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Kennewick Man remains slated for scientific study
Monday, July 19, 2004

Four Pacific Northwest tribes who claim Kennewick Man as an ancestor won't ask the U.S. Supreme Court to review the case, effectively ending the eight-year-old battle over the remains.

Although the Department of Justice has until today to file an appeal, it is unlikely one will be filed. As the case progressed, the Bush administration backed away from the government's original decision to repatriate Kennewick Man to the tribes and didn't support the tribes when they sought a rehearing before the 9th Circuit Court of Appeals.

The move means a potentially damaging ruling for tribes nationwide will stay in place. Just last week, a law professor who helped develop the Native American Graves Protection and Repatriation Act (NAGPRA) said the 9th Circuit eviscerated the landmark law by ruling that remains and artifacts of a certain age cannot be returned to tribes.

"They said NAGPRA was entirely irrelevant to what should happen to those remains," said Paul Bender of the University of Arizona. "That was a startling holding for somebody like myself who was involved in the framing of NAGPRA."

But Bender and Walter Echohawk, a Native American Rights Fund (NARF) attorney, said Congress can correct the problem with a simple change in the law to ensure that the goals of NAGPRA are met. The changes were suggested at a Senate Indian Affairs Committee hearing on July 14.

"The court seized on two words, 'that is' in the definition of Native American, and rewrote the entire statute," Echohawk told the committee, adding that the court cited "no legislative history" to aid its interpretation.

Known to the Nez Perce, Yakama, Colville and Umatilla tribes as Techaminsh Oytpamanatityt, or the Ancient One, Kennewick Man was accidentally uncovered in June 1996 on federal land in Washington that used to be part of the Umatilla Reservation. The U.S. Army Corps of Engineers, after consulting with the tribes, decided to repatriate him for reburial.

Scientists immediately challenged the decision, noting that initial tests showed Kennewick Man was at least 9,000 years old. The public also seized on the case after an archaeologist who first examined the remains said he did not resemble present-day Native Americans.

The Army Corps' decision to repatriate was eventually set aside as a result of litigation filed by scientists. But in 2000, the Clinton administration said the remains should be returned to the tribes. At the time, former Interior secretary Bruce Babbitt said history, cultural and historical evidence, linguistic analysis and aboriginal occupation of the area demonstrated they were "culturally affiliated" to Kennewick Man.

The Interior Department's decision came under fire in a September 2002 ruling when U.S. Magistrate John Jelderks of Oregon said there was "insufficient" evidence to prove the ties. "A thorough review of the 22,000-page administrative record does not reveal the existence of evidence from which that relationship may be established in this case," he wrote.

The criticism was renewed when the case went before the 9th Circuit. In its February ruling, the court noted the age of the remains excluded them from NAGPRA.

"[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 case was the first repatriation litigation to be argued in the courts, a position other tribes may soon find themselves in. The Fallon Paiute-Shoshone Tribe of Nevada is currently locked in a battle with the Interior over a set of 10,000-year-old human remains discovered not far from the reservation.

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