TOPPENISH, Wash. - The Yakama Nation has filed a counterclaim in U.S. District Court in Portland, as well as a motion to intervene as a defendant in the lawsuit filed by scientists to study the bones of Kennewick Man.
The counterclaim states that the Yakama Nation is culturally affiliated with Kennewick Man, known to the tribe as Techaminsh Oytpamanatity, "From the Land the First Native." It also states that, under the laws of the Native American Graves Protection and Repatriation Act, the 9,000-year-old bones belong to the tribe and should be repatriated for reburial.
The U.S. government, currently sole defendant in the case, filed a pleading saying the court should grant the tribe intervener status. The court is due to make its decision July 3.
Yakama Nation representatives say the move is strictly a legal maneuver to bring the tribal voice back into legal proceedings that have dragged on since 1996. The tribe is one of five Columbia Basin tribes that originally filed suit for possession of Kennewick Man.
"Basically the Yakama Nation wants to be involved at the time, or actually ahead of the time, at which the United States makes its determination on the issue of the testing of the bones," says Yakama special litigation attorney Tim Weaver. "When we have the decision ... back to the court as to their determination as to affiliation, the Yakama Tribe wants to be in the case in order to respond at that point."
The Department of Interior, currently conducting a series of DNA tests to determine cultural affiliation of the bones, has until Sept. 24 to bring its determination before the court. The tests are being conducted at the Burke Museum of Natural History in Seattle, where the bones have been held since October 1998.
In the meantime, the Yakama, Umatilla, Nez Perce, Colville and Wanapum tribes continue to gather evidence of affiliation with Kennewick Man, including artifacts, oral histories and maps showing that the area in which Kennewick Man was discovered falls into the tribe's usual and accustomed territories.
"Many of us are Paloose descendants," says Jerry Mininick, vice chairman of the Yakama Tribal Council. "Other tribes and towns created as a result of the treaties were bands and tribes of the Paloose. And so a lot of us have hereditary ties going way back to into prehistorical times from the Paloose Nation.
"I believe it would only be a matter of a correct look back into that era and see who exactly had the authority at that time over the remains. I think that could resolve a lot of the concerns if only anybody would do that."
Weaver says that the Nation decided to go ahead and join the suit to strengthen the tribe's position when the final determination of affiliation is made.
"We're concerned that even though the department, at least the corps (U.S. Army Corps of Engineers) made an earlier determination of affiliation with the tribes in the area, who knows what may happen after this DNA testing?" asks Weaver. "There may be a determination that the tests are inconclusive. That puts the fat in the fire because then the plaintiffs are going to claim that obviously further testing is needed.
"My clients and I believe, and the other tribes will continue to insist, that there's only one place these bones came from and that's been from their Native American ancestors. That's what we're concerned about."
Umatilla tribal attorney Dan Hester says he was unsurprised by the Yakama Nation's move to intervene.
"I don't see anything inconsistent with Yakama intervention with the joint claim that has been filed by the four recognized tribes and Wanapum," says Hester. "In fact, I see this as being entirely consistent with a party in that group deciding that they wanted to be more directly involved in that litigation."
Mininick says that should the Yakama Nation gain possession of Kennewick Man, the tribe would hold a joint ceremony fully involving all of the concerned tribes.
At this point in the case, all eyes are turned toward the Sept. 24 court-imposed deadline for a determination from Interior. District Judge John Jelderks has posed three questions for Interior to respond to at that time: Are the remains Native American? If so are they culturally affiliated with the claimant tribes? And, regardless of those two answers, what do you think about the plaintiff scientists' request to study the bones?
Before the tribes can make any decisions about how to proceed further in the case, they have to know the answers and respond accordingly.
Whatever the answers and however the court decision goes, both the government and the tribes will have come a long way toward a better understanding of how NAGPRA can be applied - and misapplied - to the discovery of ancient remains, officials say. The case will help establish the level of acceptable proof required by tribal claimants to show cultural affiliation in such situations.
It will also clarify section 3002 of NAGPRA concerning inadvertent discoveries - discoveries exactly like the one made by two youngsters wading in the shallows of the Columbia River during a hydroplane race in July 1996.
"To the extent you have a determination that the remains are Native American but are not culturally affiliated to a claimant tribe, which I think anybody looking at this case has to say, is at least a possibility," says Hester. "NAGPRA specifically contemplates remains that would find themselves just in that category and authorizes the Secretary of Interior to promulgate regulations to address the disposition of such remains. To date, 10 years later, we don't have those regulations.
"So maybe this is going to spur Interior to the development of those regulations with the input from the NAGPRA review committee and from tribes."