Court battle resumes between tribes, scientists over ancient remains
WILLIAM MCCALL; The Associated Press
 |
A plastic cast shows
the skull of 9,300-
year-old Kennewick
Man. |
PORTLAND - 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.
(Published 12:01AM, September 11th, 2003)
http://www.tribnet.com/news/government/story/3893902p-3917111c.html
