indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Indian Law Online Master Degree - University of Tulsa College of Law
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
Government shifts strategy in Kennewick Man appeal
Monday, September 8, 2003

The battle over a 9,000-year-old man claimed as an ancestor by tribes in the Pacific Northwest heads back to court this week.

The 9th Circuit Court of Appeals will hold a hearing in Portland, Oregon, on Wednesday. A three-judge panel has been asked to decide who controls the fate of Kennewick Man, also known as Techaminsh Oytpamanatityt, or the Ancient One.

Eight scientists are suing for the right to study the remains, which were found in 1996 on land that used to be part of the Umatilla Reservation in Washington. They want to conduct a wide range of tests on one of the oldest, and most complete, skeletons ever discovered in the Americas.

Four tribes -- the Umatilla, Colville, Yakama and Nez Perce -- object to further study, citing the need to return him to his final resting place. They have appealed a federal judge's ruling that would hand the Ancient One to the scientists.

Somewhere in the middle is the Department of Interior. After wresting jurisdiction from the U.S. Army Corps of Engineers, which was set to turn over the remains until the scientists intervened, former Interior Secretary Bruce Babbitt said Kennewick Man was related to the tribes through historic, archaeological, linguistic and oral evidence.

But the Bush administration, while appealing the federal judge's ruling, has shifted its strategy. Department of Justice lawyers now argue that Kennewick Man is not affiliated with the tribes, a reversal of the Clinton administration's view.

The government still claims Kennewick Man is Native American -- just that he falls into a nebulous category called "culturally unidentifiable." The distinction, to the government, is critical because U.S. Magistrate Judge John Jelderks in his August 2002 ruling said the remains were not Native and did not fall under the Native American Graves Protection and Repatriation Act of 1990.

"A broader definition of 'Native American' than that spelled out by the magistrate judge . . . is necessary to ensure that the process set out in NAGPRA, which Congress formulated to balance the interests of science, museums, Native Americans and the public, can effectively work," the government's attorneys wrote on July 1.

It's not uncommon for the government to take a different stance on appeal than it took at a lower court. In this case, the government is hoping the 9th Circuit will agree that Kennewick Man is Native American and send the dispute back to Interior for further action.

The change in position, however, has the scientists criticizing the government's "shell game." They say the strategy now confirms what they have believed all along -- that the evidence linking Kennewick Man to the tribes is flimsy. They also note that the handling of unidentified remains is the subject of regulations that have yet to be finalized by the National Park Service.

The tribes, in their briefs, attack Jelderks' ruling on the "Native American" point. But they defend Interior's decision to declare Kennewick Man as one of their ancestors.

"NAGPRA is human rights legislation," the tribes wrote on July 30. "[The scientists] can offer no persuasive evidence that DOI mistook Congress' intent. Fanciful claims of agency bias and conflicting theories are insufficient. DOI's conclusions were directed by NAGPRA's text and sound science, and are entitled to deference."

Whether the 9th Circuit rules for or against the tribes, the ruling is expected to be appealed to the Supreme Court. It would be the first repatriation case to reach the nation's highest court and if Jelderks' ruling stands, it could affect tribes nationwide because he questioned whether remains predating 1492 could be considered Native.

Jelderks ruled the Wanapum Band of Washington was not a valid claimant to Kennewick because the tribe lacks federal recognition. NAGPRA does allow for lineal descendants and Native Hawaiians to reclaim ancestors and artifacts.

Last October, Jelderks granted the four tribes party status in the case. Previously, they had been participating through friend of the court briefs. The Wanapum Band is not a named party in the appeal.

The case is Bonnichsen v. U.S., Nos. 02-35994, 02-35996.

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

Related Stories:
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 (4/24)

Copyright 2000-2003 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Lakota Country Times: Missing Oglala Sioux woman found dead (2/11)
Brandon Ecoffey: Treaties guaranteed health care for our people (2/11)
Steven Newcomb: Federal Indian law based on invented realities (2/11)
South Dakota lawmakers kill bill to support return of land to tribes (2/11)
Miami Nation agrees to forfeit $48M from online lending business (2/11)
Fort McDowell Yavapai Nation creates $1.2M endowment at ASU (2/11)
Colville Tribes issue citation for death of rare owl on reservation (2/11)
Fort Independence Indian Community cheated by former partner (2/11)
Paskenta Band donates $125K to buy new vehicle for firefighters (2/11)
Anti-government leader arrested as occupation nears conclusion (2/11)
Morongo Band and San Manuel Band question fantasy sports bill (2/11)
Former Sac and Fox Nation casino employee charged with theft (2/11)
Jena Band of Choctaw Indians celebrates 3rd birthday of casino (2/11)
Schaghticoke Tribal Nation again told it can't accept casino bids (2/11)
Editorial: Measure stops Lytton Band from pursuing new casinos (2/11)
Obama seeks another increase for Indian Health Service budget (2/10)
Six of 12 Indian Health Service area directors in 'acting' capacity (2/10)
Lakota Country Times: Indian lawmakers oppose drug testing bill (2/10)
Vince Two Eagles: The rez of the story about treaty-making in US (2/10)
Kristi Noem: Indian Health Service remains in state of emergency (2/10)
Chase Iron Eyes: Real sovereigns don't disenroll their own people (2/10)
Gyasi Ross: African and Native Americans fought for their survival (2/10)
Albert Bender: Tribes should reclaim land from unratified treaties (2/10)
John Lavelle: Supreme Court weighs key tribal sovereignty issue (2/10)
Women take top three leadership positions at Menominee Nation (2/10)
Northern Arapaho Tribe seeking to repatriate remains of students (2/10)
White Mountain Apache Tribe considers change to blood quantum (2/10)
Blackfeet Nation citizens still talking about constitutional reforms (2/10)
Sweat lodge at Army post helps with PTSD treatment for veterans (2/10)
Confederated Salish and Kootenai Tribes welcome return of land (2/10)
Donald Trump and Bernie Sanders win big in New Hampshire vote (2/10)
Prairie Island Indian Community unveils $19M gaming expansion (2/10)
Keweenaw Bay Indian Community approves upgrades at casinos (2/10)
Seminole Tribe's gaming compact takes a step forward in Florida (2/10)
Schaghticoke Tribal Nation insists on pursuing Connecticut casino (2/10)
National campaign launched to stop tribal disenrollment epidemic (2/9)
President Obama seeks $2.9B budget for Bureau of Indian Affairs (2/9)
Office of Special Trustee budget request remains steady at $140M (2/9)
Bureau of Reclamation emphasizes tribal water rights settlements (2/9)
Lakota Country Times: Indian health at center of Medicaid debate (2/9)
Mark Trahant: Native candidates fall behind in the big money wars (2/9)
Vi Waln: Arrogance keeps Keystone XL plans alive in South Dakota (2/9)
Charles Kader: Haudenosaunee territory will always be Indian land (2/9)
Mike Myers: Indigenous teachings still guide our ways of life today (2/9)
Albuquerque Indian Center faces closure without additional money (2/9)
Leader of Bois Forte Band promises fight against substance abuse (2/9)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.