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

Chapter 21. ABOUT-FACE

Friday, October 18
National Museum of Natural History
Washington, D.C.

“This is bullshit!” Dennis Stanford said to himself, banging down the receiver. Lauryn Grant, a lawyer in the Smithsonian’s general counsel’s office, had just informed him that the Justice Department vehemently opposed Owsley’s and Stanford’s participation in the lawsuit. The Justice Department, citing federal conflict-of-interest statutes, insisted that it was against the law for Stanford and Owsley, as federal employees, to sue the Army Corps. Unless they voluntarily withdrew from the suit, the Justice Department planned to bring charges against them.

Stanford telephoned Schneider immediately and told him the news.

Stunned, Schneider started laughing. “I’m gonna be real pissed off if the Smithsonian takes us off this case,” Stanford said. “That will leave the other scientists hanging in the wind—alone.” The reason the other scientists signed on to the lawsuit was largely due to Owsley and Stanford. “Just a minute here,” Schneider said, still laughing. “The Smithsonian is telling you to withdraw from a lawsuit when the only purpose of the lawsuit is to study a new discovery that’s very important for scientific reasons?”

After Stanford explained Grant’s phone call, Schneider was perplexed.

“I can’t conceive that what they’re saying is true,” Schneider said. “They’re telling you that you can’t exercise your civil right in order to get access to that skeleton. How are they going to explain that to the world?”

Stanford asked Schneider to investigate whether the information that the Justice Department had given Lauryn Grant was correct.

Schneider agreed to look at the statute. But if what the Justice Department was saying was correct, that would mean that if an employee is wrongfully terminated by a government agency or if an employee is injured by another government agency, he’s lost all of his civil rights. Schneider couldn’t conceive of that. “Dennis, what specific conflict-of-interest law are they saying that you’ll be breaking if you sue?”

“I don’t know,” he said.

“Well, let’s find out. Go back to Lauryn.” Schneider advised Stanford to avoid being aggressive and to get the Smithsonian to explain a couple of things, one: what they want you to do; two, why they’re making this demand. Three, what’s their legal basis for saying you can’t participate in this lawsuit? And four, what are the consequences if you continue with the lawsuit? “Let’s get them to confirm all of that in writing,” Schneider said.

“All right.”

Schneider laughed again, though he hardly thought the situation was funny. “I mean, this would be a tremendous public relations nightmare for the Smithsonian if two of its top scientists are forced to withdraw from a case that is designed to protect and advance the interests of science.”

“Tell me about it.”

After hanging up with Schneider, Stanford stormed down to Owsley’s office and informed him that they were being ordered to withdraw from the lawsuit.

“Can they do that?” Owsley asked.

Stanford told him what Schneider had said about the importance of getting the demand in writing and instructed Owsley to write a letter to Grant at once.

“Dennis, we’ve got to hang in there.”

“Oh, I intend to.”

When Congress drafted legislation to create the Smithsonian in 1846, John Quincy Adams envisioned a federal institution of scientists dedicated to enlightening the United States through discovery and study. “It is by this attribute,” Adams wrote in the Smithsonian legislation, “that man discovers his own nature as the link between earth and heaven; as the partaker of an immortal spirit; as created for higher and more durable ends, than the countless tribes of beings which people the earth, the ocean, and the air alternately instinct with life, and melting into vapor, or moldering into dust.”

Kennewick Man, perhaps more than any discovery on American soil, promised to answer questions about America’s first inhabitants. Yet the Justice Department was attempting to stifle Smithsonian scientists by threatening to prosecute them. And the Smithsonian’s lawyers were not siding with its scientists.

After spending the entire afternoon working on his memo to Lauryn Grant and thinking about the ramifications of being forced to withdraw, Owsley left his office for home. The minute he walked through the front door, Susie knew he had something weighing on him.

“Hi, Doug.”

“You know what they’re doing, Susie?”

“Who?” she asked.

“The lawyers at the Smithsonian,” he said rapidly. “They are telling me that as a scientist for the Smithsonian I can’t sue the Army Corps. Well, as a citizen of the United States I can.”

“Why won’t they back you up?”

“Public image. It doesn’t look good going against the Indians.”

“How’s it going to look if they force you off?”

“Well, that’s just it. The thing that makes me so mad is that we’re not against the Indians. We’re just trying to ensure that this skeleton is properly identified.”

As Doug walked through the house, arguing for why he should be allowed to study Kennewick Man, Susie listened. “Well, I’m not backing down,” he insisted. “This is too important.”

Susie paused, then said tentatively, “Doug, this is your job. You’re talking about suing the people you work for.”

“Well, I should be able to do that as an individual scientist.”

“But, Doug, what if you lose your job over this? What about everything you’ve worked so hard for? You could lose all of that.”

“Susie, I have to do this.”

“What about the girls, Doug? They’re both going to be starting college within the next couple years. If you lose your job at the Smithsonian, how will we pay for their education? What will we do?”

“Susie, what the government’s doing here isn’t right. They shouldn’t be blocking study of Kennewick Man. And they shouldn’t be stopping Dennis and me from going to court. I can’t walk away now. This is about principle. It’s about right and wrong.”

Susie recognized that tone of determination in Doug’s voice. It was Guatemala all over again. That time he put his zeal for discovery and adventure ahead of his life. This time he was risking the job that enabled him to pursue discovery and adventure.

“You need this job, Doug,” she said softly. “But this is important. And you may as well work for someone who believes in what you’re doing and who will back you.”

Doug said nothing.

“Maybe they can tell you that you can’t sue as a Smithsonian scientist,” Susie said. “But as a private citizen you still have rights.”

Susie was with him. “If I can just hang on until the case gets argued in court,” he said, “I think I’ll be able to stay on as a plaintiff. I just have to hang on until next Wednesday.”

Alan Schneider didn’t believe the Smithsonian really wanted Owsley and Stanford to withdraw. “Give the Smithsonian some time to think about what they would really like to do,” he told Owsley. It had been his experience, particularly in business practice, that a lot of times decisions are made because people have done things hastily, without thinking through the consequences and implications. “If you can sort of keep things moving,” Schneider said, “but don’t put people in a position where they’ve got to make a final decision, when they reflect on it they’ll mellow a little bit.”

Owsley decided he was going to make himself as scarce as possible for the next few days.

“Where will you be?” Schneider asked.

“Well, I’m supposed to go to Jamestown,” he said. The Parks Service had been after him to look at some skeletons for them. This was a perfect time to go do it. As long as he wasn’t around his office, Owsley figured, the Smithsonian couldn’t get to him to coerce him into dropping out of the suit.