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Tribes try to appeal ruling on old bones
This story was published 9/27/02
By Mike Lee
Tri-City Herald staff writer
Four Northwest tribes are attempting to appeal a federal court ruling that allows study of Kennewick Man's 9,000-year-old remains.
Tribal lawyers Thursday said that the U.S. government no longer adequately represents Indian interests and asked for the right to appeal the high-profile decision, which addresses pivotal aspects of the Native American Graves Protection and Repatriation Act.
"(Tribes) are adversely affected both by the disposition of this case, as well as the breadth of the opinion, which calls into question the remedial purposes of NAGPRA," said lawyers for the Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, the Yakama Nation and the Confederated Tribes of the Colville Reservation.
The tribes had "friend of the court" status in the case, in which eight prominent scientists sued the federal government for the right to study ancient remains found in Kennewick six years ago. Federal lawyers argued the bones were legally "Native American" and should be given to the tribes.
On Aug. 30, however, U.S. Magistrate Judge John Jelderks ruled in favor of the scientists and gave them 45 days to prepare a study plan for the near-complete skeleton, which is deemed an important piece of evidence in the effort to understand how native people settled the Americas.
It's long been expected Jelderks' opinion would be appealed, but federal officials have made no public announcement of an appeal, to the alarm of Indian leaders.
"Without a timely appeal of the court's decision, the (tribes) have no ability to preserve their rights and ensure the return of the human remains to the tribes," their lawyers said.
"The court's decision has and will continue to adversely affect the (tribes') interests by subjecting the remains to additional unwarranted invasive studies," they said, noting federal lawyers missed the deadline for requesting the court to withdraw or amend its judgment and federal agencies failed to move for a stay of the ruling pending an appeal.
Even if the government does appeal to the 9th Circuit Court, tribal lawyers said it's "uncertain whether federal defendants are capable and willing to raise the same issues on appeal" as the tribes.
The tribes have more at stake than the government, which suffered an embarrassing loss in Jelderks' court. Indians across the country fear the ruling will erode graves protection laws Congress imposed in 1990 to end decades of abuse at Indian burial sites.
The group of scientists has until the middle of next month to submit a study plan. It's expected to involve more than a dozen experts and be performed at the Burke Museum at the University of Washington, where the bones are being stored.
The Portland attorney for the scientists could not be reached late Thursday afternoon to respond to the tribal request.
RICHARD L. HILL
Four Northwest tribes say they want the right to appeal a federal judge's decision that allows scientists to study the ancient skeleton called Kennewick Man.
Attorneys for the Nez Perce, Umatilla, Colville and Yakama tribes filed a motion Thursday in U.S. District Court in Portland requesting that they be permitted to intervene in the 6-year-old legal fight.
U.S. Magistrate John Jelderks ruled four weeks ago in favor of eight anthropologists who sued the federal government seeking to study the 9,300-year-old remains. He set aside decisions made by the U.S. Army Corps of Engineers and the U.S. Department of the Interior that said the bones should go to the tribes for burial and which rejected the scientists' study request.
The U.S. Justice Department, which represents the agencies, has not announced whether it will appeal Jelderks' decision. The department has until the end of October to file an appeal.
In their request, tribal attorneys said "time is of the essence as this court's order has lifted the protections for the ancient native remains at issue in this case, and allows imminent actions to go forward and adversely affect" the tribes' interests.
They said the federal defendants no longer adequately represent tribal interests and "have not acted in an expeditious manner" in seeking an appeal to Jelderks' decision.
The tribes are not defendants in the case, but Jelderks has granted them amicus curae, or friends of the court, status on the side of the federal defendants.
Two years ago, he turned down a request by the Yakama Nation to be a co-defendant with the federal agencies, saying it had waited too long and the government was representing tribal interests.
Alan Schneider, the Portland attorney representing the scientists, said his clients would oppose the tribes' effort to intervene. "If they had wanted to be a direct party in the case they should have done so at the very beginning," he said.
Jelderks gave the scientists 45 days to file a proposal as to how they would study Kennewick Man.
The remains of the nearly complete skeleton were found on the banks of the Columbia River in 1996 in Kennewick, Wash. They are being stored at the Burke Museum in Seattle.
Richard L. Hill: 503-221-8238; [email protected]
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