New England Antiquities Research Association

 

Tribes vs Scientists in Court Battle over Ancient Remains

Reprinted from The News Tribune

by William McCall, AP

 

 

September 11, 2003

 

The definition of "Native American" is at stake in deciding whether the 9,300-year-old skeleton known as Kennewick Man belongs to scientists or Indian tribes, lawyers for both sides told a federal appeals court Wednesday.

The Interior Department has fought with scientists since the bones were discovered in 1996 along the banks of the Columbia River near Kennewick.

A group of eight anthropologists who want to do research on the skeleton went to court to seek permission.  But then-Interior Secretary Bruce Babbitt ruled three years ago the bones should be handed over to the tribes for reburial. Last October, U.S.  Magistrate John Jelderks overturned Babbitt and approved research on the bones.

Jelderks agreed with arguments by scientists, who said there was no direct link between the skeleton and modern tribes.

The government and the tribes appealed and argued their case on Wednesday before a three-judge panel of the 9th U.S. Circuit Court of Appeals.

Judge Susan Graber asked whether the legal definition of Native American could cover any bones found in North America that were so old they rivaled the age of ancient fossils in Africa or could qualify as "Adam and Eve."

"Yes, they would be considered Native American," said Ellen Durkee, a Justice Department attorney representing the Interior Department and various federal agencies.

Judge Ronald Gould questioned whether the timing of ancient migration to North America suggested that 9,300 years was long enough to separate the skeleton from any relationship to modern tribes, but said, "That's a metaphysical question that's outside my pay scale."

In 1990, Congress defined "Native American" as someone "indigenous to the United States."

Paula Barran, attorney for the scientists, argued Congress did not intend to include people who lived on the continent long before European colonization.

In the Kennewick Man case, the Interior Department has interpreted the term "Native American" to mean anyone who was in the contiguous 48 states before the arrival of Columbus in 1492.

The skeleton drew scientific interest because it is among the oldest and most complete found in North America, with characteristics unlike modern Indians.

The case centers on the Native American Graves Protection and Repatriation Act, aimed at returning Indian remains and discourage illegal trafficking in bones taken from burial sites.

The law approved in 1990 was intended to right the wrongs done to Indians in recent history, not to block scientific research to determine how ancient settlers arrived in North America, Barran said.

In his ruling last October, Jelderks said the term "Native American" requires "a cultural relationship" with a modern tribe to qualify under the grave protection act.  But he said his review of 22,000 pages of court documents, including scientific reports, produced no evidence to support any cultural link between Kennewick Man and the Northwest tribes.

"We're not against science, and we're not against technology," said Armand Minthorn, spokesman for the Confederated Tribes of the Umatilla Reservation.  "But technology should not dictate what is done or is not done with these remains."

Alan Schneider, an attorney for the anthropologists, said such tests could avoid adding to the expense of a case that has already cost an estimated $4 million.

The appeals court is not expected to rule until next year.

 

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