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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 -
Friends of America's Past -
Kennewick Man Virtual Interpretive Center, The Tri-City (Washington) Herald -

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)
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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)

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