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Judge sides with scientists in Kennewick Man case

WILLIAM McCALL
Associated Press

PORTLAND, Ore. ---- A federal judge on Friday ordered the U.S. government to let scientists study the bones of Kennewick Man, an ancient skeleton discovered along the banks of the Columbia River that could offer rare clues to how the first people arrived in America.

The ruling by U.S. Magistrate John Jelderks rejected a decision by former Interior Secretary Bruce Babbitt to give the remains to Indian tribes for reburial.

The judge also harshly criticized the agency and the Army Corps of Engineers for the way they handled they case.

The federal government "failed to consider all the relevant factors, had acted before it had all of the evidence, had failed to fully consider legal questions, had assumed facts that proved to be erroneous, had failed to articulate a satisfactory explanation for its action, had followed a 'flawed' procedure, and had prematurely decided the issue," Jelderks wrote.

After six years and wading through 20,000 pages of documents filed in the case, Jelderks said there was "nothing I have found in a careful examination of the administrative record" that would support the government.

"Allowing study is fully consistent with applicable statutes and regulations, which are clearly intended to make archaeological information available to the public through scientific research," Jelderks wrote.

Dana Perino, spokeswoman for the Justice Department in Washington, D.C., said government attorneys would have to review the ruling before they could comment.

The scientists said they were extremely happy with the ruling but emphasized it was a legal battle against a government agency's interpretation of the law, not tribal tradition.

"I'm sure Native Americans see it differently, but this suit was against the government, not the Indian tribes," said anthropologist Richard Jantz at the University of Tennessee, Knoxville, one of the eight scientists.

Alan Schneider, a Portland lawyer representing the scientists, said he only had time to quickly scan the opinion after it was released just as the courthouse closed Friday evening. But he said Jelderks sided with the scientists "on nearly all major issues."

"It appears to be very tightly reasoned and well supported by the evidence, so obviously we're very pleased with the decision," Schneider said.

The ruling should set a national precedent for dealing with archaeological discoveries, and the scientists were prepared to take the case "all the way to the Supreme Court" if the government decides to appeal, Schneider said.

Allowing scientific study of the ancient skeleton will benefit all people, including tribes, by offering clues to early migration and culture, said Robson Bonnichsen, formerly director of the Center for the Study of the First Americans at Oregon State University and now at Texas A&M.

"Without studying it, we'll never know about these early populations," Bonnichsen said.

The skeleton is called the "Ancient One" by Northwest tribes and has been used as a model to fashion a reproduction that resembles actor Patrick Stewart of "Star Trek" fame.

Bonnichsen, Jantz and six other prominent scientists went to federal court shortly after the 9,300-year-old skeleton was discovered in July 1996, asking a judge to prevent the Corps of Engineers from returning the bones to Indian tribes.

The scientists said it was extremely rare to find a nearly intact skeleton so old. Initial analysis also indicated it differed from modern Indian tribes, prompting speculation about whether it supported theories such as several waves of migration from different parts of Asia to populate North America.

But Babbitt backed the Corps of Engineers, which manages Columbia River navigation, saying the remains were "culturally affiliated" with Northwest tribes because they had an "oral tradition" of history in the general geographic area where the bones were found near Kennewick, Wash.

Jelderks rejected both agencies, also noting that the corps failed to prevent damage to the site.

Babbitt was acting under the Native American Graves Protection and Repatriation Act of 1990, a law intended to prevent theft and illegal trafficking of Indian artifacts, protect tribal burial sites and restore the remains of ancestors to the tribes.

The law says that federal agencies or museums shall return remains or associated objects to tribes that request them and can "show cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion."

The scientists, however, argued that no group can establish a direct link that extends back 9,000 years by any of those means.

"Babbitt said oral tradition trumped everything else," Jantz said.

The case already has cost taxpayers an estimated $3 million, according to lawyers for the scientists.

8/31/02

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