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Appeals court asked to stop Kennewick Man tests

Four Pacific Northwest tribes have asked a federal appeals court to halt studies of a 9,000-year-old man pending a full review of the controversial case.

The Nez Perce, Umatilla, Colville and Yakama tribes filed a motion last week with the 9th Circuit Court of Appeals. They are challenging a federal judge's decision to allow a group of scientists to examine the remains of Kennewick Man, whom they consider an ancestor.

U.S. Magistrate John Jelderks already ruled that the tribes don't have a right to rebury Techaminsh Oytpamanatityt, or the Ancient One. But earlier this month, he also said he wouldn't stop a series of tests that the scientists want to perform even though the tribes and the Bush administration have appealed.

"Under these circumstances, the scope of the potential harm to the tribal claimants is limited," he wrote on January 8. "On the other hand, granting a stay would inevitably result in some significant injury to the plaintiff scientists, who have already waited many years for the opportunity to study the remains."

The Confederated Umatilla Tribes of Oregon disputed Jelderks' reasoning. In a statement, the tribes said Kennewick Man has already suffered "senseless destruction" since he was uncovered in 1996.

"Each additional time the remains are handled, the skeleton is at risk of cracking, breaking and disintegrating," the statement read.

Last fall, the scientists submitted a plan to Jelderks that calls for a research team of of 24 scientists and experts from 14 universities, institutions and technical consulting companies to study Kennewick Man. They proposed a series of tests "to develop a better understanding" of his identity, including whether he is different from modern Native Americans.

That issue has been a central one in the ongoing dispute. In agreeing to repatriate the remains to the tribes, former Interior Secretary Bruce Babbitt considered them to be Native American but Jelderks last August said that decision was wrong.

"The Secretary erred in defining 'Native American' to automatically include all remains predating 1492 that are found in the United States," he wrote.

According to the plaintiffs, their tests will involve a "miniscule" sample of Kennewick Man's bones, about 1 to 3 grams. "The microsamples will be so small they will not affect the appearance or structural integrity of any bone that is sampled," a summary of the plan states.

In contrast, the scientists say the U.S. Army Corps of Engineers took 50 grams of bone when it conducted radiocarbon and DNA tests on the remains. The DNA tests were inconclusive.

Under the Native American Graves Protection and Repatriation Act (NAGPRA) of 1990, tribes, American Indians, Alaska Natives and Native Hawaiians can reclaim their cultural property and remains of their ancestors. The law has resulted in the return of thousands of artifacts, items and remains from government and other institutions.

Relevant Documents:
Jelderks Denies Motion for Stay Pending Appeal (January 8, 2003)

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:
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)

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