By LES BLUMENTHAL
Tacoma News Tribune
July 29, 2005
At a Senate Indian Affairs Committee hearing Thursday, tribal representatives laid claim to ancient remains like those of Kennewick Man, while scientists insisted they needed to study such remains if they are ever to understand the earliest inhabitants of North America.
Meanwhile, the Bush administration appeared to flip-flop on the issue and now believes a "genetic link" would have to be established before Kennewick Man and other similar skeletons could be turned over to the tribes for burial.
The committee already has approved the amendment to a technical corrections bill, but it was stripped out before the full Senate acted.
The amendment, to the Native American Graves Protection and Repatriation Act, would reverse a federal appeals court order and ensure federally recognized tribes could claim ancient remains even if a direct link to the tribe can't be proven.
"It doesn't matter if it is two words or 100 words. Words have meaning," said North Dakota Sen. Bryon Dorgan, the top Democrat on the committee. "This is a very emotional issue and a spiritual issue. It is not an easy issue to deal with."
The dispute dates to 1996, when two men stumbled upon a skeleton along the banks of the Columbia River while attending a hydroplane race in Kennewick, Wash. The Army Corps of Engineers laid claim to the skeleton, originally thought to be those of a white settler, and was going to turn the remains over to local tribes. The tribes, the Umatilla, Yakama, Nez Perce and Colville, wanted to bury the bones before they could be studied.
But scientists filed suit, insisting the remains, dubbed Kennewick Man, could not be linked to any of the tribes. Initial tests showed the skeleton was 9,300 years old, and some scientists suggested that rather than resembling Native Americans, the skeleton was more similar to the prehistoric Jomon of Japan, or Polynesians or Caucasians.
A federal judge in Portland, Ore., and the 9th U.S. Circuit Court of Appeals agreed with the scientists, who recently spent 10 days examining Kennewick Man at the Burke Museum at the University of Washington. Their report is due in October.
Since the appeals court ruling, the tribes have sought to have Congress clarify the law by adding "or was" to a definition of ancient Native American. The new definition would say that when it comes to ancient remains, Native American refers to a member of a tribe or culture that is or was indigenous to the United States.
Without the change, more than 100,000 human remains currently held in museums and other collections would no longer be protected by the statute, said Walter Echo-Hawk, an attorney with the Native American Rights Fund.
If the appeals court decision was allowed to stand, Echo-Hark said, "museums and agencies are free to make unilateral determination affecting the classification, treatment and disposition of these dead without any consultation with Indian tribes."
Paul Bender, an Arizona State University law professor who helped write the original law, said the appeals court decision ran contrary to the statute, which was intended to cover skeletal remains even if no relationship was established to an existing tribe.
"If there are no lineal descendants, the materials are to go to the Indian tribe on whose land the materials were discovered or to the tribe that that has the closest cultural affiliation with the materials," Bender said.
But a lawyer for the scientists who filed the Kennewick Man lawsuit disagreed.
"We had a national treasure that was going to go back into the ground without ever being examined," said Paula Barran, a Portland attorney.
The Bush administration originally supported the Army Corps of Engineers decision to turn Kennewick Man over to the tribes and filed a brief before the appeals court arguing that was what the statute required.
However, Paul Hoffman, the Interior Department's deputy assistant secretary for fish, wildlife and parks, testified Thursday that the administration would oppose the amendment to clarify the existing law.
Hoffman said the administration believed the law should "protect the sensibilities of currently existing tribes, cultures and people while balancing the need to learn about past cultures and customs."
"In the situation where remains are not significantly related to any existing tribe, people or culture, they should be available for appropriate scientific analysis. The proposed legislation would shift away from this balance."
Sen. John McCain, R-Ariz., chairman of the committee, was not pleased at the administration's change in position. He said the amendment was "consistent" with the original intent of the law.
After the hearing, a McCain aide said the amendment was mum when it came to whether it could be retroactively applied to Kennewick Man, adding that the committee had received differing opinions from lawyers.
Asked whether a compromise was possible. McCain told reporters, "You can't forget that the desecration of Indian remains was a common and obscene practice for centuries. This (Kennewick Man) is kind of a unique situation. But for us to do anything that would undermine our ability to finally prevent that kind of disgraceful practice is something we want to prevent."
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