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The Kennewick Man Case | News & Comment

Mysterious Delays Plague Kennewick Man Lawsuit

[reprinted from the June 25th 1999 issue of The Business Journal]

Business Journal staff writer

On the second anniversary of what was supposed to be a speedy case, Kennewick Man's future remains about as murky as his past.

Kennewick Man was discovered by a couple of college students in 1996, who found him along a bank of the Columbia River in Washington. He's believed to have been a fisherman who died 9,300 years ago. A stone spear- point stuck in his hip, and the repeated infections that likely came with it, could have been the cause. He stood about 5 feet 8 inches, tall for his time. He could've been anywhere between 40 and 55, an old guy back then.

His discovery has stirred religious tensions, racial unrest, political posturing and scientific curiosity With that in mind, it should shock no one that Kennewick Man has devoted most of his 20th century existence to court, the subject of a lawsuit filed in Portland.

Believed to be one of the oldest and best preserved skeletons ever found in North America, Kennewick Man has whipped up a convoluted legal war. The combatants include five Native American tribes who seek to rebury the remains without study; the U.S. government which repeatedly has sided with the Indians; eight well-respected scientists anxious to unlock clues to the peopling of the Americas; and a pagan, pre-Christian religious group which, like the tribes, is looking to lay claim to Kennewick Man.

For two years, Portland has been the battle's legal epicenter. Two local lawyers, Alan Schneider and Paula Barran, sided with science, filing a lawsuit against the government seeking the right to study Kennewick Man's skeletal remains much more thoroughly.

The suit was filed on behalf of the eight scientists who view Kennewick Man as a potential magnifying glass for the origin of modern American man. Before the government seized the skeleton on behalf of the tribes in 1996, initial reviews indicated that Kennewick Man possessed Asian and European features and might not be Indian at all.

Portland was determined to be a better venue for the litigation. Both lawyers live here, and they felt a Spokane lawsuit would be viewed as a battle against the tribes.

On June 27, 1997, U.S. Magistrate Judge John Jelderks stayed the case. He also called for a study of the remains to determine the skeleton's origin and which group might call him theirs, although no plaintiff was to take part in the research. Jelderks asked that the government first determine whether the skeleton was, in fact, Native American. If that proved to be true, the next step, he said, would be for the government to find out if the skeleton could be linked to a modernday tribe.

He requested that the controversy be resolved in a "timely and orderly manner."

Two years, according to Schneider and Barran, is not particularly speedy even in the eyes of the time-warped anthropologists and archaeologists they represent. Several of the plaintiffs, considered the best in their respective areas of study are pushing 70. But they wait, because they must.

"Welcome to the Kennewick Man war room," Schneider said as he walks into his no-frills office on Southwest Columbia Avenue. "Talk about something that consumes one's life."

Although the pressure has eased some as they wait for the results of the government study, he continues to file data requests under the federal Freedom of Information Act and to outline future strategies for when the stay is lifted.

Already, he estimates, he and Barran have put in more than a half-million dollars in pro bono time. The government has spent about double that.

Schneider, an amateur archaeologist often tapped in cultural resource cases, got involved in the Kennewick Man case at the request of Doug Owsley division head of physical anthropology for the Smithsonian Institute's Museum of Natural History Owsley who has helped identify remains in high profile cases such as Jeffrey Dahmer and the Branch Davidians, had just 19 hours to conduct a court-ordered inventory of Kennewick Man. He believes the skeleton warrants more scientific study

Schneider, like Owsley, maintained the bones must be studied by more than those people hand-picked by the government. And he is arguing that under the First Amendment, Owsley and the other plaintiffs are extended not only the right to speak, but the right to send and receive information. Kennewick Man is one of a handful of skeletons that have been described as possessing features that are to some degree Caucasoid. They raise the controversial question whether Native Americans were the first people in the New World.

"I feel we need to win this case because what is at stake is the next generation," Owsley said in a phone call from his office at the Smithsonian. "It's not a personal agenda to see that skeleton.... We know so little about that time period. This is an opportunity to gain all kinds of information.

"If you put it into perspective, they used to have a very simple model as to the peopling of the Americas, and 11,500 years ago, the earliest Americans gave rise to a culture called Clovis. It's now becoming apparent that this model is very inadequate. It's far more complicated than one major migration."

Even the Asatru Folk Assembly, a group that practices a pre-christian Norse religion, believes Kennewick Man should be studied. The religious sect filed its lawsuit after hearing the skeleton showed Caucasoid characteristics. Like the Indians, Steve McNallen said the Asatru believe they have a duty to find out if Kennewick Man is related to the people of Europe. McNallen is the leader of the group, which is based in Nevada City, Calif., and counts about 500 members. The group has, however, lost its legal representation and is no longer an active participant in the lawsuit.

"We will wait for the results, but I think we now feel that it is very likely that European peoples have ancient roots on this continent, and we'd like to see that investigated further," McNallen said.

Owsley does not understand why the government has been so dogged in its opposition to scientific study by the plaintiffs.

The U.S. Army Corps of Engineers seized the remains shortly after the initial radio carbon dating on behalf of Confederated Tribes of the Umatilla Reservation, Confederated Tribes and Bands of the Yakima Nation, the Nez Perce Tribe, Confederated Tribes of the Colville Reservation and the Wanapum Band.

In addition, the Corps covered up the spot on the riverbank where Kennewick Man was found, making future entry difficult if not impossible. This action was taken even after a bill prohibiting it from doing so passed both houses of Congress and was awaiting the president's signature. The Corps, saying the law was on its side, spent $175,000 to cover the site with 2,000 tons of rocks and dirt.

In 1990, Congress granted Indians the right to reclaim their ancestors' remains and cultural artifacts. The Native American Graves Protection and Repatriation Act applied not only to skeletons and objects in museums but to new archaeological finds as well.

Armand Minthorn, a spokesman for the Umatilla tribe, told Congress his people view human remains as sacred and that he needed no scientific study to tell him the bones belong to his people. His religion and the teachings of his elders tell him that they were the first people. They want Kennewick Man back into the ground where they say he belongs.

"Some scientists say that if this individual is not studied further, we, as Indians, will be destroying evidence of our history We already know our history," Minthorn said.

There are those who have learned of the Kennewick Man saga and argued the tribes fear a new migration theory will put their status as a sovereign nation at risk.

The government's position is that, if the remains are 700 years or older, they are considered Native American, although they do not necessarily belong to a particular tribe, said Stephanie Hanna of the Department of the Interior.

Hanna, who responded to phone calls placed to Allison Rumsey, the third U.S. Department of Justice lawyer to take on the Kennewick Man case, said the tests have been completed and the department is in the process of reviewing them. She said she had no idea when the results would be released because higher level officials have asked to be briefed. Asked if this was a common request, she replied: "Nothing about this case has been typical."

Barran, the litigator who has been working with Schneider, wholeheartedly agreed. She likened the government's actions to closing libraries and limiting access to knowledge. She does not in any way deny that the desecration of Indian graves occurred. Nor does she belittle their religious beliefs. Like the scientists she represents, she said she believes the bones should be given more than a one time government study and a more cer- tain future than reburial.

"I want to know who Kennewick Mar is," she said. "I believe that is my right; i is the public's right."

That, of course, will be an issue for the courts to decide, and perhaps, a story Kennewick Man's skeleton will tell.

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