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Court won't reconsider Kennewick Man decision
Wednesday, April 21, 2004

A federal appeals court on Monday refused to reconsider its decision to allow scientific study of the 9,000-year-old remains known as the Kennewick Man.

The 9th Circuit Court of Appeals announced the decision in response to a petition filed by four Pacific Northwest tribes. The Nez Perce, Yakama, Umatilla and Colville tribes consider Kennewick Man, also known as Techaminsh Oytpamanatityt, which means "From the Land, the First Native" in one of the Yakama Nation languages, to be one of their ancestors.

But the appeals court rejected that claim on February 4. In a unanimous decision, a three-judge panel said the bones were too old to be covered under the Native American Graves Protection and Repatriation Act, which calls for the return of remains to tribes that can prove a cultural affiliation to them.

"[B]ecause Kennewick Man's remains are so old and the information about his era is so limited, the record does not permit the Secretary to conclude reasonably that Kennewick Man shares special and significant genetic or cultural features with presently existing indigenous tribes, people, or cultures," Judge Ronald Gould wrote for the majority.

The denial of the petition for a rehearing cements the legal victory of eight scientists who say study of the remains will further understanding of America's past. The scientists don't believe research should be limited by federal law.

"[Kennewick Man] has yet to be studied as thoroughly as scientists believe necessary in order to learn what role this individual and his people played in early human settlement of North America," the scientists said in a statement on Monday.

The tribes now have 90 days to seek review by the U.S. Supreme Court. There has been no decision on whether to appeal, which would be the first repatriation case to make it to the high court.

The Department of Justice can also appeal the ruling. But government lawyers decided not to seek a rehearing, leaving it up to the tribes to defend former Interior Secretary Bruce Babbitt's decision to repatriate the remains.

As the case progressed, the Department of Justice dropped its contention that Babbitt made the right move back in September 2000. Instead, government lawyers argued that Kennewick Man fell into the category of "culturally unidentifiable" remains.

Changing tactics at the appeals stage is not an uncommon practice. If the government had won its case, Kennewick Man would have been kept from further study because the Interior Department still has not finalized the process for dealing with remains that, for whatever reason, can't be linked to an existing tribe.

The tribes were granted status in the case last October amid questions over the Bush administration's position in the controversy. Government lawyers had waited until the last day possible to appeal the original ruling against repatriation. In September 2002, U.S. Magistrate John Jelderks of Oregon blasted Babbitt's decision as unfounded.

The Interior Department is the lead agency in the case, having taken control from the U.S. Army Corps of Engineers, which had planned to return the remains to the tribes before the scientists objected.

Kennewick Man was found on federal land that used to be part of the Umatilla Reservation but which was ceded by treaty.

Court Decision:
BONNICHSEN v. US (February 4, 2004)

Relevant Links:
Kennewick Man, Department of Interior - http://www.cr.nps.gov/aad/kennewick
Friends of America's Past - http://www.friendsofpast.org
Kennewick Man Virtual Interpretive Center, The Tri-City (Washington) Herald - http://www.kennewick-man.com (4/24)

Related Stories:
Column: Science the winner in Kennewick Man case (02/24)
Editorial: Congress should refine repatriation act (02/11)
Court rules scientists can study Kennewick Man (02/05)
Kennewick Man a topic at archaeology meeting (10/10)
Appeals court hears arguments in Kennewick Man case (09/11)
Kennewick Man battle back in court (9/8)
Groups join battle over Kennewick Man remains (06/12)
Iroquois nations join Kennewick Man battle (04/04)
Tribes file opening brief in Kennewick Man case (03/19)
Appeals court grants stay in Kennewick Man case (02/13)
Appeals court asked to stop Kennewick Man tests (01/23)
Judge clears way for Kennewick Man tests (01/09)
DOJ files notice of Kennewick appeal (10/30)
Kennewick Man battle heats up (10/29)
Tribes join Kennewick Man case (10/23)
Tribes seek to protect NAGPRA (10/23)
Judge allows Kennewick Man appeal (10/22)
Still no Kennewick Man appeal (10/18)
Editorial: Let's study Kennewick Man (10/02)
DOI mum on Kennewick Man appeal (10/1)
Opinion: Don't appeal Kennwick ruling (10/1)
Tribes seek Kennewick Man appeal (9/27)
Editorial: Don't appeal Kennewick ruling (09/17)
Opinion: Don't appeal Kennewick ruling (9/9)
John Potter: Mad about Kennewick Man (9/9)
Shame on Kennewick Man judge (9/6)
Opinion: Kennewick Man belongs to all (9/5)
Editorial: DOI blew it on Kennewick Man (9/5)
Scientists prepare Kennewick plan (9/4)
Judge won't repatriate Kennewick Man (9/3)
An ancient Indian trust debacle (9/3)
Judge readies decision in Kennewick Man case (6/21)
Norton treads uncharted waters over remains (4/11)
Kennewick Man to go to tribes (09/26)
Leaders discuss NAGPRA (7/27)
Yakama Nation files Kennewick Man suit (6/01)
Kennewick testing to begin

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