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

Chapter 20. EIGHT MEN OUT

October 13, 1996
Laramie, Wyoming

When trying to determine who among the nation’s anthropologists would have the courage to join him in suing the federal government, Owsley thought first of his first anthropology professor, George Gill. Still teaching anthropology at the University of Wyoming, Gill had bought a small ranch outside Laramie and built himself a log home, complete with wide-open spaces and horses. He increasingly spent time relaxing on his ranch and working out of a home office and library. He enjoyed random calls from Owsley to hear about his latest adventures at the Smithsonian.

This time, however, Owsley called looking for help. Owsley’s explanation about Kennewick Man reminded Gill of the time he took Owsley up to Pitchfork Cave to recover two Indian skeletons. The rules and politics of anthropology and archaeology were much different then. The Pitchfork remains were recovered, preserved, studied, and identified without exposure to the vast federal bureaucracy created by NAGPRA. Gill ultimately concluded that both Pitchfork skeletons were Native American. Tribal affiliation was not as clear, however. But based on associated artifacts and geography, he thought they were likely Crow Indians, a nomadic tribe that inhabited northern Wyoming around the time the Pitchfork individuals died.

Gill’s complete forensic report and conclusions were provided to the Crow, along with a request for them to take custody of the remains. The Crow, who now reside on a reservation in Montana, studied the report. But after consulting the tribal elders and reviewing oral traditions, the Crow politely rejected the University of Wyoming’s attempt to repatriate the remains. Without more conclusive evidence, the Crow had no desire to rebury remains that might belong to another tribe, particularly one that might formerly have been an enemy.

To Gill, the government’s rush to repatriate Kennewick Man seemed driven far more by politics than honoring the dead. That, he thought, would ultimately do a disservice to both Indians and scientists.

Gill agreed to join the plaintiffs.

October 14, 1996
Portland, Oregon

It was early on a rainy afternoon when Alan Schneider got off the elevator on the eighth floor of the Pacific Building. Facing a wall of mirrored panels, he turned right and pushed open a set of thick, heavy doors leading into the law firm Spears & Lubersky. Entering onto a dark hardwood parquet floor, he approached the receptionist’s dark mahogany desk, behind which stood large plants in oversize black pots set in front of windows that overlooked the courthouse across the street.

Schneider introduced himself.

“Yes, right this way, Mr. Schneider.”

Following the receptionist down a long, darkly carpeted corridor, Schneider clutched the soft handle of his badly worn leather bag. Its tanned rawhide exterior, weather-beaten and faded, looked more like the seat of an old horse saddle than a lawyer’s briefcase. Inside it, Schneider carried draft copies of a complaint, a motion for a temporary restraining order, and a memorandum to the court supporting the motion. Barran and her associates had prepared the documents over the weekend and had copies delivered to Schneider’s office for review.

Despite being impressed with the filings, Schneider could not stop fretting about the looming filing deadline. He and Paula had just five days to convince a federal judge to block the government’s decision. They had to finalize their complaint, their motion for a temporary restraining order, and their memorandum to accompany the motion. Plus they had to schedule a hearing date and make oral arguments at the hearing—all before the following Wednesday. He had no idea how they would manage.

“Hi, Alan,” Barran called out from the doorway of a glassed-in conference room that was larger than Schneider’s entire law office. “Come in. Let me introduce you to the team.”

Schneider entered and looked around. Twelve lawyers and paralegals were assembled around a shiny conference table. A smile swept across Schneider’s face. Twelve lawyers! Instantly the deadline did not seem as intimidating.

For the next five hours, Schneider, Barran, and her associates refined the complaint and the motion for a temporary restraining order. “What are we really after with this lawsuit?” one of the attorneys said.

“It’s not just to study Kennewick Man,” Schneider said. “But it is to set a precedent with respect to the handling of all ancient remains.”

Barran agreed, suggesting that the case would test their discipline as lawyers. “We need to make sure that we don’t expose the plaintiffs and jeopardize their scientific credentials by making statements that can’t be supported scientifically.”

Lawyers are trained to advocate vigorously in advancing a client’s interests, a practice that easily lends itself to lawyers’ making exaggerated statements that aren’t necessarily supported by evidence.

“We can’t ever say the skeleton is not Native American,” Schneider said. “We have to say, ‘We don’t know. But you can’t determine that without study.’”

“Nor can we say that study will determine that it is Native American,” Barran pointed out. “Because studies might be inconclusive. But we can say that you can’t make an accurate determination without thorough study.”

When Schneider and Barran finished meeting, Schneider called Owsley at the Smithsonian.

“Doug, I’m faxing you the complaint,” he said. Schneider wanted him to review it for accuracy and make any necessary changes or modifications.

An hour later, the cover sheet of the complaint reached Owsley’s office. Above the word “PLAINTIFFS” he spotted his name, along with Robson Bonnichsen, Loring Brace, George Gill, Vance Haynes, Richard L. Jantz, Dennis Stanford, and Gentry Steele.

The words “United States of America and the Department of the Army” appeared next to “DEFENDANTS.”

Owlsey had never sued anyone. As he flipped past the cover sheet of the complaint, the headings seemed foreign to him: “Nature of Action,” “Jurisdiction,” “Venue,” and “Parties.” He carefully reviewed it, taking notes as he went along.

Owsley called Schneider back and suggested a few minor changes.

Schneider agreed to make them. He had one more question: “Now, Doug, are you still willing to put your name on the complaint and be named as a plaintiff?”

“You bet.”

“All right.”

“This is a fight that needs to be had. Let’s go do it.”

The next day, October 16, 1996, Barran and Schneider filed their lawsuit at the U.S. District Court in Portland, Oregon.