FROM THE ARCHIVE

Tribes challenge Kennewick Man ruling

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TUESDAY, OCTOBER 29, 2002

Four Pacific Northwest tribes who claim a 9,000-year-old man as an ancestor fired the first salvo in what is expected to be a long and historic battle over federal repatriation law.

The Nez Perce, Umatilla, Colville and Yakama tribes submitted their notice of appeal in the Kennewick Man case last week. While not a full brief, the document identifies a series of disputes with a federal judge's ruling that opened the remains to scientific study.

Chief among them is whether U.S. Magistrate John Jelderks correctly overturned a Clinton administration decision to repatriate to the tribes. In his August 30 decision, Jelderks said former Secretary of Interior Bruce Babbitt incorrectly considered the remains as "Native American."

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

The tribes also dispute whether Jelderks properly rejected their claim of cultural affiliation to Kennewick Man. Babbitt cited oral, historical, anthropological and other evidence to bolster his August 2000 decision.

But Jelderks said his examination showed otherwise. "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 tribes plan to question whether principles of Indian law known as the canons of construction can be applied in repatriation cases. Jelderks rejected the notion and said there was "no basis" for the argument.

Another key point is whether a group of tribes can make claims under the Native American Graves Protection and Repatriation Act (NAGPRA). According to Jelderks, "coalition" claims are warranted only in "exceptional circumstances."

The tribes' notice was filed in advance of the Bush administration's October 29 deadline to appeal. The Department of Justice is going to challenge the ruling but a copy of the government's notice was not available and the Department of Interior did not announce it as was promised last week.

Although the dispute affects only one set of remains, it has the potential to impact repatriation throughout the country. It is the first major challenge under NAGPRA, which was passed in 1990 in order to return human remains and artifacts to their rightful owners.

The Wanapum Band of Washington, a non-federally recognized tribe, was part of the original coalition claim. The tribe has not signed onto the appeals.

The plaintiffs in the case are eight scientists associated with various educational and other institutions.

Relevant Documents:
Joint Tribal Claimants Notice of Appeal (10/24)

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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