PORTLAND, Ore. - U.S. Magistrate John Jelderks questioned oral tradition and provisions of the Native American Graves Protection and Repatriation Act as final arguments were heard in the disposition of the 9,300 year-old skeleton known as Kennewick Man.
Jelderks heard final arguments June 20 after a two-day hearing. During those arguments, the magistrate expressed frustration that the five Columbia River Basin tribes who oppose a coalition of scientists do not have a story in their oral traditions that specifically identify the remains of what they call "the Ancient One" as an ancestor.
The lawsuit originally was filed by eight scientists last September after former Secretary of the Interior Bruce Babbitt ordered that the remains be turned over to the tribes.
Jelderks cited the fact there are many interpretations of the Native American Graves Protection and Repatriation Act and said he was unsure a direct link must be established to connect a modern tribe with such ancient remains.
"I have very serious concerns about the expansive interpretation the secretary put on the statute,'' Jelderks said in a statement to the court. He said he would issue a ruling in several weeks.
"I am 82 years old and I can tell you that I have heard stories that are probably a thousand times my age about the fact that we come from this part of the world and that our ancestors lived along what you call the Columbia River since before time," Yakama Nation elder Elsie Dick wrote in an open letter to Jelderks.
Dick calls the delay in returning the remains to the tribes "racist" and said she feels any determination that Kennewick Man is non-Indian will be used as a justification of the post-Columbian invasion of North America.
Christopher Burford, an attorney for the Umatilla tribes, said that while the tribes have no stories mentioning a warrior who died on the banks of the Columbia, tribal histories mention people surviving a flood in the Columbia Plateau that covered all but the tallest mountains.
He said geologic evidence shows the only flood of that magnitude in the area came 13,000 years ago, thousands of years before the Ancient One lived, making him part of their group.
The controversial remains, bearing a stone spear point in the pelvis, were found by two college students on a riverbank near Kennewick, Wash., in 1996. Shortly thereafter the Army Corps of Engineers awarded the remains to the nearby Colville, Nez Perce, Umatilla, Wanapum and Yakama, tribes. They cited the repatriation act, signed by the first President Bush in 1990, as justification.
The scientists challenged that decision saying the remains were too ancient to be directly linked to one of the nearby tribes and appealed to the Department of Interior which ultimately ruled that the remains be turned over to the tribes. The scientists filed their lawsuit.
They claim Kennewick Man may have been part of a pre-American Indian migration, and have used as evidence certain reconstructed features thought to be Caucasian, a possible relative of the Caucasoid Ainu people of Japan. Later reports list possible links to the Polynesian and Southeast Asian people.
The scientists say they want to study the skeleton to see if it represents some unknown source of migration to North America. "We're talking about something that could change our understanding of the way the world was populated," attorney Paula Barran said.
Many anti-American Indian individuals and groups latched onto the Caucasian idea and used it as justification to support opposition to modern-day American Indian rights.
A white supremacist group tried to join the lawsuit filed by the scientists but later backed out.
In turn, the five tribes claim they and only they are the original inhabitants of the area in which Kennewick Man was found. They cite oral traditions and religious beliefs as justification of their right to rebury Kennewick Man's remains.
Many American Indians have said they fear the potential ramifications of changes to the repatriation act if the remains of Kennewick Man are not returned to the tribes.