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The Kennewick Man Saga, or How the Clinton administration mishandled an ancient Indian trust asset

indianz.com

TUESDAY, SEPTEMBER 3, 2002

The Ancient One was doomed from the start.

Discovered by accident on July 28, 1996, his case sparked international interest when an early handler commented on his Caucasian looks and a new theory quickly emerged. The Indians weren't here first after all!

Further examination showed he wasn't a long-lost relative of Star Trek's Captain Picard, though. But it became clear that Kennewick Man, would never rest, figuratively or physically.

Not because of that first observation, though. But because the federal government has handled the affair about as carefully as it has managed Indian trust assets.

Over the past six years, the Clinton administration:

- completely buried the site where the remains were found, a move which barred study of the location but guaranteed more on Kennewick Man, much to the horror of tribes involved.
- failed to handle the remains properly, causing damage to them.
- lost track of Kennewick Man's femur bones while the remains were in a "secure" federal area and supposedly under constant watch.
- allowed bones, some of which may have belonged to Kennewick Man, to leave the secure facility and be reburied.
- told Congress, whose members were threatening reactionary legislation, it would not take certain actions but did so anyway.

These and other incidents clearly irked U.S. Magistrate John Jelderks of Oregon, the federal judge assigned to sort the mess out. Only he couldn't really do that, given government's inability to explain many of its actions, including a decision to repatriate the remains to five tribes.

"Based upon a familiarity with this litigation developed over a number of years and a thorough review of the record, I conclude that the final decisions challenged here were not made by neutral and unbiased decision makers in a fair process," he wrote last week.

Kennewick Man was initially handled by the U.S. Army Corps of Engineers, a federal agency not known for its sensitivity in cultural matters. The Corps came under heavy fire this summer during Senate hearings that addressed repatriation.

"The consultation process is simply not there," said Tex Hall, president of the National Congress of American Indians (NCAI), the largest tribal organization in the country.

After the Corps' initial decision to hand over Kennewick Man to the tribes was set aside, the matter was transferred to the Department of Interior, hardly a bastion of trust responsibility, according to critics.

"Interior has chosen instead to inform the five claimant tribes of the decisions made after-the-fact, and tried to convince us that they are doing this 'for our own good,'" said Armand Minthorn, a Umatilla tribal member and chair of a federal repatriation review panel, at a Senate hearing in July 2000.

The Interior and its attorneys did consult with Minthorn's tribe and four others. But according to Jelderks and scientists who want to study Kennewick Man, they did this a little bit too well, raising questions of bias. Jelderks cited "largely undisputed evidence" that the government and its attorneys:

- "secretly furnished" the tribes with advance copies of documents but denied them to the scientists.
- "secretly met" with the tribes.
- "secretly sent letters" to the tribes.
- "secretly notified" the tribes of issues being raised.
- "refused" to allow the scientists to view reports and make comments. These actions could have landed the government in more hot water. But Jelderks only passed along on a warning -- because the Native American Graves Repatriation and Protection Act (NAGPRA) mandates consultation with tribes.

The Interior's treatment of the tribes as one group, however, did come back to haunt the case. Jelderks pointed out that the Wanapum Band of Washington can't claim Kennewick Man because it lacks federal status.

He also criticized the Clinton administration for twisting the law to meet its needs. "Under the terms of NAGPRA and relevant regulations, coalition claims are inappropriate except under exceptional circumstances that are not relevant here," he wrote.

The decision is likely to be appealed to the 9th Circuit Court of Appeals.

Judge won't repatriate Kennewick Man (9/3)

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