Hastings sponsors bill to protect study of Kennewick Man

Rob Smith, a Seattle attorney who represented tribes in the Kennewick Man litigation, said that contrary to Hastings' opinion, the Senate bill would not affect Kennewick Man.

Published Thursday, November 1st, 2007

By Annette Cary, Herald senior writer

Federal legislation introduced in the U.S. House on Wednesday by Rep. Doc Hastings, R-Wash., would protect the opportunity for scientific study of ancient remains such as Kennewick Man.

He proposed the legislation in response to a bill quietly approved by the Senate Committee on Indian Affairs last month that Hastings said would effectively block the scientific study of ancient skeletal remains discovered on federal lands.

"This change, tucked into what is being called a technical corrections bill, is very far from a minor 'technical correction,'" Hastings said of the Senate bill. "It is a fundamental shift in existing law and would overturn a decision in the Ninth Circuit Court of Appeals."

Video of his speech is available by visiting this link.

In 2004, eight years after the 9,300-year-old bones of Kennewick Man were found on the banks of the Columbia River, the 9th Circuit Court of Appeals ruled that the bones would not be turned over to the tribes. Instead, scientists were allowed to study them.

The ruling found that Congress had intended the Native American Graves Protection and Repatriation Act, or NAGPRA, to apply to remains only if a significant relationship could be shown to present-day tribes. NAGPRA was intended to return the remains of ancestors to tribes and protect tribal graves from looting.

This is the third time a change has been proposed in the Senate that would broaden the definition of Native American under the act to make it easier for the tribes to claim ancient bones. And it's the second time Hastings has introduced counter-legislation in response. None of the bills has been passed into law.

Rob Smith, a Seattle attorney who represented tribes in the Kennewick Man litigation, said that contrary to Hastings' opinion, the Senate bill would not affect Kennewick Man.

"It can't undo what the courts decided in 2004," he said.

But it would have an effect on remains discovered in the future and "could make it easier for tribes to make claims to get remains back that currently are in an institution," he said.

Hastings believes that although the 9th Circuit Court ruling cleared the way for Kennewick Man to be studied, future actions by federal agencies, Congress or the courts could jeopardize the study of Kennewick Man or other ancient remains that he believes may not be clearly connected to any present-day Indian tribe.

"The 9th Circuit ruled on what NAGPRA said today, not what it might say tomorrow," said Todd Young, Hastings' chief of staff.

The bill proposed by Hastings would spell out that Congress intended NAGPRA only to "apply to human remains or other cultural items that have a special, significant and substantial relationship to presently existing Native Americans" and that the relationship could not be based on geography alone.

According to the oral tradition of tribes that have made their home in the Mid-Columbia, they have been here since the beginning of time, making bones found here those of their ancestors.

But scientists who filed suit said Kennewick Man could not be linked to present-day tribes. Some suggested that rather than resembling Native Americans, the skeleton was more like the prehistoric Jomon of Japan or Polynesians or Caucasians.

"These remains are among the oldest found in North America, and the quality of the remains has the potential to yield researchers greater insight into the early history of man in North America," Hastings said on the floor of the House.

"I hope the introduction of my legislation will help bring balance to what is being done on the other side of the Capitol, and that scientific inquiry is not extinguished through the quiet acts of the United States Senate," he said.