Saturday, Aug. 31, 2002

Scientists win Kennewick Man ruling

By The Associated Press and the Herald staff

Download Judge Jelderks' ruling (PDF format)

A federal judge Friday ordered the U.S. government to let scientists study the bones of Kennewick Man, an ancient skeleton discovered in 1996 on the banks of the Columbia River.

His much-anticipated ruling, however, doesn't necessarily end the legal battle over the ancient bones, which long has been speculated to be headed for the U.S. Supreme Court.

The 9,000-year-old bones have been the center of an intense legal battle between scientists, who want to study the remains, and the federal government, which had ruled the bones belong to Northwest tribes that claim the remains as an ancient tribal member and want to bury them.

"Allowing study is fully consistent with applicable statutes and regulations, which are clearly intended to make archaeological information available to the public through scientific research," wrote U.S. Magistrate John Jelderks.

"A thorough review of the 22,000-page administrative record does not reveal the existence of evidence from which that relationship may be established in this case," Jelderks said in Friday's 73-page opinion. "The Secretary (of the Interior) erred in defining 'Native American' to automatically include all remains predating 1492 that are found in the United States."

He has also criticized the government for delaying tests on the age of the bones and delaying its response to questions about determining cultural affiliation with modern tribes.

Scientists want to study the skeleton to see if it represents an unknown source of migration to North America apart from the traditional theory of people walking from Asia across a land bridge to North America.

"The scientists view the court's decision as confirmation of their contentions that the American past is the common heritage of all Americans and that it should be open to legitimate scientific research," said a prepared statement issued late Friday by the scientists' lawyers.

"It appears to be very tightly reasoned and well supported by the evidence, so obviously we're very pleased," Schneider said.

The ruling should set a national precedent for dealing with archaeological discoveries, and the scientists were prepared to take the case "all the way to the Supreme Court" if the government decides to appeal, Schneider said.

Allowing scientific study of the ancient skeleton will benefit all people, including tribes, by offering clues to early migration and culture, said Robson Bonnichsen, formerly director of the Center for the Study of the First Americans at Oregon State University and now at Texas A&M.

"Without studying it, we'll never know about these early populations," Bonnichsen said.

Five tribes along the Columbia River are seeking possession of the bones to bury them - and have been backed by the U.S. government.

The skeleton is called the "Ancient One" by Northwest tribes and has been used as a model to fashion a reproduction that resembles actor Patrick Stewart of Star Trek fame.

Scientists argued that former Interior Secretary Bruce Babbitt overstepped his authority by ruling the skeleton was "culturally affiliated" with Northwest tribes. Babbitt justified his decision by arguing the tribes had an "oral tradition" of history in the general geographic area where the bones were found.

Babbitt was acting under the Native American Graves Protection and Repatriation Act of 1990, a law intended to prevent theft and illegal trafficking of Indian artifacts, protect tribal burial sites and restore the remains of ancestors to the tribes.

The law says federal agencies or museums shall return remains or associated objects to tribes that request them and can "show cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical or other relevant information or expert opinion."

The scientists, however, argued no group can establish a direct link that extends back 9,000 years by any of those means.

"Babbitt said oral tradition trumped everything else," said anthropologist Richard Jantz at the University of Tennessee, Knoxville, one of the scientists who sued the government to block return of the bones to the tribes.

Dana Perino, spokeswoman for the Justice Department in Washington, D.C., said government attorneys would have to review the ruling before they could comment.

The case has cost taxpayers an estimated $3 million, said lawyers for the scientists.