Northwest tribes consider the bones sacred and want to bury them. But the 9th U.S. Circuit Court of Appeals agreed with a lower court that found that federal grave-protection law does not apply because there is no evidence connecting the remains with any existing tribe.
Kennewick Man has drawn scientific interest because it is one of the oldest, most complete skeletons found in North America, with characteristics unlike modern Indians.
The bones, found in 1996 on the north bank of the Columbia River by teenagers going to a boat race, are housed at the Burke Museum at the University of Washington in Seattle.
The Army Corps of Engineers initially agreed with the tribes and seized the bones before they could be transported to the Smithsonian Institution in Washington, D.C.
Scientists seeking to study the bones went to court to get access to them, but then-Interior Secretary Bruce Babbitt ordered the remains returned to the tribes in 2000.
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. The appeals court found that the remains do not fall under the Native American Graves Protection and Repatriation Act and can be studied under the Archaeological Resources Protection Act.
The repatriation law "unambiguously requires that human remains bear some relationship to a presently existing tribe or people, or culture to be considered Native American," Judge Ronald M. Gould wrote.
The ruling said it is impossible for a tribe to demonstrate such a relationship with Kennewick Man because the remains date back before any recorded history.
The Umatilla, Yakama, Colville and Nez Perce tribes are seeking the remains.
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 grave repatriation act for the National Park Service in Washington, D.C., 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.
Interior Department scientists concluded the remains are unlike those of any known modern Indians but it did not rule out some distant biological connection. The appeals court, however, said there must be a more recent link to justify returning the bones and preventing any scientific study.
By Joseph B. Frazier