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Appeals court backs continued study of skeleton

Rejecting the claims of Indian tribes, a federal appeals court ruled that scientists should be allowed to continue testing on the 9,000-year-old Kennewick Man skeleton.
The Kennewick Man's skull provided the template for this plastic casting. Indians want the Kennewick Man skeleton handed over to them for burial, while scientists want to continue study of the remains.Elaine Thompson / AP file
/ Source: staff and news service reports

Denying a request by American Indian tribes who sought an immediate burial, a U.S. appeals court ruled Wednesday that scientists should be allowed to continue testing on a 9,000-year-old skeleton.

The legal battle dates back to 1996, after two teenagers discovered a skeleton near of the shore of the Columbia River near Kennewick, Wash.

Scientists said the “Kennewick Man” remains were 8,340 to 9,200 years old — which made it a puzzling find, because its features were different from those of American Indians. Scientists hoped further study would shed light on early North Americans.

The Umatilla, Yakama, Colville and Nez Perce tribes filed suit demanding the burial of the remains, which they believe belong to a distant ancestor of modern-day tribes. But U.S. Magistrate John Jelderks ruled in 2002 that the remains could be studied, and a three-judge panel of the San Francisco-based appeals court agreed.

“From the perspective of the scientists-plaintiffs, this skeleton is an irreplaceable source of information about early New World populations that warrants careful scientific inquiry to advance knowledge of distant times,” Judge Ronald Gould wrote for the panel.

“From the perspective of the intervenor-Indian tribes, the skeleton is that of an ancestor who, according to the tribes’ religious and social traditions, should be buried immediately without further testing.”

Mystery man
The battle was especially emotional because of the mystery the “Kennewick Man” represented. Aged 45 or 50 when he died, he had a projectile point unlike those seen in the region before in his hip dating back to when he was 15 or 20 years old.

The battle pitted eight scientists against the U.S. Department of Interior, U.S. Army and other agencies that sided with the Indian tribes.

Until recently, most scientists thought North America was first populated after the end of the Ice Age 12,000 years ago, when Asian mammoth hunters walked from Siberia.

But that theory has been shaken by evidence of late Ice Age human settlements on California’s Channel Islands and in Chile, evidence that suggests America’s first humans traveled by boat much sooner than earlier believed.

Was he a 'Native American'?
The core of the legal arguments centered on whether the remains were Native American, as the 9th Circuit Court said existing law on reburial requires that the remains have some link to a presently existing tribe.

“The age of Kennewick Man’s remains, given the limited studies to date, makes it almost impossible to establish any relationship between the remains and presently existing American Indians,” the ruling found.

Without a clear link between the skeleton and Native Americans, the court gave a green light to science.

The judges said they affirmed “the judgment of the district court barring the transfer of the skeleton for immediate burial and instead permitting scientific study of the skeleton.”

The bones are currently housed at the University of Washington's Burke Museum in Seattle.

Reaction on all sides
Rob Roy Smith, a Seattle attorney in the firm representing the Colville tribe, called Wednesday’s decision “a great injustice” and said the tribes will have to decide whether to seek a rehearing or turn to Congress.

“The 9th Circuit turned the statute on its head,” Smith said. “The law Congress passed gives tribes the right to prevent the study of remains. What the 9th Circuit seems to have done is to require the tribes to prove the remains are Native American before the statute applies.”

John Wright, the administrator of the Native American Graves Protection and Repatriation Act for the National Park Service in Washington, said legal staff would review the ruling and decide what to do next.

C. Loring Brace, one of the scientists seeking to study the remains, called the decision “wonderful news.” The University of Michigan anthropology professor wants to learn Kennewick Man’s origins, and said he might be related to people in prehistoric Japan.