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

Chapter 19. SENIOR GIRL

A Starbucks coffee cup in her hand and some legal-size manila files tucked under her arm, forty-seven-year-old Paula Barran reached for the oversize brass handle on the solid mahogany door to her office. The brass nameplate on her wooden office door read MS. BARRAN. She still remembered the day, years earlier, when a janitor mounted it to the door. It seemed like a long time ago when the firm had debated whether her nameplate should read “M. Barran,” “Mrs. Barran,” or “Ms. Barran.” Those were the days when women lawyers wore floppy ties and didn’t know whether to go out to lunch with the secretaries or the attorneys.

Barran smirked and opened the door. She walked across the dark brown tweed carpet and dropped the files onto a granite-topped worktable. Her father had given the table to her as a gift when she made partner in 1985. At the time, she was the only woman partner in the law firm, Spears & Lubersky. In 1990, her firm took part in a merger that produced one of the biggest law firms on the West Coast, with law offices in Portland, Seattle, Los Angeles, San Francisco, Anchorage, and London, England. After the merger, Barran began sarcastically referring to herself as “Senior Girl.” Despite having nearly three hundred lawyers in her new firm, Barran was one of only three women partners, none of whom had been a partner longer than she.

Eager to begin her morning coffee, Barran sat down behind her wide desk. She never ate breakfast, relying instead on a twenty-ounce cup of coffee with four shots of espresso to start every day—the more caffeine, the better. She knew it was addictive, but it was a tradeoff she was willing to make in exchange for the energy that helped her through the brutal schedule she imposed on herself. Most days she did not find time to read the morning newspaper until bedtime, around midnight. The only diploma she displayed on the wall behind her desk typified her tendency to overload her schedule. It signified Barran’s completion of the executive M.B.A. program at the University of Oregon, which she accomplished while practicing law full-time.

Barran’s other degrees—a master’s degree in modern languages from Cornell and a Ph.D. in medieval Germanic literature from the University of British Columbia—were not on the wall. Those were part of her past life, before she decided to attend law school in 1977. Well on her way to becoming a college professor, Barran saw an episode of the 1976 TV series Kate McShane. In the episode, McShane, a lawyer played by Anne Meara, delivered an impassioned speech about law school. That sounds cool, Barran thought at the time. I want to feel that way.

Far more educated than most lawyers coming out of law school—and equally as shrewd and sophisticated—Barran quickly established herself as a tough trial lawyer in the area of labor law, specializing in cases involving employment discrimination. By the time she made partner, she specialized in defending large companies and corporations on the West Coast that were being sued—usually by female employees—for sexual harassment. It was not exactly what Barran had had in mind when she came out of law school. But she possessed a deft ability to sort out a genuine case of sexual harassment from an inflated one. She also had plenty of personal experience. She had seen women lawyers receive substantially lower salaries than their male counterparts, be kept off high-profile cases on account of their gender, and thrown out of court in humiliation by judges who did not like seeing women wearing pantsuits. She was no fan of sexist jokes. Nor was she sympathetic toward employees—male or female—who sued an employer with deep pockets because a fellow employee told a bad joke.

Her coffee cup nearly drained, Barran began responding to the stack of phone messages neatly arranged on the glass tabletop of her desk. As she left a series of return voice-mail messages, she contemplated the poster-size photograph hanging directly across from her desk. Shot from aboard one of the Apollo space missions, the photograph depicted a captivating view of the earth. It helped her keep things in perspective.

An avid art collector, Barran kept other items in the office, including a framed picture of the remnants of a library in Coventry, England. German bomber planes had reduced the library to rubble during World War II. But standing amid the destruction, a group of Englishmen were reading books. Barran liked the picture for what it said—that even when the world is in chaos around us, certain things endure. Next to it, a framed New Yorker cartoon illustrated two men talking over drinks. The caption had one man saying to the other, “These days, I suppose it doesn’t matter whether you’ve read Thomas Mann or not.” Below the frame, Barran kept a large, custom-made ceramic plate on top of a wooden pedestal.

She put down the phone, and it immediately rang.

It was Alan Schneider.

“Hey, Paula, would you like to sue the government with me? It involves a really big issue.”

“Well…” She hesitated. Barran hardly knew Schneider and was unsure if he was serious. On three or four occasions they had referred clients to each other. But they had never met face-to-face. And their clients were involved in labor disputes, none of which ever involved suing the federal government. “What’s the issue?”

Schneider filled her in on the discovery of Kennewick Man and that it had been carbon-dated at over 9,800 years old. “This is the Rosetta stone for scientists,” he said.

Barran listened but said nothing. The number—9,800 years—was so immense that she did not know what it meant.

Schneider got her up to speed on the situation and the need to act quickly.

Intrigued, Barran asked him for more background on what law applied.

Schneider asked her if she was familiar with NAGPRA.

She had never heard of it.

Schneider summarized it.

On November 15, 1990, Congress passed NAGPRA in response to complaints that some museums possessed Native American skeletons. Native Americans wanted the remains returned for proper burial. As a result, museums across the country were required to inventory their skeletal collections to identify and return all American Indian remains to the appropriate tribes.

Although the law’s primary focus was Indian remains in museums, it also contained a section dealing with new excavations and discoveries. Essentially, it gave Indian tribes the right to claim and take custody of any newly discovered Native American remains on federal or tribal lands. The law applied laid out a protocol:

If the remains have lineal descendants, they are returned to the lineal descendants.

If there are no lineal descendants and the remains are found on tribal land, then the remains go to the tribe living where the discovery was made.

If there are no lineal descendants and the remains are not found on tribal land, but are found on federal land, then the remains go to whatever tribe can prove the closest cultural affiliation.

If none of these scenarios apply, the last resort is for a court to determine which tribe had aboriginal occupation of the land where the remains were found.

“So what is the legal issue going to be in this case?” Barran asked.

Schneider identified two. The first was whether NAGPRA prohibited study of a 9,800-year-old skeleton. All three scientists who had examined the skull had independently determined that Kennewick Man could not be of Native American descent. And the government had inadequate evidence to say the skeleton was Native American and whether it was culturally affiliated with any tribe. The second issue was whether scientists—in this case, scientists for the Smithsonian Institution—had any rights to study Kennewick Man.

“The question,” Schneider explained, “is, doesn’t the government have to at least weigh the scientists’ interest in the balance before turning the skeleton over to the tribes?”

Barran had never heard Schneider talk so fast, or with such fervor. He was nearly out of breath, yet showing no signs of slowing down. “The Smithsonian was in the process of transferring the skeleton to Washington when the Army Corps stepped in and said, ‘It ain’t going anywhere.’ The government is ignoring a federal law that entitles the Smithsonian to take possession of ancient discoveries—ones which aren’t Native American—for purposes of scientific research.”

As Schneider reeled off the legal issues involved, Barran zeroed in on the political ones. Her firm was fairly conservative; if it took this case, would it be heading for a political buzz saw? Did she want to challenge an Indian tribe’s claim to human remains? And if she helped sue the government, which part of the government would that be? The army? One of her partners had served as judge advocate general (JAG), the senior legal officer and chief legal adviser to the army, navy, and air force. Was there a conflict of interest if her firm took a case against the Army Corps of Engineers?

“So are you interested?” Schneider asked.

Barran paused. “Yes,” she said hesitantly, unsure of what she was committing to.

“Paula, one other thing: These guys don’t have any money to pay us. We’d have to take this on a contingency basis.” He assured her that the scientists would see the litigation through.

“Let me check it out and see if I can get authorization from my firm to do it,” she said.

Barran hung up the phone and sat motionless. She could not believe the government was potentially sitting on one of the most important discoveries in North American history. The public, she felt, had a right to know about it. And a lawsuit on behalf of Smithsonian scientists against the federal government would test the boundaries between science and politics. It might also lead to answers about the origins of the human species in America.

She got up from her chair, her mind racing between questions about the First Amendment and questions about anthropology. Then it struck her—she was a labor and employment lawyer, not a First Amendment lawyer. Nor did she have a scientific background. And she had never sued the federal government before. Reason told her to stay away from this one.

But then she told herself that it was every lawyer’s dream to be involved in a case like this. Opportunities like this were the reason she had gone to law school.

Barran took the elevator down two floors to the sixth floor. Briskly she walked toward the office of Edwin A. Harnden, the busiest man in the entire firm. In addition to managing 280 lawyers, Harnden was the president of the Oregon State bar and a life fellow of the American Bar Association. Due to his harrowing schedule, Harnden was rarely at his desk, often being required to fly to any one of the firm’s offices in other cities.

Noticing the door was ajar, Barran stuck her head in. “Are you here?” she asked, unable to see over the high back of his leather chair. Harnden was one of the shortest individuals in the entire firm.

“Yes!” he announced cheerfully. Wearing a conservative blue business suit with a white shirt and gold cuff links, he sprang to his feet and came out from behind his impeccably tidy desk. His wavy black hair was neatly combed. “Paula, have a seat,” he said, flashing his genuine smile. Barran was always amazed at Harnden’s relentlessly cheerful optimism. She was convinced he was incapable of feeling gloomy.

“Would you object to my suing the United States government on behalf of a group of scientists who want to study an ancient skeleton?” she said, staring directly at Harnden. Normally, Barran was not required to go to Harnden for permission before taking on a new client. As a partner, she was free to pick and choose her cases. But this wasn’t a normal client.

She spent less than ten minutes filling him in on the case.

“OK, I’ll sign off on that,” Harnden said, not bothering to ask a single question. Nor did he suggest discussing it with other partners in the firm. He did not even ask for additional time to consider the matter. Barran was a little surprised.

“If we take the case, it is not going to pay its freight in cost,” said Barran, convinced that she needed to explain more. “We’re not going to get paid anything for this one. Although it is certainly going to be a lot of exposure for the firm.”

“Paula, let’s do it,” Harnden said. Harnden had been nominated as the firm’s managing partner on account of his prudent judgment and exceptional business-management instincts. He was not prone to rash decisions when it came to committing the firm’s financial resources. Yet, after hearing only scant bits of information, he had agreed to take on a case that was far outside the firm’s area of expertise and was guaranteed to be grossly expensive and extremely time consuming. He had known Barran for twenty years and had tried numerous cases with her. He had complete faith in her judgment and respect for her abilities.

Deciding whether or not to give Barran the green light to represent scientists without charging legal fees was an easy decision for Harnden. The minute he heard that the government was restricting its own scientists—ones the government presumably hired because they were the best in the country—from a serious investigative study, Harnden knew the case was important.

Barran rushed back to her office, eager to call Schneider and give him the news. As she punched in his telephone number, Barran’s husband, Richard Hunt, ducked his head inside her office. “Come in, come in,” she whispered, motioning him in with her left hand while holding the phone with her right hand. “This will take just a minute.”

Hunt sat down in a soft leather chair and stretched out his long legs. His long torso and flat stomach made him appear even taller than his six-foot, six-inch height. The hair atop his receding hairline was not nearly as thick as his beard, a healthy mix of black and sophisticated gray. His gold-rimmed spectacles contrasted with his tanned face. The left pocket on his starched white shirt had the initials RCH embroidered on it. Wearing a chestnut tweed blazer, he looked like a distinguished Oxford professor. But Hunt was Paula’s law partner. Both previously married and divorced, the two of them had met through the firm and married in 1987.

“Alan, hi, this is Paula. We decided it is a go.”

“Great,” Schneider said. “That’s great.”

“Listen, we need to get together right away to draft our complaint. We need more facts. We need you to spell out for us our justification for needing a temporary restraining order.”

Hunt raised his eyebrows. The phrase “temporary restraining order” intrigued him. Hunt had more experience with obtaining temporary restraining orders than anyone in the firm. His specialty was representing large companies in trade-secrets cases. Whenever one of Hunt’s business clients accused a competitor of stealing trade secrets, Hunt’s job was to rush into court and secure an injunction ordering the competitor to halt immediately until a full-fledged court proceeding could be scheduled to determine whether in fact trade secrets had been stolen. But Barran had never applied for an injunction, and Hunt could not imagine why she needed one.

As Barran hung up with Schneider, Hunt’s face slowly produced an inquisitive smile. “Paula, what are you getting involved in now?” he asked.

She told him.

“Why are you doing that?” he asked.

“This is something that is too important not to do.”

“Are we ever going to get paid for it?” he asked, grinning.

Barran grinned back. She didn’t know about legal fees. She was caught up in the principles at stake in the case. “How dare the United States government lock up the books?” she said. “How dare they hold back knowledge?”

“There are no anthropologists here,” Hunt said. “None of us understands the significance of nine thousand eight hundred years old and what that means.”

“That’s why we need to take this case,” she said. “If we don’t, then no one will ever know what a Caucasoid male was doing in North America nine thousand eight hundred years ago.”

Hunt paused. “I suppose somebody has got to take this case,” he said.

As much as the idea offended his practical reasoning, Hunt saw the importance of the case. “Did I hear you say you were going to go for a temporary injunction?”

“Yes. We’ve got less than two weeks before the army turns the skeleton over.” If that happened, she explained, the tribes would bury it on Indian land and the scientists would never recover it. Barran wanted an injunction from the court to delay the transfer long enough to give her and Schneider time to prepare a case and go to court.

“So you’re the expert on injunctions,” she said. “What do I need for an injunction?”

“Well, you don’t just go file your complaint, your motion, and your brief,” Hunt said. “There are all these hoops you have to jump through to get an injunction.”

“What are they?”

Hunt explained.

First Barran needed to secure a hearing date at the federal court, and she could only hope that a judge would be available to hear the case on such short notice. In order to schedule a date, she had to draft a petition and get it in the hands of a court clerk at once. But even before taking the petition to a clerk, she needed to try to anticipate what the court would do, because along with the petition she needed to prepare orders for the judge to sign. If the judge granted the petition, he might ask for the orders to be revised and resubmitted. But a draft was essential.

There was another problem. As the ones filing the petition, Barran and Schneider were responsible for getting word out to all the parties they hoped to enjoin. If the judge issued an injunction, they would have to serve notice to everyone who had custody of the skeleton. Barran and Schneider would have less than twenty-four hours to do it. If just one of the various government agencies or officials involved in the chain of command did not get properly served with notice of the injunction, Barran and Schneider ran the risk of the skeleton’s being transferred despite the court-ordered injunction.

“Richard, I don’t even know who we are suing in this case. I mean the Army Corps has custody of the skeleton. But whom does the Army Corps answer to? Aren’t they under the direction of the Interior Department? Whose name do we put on the lawsuit?”

Hunt smiled. “You have a way of these crazy situations just coming to you—or you go to them.”