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Tuesday, April 27, 2004 - Page updated at 12:00 AM

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Legal options run low on Kennewick Man

The Associated Press

PORTLAND — Northwest Indian tribes are weighing legal options in their fight to reclaim the remains of the Kennewick Man for burial, but there are signs the case may be near an end.

The options are to accept an appeals-court decision allowing scientists to study the 9,000-year-old remains or to try for a reversal in the U.S. Supreme Court.

In February, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the remains don't come under protection of the Native American Graves and Repatriation Act, which might have been used to return the remains to the tribes.

Last week, the appeals court refused a request for the full court to rehear the case. The tribes have about a month to decide whether to take the case to the Supreme Court.

Garrett Epps, who teaches constitutional law at the University of Oregon Law School, said the refusal of the larger appeals-court panel to hear the case normally would have little influence on whether the Supreme Court decides to hear it.

But Deb Croswell, a spokeswoman for the Confederated Tribes of the Umatilla, which has had a leading role in the legal fight, said yesterday that while nothing is definite, discussions of tribal officials are leaning away from further appeal.

She said the tribe has considered its chances given the makeup of the Supreme Court and balanced that against what it would cost to take the case there.

Seattle attorney Thomas Schlosser, who represents the Confederated Tribes of the Colville Reservation, one of several tribal confederations that sued to recover the remains, said the issue likely will be discussed in coming weeks. For now the remains, found on the Washington banks of the Columbia River in 1996, are at the Burke Museum of Natural History and Culture at the University of Washington in Seattle.

At issue is whether the remains provide a convincing link to today's tribes.

In February, the appeals-court panel wrote that the repatriation act "unambiguously requires that human remains bear some relationship to a presently existing tribe of people or culture to be considered Native American."

The ruling said that since the remains date to a time before any recorded history, it is impossible to establish any relationship with existing Indians.

The decision upheld one issued last August by U.S. Magistrate Judge John Jelderks in Portland.

In September 2000, Interior Secretary Bruce Babbitt ordered the bones, which the Indians consider sacred, turned over to the tribes for burial.

Jelderks said he found nothing to support Babbitt's decision and said Babbitt failed to consider scientific evidence or follow federal guidelines.

Most of the remains, which had a spear point embedded in them, have been recovered.

Copyright © 2004 The Seattle Times Company

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