FROM THE ARCHIVE

Judge won't repatriate Kennewick Man

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TUESDAY, SEPTEMBER 3, 2002

A coalition of Pacific Northwest tribes and the federal government suffered a major setback last week in the long-running battle over the remains of a 9,000-year-old Native man.

U.S. Magistrate John Jelderks of Oregon refused to allow five tribes to take possession of Kennewick Man, named for the location in Washington state where he was found six years ago. In a 73-page ruling, he said the Clinton administration failed to prove the remains were "culturally affiliated" to the Indian claimants.

"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," Jelderks wrote on August 30.

The decision is a win for a group of scientists who want to study Kennewick Man, considered one of the most complete set of ancient remains discovered in the Americas. "[T]he American past is the common heritage of all Americans, and . . it should be open to legitimate scientific research," they said in a statement.

But the Umatilla Nation of Oregon, one of the tribes involved, criticized the ruling. "The court's decision today removes any barriers that would prevent the plaintiff scientists from demanding access to all Native American human remains, for their scientific needs, regardless of whether the remains were 20 or 20,000 years old," the tribe said.

"This treatment of Native American remains as scientific specimens deprives Native people of the basic right to properly bury or care for these ancestors," the tribal statement continued.

The tribes know Kennewick Man as Techaminsh Oytpamanatityt, which means "From the Land, the First Native" in one of the Yakama Nation languages. They expected to rebury his remains shortly after he was discovered on July 28, 1996. The U.S. Army Corps of Engineers said it would hand over the bones.

The scientists quickly filed suit to stop the transfer and won a key battle in June 1997, when Jelderks set aside the Corps' original decision to repatriate. And although the tribes, who are not parties to the case, opposed testing, Jelderks also ordered additional scientific studies.

The Department of Interior was then charged with coming up with a new decision. After consulting with the tribes and its own experts, then-Secretary Bruce Babbitt in September 2000 again called for repatriation, based on an examination of oral history, anthropological data, linguistic studies and other information.

Jelderks rejected all of the evidence provided. "I conclude that the evidence before the Secretary was insufficient to establish cultural affiliation by a preponderance of the evidence," he wrote.

Although the scientists have won the right to research the remains, study will be conducted under government guidelines, Jelderks noted. The plaintiffs are to come up with a proposed protocol within 45 days, the ruling stated. The government will have an additional 45 days to respond.

In addition to the Umatilla, the Colville Tribes of Oregon, the Yakama Nation of Washington, the Nez Perce Tribe of Idaho, and the Wanapum Band, a non-federally recognized Washington tribe, were involved. They participated as friends of the court.

Get the Ruling:
Bonnichsen v. United States (8/30)

Relevant Documents:
Umatilla Tribe Statement (8/30) | Plaintiffs' Statement (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/main.html
Kennewick Man Virtual Interpretive Center, The Tri-City (Washington) Herald - http://www.kennewick-man.com

Related Stories:
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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