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

Chapter 17. WE KNOW HOW TIME BEGAN

September 6

“We were blindsided,” Chatters told Owsley, calling him to cancel the airline tickets.

“What’s going on?” Owsley asked.

Chatters rehearsed the previous day’s events.

“I’ve never heard of that kind of thing before,” Owsley said. “You always let the coroner, or whoever, write his report before taking it. Man, that’s weird.”

“The government just muscled the skeleton away.”

“Let me make some phone calls,” Owsley said, confident he could reason with the corps. “Who’s the archaeologist that’s handling this? What’s his number?”

Moments later, Owsley called corps archaeologist John Leier in Walla Walla, Washington.

“Hi, John, this is Doug Owsley from the anthropology department at the Smithsonian,” he said, itching to hear what the corps planned to do with Kennewick Man.

Leier quickly made it clear that the corps had a legal obligation to return the remains to the Indians.

“This is not necessarily Indian,” Owsley said, emphasizing the importance of properly documenting and identifying Kennewick Man before making any rash decisions on his final destiny.

Leier explained that the corps had assumed responsibility for Kennewick Man and had secured him in a neutral facility. He emphasized that the corps was ensuring the bones' safety, but he made no promises about the corps changing its plans to repatriate.

“Well, I’m willing to offer my assistance to the corps as a forensic anthropologist.”

“I’ll log in your call,” Leier said before hanging up.

Owsley couldn’t help but think that something was not right.

September 10
Battelle Laboratory

Peering into the wooden box resting on an examination table, Julie Longenecker stared at Ziploc bags full of bones that composed Kennewick Man. An archaeologist employed by the Umatilla tribe, Longenecker stood next to Army Corps archaeologist Ray Tracy, preparing to remove the bags and make a written inventory of the bones. When Battelle officials took custody of Kennewick Man five days earlier, they did not conduct an inventory or an assessment to check the condition of the bones.

Before beginning, Longenecker glanced around the cramped room. More than a dozen tribal members and tribal elders stared back at her. She took a deep breath. She hoped she could identify the bones. Neither she nor Tracy was a bone expert.

One by one, Tracy removed bags and numbered them. Simultaneously, Longenecker described the bags’ contents on her notepad: “cranial frag,” “mandible w/tooth,” “15 rib blade fgs,” “Innominate (Illium) w/proj. point imbedded.”

After identifying sixty-seven bags with different bones or sets of bone fragments, Longenecker and Tracy reached the bottom of the box. Only the skull remained.

They stared up at the tribal members.

“Can we pull the skull out of the box?” Tracy asked.

“No!” a tribal member insisted. “We’re not going to do that.”

Longenecker went to her pad. “Cranium,” she wrote on the last line of the inventory. “Was not taken out of box.”

Tracy and Longenecker started repacking the box, placing the longer bones first, followed by smaller bones and fragments. Tribal members stood over the bones, burning cedar twigs they had brought with them. Ashes dropped in among the bones. Before Tracy put the lid on the box, tribal members placed the cedar twigs inside, scattering them across the tops of the Ziploc bags.

For the next week, Owsley placed calls to numerous ranking Army Corps officials. Each one of them referred him to someone else. Not accustomed to getting the runaround from federal agencies, Doug reached out directly to the Umatilla and sent them a letter requesting permission to examine the skeleton. He offered to share his findings with them and suggested collaboration between the tribal government and the Smithsonian in releasing the results.

Like the corps, the Umatilla did not respond. Then on September 17, the corps published an official legal notice in Kennewick’s newspaper, the Tri-City Herald:

“Notice is hereby given under the Native American Graves Protection and Repatriation Act of the intent to repatriate human remains in possession of the U.S. Army Corps of Engineers,” it began, noting that the remains had been found on federal land believed to be the aboriginal territory of the Umatilla. “There is a relationship of shared group identity which can be reasonably traced between the human remains and five (5) Columbia River basin tribes and bands.

“Representatives of any other Native American tribe which believes itself to be culturally affiliated with these human remains should contact…U.S. Army Corps of Engineers,” the notice concluded, “before October 23, 1996. Repatriation may begin after this date if no additional claimants come forward.”

Seated at his desk and looking at a faxed copy of the notice, Owsley scanned back to the paragraph about geography. The corps had said it had decided to give Kennewick Man to the Umatilla because the tribe claimed the discovery site was on its aboriginal land. Owsley set the fax down.

To assume that Kennewick Man was the direct ancestor of a tribe inhabiting that region today, he believed, assumed there had been no migration in or out of that area for more than 9,800 years. But with human mobility as it was generally accepted and the Kennewick Man being so old, how could they call him the direct kin of any localized tribe or world population? He was at least 450 generations removed from Owsley’s contemporaries.

Owsley looked at the notice again. “There is a relationship of shared group identity which can be reasonably traced…,” he reread.

Frustrated, he set the notice aside. How can they say they know that? he thought. They haven’t even studied it. To him, it did not seem right to reach those conclusions without doing any research.

September 18
Portland, Oregon

Less than six feet tall, slender, and with a receding hairline, attorney Alan Schneider sat in his cramped law office, listening to messages on his answering machine. One “urgent” message was left by Owsley and contained his phone number at the Smithsonian. Schneider jotted it down.

Raised in Boise, Idaho, in the 1940s and 1950s, Alan Schneider grew up in a blue-collar, Leave It to Beaver neighborhood. His father was a welder; his mother, one of fourteen children, worked as a law clerk to the bankruptcy referee for the state of Idaho.

Captivated by his mother’s boss—a lawyer who looked and sounded like Raymond Burr, star of Schneider’s favorite television program, Perry Mason—Schneider set his sights on emulating him. He left Idaho in the early sixties to attend the University of San Francisco, where he earned a degree in political science. In 1965 Schneider entered law school at Stanford and ended up on its prestigious Law Review. When Bobby Kennedy ran for president, Schneider and other top Stanford law students conducted voting-pattern research in California for the campaign. His research ended when Kennedy was assassinated in Los Angeles, and so did Schneider’s involvement with politics. He went to a law firm and practiced business law.

Fifteen years into his legal career, Schneider went solo, opening his own office in Portland in 1986. His adult hobby being archaeology, he became involved with the Oregon Archaeological Society. He started going on digs with the National Forest Service. By the mid-nineties, the Forest Service asked him to put his legal background to work for them and teach its employees how to interpret and apply NAGPRA in cases where old bones were found on federal land. Soon thereafter he sat on the board of Oregon State University’s Institute for the Study of First Americans.

Professor Robson Bonnichsen directed Oregon State’s institute and knew Schneider and his expertise well. When Owsley called Bonnichsen looking for a lawyer to talk to about saving Kennewick Man, Bonnichsen suggested Schneider.

“Hi, Doug, this is Alan Schneider in Portland,” Schneider began when he called Owsley. He told Owsley up front that he was very familiar with the Kennewick situation. Bonnichsen and Chatters had been keeping Schneider posted. And Schneider had advised Benton County prosecutor Andy Miller to turn the skeleton over to the corps in compliance with the archaeological permit that governed it.

“What can we do to stop this skeleton from going back in the ground?” Owsley asked.

“Well, it’s unfortunate that it’s gone this far,” Schneider said. “The first mistake the corps made is in assuming that the remains are Native American. Because the law is clear on this point—the remains must be related to a living Native American group or tribe.” Schneider explained that one of the professors that Dr. Chatters had examine these remains said this population died out and the morphology of these remains shows an unusual constellation of features.

Owsley immediately detected Schneider’s familiarity with anthropological terms, something he didn’t expect from a lawyer.

“The other problem with the corps’ decision,” Schneider continued, “is that there’s nothing in the legislation that says the remains can’t be studied. That’s just the Army Corps saying that.”

Owsley liked Schneider’s approach. “Alan, can we sue the government?”

“Sure. You can sue the government.”

“Can we win?”

“Well, I think you’ve got a real good case here, Doug. I mean, the corps is clearly misapplying the law.”

“Because I’m willing to do whatever it takes,” Owsley interrupted.

“Well, Doug, I think we should try to resolve this without litigation. We don’t want to go there if we don’t have to.”

“It’s not my preference to go to court either. But this skeleton should not be turned over without being properly identified. It’s too rare, too old.”

Schneider agreed. He suggested a two-pronged strategy to pressure the corps and raise public awareness. He wanted Owsley to rally his colleagues in the science community and besiege the corps with letters that stressed the importance of this discovery and the need to conduct proper study and analysis before making any decision on repatriation. Schneider planned to call the lieutenant colonel overseeing Kennewick Man and put him on notice that many concerned scientists were aware of what was going on and felt that study was warranted before making any repatriation decision.

Schneider later called Owsley back with a report on his conversation with Lieutenant Colonel Curtis.

Schneider glanced down at his notes. “He said, ‘Some possibility that study would be possible,’” Schneider said, chuckling. “He would ‘consider it.’ But he would ‘not consider it or make a decision until after the notice period has passed on their notice of repatriation.’

“He also stated that they were going to ‘keep an open mind.’ But that ‘it was for the scientific community to get the statute amended.’”

“He’s not flexible at all,” said Owsley.

“No. The tribes are getting the skeleton.”

Owsley was silent.

“We need to step up our efforts,” said Schneider, who planned to call U.S. representative Doc Hastings, whose congressional district took in the area where Kennewick Man surfaced. “I’m going to see if there’s anything Congress can do on our behalf.”

Owsley hung up. He made a list of his friends in the fields of anthropology and archaeology, former professors, and colleagues at the Smithsonian. He had to alert them to what was going on and enlist their help. The first place he went was down the hall to the office of his good friend Dennis Stanford, the head of the Smithsonian’s anthropology department. A burly, bearded man who always wore suspenders, Stanford listened as Owsley explained what was going on.

A decade earlier, Stanford had had a key role hiring Owsley. The two of them shared a lot in common, not the least of which were their Wyoming roots and their passion for studying and helping American Indians. While interviewing Owsley for the Smithsonian curator position, Stanford revealed that he knew Owsley’s father, Bill. Stanford explained that one of his best friends lived in Lusk and was a young engineer who discovered the Hell Gap archaeological site that Stanford had dug in his student days. Owsley’s father was the game warden responsible for that region, and he knew the engineer that Stanford worked with.

From the day they met, Stanford and Owsley felt as if they had known each other forever. They became much closer after Stanford was so instrumental in hiring him. Stanford offered some advice and his full support. Next Owsley called Richard Jantz at Tennessee. Eager to help keep Kennewick Man aboveground, Jantz thought he and Owsley should write a joint letter. One of Jantz’s graduate students then suggested a way to instantly get the letter into the hands of a vast audience: the World Wide Web. The student sent the Owsley-Jantz missive by E-mail to anthropologists and archaeologists all over the world. “We have less than 30 days before the remains are turned over,” it read. “If you wish to express your displeasure with the Corps’ action, please write or fax: MG Ernest J. Harrell, Commander, North Pacific Division, U.S. Army Corps of Engineers.”

Faxes from around the world flooded the offices of the Army Corps, expressing shock and dismay. Schneider and Owsley’s efforts paid off. By September 30, the Army Corps’ decision to prevent study of Kennewick Man had reached the front page of the New York Times, under the headline “Tribe Stops Study of Bones That Challenge Its History.” Owsley was quoted in the article about Kennewick Man’s importance. “If there is no further opportunity to examine these remains, we will be losing information that is important to every American.”

In the same article, the Umatilla challenged Owsley and the scientists. “Our oral history goes back 10,000 years,” Armand Minthorn told the Times. “We know how time began and how Indian people were created. They can say whatever they want, the scientists. They are being disrespectful.”

Senators and congressmen reacted to the news with dismay. On October 4, Congressman Hastings wrote to the commander of the United States Army Corps in Washington, D.C. “I was greatly alarmed by reports that the Army Corps’ Walla Walla office intends to turn the skeleton over to the Umatilla tribe before it can be adequately studied and its origins conclusively determined,” Hastings wrote. “I urge you to postpone action until the origins are determined conclusively or until Congress has the opportunity to review this important issue.”

Days later, a coalition of congressmen and senators, led by Washington’s U.S. senator Slade Gorton, wrote another letter to the Corps’ commander, strongly urging him not to prematurely surrender Kennewick Man without proof of origin or identity.

The ante had been raised.