Wednesday, Oct. 23, 2002

NW tribes announce Kennewick Man appeal

By Mike Lee Herald staff writer

Northwest American Indians will appeal a federal district court ruling that allowed for private study of ancient bones known as Kennewick Man, hoping to defend Indian remains across the nation.

A lawyer for the Nez Perce Tribe on Tuesday announced intentions to appeal before the Oct. 29 deadline, igniting what likely will be at least two more years of legal wrangling in the high-profile case.

"This is just the beginning of a long appeal road," Nez Perce attorney Rob Roy Smith said of a case that many expect will end up before the U.S. Supreme Court. "We are committed to getting a successful resolution."

He said a coalition of four Northwest tribes has received support from Indians across the country who are eager to defend the Native American Graves Protection and Repatriation Act of 1990, commonly known as NAGPRA.

U.S. Magistrate Judge John Jelderks told tribal lawyers Monday afternoon that they could appeal to the 9th Circuit Court even though they were not parties in the initial lawsuit over the 9,000-year-old remains found in Kennewick more than six years ago.

Colville, Yakama, Umatilla and Nez Perce lawyers asked in September for the right to appeal on the grounds that "it is uncertain whether the federal defendants are capable and willing to raise the same issues."

A month earlier, Jelderks ruled the federal government erred in planning to give the bones to tribes because, he said, the remains had not been clearly linked to modern tribes as required by NAGPRA.

Instead, he sided with a group of eight prominent scientists who sued to stop the government from giving the bones to tribes without study.

Earlier this month, scientists submitted study plans to the government. However, the imminent appeal means additional study is likely years away - if it ever happens.

"We are very thankful that Judge Jelderks recognized the tribes need to be involved in the litigation as full parties and to protect our rights," Smith said, adding that Nez Perce leaders committed to an appeal the day after Jelderks' decision.

He said success would be getting the San Francisco-based court to direct the government to give the ancient remains to American Indians for reburial.

The pivotal aspect of the case remains the government's determination that human remains from before the European discovery of the New World are legally Native American.

Tribal leaders support the government's view, which Jelderks said was without merit. "If we can fight for the proper interpretation of (NAGPRA), then all of Indian country will benefit from this case," Smith said.

It's not clear whether the case will be heard in Seattle, Portland or San Francisco. Regardless, the court has wide discretion in how it handles an appeal. It could simply and quickly affirm Jelderks' 73-page ruling, or it could write a substantially new decision that overrules significant sections.

Alan Schneider, lawyer for the scientists, opposed a tribal appeal. However, he acknowledged Tuesday that history will find it important to have all viewpoints presented completely in a court record that is already several thousand pages.

He remains confident that Jelderks' ruling will stand, especially now that the burden is on the tribes rather than on the scientists.

"The tribes are going to have a difficult time convincing the 9th Circuit that this trial court that saw the case for six full years is so wrong they should reverse his ruling," Schneider said.

And, he added, the tribes are "running a major risk here of converting what otherwise would be a local decision into a precedent ... that will become law for the entire 9th Circuit."