Tribes file opening brief in Kennewick Man case
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Four Pacific Northwest tribes seeking to rebury a tribal ancestor filed their opening brief in the ongoing battle over Kennewick Man last week, accusing a federal judge of overstepping his boundaries by allowing scientists to study the 9,000-year-old remains.

Kennewick Man was discovered nearly seven years ago on land that used to be part of the Umatilla Reservation in Washington. The Clinton administration, citing historic, archaeological, linguistic and oral evidence, said he should be returned to a coalition of tribes in Washington, Oregon and Idaho.

But last August, U.S. Magistrate John Jelderks said Department of Interior made a mistake by defining Kennewick Man as Native American. In a victory for eight scientists, he blasted the government's handling of the controversial case.

The Colville, Umatilla, Yakama and Nez Perce tribes are now asking the 9th Circuit Court of Appeals to reverse that decision. Their brief says Jelderks failed to follow the Native American Graves Protection and Repatriation Act (NAGPRA), a law designed to protect ancient remains and burials.

"This appeal is not the last act of a morality play between religion and science," the tribes wrote on March 14. "The district court fundamentally erred by ignoring the law in favor of scientific speculation."

Although the federal government is the named defendant in the suit, the tribes are acting separately. They were granted party status as the Bush administration mulled a challenge to the' ruling.

The tribal appeal raises a number of contentions Jelderks' interpretation of the record and NAGPRA. Chief among them is whether or not the scientists have a right to sue under the law. Jelderks sided with the scientists and said yes but the tribes say that ignores the intent of NAGPRA.

"NAGPRA was enacted to protect against the very interests the academics purport to advance," the tribes argue.

Another major issue is whether Jelderks can substitute his judgment for the federal government's on a number of issues, including the definition of Native American. Supreme Court precedent allows the courts to do so only under unique circumstances which the scientists say exist. But the tribes say Jelderks went too far.

"The district court twisted NAGPRA [and] ignored canons of construction requiring NAGPRA to be interpreted broadly in favor of Indians," the tribes said.

Another issue affects whether tribes can make joint claims under NAGPRA. Tribes nationwide have done just that but Jelderks said it ws wrong to do so.

"Congress specifically recognized that in instances where several tribes are making competing claims, agreements between tribes regarding the disposition of human remains or objects is a proper method of resolving the dispute and should be allowed," the tribes countered.

A fifth tribe has been involved in the case -- the Wanapum Band of Washington, which lacks federal recognition. The tribe is not participating in the appeal and the brief doesn't specifically address whether the tribe can make a rightful claim.

The eight plaintiff scientists will be given a chance to respond to the tribes' brief. The Department of Justice submitted its brief on Friday as well.

The case is Bonnichsen v. U.S., Nos. 02-35994, 02-35996.

Relevant Documents:
Opening Brief (March 14, 2003)

Relevant Links:
Kennewick Man, Department of Interior -
Friends of America's Past -
Kennewick Man Virtual Interpretive Center, The Tri-City (Washington) Herald -

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