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WEDNESDAY, OCTOBER 23, 2002

A federal judge has cleared the way for a tribal challenge to his decision to hand over the remains of a 9,000-year-old man to scientists.

Just days before a deadline to appeal expired, U.S. Magistrate John Jelderks granted a request by four Pacific Northwest tribes to join the Kennewick Man case. The intervention is a first in the six-year, highly controversial battle that has pitted tribal rights against scientific interests.

Jelderks did not provide an explanation for his action. But noting that the Bush administration didn't oppose the move, he accepted the tribes' motion in a court order dated October 21.

The decision was welcomed by the Umatilla, Colville, Nez Perce and Yakama tribes, who refer to the remains as the Ancient One. They had been filing friend of the court briefs after earlier attempts to join were rejected.

"We feel that the court has appropriately recognized that we have a right to participate as full parties in this litigation," the Confederated Umatilla Tribes said in a statement yesterday. "We look forward to protecting our own interests by appealing this case to the Ninth Circuit."

The eight scientists who are eager to get their hands on the remains opposed the tribes' involvement as untimely and unnecessary. Paula A. Barran, an attorney for the group, said she didn't know if the intervention "will make any kind of significant change in the litigation."

But Barran argued that the "dynamic" of the case has changed. "The scientists have never wanted to turn this into a direct battle with the tribes," she said yesterday.

With the tribes now joined, all eyes are on the Bush administration to make a move. The Department of Interior, the lead federal agency in the case, has not announced a position, said spokesperson John Wright.

An appeal, however, is expected, according to the parties involved. During a status conference call on Monday, Department of Justice attorneys indicated they will act by the October 29 deadline.

The basis for the federal challenge is not known. But the tribes, in their motion, plan to question Jelderks' interpretation of the Native American Graves Protection and Repatriation Act (NAGPRA), the law at issue in the case.

Pursuant to the act, the Clinton administration in late 2000 agreed to repatriate Kennewick Man to the tribes. But on August 30, Jelderks overturned the decision and said former Secretary of Interior Bruce Babbitt improperly considered the tribes as one group.

"The Secretary's analysis contradicts the plain language of the statute, which identifies the appropriate recipient in the singular," he wrote. While the Interior has regularly dealt with groups of tribes since NAGPRA was passed in 1996, Jelderks said coalition claims are "inappropriate except under exceptional circumstances."

Jelderks made other findings that could have an impact nationwide. Although the law allows lineal descendants to seek return of remains and artifacts, he said the Wanapum Band, a non-federally recognized tribe in Washington, was not a valid claimant.

He also struck down Babbitt's decision to consider the remains as "Native American" under the act. "The Secretary erred in defining 'Native American' to automatically include all remains predating 1492 that are found in the United States," he wrote.

Kennewick Man was accidentally discovered on July 28, 1996, in Washington. The U.S. Army Corps of Engineers planned to return the remains to the tribes but when his age and disposition -- an early handler said he didn't look "Indian" -- became known, scientists sought the right to study.

Relevant Documents:
Umatilla Tribal Statement (10/22)

Court Documents:
Tribal Memorandum to Intervene (9/26) | Tribal Motion to Intervene (9/26) | Plaintiffs Memorandum in Opposition to Request to Intervene (10/7)

Court Rulings:
Granting Motion to Intervene (10/21) | Bonnichsen v. United States (8/30)

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

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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)
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Editorial: DOI blew it on Kennewick Man (9/5)
Scientists prepare Kennewick plan (9/4)
Judge won't repatriate Kennewick Man (9/3)
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Norton treads uncharted waters over remains (4/11)
Kennewick Man to go to tribes (09/26)
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