PORTLAND, Ore. - In a move that surprised no one, U.S. District Magistrate John Jelderks recently permitted a 1996 lawsuit by scientists seeking the right to study the bones of Kennewick Man to proceed.
The suit, filed by Robson Bonnichsen and several other scientists, was put on hold while the United States Department of Interior conducted its own intensive scientific scrutiny to determine whether or not the 9,000-year-old skeleton was culturally affiliated with modern Columbia Plateau tribes and subject to the rules of the Native American Graves Protection and Repatriation Act.
The Sept. 25 announcement by Interior Secretary Bruce Babbitt that Kennewick Man was Native American put the five tribes claiming the skeleton right back where they started in September 1996 when the U.S. Army Corps of Engineers originally granted them the bones for reburial.
Victory for the Umatilla, Colville, Nez Perce, Yakama and Wanapum tribes was short lived. Lawyers for the Bonnichsen plaintiffs immediately disputed Interior's determination that Kennewick Man is Native American and subject to Native American Graves Protection and Repatriation Act.
At a recent hour-long status conference in open court, Jelderks apparently questioned Interior's determination. He asked government attorneys to verify Interior's position that human remains or artifacts that predate Christopher Columbus' arrival in the New World in 1492 are by definition "Native American" - a definition NAGPRA does not make.
Jelderks also questioned tribal attorneys as to their opinion of Interior's definition.
"To the extent that the judge was going to ask for oral comment ... I was going to say I failed to understand the significance of answering the question in the context of these proceedings," says Umatilla attorney Dan Hester.
The age of the Kennewick Man bones speaks for itself, Hester says, adding that the Umatilla tribe is in complete agreement with Interior's definition of what constitutes Native American.
But Bonnichsen plaintiffs attorney, Alan Schneider says Jelderk's questioning of the government's definition indicates the general direction next year's court proceedings might take.
"If the judge believes that (the definition is questionable), that would then moot and vacate everything the government has done to date because they've been preceding under a false definition," Schneider says. "Will the court remand that back to the government for another three-year delay or will the court take it upon itself to resolve these issues?"
Whatever direction court proceedings take, at the district level they will at least proceed swiftly. In what many legal observers call an "ambitious schedule," Jelderks has requested the government to file its administrative record on the case by Dec. 1. Despite the fact the administrative record containing all government information on Kennewick Man is a reputed 20 feet high, the court has set a date of Jan. 1 for plaintiffs to file their amended complaint in response.
Court proceedings will begin in June 2001.
Schneider says the plaintiffs will attack Babbitt's decision on the grounds that what he cited as reference for cultural affiliation doesn't support the final determination.
Schneider claims oral histories, archaeological evidence and linguistic studies presented as evidence of Kennewick Man's ethnicity only verified cultural affiliation as far back as 5,000 B.P. (Before Present). He also states that some evidence used in the Interior's decision-making process was actually contradictory to Interior's final decision.
For example in Daniel L. Boxberger's "Review of Traditional Historical and Ethnographic Information," he finds reference in legends to a "nomadic people who came down the river and overran the Palouse country" - a direct inference that Kennewick Man may not have been indigenous to the plateau region.
Kenneth Ames, in his "Review of the Archaeological Data" also muddies the water with the statement, "Based on my review of the available evidence, the empirical gaps in the record preclude establishing cultural continuities or discontinuities, particularly before about 5000 B.C."
Schneider says plaintiffs also will attack Interior's use of the term "cultural affiliation."
"As you know, the statute says cultural affiliation means a shared group identity between a present tribe and an earlier identifiable group," he says. "The test they used wasn't shared group identity, they used cultural continuity. And ... that's a big difference.
Schneider says the population of the United States provides a perfect example of what he is talking about. The United States has a cultural continuity with classical Greece because of all the philosophy, mathematics and science that was handed down through western literature and absorbed into its culture.
"We certainly, however, cannot claim that we have a shared group identity with the classical Greeks," he says. "So we think that's a major error."
Despite the mountain of work ahead in the upcoming months, Hester and other tribal attorneys who filed amicus briefs in the suit are encouraged that Jelderks appears committed to having tribal attorneys actively participate in reviewing the amended complaint the plaintiff scientists will file.
But no matter how the case proceeds or how swiftly, all concerned parties agree that the Kennewick Man case is far from over.
"There's at least another two years of litigation in this thing and that's unfortunate," Hester says. "But in light of the stakes in this case ... and the precedential significance of it, nobody is going to let an adverse decision at a district court go un-appealed to the Ninth (Circuit Court of Appeals)."