Seven Days; Kennewick Man; Measure 7; Measure 2

[Beep] [Intro music.] Hi, I'm Christie George, and this is Seven Days. Our topics this week: the federal government has determined skeletal remains known as Kennewick Man are related to modern day Native Americans. But scientists say the conclusion is based on politics. Also, we'll discuss measure 7, a proposal to compensate property owners when regulations reduce their property values and measure 2, which proposes a huge change to the process of challenging state administrative rules. [Theme music] On the panel this week Jeff Brady is a reporter here at OPB. Patty Wentz is a reporter at Willamette Week in Portland. David ?Sarazen? is an associate editor at The Oregonian. And Richard ?Aguerie? is the state editor at the Salem Statesman Journal. Federal officials recently concluded the ancient skeleton known as

Kennewick Man is related to modern day Native Americans and should be returned to them for re-burial. [River water flows] Discovered on the banks of the Columbia River in 1996, the bones make up the oldest and most complete skeleton ever found in the Pacific Northwest. Kennewick Man is estimated to be 9,300 years old. But ever since the bones were found, there's been controversy over where Kennewick Man came from and who he is. Scientists say the remains closely resemble people from Polynesia and Southern Asia, and they want to study Kennewick man's bones to determine if he got to North America using a land bridge from Asia. [Wind blows] That in turn would tell scientists whether Native Americans were the only people here before Europeans arrived. But Native Americans claim the remains as one of their ancestors and want them re-buried under the Native American Graves Protection Act. For the past six months, three laboratories tried but failed to extract

DNA from the ancient bones. [Crickets chirp] With no physical proof of ancestry, federal officials instead relied on tribal oral history and a 1990 Act of Congress that declared Native Americans the only inhabitants of North America before 1492. Based on that the Interior Department concluded the bones are culturally affiliated with Native American tribes. But a lawyer for the scientists is challenging this decision and asking a federal judge to settle the case. Jeff, 5 Pacific Northwest tribes say the scientists should accept this decision and let them go about the business of re-burying the bones. Do you think that'll be happening any time soon? [Jeff] It's not going to happen any time soon. The federal government may be satisfied that this is a skeleton of a Native American and legally that may be the case but the legal world and the scientific world often don't go together. And so we've got a question here and we've a question of science really and and basically we've relied on people's religious tradition to answer that

question of science of whether or not Kennewick Man was related or is related or was related to the modern day Native Americans or whether he might be somebody else and if he is somebody else that raises a whole bunch of questions that brings brings up a whole bunch of other questions and really will cause us to question how North America was populated. [Christie] The science didn't really, was not able, though, to conclusively determine this right? I mean the DNA tests didn't work. [Jeff] The scientists who are suing the federal government though were not satisfied that those tests were conducted in a completely comprehensive way. They believe that that there's a chance that the federal government felt like it had a stake in the outcome of this and may have, you know, this is their point of view. I mean the federal scientists, the federal government, the folks say you know, "We conducted these tests in as comprehensive and as objective way as possible." But the scientists aren't aren't happy with that, and they say the scientific process

is you conduct tests and then a bunch of other people conduct tests and challenge what you have said to prove that it's correct. [New speaker] Practically speaking, if the scientists would have their way of course, Jeff, these bones would never be buried because there would always be another scientific test, there would always be a new innovation and a new technique that could potentially be used to tell us more about the bones' origins, the person's origins and to find out more about what that person was doing here. But of course for the tribes this is an issue that's gone on long enough already and for them any further delay is a violation of their beliefs that that person, who they call the ancient one, should be returned to the earth. [New speaker] Well as so often happens with government, we're working on a law and a policy which were designed for something entirely different. I mean this position we have was designed when the federal government had a huge collection of Indian bodies and Indian remains from 100, 200 years ago and it was clear who they were and it was also clear the federal government had no business preserving them in museum situations and this was never

designed for something that went back 9,000 years ago and which there's really no way to draw the kinds of connections that the act is drawing and the kinds of connections that the Indians are drawing here. The idea that this is based entirely on oral tradition and has nothing to do with the scientific requirements was not what was envisioned when we got to this policy. [New speaker] Which really brings us to NAGPRA, the Native American Graves Protection and Repatriation Act. And there are some folks now, notably Doc Hastings, the congressman from Washington is saying you know we need to be taking a second look at this at this law. Considering what we know now that we weren't really- questions we weren't asking in 1990 and maybe it needs to be tweaked a little bit. It didn't get very far when he introduced that legislation in the summer of 1999. But he's planning to redouble his efforts now and we just may see a change in that one. [New speaker] I think the one Quibble I'd have with you on that boat, David, is even though it may have been intended to address the persistent problem that you discuss with the Smithsonian and other museums having, in some cases,

thousands of sets of remains for the Indian tribes, There is no distinction between a set of remains that are thousands of years old and ones that are hundreds of years old. They claim that connection back to the beginning of the creation of the earth and from that as far as they see it, they were here, they were created here, and they must be related to whoever that person was. [New speaker] But that's not really the assumption that the procedure is supposed to operate on. I mean, the procedure is based on the idea that someone is taking the remains of your grandparents, your great grandparents and it's a direct violation of your rights. I mean the assumption that the people who are here now were the people who were here nine thousand years ago with sort of a politically easy and comfortable assumption, but it really doesn't fit with what we know archaeologically about just about any part of the world.

[New female speaker] That's what the scientists really want to get at. That's why they want to keep the bones out of the ground, so that they can try to unravel who was here when and who really is a Native American. I can see tribes not wanting to challenge that, that basic assumption that they are the native Native Americans. On the other hand, it's, you know, I can also see their feelings being very ruffled after the way that those bones have been used that were in the Smithsonian. Very often used to try to make political points about racial inferiority and measuring skull size to come up with, you know, reprehensible and And now- [New male speaker] But don't you think there's really no chance that that we're going to go back to that. Even if you consider these remains, I think it's fair to say that while they've not been treated exactly the way that the Native American tribes would have liked them to have been treated, there has been a lot of efforts to try and treat them respectfully: not putting them on show for everyone to, you know, walk by a glassed-in a casket to see. And there has been testing on them but I don't, I just

don't see that we are going to go back to that day where we treat Native American remains that way. And so considering that and looking forward and this new question that we have. I think there's a possibility that we could see some changes. And as I said before the NAGPRA [Female tries to cut in] If the- [Another male speaker starts] The tribes certainly have a right to be suspicious not only about what the [one male speaker says sure] scientific community might be attempting to do but also what, how the law might be applied in this case. And no one needs to repeat the fate of, the history of treaties that have been broken, laws that have been enforced to discriminate against tribes and their people so I can certainly understand why their position at this point would be let's settle this now and let's not prolong this any longer. [Another male speaker] But also don't you think that most tribes, Native American tribes many of them, it's not as easy for the folks who want to push them around to push them around anymore because, in many cases, they have financial resources that they didn't in the past. And certainly political clout among tribes is

increasing. [Another male speaker] Well the question that I wonder about here is just what is the scientific appeal going to be based on? I mean, because I'm not sure where there is a procedure in the law as we've got it for the scientists to make another claim. I mean presumably in order to demonstrate that this does not pertain to the Indians, they would have to demonstrate from the bones, which they're not being allowed to get at, to make their point. So exactly where do they go to now? [Another male speaker] Yeah, and I think that's the change in NAGPRA, I mean that's it seems to me that's the action- [Woman jumps in over him] But that won't retroactively resolve this case, even if the law is re-written to respond to the problems that rose out of this case. I assume Kennewick Man will not be, you know, Kennewick Man will be governed under the old version of the law. [Male speaker] Yes, you gotta figure someone 9,000 years old has been grandfathered in [laughs] [woman says I would think so] but I think that it's interesting though I think the dimension of the debate has shifted when there has been now at least a some degree of testing or scientific inquiry that's seem to

establish that it probably wasn't a European person that was here, maybe of an of Asian origin and it seemed to shift the nature of the debate which had at the beginning seemed to be very much a group of folks trying to say, "This was our cultural ancestor." And that perhaps undercut the tribes' contention that they were the first people on the continent. [DAVID SARACEN]: Well, you know, I think the people who were pointing to the European identity here were always pretty peripheral in this dispute and in this argument. The scientists themselves were never quite saying anything like that I mean they were just caught saying that, we don't know where these folks are coming from, and there's no reason to assume that there is directly connected to the people living here now as the tribes and the government now wants to assume. [Female speaker] And the land bridge is over- it's over in the West Coast it's not in the East Coast, right? I mean if anybody did walk to this continent from another continent it wasn't the European continent, right?

[Male speaker] And that's why I keep hearing that these were, this was likely someone of Polynesian or South Asian descent. [Female speaker] Although they may have come in a boat. as opposed to walked over a land bridge. [Male speaker] Right - need to watch more of those Nova specials explaining how people got everywhere in the world. [laughter] [Another male speaker] You know one thing I've been struck by a little bit in this debate is that I think the scientists probably need a better PR outfit to represent them because although I think it is somewhat of a compelling argument that this these bones can tell us things we don't need to--we don't know now, I don't think they've done as clear a job in describing exactly what that might be. Not that necessarily they could ever speculate on that. But they could say bones of similar age have told us certain things we didn't know about, Europe for example or Africa. And I don't think that's come out strongly. [Female speaker] I think that's a good point. The emotional appeal is definitely with the tribe. It's very easy to side with them. Who's it going to hurt? Do we really need to know this? What difference is it going to make? Just give it to them. [Different female speaker] But what about the conspiracy theorists who say that the Clinton administration is tilting this to get--to the tribe's favor in order to get the tribes behind the

Clinton administration on dam policy or other natural resource policy that could... And and I will say that the Clinton administration has made unprecedented efforts to show deference to Native American tribes from day one. You know I think there was an executive order that went out that said From now on we will think about implications to tribal, you know, sovereign tribes before we do anything. And I think that's really been a hallmark of this administration, but there are some who see more devious implications in this. [Male speaker] Well I think the administration is trying to be more sensitive for reasons you could consider either devious or admirable in dealing with the tribes and this is connected with it, in terms of a political question, there is a gain on one side, there's hardly any gain on the other, you know, I think the idea that as highly as the tribes esteem Kennewick Man, that they be prepared to trade him say for the four dams on the Snake River is a considerable unlikelihood. [Woman speaker] Well... [Male speaker] I also think it's important to point out that political motivations have always seemed to

govern the government relationship with tribes, so if in fact that's true, that's no different than it's been in the past, for better or worse. [Female speaker] Well we'll keep an eye on this one, it's going to court. [Inaudible] Let's move on to our second topic. Measure 7 would demand Oregon's Constitution to compensate landowners if their property loses value because of government regulations imposed after they bought their property. While on the surface this measure sounds like a simple case of fairness, its scope extends beyond land use laws and requires payments to property owners for simply obeying regulations such as environmental and health laws and with an estimated 5.4 billion dollar price tag, Measure 7 is said to be the most expensive ballot measure ever considered by Oregon voters. But supporters of the measure dispute state budget analysts' numbers. Patty, who's behind this measure and what are they trying to accomplish? [Patty] Well this measure started because Becky Miller who works with Oregon Taxpayers United, so the story goes, bought a house in a subdivision and there was an environmental overly on her property and she

she says the value of her house went down $25,000 and that made her very angry. So she and her husband Stu Miller wrote this ballot measure and Sizemore collected the signatures for it. But then they turned it over to Oregonians In Action, which is an interesting group making a real play this year. They're sort of the new Sizemore and they're focused very specifically on property rights. They're doing ballot Measure 2, which we'll talk about in a little bit, and 7. They feel very strongly for property rights owners, and they've been very clear that this is not so much about costing the state a lot of money, it's about ending our land use laws in Oregon. In fact, Stu Miller was quoted as saying well, if the urban growth boundary means that you're going to have to pay people this money on their property then maybe we need to get rid of the urban growth boundary. [New female speaker] It's there is a fairness issue on the face of it. There are people who have been harmed by changing rules and changing laws. What's the balance here between those individual rights and the impact that this would have and on

the values that are behind the regulations the government imposes, like the land use values? [Male speaker] Well the takings issue which is what this is part of his been a national subject and there have been efforts to devise measures like this in Congress, efforts to devise it in other states, the idea being that when the government does anything to hurt your value of your property you should be able to get recompense for it, you should be made whole. Now, on a practical basis you know nobody's ever sure what that means. There are so many things the government does that affect it and the amount that's involved here, the number they suggest is is 5.4 billion. You know nobody knows if that's right, if that's too low, if that's too high. But there's so much the government does. So this is a situation which is not only going to cost a lot of money but we've got sort of endless litigation stretching out for us and forever, on something like this and the idea is this basically you know bogs down

anything government would try to do. [Female speaker] It's also retroactive in a sense, I mean it says that you bought your house 25 years ago and then a law got you know regulation got imposed or whatever, you can go back. [Another female speaker] Anything the government tries to enforce on your property, so even if they've never tried to enforce any property before if they enforce it after the law is passed, then [Female interrupts] If they've enforced it before are you [Female continues] If they never have before. [Another female speaker] OK but I'm saying if you bought your property 25 years ago a regulation was passed later and it's been forced on you, then it's a done deal but if it has never been enforced that's when it kicks in? [Female speaker] Yeah. [Another female speaker] OK. So- [Male speaker] It's part of the movement, as David said to try to make government be the bad guy in terms of reducing property values in terms of changing the rules on some people and reducing the value of their property. I think the most difficult part of the challenge they're going to have though is addressing the questions of what this would do to Oregon's land use laws. Effectively it could just nullify most of them because government would, practically speaking, could never pay out all the claims that could be filed under this proposal.

[Another male speaker] And it's it's an interesting variation on that approach because several times during the 1980s people just put measures on the ballot that would simply have overturned the whole land use operation and those were defeated. And this is a kind of fiscal end run where you're saying we're not going to get the laws repealed, what we're going to do is change the procedure so it'll be impossibly expensive to try to enforce them and we will get them knocked off that way. [Female speaker] I'm thinking about Native Americans. Do they have land claims under this going back to before they were the government and all those regulations and laws were passed? [Male speaker] Well I think that the problem is that or the advantage is that Native Americans, being sovereign, aren't generally subject to state laws in the same way that other folks are. [Another male speaker] What about African-Americans who are dislocated in central Portland through the urban renewal program?

[Male speaker] I think it raises [inaudible] [Female speaker] It's a phenomenal set of questions. [Male speaker] I think what's interesting about the debate is is they are able to find cases as you described with with Becky Miller and with other families whose value of property has been reduced. But for practical purposes what we're talking about is major landowners that would take advantage of this of this measure. And that's what's not being debated as openly, is who are the people behind this and and in large part it's large property owners who don't want land use laws that would diminish the value of their property in any respect. [Female speaker] Interestingly though we've seen some businesses come out in opposition to this saying we need to know what the rules are. You know this would really put us in court and make us spend an awful lot of money going after - probably going after money, I suppose. Is that a fair, is that is that most of the business community, or are there just large natural resource... [Another female speaker] I don't I think there are few if any organizations or businesses who understand Oregon's land use laws who are in favor of this act. It's a radical anti land use law.

Core of people who are supporting it. [Female speaker] What are the, in what way do people who currently have recourse? And I can answer my own question I guess by bringing up the Steens Mountain bill, the bill that's in Congress right now to protect Steens Mountain, which is, if you talk to the ranchers down there and the property owners down there, is precisely an attempt to head off what they see as if, if the Clinton administration names Steens Mountain a national monument, their ability to use their land will be negatively affected and so they in many ways won't be able to do what they wanted to do with that land but they won't get any money for it. The Steens Mountain Bill that's in Congress would actually pay them for their lost use or for their land, do land, direct land swaps. Is that would we, you know we're seeing alternatives to compensation undertakings bills arise. Is that something we're going to see more of? [Male speaker] Maybe that's the way to address it, more on a case-by-case basis rather than sort of across the board

like that too because when, you know obviously when you have an across the board solution it doesn't always work. Consider our previous conversation. But I wonder the flip side of this if if we might also then consider legislation that would charge landowners who property value - whose property values are increased through state actions. If your land is rezoned from some sort of commercial to residential or whatever, vice versa, and your property values immediately go up by 20 percent, maybe we should charge you for that. [Female speaker] Or we can sue each other. If this were to pass and my next neighbor puts in a 7-Eleven in their front yard that lowers the value of my property and so then I can sue my neighbor, that just gets ridiculous. [Another female speaker] Let's move on to our second ballot measure [laughter] and then we can think about them all together. Measure 2 may sound familiar. It's a modified version of two similar measures that have failed over the last four years. This time around the measure proposes a new process for the legislature to review state administrative rules. If it passes, anyone gathering

10,000 voter signatures could force the legislature to review an administrative rule. Lawmakers would then have to go back to square one and reapprove the rule or it would be repealed. David, is this measure really about administrative rules or...? [David] Well it is about administrative rules, but then administrative rules are about everything. And this measure is exactly what's making this year either so exciting or so horrendous, depending on how you see it, because we've got 26 things on the ballot. We've got the presidential election and the legislative elections and the idea that each of these things is going to get the kind of attention that it deserves for what it's got the capacity to do is pretty unlikely. So here you have a measure which, you know, sounds plausible. The idea is that if government produces an administrative rule, and these administrative rules are not produced by the legislature as its supporters keep telling you, they're produced by unelected bureaucrats, that people should have the right to appeal it to the

legislature, who are the people you elect. But there's two problems with this. The first problem is that there are thousands and thousands of these things. The government runs on administrative rules, I mean the laws are sort of a signpost, the administrative rules are the maps which get you to places, and the second part is that according to this procedure you get 10,000 signatures on a petition to revise or remove an administrative rule, you send it to the legislature, and if the legislature does not act on it, the rule is removed. Now, anyone who has been in Salem and seen the pace at which the legislature acts or the pace at which it doesn't act can imagine the body first being absolutely swamped by hundreds or dozens or whatever of these appeals and second, just being unable to respond in time or effectively, and essentially the entire state government moves to the

default mechanism. You know the legislature can't move, the petition goes into effect. And where this leaves us is something that's very hard to imagine but we know this is a major, major change in the way the state government operates, the way the state runs. I mean I was speaking today to Earl Blumenauer and Darlene Hooley, you know, both of whom came up through the legislature and are now in Congress and they see this as one of the most potentially dangerous and dramatic things that are on the ballot this year. [Female speaker] It has no price tag, but time is money and that this would take up a lot of time in the legislature, I presume it would take all the time in the legislature. [Laughter] [Male speaker] It sounds like an argument for a full-time time legislature. [Female speaker] It does, that's exactly what I thought. [Male speaker] That may be the strongest argument against it, if you can get that idea out there, that if you pass this, the legislature will never go home. [Another male speaker] But you can almost admire I think Oregonians In Action for their persistence on this issue

because as you point out they did fail on this in 1996 and 1998, but they're back again and I think that their argument is one that does resonate to some degree because these rules do affect a lot of people and a lot of times there has not been a lot of notification. Of course there is a public notification process, there is a way for you to challenge the rules. [Female speaker] Theoretically a public hearing. [Male speaker] Right. Right, but a lot of people cannot take time off from work and go and go down and challenge a rule that they don't like. I asked Mike Greenfield, who's the head of the Department of Administrative Services, how he would respond to a measure like this and he said, these rules are not ones we like writing. Laws are passed, we are ordered as agencies to implement these rules. The lawmakers could always write these rules themselves. They don't want to. And I asked, why don't they want to? And he says, because they would be besieged by all the lobbyists [laughter] that come to all the hearings. [Female speaker] Exactly. [Male speaker] They basically pass the buck to the administrative agencies to implement these rules and to develop them. And that's where they come from, they don't just come out of thin air. [Another male speaker] And I think you're right that Oregonians In Action is tapping in to something here, and it's

something that I think people on all sides of the political spectrum feel and that is that the public process that leads to these administrative rules is not a very comprehensive process. I did - I followed a number of these processes and while it may be public hearings and a public process it doesn't seem like a lot of the public ends up getting involved in them. And I think that's where some of the frustration comes from. [Male speaker] And if you read the notifications for those hearings. So you have to be a lawyer to try to understand some of these rules. I mean it refers to code sections, revised statutes that are just incomprehensible and some of the language is very difficult to understand. It's sometimes hard to figure out exactly what the rule would do. [Female speaker] Is this a little guys or a big guys, who would benefit from this again? [Male speaker] I think it's extreme minorities would benefit from it, because they would be they were the ones who would be able to get 10,000 people, which is relatively few, to send in these and then basically veto an administrative rule. [Female speaker] Well we're moved from a property tax revolt to a land use planning government

revolt in a larger sense. I want to thank Jeff Brady, Richard Aguirre, Patty Wentz, and David Sarasohn. Thanks for joining us this week on Seven Days and thank you for watching. Good night.