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

Chapter 18. THE CLIENT

October 8
Portland, Oregon

“They don’t intend to let a bunch of old bones get in the way.” Schneider couldn’t get the words out of his mind. After talking with Paul Rubenstein, a high-ranking Army Corps official in Washington, D.C., Schneider had summed up the corps’ position: The likelihood of angering the Umatilla by subjecting Kennewick Man to scientific analysis wasn’t worth the fight. The corps had far more financially important disputes with the Umatilla and other tribes in the Pacific Northwest over energy and the environment. Claiming irreparable harm to their hunting and fishing rights, tribes wanted some of the nation’s biggest dams in Washington and Idaho dismantled, a step that would drastically impact the cost of producing and transmitting energy in the western states. Giving up Kennewick Man seemed to be an easy way to placate the tribes to some extent.

Schneider was amazed. The Army Corps of Engineers was a federal agency under the control of Congress. Yet the agency was deaf to requests from Congress to hold back on repatriation until proper study was performed. Nor had the power of the press been able to move the bureaucracy.

We’re going to have to sue, thought Schneider. All the options—talking to the corps, letter writing, congressional intervention, and direct appeal to the Umatilla—had failed. Nothing had persuaded the Army Corps to delay, much less change its mind about turning over Kennewick Man. The federal bureaucracy was simply immune to public pressure. And time was running out. The repatriation deadline was just fifteen days away. A court-ordered injunction is all that will stop the corps, Schneider concluded.

First he would have to apply for and obtain a temporary restraining order to delay the transfer of Kennewick Man before October 23, buying himself enough time to then research and prepare a legal argument that justified overturning the corps’ decision to repatriate. To win a temporary restraining order, Schneider had to convince a judge that there was a substantial likelihood of proving that the corps did not have enough evidence to decide that Kennewick Man was culturally affiliated to the Umatilla.

Schneider knew that a court order was exactly what Owsley wanted him to pursue. But he worried that Owsley didn’t know what he was getting himself into, and feared that Owsley might not have the stamina to withstand a lawsuit. Before calling him to discuss what to do next, Schneider sized up Owsley as a potential plaintiff.

Owsley was a scientist with no experience in civil litigation and even less familiarity with politics, Schneider reasoned. Litigation is like war. And by suing the federal government, Owsley would be fighting both a legal battle and a political one. The political fight would get dirty. Government lawyers would try to sully Doug’s credentials and motives, and would likely dig into his past and his present private life.

This last aspect didn’t concern Schneider, however. Owsley was one of the most respected scientists in the United States. Federal agencies from the FBI to the Park Service to the State Department had called on him to help solve crimes or identify human remains in seemingly unsolvable cases. Owsley was the man to call whenever the government faced mission impossible, and Schneider relished the prospect of the government trying to discredit a man who was so often relied upon as an expert in some of the high-profile cases it had prosecuted.

Schneider thought about Doug’s private life. No problem there, either, he figured. An altar boy and an Eagle Scout as a kid, Doug seemed still to live by the creeds he had sworn to obey as a teen. He didn’t even drink alcohol, except on rare occasions. Work was his only vice. He worked so many hours that he didn’t have time to get into trouble.

Owsley’s love for science concerned Schneider most. A lawsuit promised to crimp his passion for study. Because the Army Corps is a federal agency, it would be defended in court by the Justice Department, which has an endless string of lawyers and unlimited resources. The government’s strategy would be simple: wear Doug down with endless delays that prolonged the case and bury him in paperwork that would stifle his ability to practice science. The government would try to force Doug to choose between doing what he loved and fighting for what he believed in.

Also, by making the case drag through court for years, the government would drive up the legal fees. Justice Department lawyers are paid with taxpayer dollars. Doug didn’t even have sufficient funds to pay one month’s worth of legal fees, let alone years’ worth—which meant that Schneider would have to take the case on a contingency basis even though his previous experiences with long-lasting contingency cases had been less than positive. Each time, the client started out eager only to wear down over time and lose interest. Financially invested in the case, Schneider had no choice but to fight on alone, hoping to win a judgment in order to get compensated.

In order for Schneider to keep pace with the Justice Department, he would have to have another law firm’s assistance. The workload would simply be impossible for one lawyer to manage. The firm would have to be large enough to underwrite the cost of the litigation. Attracting such a firm was further complicated by the fact that Owsley wasn’t suing for money; he was suing to protect the integrity of science and to preserve truth. Schneider’s only hope of compensation rested on his winning the case and having a judge order the government to pay a portion of Schneider’s legal fees. The chances of winning the case rested largely on Owsley’s stamina. Schneider would need him in order to prove that the government had improperly identified Kennewick Man’s biological identity, an effort that would take hundreds of hours of Owsley’s time.

Did Owsley have what it took to withstand a lawsuit against the government? Or would he peter out on Schneider a year or two into the case?

Schneider called Owsley, and after he explained his call to Rubenstein, Owsley was quiet. The American government’s approach to the Kennewick Man discovery irked Owsley. Italian and Austrian officials had taken a totally different response after a similar set of circumstances began unfolding on September 19, 1991, when some explorers found a skeleton in the snow along the Austria-Italy border. Initially, officials figured that the remains were those of a recent accident victim who had frozen to death. Radiocarbon dating revealed that the remains were 5,300 years old. The skeleton was dubbed “Iceman,” and his discovery was widely celebrated by both the Austrian and the Italian governments. Rather than rebury him, the governments supported research to learn more about Iceman’s past. He is currently housed at the South Tyrol Museum of Archaeology in Bolzano, Italy.

To save Kennewick Man, a lawsuit seemed inevitable.

Yet Owsley had never sued or been sued in his life. In general he viewed lawsuits as detrimental to society. If he slipped and fell in a movie theater and broke his leg, he would either pay for the medical expenses with insurance or out of his own pocket. The idea of suing the theater for negligence would never enter his mind. Yet his latest phone call—the last of several—with Curtis had yielded nothing. And now Schneider’s conversation with Rubenstein confirmed that the government had no intention of allowing Kennewick Man to be studied.

“Doug,” Schneider said, waiting for him to say something, “if we’re gonna stop this, litigation is the only resort. Do you want to go ahead with this?”

“I’m ready to go,” Owsley snapped.

“Let’s confirm that your colleagues are ready to go too.”

“I’ve already checked with Dennis and Richard. We’re ready to go.

“Alan,” he continued, “if I can’t get to this skeleton, with all my connections and my association with the Smithsonian, no scientist can. What chance would a graduate student or professor have in the future? I have to fight this.”

Owsley had been thinking of little else lately.

If the skeleton got buried, it would be an awful precedent. If remains were found on federal land and not looked at properly, one could start losing even recent missing persons’ bones on federal land. It was simply irresponsible to give up without having a proper identification done. And to lose Kennewick Man, well, it just seemed tragic.

“Well, we’ve tried everything else,” Schneider said. “Hell, if Doc Hastings and the Congress can’t stop these guys, who can?”

“That’s why we’ve got to do this.”

“Doug…,” Schneider began.

“What?”

“Doug, before you make this decision, you need to carefully consider whether you really want to do this. You need to understand this is going to require a lot of your time and demand a lot of your energy. This is a major decision on your part. If you get involved in a lawsuit of this nature, it’s not going to be over in a month. This case is going to become your life!”

Owsley remembered being called “Scrapper” as a teen. The high school wrestling teammate who chose the name told Doug, “You go to it and stick to it.” Doug never amounted to much as a wrestler. But as a scientist he prided himself on the characterization of being a scrapper.

“Alan,” he said softly. “I’ve already talked to Richard Jantz at Tennessee and Dennis Stanford, the chair of anthropology here at the Smithsonian. Both of them are committed.”

Schneider was too. He just wanted to make sure that Owsley understood what he was getting into. The time commitment would be tremendous. “Your studies and research will suffer some,” Schneider said. “And you’re going to take heat from some people in the academic community.” Schneider explained that although Owsley was talking about suing the Army Corps, the case would quickly be framed as a battle between science and Indian tribes. The minute that happened, support from academia, the press, and Congress would dwindle. “It’s something you need to be prepared for, Doug,” Schneider said. “People are going to label you.”

“Well, Alan,” Owsley said, “someone has to take a stand here. Everyone else is ducking and dodging, afraid to take this on. I have to do this. If not me, then who? I have no choice.”

Owsley took a deep breath. “I don’t need another skeleton. I’ve looked at thousands in my career,” he said, his voice rising. “But if we don’t take a stand here, the future is going to be worse in terms of our ability to ask questions of the past, worse for the next generation. When you go back far enough in time, the past belongs to the American public.” Schneider agreed. “I have got to do this,” Doug insisted. “I will not back down.”

Schneider’s adrenaline started rushing. He was hearing the right things. To him, Owsley was a fighter. If Schneider was going to the trenches, Owsley would have his back. He wouldn’t find him hiding in a bunker. He seemed motivated to search for the truth and right wrongs.

With a lawsuit being unfamiliar territory, Owsley asked Schneider for instructions.

Get more scientists, representing a wide cross section of expertise, to join the lawsuit, Schneider said. More plaintiffs would bolster credibility and relieve some of the pressure on Owsley that would surely come from the academic community. And time was of the essence. Schneider had less than a week to file the case.

“So you’re willing to represent us?” Doug asked.

“Yeah,” Schneider said with a laugh, dreading the workload ahead.