KENNEWICK MAN LAWSUIT
In an order issued this morning, the U.S. Ninth Circuit Court of Appeals has denied the tribal appellants' petition that their appeal in Bonnichsen et. al. v. U.S. be reheard by a larger panel of the court. That petition was filed following a decision on February 4, 2004 by a three judge panel of the court holding that the 9400 year-old Kennewick Man skeleton is not Native American as defined by federal law and can be studied by scientists. The court's order denying the petition noted that "no judge of the court has requested a vote on the Petition for Rehiring En Banc."
In their appeal to the Ninth Circuit, the tribes sought to overturn an August 2002 District Court decision that Secretary of the Interior Bruce Babbitt violated federal law when he decided to give the skeleton to the tribes so they could dispose of it in a secret location. The District Court rejected Babbitt's contention that all human skeletal remains found in the continental United States and older than 1492 A.D. are automatically Native American even if they are not related to present-day American Indians. The three-judge Ninth Circuit panel agreed with the lower court and concluded that remains are not Native American for purposes of federal law unless they have a "special and significant genetic or cultural relationship" to modern American Indians. The District court also found that federal officials secretly colluded with the tribal claimants to deny the plaintiffs-scientists a fair opportunity to participate in the agencies' administrative proceedings relating to the skeleton.
The federal agencies also appealed the District Court's decision, but did not join in the tribal appellants' petition for rehearing. The tribes and the federal government have until July 18, 2004 to decide whether they will appeal to the U.S. Supreme Court. Attorneys for the tribes have previously announced that they will appeal. So far the government has refused to say whether it will do the same. Appeals to the Supreme Court are not automatic in cases such as these, and are allowed only if the Court concludes that circumstances warrant further review.
The skeleton was originally found in July 1996. It has yet to be studied as thoroughly as scientists believe necessary in order to learn what role this individual and his people played in early human settlement of North America.
Further details can be obtained from either of the undersigned. The text of the tribes' unsuccessful petition for rehearing can be found on the Friends of America's Past website [www.friendsofpast.org].
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