, representing the scientists, called the language "imprecise and sloppy."

Attorneys for the tribes, who filed briefs to gain a seat at the table during proceedings, argued Congress wasn't paying as much attention to the tense of the verbs chosen when lawmakers drafted the legislation.

"We've thought more about it in this room today than the collective intelligence of Congress," said Christopher Burford, representing the Confederated Tribes of the Umatilla Indian Reservation.

Government attorney David Shuey compared the issue to "drawing something out of thin air."

But Jelderks wasn't willing to dismiss the hair-splitting so lightly.

"I'm reluctant to give a judicial seal of approval for what happens to be an expansive definition," he said.

Government attempts that ultimately affiliated Kennewick Man with the tribes received as much scrutiny. That's because the Interior Department was unable to link the bones to any one tribe. Barran argued the government's reading of the law would require the remnants of a Viking civilization to be classified as Native American should one be found in the country.

Looking for a link to a specific group, Jelderks asked Shuey for a name of the group, how many were in it and what language they spoke, for example.

But without further evidence, it's difficult to better identify Kennewick Man's cultural affiliation, Shuey said.

Jelderks pressed further for a link, "which I'm having trouble identifying based on the answers I'm getting."

Perhaps more evidence would have been found had the Army Corps of Engineers not buried the site along the Columbia River in Kennewick where the bones were found, Jelderks said.

"That evidence is not available if it ever was available," he said.