No Bone Unturned: The Adventures of a Top Smithsonian Forensic Scientist and the Legal Battle for America's Oldest Skeletons - Jeff Benedict (2003)

Chapter 16. RUSH TO REPATRIATE

It was Labor Day weekend. But Owsley could not resist working. All night he had trouble sleeping. On nights following work on cases like Waco, he could fall asleep in a heartbeat and sleep like a babe. But new discoveries of old skeletons turned sleep into an enemy. Thinking about Kennewick Man, Doug tossed and turned. When he awoke, he couldn’t relax. He got in his car and headed to his office.

Susie worried about Doug’s being alone in a car. He regularly wore a seat belt, drove the speed limit, and kept his eyes on the road. But his mind was never in the car. Mentally, he was always at work. Even the car radio could not distract him. Lyrics rarely penetrated his mind. Aware of Susie’s fear, he actively tried to concentrate whenever he engaged in tasks like driving or operating a lawn mower. But his attempts proved futile. If alone, Doug could not stop his mind from running to his work. It was the place he felt most at home, laying out skeletons or piecing together research designs. When he could not do it with his hands, he performed the task in his thoughts.

The anticipation of Kennewick Man’s arrival at his office caused him to visualize the research possibilities. He sensed that when coupled with the Spirit Cave mummy, Kennewick Man promised an even deeper view into America’s ancient past, a view no scientist had ever seen.

Once at his office, he visualized the research scenarios. Jantz would take a complete set of skull measurements. Chip Clark would take high-definition photographs as well as X rays. And Owsley planned to measure all the bones and score the bone and teeth pathologies. He hoped that he would determine cause of death by examining the hip injury that Chatters had described.

He also anticipated the data he could get from the teeth, figuring they likely held clues to whether Kennewick Man had migrated to the Columbia Basin, and—if so—from what direction. Bone pathologies would show potential signs of trauma and sources of weaponry used to inflict trauma. Weaponry embedded in bone—such as the spear point in the hip—held geological clues that could help place Kennewick Man in time and space. And the dental pathologies on Kennewick Man’s thirty teeth would disclose clues to diet.

With the skeleton’s teeth so well preserved, Owsley figured he’d be able to detect cavities, tooth loss, abscesses, and wear. Heavy wearing on the teeth suggests a diet of coarsely processed foods like seeds and grains. A more refined wearing pattern suggests softer foods, such as fish and vegetation. By working with a network of nutritionists, botanists, fossil experts, and archaeologists, Owsley planned to reconstruct Kennewick Man’s diet. From there, his geographic range could be defined by determining what regions possessed the climate to produce such foods. Eventually, he should be able to know something about Kennewick Man’s migration pattern, not to mention the clues that DNA testing would contribute too. By the time they were done, Owsley felt, they would know whether Kennewick Man was the ancestor of a modern human population or whether he was from a population that today’s scientists have never encountered.

Owsley quickly drafted a letter to Floyd Johnson, assuring him that Kennewick Man was a national treasure that would be properly cared for at the Smithsonian.

Wednesday, September 4
Benton County Justice Center

Army Corps Lieutenant Colonel Donald Curtis, dressed in full military uniform, trailed attorney Linda Kirts into the lobby outside prosecutor Andy Miller’s office. Joined by his thirty-one-year-old deputy, Ryan Brown, Miller greeted them and turned toward the conference room.

“I have a list of people who aren’t going to be here and want to be conferenced in,” Kirts said, handing Miller a piece of paper. It contained the names and phone numbers for tribal leaders and lawyers from the five confederated tribes in Oregon, Washington, and Idaho, as well as a Umatilla lawyer in Colorado.

Surprised, Miller and his deputy looked at the list. “We didn’t realize this was going to be a teleconference,” Miller said. “I don’t know if our phone system will handle this many lines.”

“Well, if you can’t handle this we should have had this meeting at the corps’ offices,” said Kirts, informing Miller that the tribes weren’t the only ones who needed to be conferenced in. Bruce Didesch, the assistant U.S. attorney in Spokane, needed to be patched in too.

“We’ll do our best,” said Miller. “But it was your idea to have this meeting here, not ours.”

Miller escorted Kirts, Curtis, and two corps archaeologists—Ray Tracy and John Leier—into the law library. They took seats at the conference table, opposite Floyd Johnson and Jim Chatters. While Miller and Brown tried patching tribal leaders in through the cream-colored speakerphone at the center of the table, the corps archaeologists stared down at the rust-colored carpet, avoiding eye contact with Johnson and Chatters.

Only able to patch in the five tribal representatives, Miller had a separate phone brought in for Lieutenant Colonel Curtis, who dialed up the U.S. attorney’s office. Cupping the receiver with his hand and speaking in a hushed tone, Curtis relayed dialogue to Bruce Didesch.

“I want to go over the applicable law,” Kirts began after introducing all the parties. She handed Miller a four-page document. The words DEPARTMENT OF THE ARMY: ARCHAEOLOGICAL RESOURCES PROTECTION ACT PERMIT appeared across the top. It was dated July 30, 1996. Miller had not previously seen the permit issued by the corps to Chatters, authorizing him to recover remains and artifacts along the Columbia River.

Glancing at it quickly, Miller handed it to his deputy. In preparation for the meeting, Brown had spent the previous day researching NAGPRA on the Internet. He had read the ARPA law too, but he had not researched it and had not previously seen a copy of the permit. While Brown looked the permit over, Kirts gave the tribal representatives a chance to speak.

Dan Hester, the Colorado-based lawyer representing the Umatilla, immediately criticized Chatters, paraphrasing from a letter that Washington State professor Grover Krantz had faxed to Chatters over the weekend. “This letter summarizes my findings regarding the 9,000-year-old human skeleton that I examined at your home in Richland, WA, on August 30, 1996,” Krantz’s letter read. “My hour-long study, from 3:45 to 4:45 that afternoon, was easily enough to satisfy me that this skeleton cannot be racially or culturally associated with any existing American Indian group.”

“The letter and the facts therein outrage the Umatilla,” Hester said through the speakerphone. “They’re offended that Dr. Chatters had this ancestor in his house. It’s sacrilegious.”

Staring at the phone, Chatters bristled.

“Well, I haven’t read the letter,” remarked Rory Flintknife, a lawyer and member of the Yakima, who was also on speakerphone. “But I’m offended too.”

Chatters cleared his throat. “For the record, my laboratory is in my home,” he said. “All the forensic analysis I do takes place in that laboratory. And all remains are treated with due care and respect.”

Glaring at Chatters, Kirts chastised him for making plans to ship the remains to the Smithsonian, insisting that that was not going to happen. “What do you want us to do with the bones?” she asked the tribes.

“The remains should be buried today,” one tribal representative said.

Another tribal attorney agreed.

Miller sensed the meeting slipping out of control.

“Hold it,” he said, raising his voice. “This is not the meeting we agreed to have. We are not prepared to make a final decision and bury the remains today.”

“Under ARPA, the remains should be turned over to the corps,” said Kirts. “And these remains should be interred as soon as possible.”

“In our prior discussions you had been citing NAGPRA,” Miller argued. “Now you’re relying on ARPA. I haven’t had time to research all of these federal laws.”

Kirts became indignant. “You don’t understand,” she said, raising her voice. “These remains were found on fee title land managed by the corps. The ARPA permit clearly applies.”

“I’m not familiar with the permit and would need more time to review it,” said Miller.

Suddenly, a member of the Colville tribe interrupted, and suggested storing the remains at Pacific Northwest Laboratories (Battelle), a private nonprofit facility on the nearby Hanford Reservation, until the two sides sorted out the remains’ final destination.

“The ARPA permit states the remains are the property of the Corps of Engineers,” chimed in Umatilla attorney Dan Hester. “And they should be transferred to Battelle.”

Kirts looked at Miller. “Will you at least turn it over to Battelle?”

Miller looked to Johnson and Chatters for their opinion. They remained silent. Puzzled, Miller requested a brief recess and asked to speak with Johnson and Chatters privately.

They followed Miller and Brown into Miller’s office and closed the door.

“Neither of you has said anything in there,” Miller said, frustrated. “I want to know how far you want to take this thing. Do you guys want us to fight the transfer of the bones to Battelle?”

“No,” Chatters said, convinced that a fight was futile at this stage.

A knock at the door interrupted the meeting. Lieutenant Colonel Curtis stuck his head in and looked directly at Miller. “You and Linda have really been going at each other,” he said. “We need to calm down. I know how lawyers get. But with you two in the same room, we just need to lower the adversarial thing.”

“Well, when your lawyer says these things, I don’t know how you expect me to answer. You ought to talk to her,” Miller said.

Moments later, Miller’s group returned to the meeting.

“The county will agree to transfer the remains to Battelle for temporary storage,” Miller informed Kirts.

“Now that you’ve agreed to do that,” Kirts said, “we also want you to agree that you’re relinquishing all ownership, control, and authority over these remains.”

“Nooo,” Miller said, “that’s not what we agreed to. You asked us to put these out at Battelle ‘until this gets sorted out.’ And we said yes. But that doesn’t mean we have agreed with your position as to ownership. We just saw the ARPA permit for the first time today.”

“What is your legal authority for ownership?” Kirts demanded.

Before Miller could respond, Yakima tribal leader Rory Flintknife reiterated the idea of using a temporary storage facility and putting off the ownership issue for another day.

The meeting ended when Floyd Johnson promised to call all parties with logistics for the transfer of the remains to Battelle.

After everyone left, Miller and Brown studied ARPA and the ARPA permit more carefully. The “Conditions” section of the permit said, “Collections of archaeological resources, artifacts and other material removed from public lands under the provisions of this permit remain the property of the United States Government and may be recalled at any time for use of the Department of the Army or other agencies of the Federal Government.”

The language of the permit was clear. The bones had been found on federal land and were the property of the federal government. And the permit expressly said that anything Chatters found was subject to being recalled without notice or reason. Miller and Brown agreed that the county had no basis for exerting ownership or control over the remains.

The following morning, Miller faxed Kirts a letter: “We have now had an opportunity to review the permit as well as ARPA…and agree that the Corps is authorized to exert control over the remains. As such, Benton County’s responsibility over the remains has terminated, and the Corps may proceed to exert full control over them.”