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

Chapter 23. TURNING THE LIGHTS ON

When Owsley returned to his office, an envelope bearing the word CONFIDENTIAL awaited him. Inside he found a memorandum from Smithsonian lawyer Lauryn Grant.

“On Monday (the 21st) we received a telephone call from the Department of Justice which is representing the interests of the Army Corps of Engineers in this litigation,” the memo said. “The person who called raised several questions about the independent litigation authority of the Smithsonian. We also received a call from Steven Carroll, an attorney in the Environmental Section of the Department of Justice who is supervising this matter. He raised a question about the authority of Smithsonian federal employees to sue other federal employees, and he expressed serious concern about your participation in this lawsuit. Specifically, he asked for assurances that neither of you would be testifying tomorrow at the hearing on the temporary restraining order in Portland. If you had planned to testify, he stated that the Department of Justice would likely move to prevent your testimony as potentially adverse to the interests of the United States.”

Feeling as though he was being threatened, Owsley paused before reading on.

“As Smithsonian employees, you are bound by the Standards of Conduct,” the memo continued. “The Standards of Conduct require that you refrain from any private or personal activity which might conflict, or appear to conflict, with the interests of the Institution.” A copy of the Institution’s Standards of Conduct was attached to the memo.

“An additional concern, is the existence of criminal conflict of interest statutes which prohibit employees of the United States from acting as agent or attorney for prosecuting any claim against the United States (Title 18 U.S.C. Section 205),” the memo continued. “Although it is not clear whether, and to what extent, this provision applies, the Department of Justice has raised this issue. They strongly oppose the presence of Smithsonian employees on the opposite side.”

Owsley glanced at the last paragraph. “For all these reasons, we have advised you to withdraw as plaintiffs from this litigation.” He folded up the letter and put it back in the envelope. Then he called Dennis Stanford and left a message for him to stop by his office right away.

An hour later Stanford arrived.

“Doug, I’m on my way to the airport. I got a message that you needed to see me right away.”

Owsley handed him the envelope. “Did you get one of these?”

Stanford put his bag down and opened the envelope. “No,” he said, starting to read. Reaching the end, he started shaking his head. “This is a pretty crummy situation,” he said. “It’s going to be real embarrassing if we have to call these other guys back and tell them we have to pull out. We’re the reason these other guys got involved in the lawsuit.”

Owsley agreed.

“While I’m away, take this to Fri,” Stanford said, referring to his boss, Robert Fri, the director of the Smithsonian’s National Museum of Natural History. “We need his opinion. But from the looks of this, if we don’t withdraw we each get a pink slip.”

“It’s starting to sound that way.”

“My reading of it is that the Justice Department is telling the institution what we can and can’t do. And there’s a real possibility that if we stay in and defy the institution we might lose our jobs.”

Owsley agreed. But the court proceedings were due to begin in a few hours on the West Coast. Owsley believed that once the gavel came down, it would be much more difficult for the government to force them to pull out. The adverse publicity would be too steep, particularly for the Smithsonian.

“Well, Dennis, let’s hang in there until we hear from Alan.”

Stanford handed the memo back to Owsley. “I’ll be back in a week and a half. We’ll meet then to discuss this further. And call Alan later to find out what happens in court today.”

Hours later
Portland, Oregon

His black robe cloaking his tall, moderately built frame, his dark hair and mustache neatly trimmed, Judge John Jelderks entered the courtroom. A former lieutenant commander in the U.S. Naval Reserve, Jelderks became a federal magistrate in 1991, after spending nearly twenty years as a circuit judge in Oregon.

Barran, who had appeared before him numerous times on other cases, glanced at the clock on the wall: 1:39.

Jelderks had scheduled the hearing upon Barran and Schneider’s request for an emergency injunction to prevent the Army Corps from transferring Kennewick Man to the tribes. The transfer was due to take place in twenty-four hours. But when Jelderks arrived at his chambers earlier in the morning he found a written notice from the Justice Department saying the transfer would be delayed. He planned to get an update from both sides on the status of the case. Then he would determine whether to issue the injunction.

He looked to Barran first and asked if, given the government’s promise not to turn the skeleton over to the tribes the following day, he still needed to issue the injunction.

“We do believe that there is a need for immediate court action,” Barran began. Her clients had been stiff-armed by the Army Corps and threatened by the Justice Department. As far as she was concerned, the government could not be entrusted with Kennewick Man’s care without court supervision. “It strikes me that government only works when it’s not done in secret,” she said. “And our plaintiffs very much regret that they had to file a lawsuit to turn the lights on in this case.”

Barran argued that despite what the Justice Department was telling the court, the legal notice filed in the newspaper by the Army Corps made it quite clear that the government had already made up its mind to give Kennewick Man to the tribes. Barran’s position was that the corps had no legal authority under NAGPRA to repatriate Kennewick Man, since the statute applied only to Native American remains. And in her view, the government had no evidence that Kennewick Man was Native American.

Jelderks had seen the legal notice in the paper and was familiar with Barran’s position that NAGPRA did not apply to Kennewick Man. “Do you take it that that announcement and that decision, Miss Barran, does stand for a conclusion, on behalf of the Corps of Engineers, that the Act does apply?”

Barran referred to Lieutenant Colonel Donald Curtis’s affidavit and read from it: “‘I determined this individual to be subject to the inadvertent discovery provisions of the Native American Graves Protection and Repatriation Act.’”

“But,” said Jelderks, “do you feel that is a binding determination by the defendants?”

“We do.” Barran pointed to the corps’ legal notice of intent to repatriate as further evidence. It said, “We have reached the conclusion that these are the remains of individuals of Native American ancestry.”

Jelderks had carefully read NAGPRA in search of evidence that Congress intended the act to apply to ancient remains. “I couldn’t find anything else, in anything I read, that would indicate that Congress or the drafter of the regulations really contemplated a 9,000-year-old skeleton.”

Barran agreed. When it passed NAGPRA, Congress had in mind Indian skeletons that were on museum shelves and were clearly linked to particular tribes. The aim of the law was not to wall off scientists from identifying remains that date back thousands of years, much less to preclude them from study. “This is one of those things that is so unusual that we end up before you today,” Barran said, “because the application of the law seems to do real violence to what we are faced with.”

Jelderks focused on the word “indigenous.” It appeared throughout NAGPRA and in the regulations explaining how to enforce NAGPRA. Before convening the hearing he had looked the word up in his dictionary, which defined “indigenous” as “occurring or living naturally in an area, not introduced.” The words “not introduced” stood out. The phrase suggested that anybody who migrated here, even if by land bridge thousands of years ago, was not truly indigenous. The term “indigenous,” it seemed to him, could be accurate only as applied to a specific date in history. But when Congress drafted NAGPRA it did not identify a point or a cutoff mark to define “indigenous.”

He looked up from his notes. “Is there anything that is truly indigenous, in the scientific world—that we have today, if we go back to the beginning of time, or if we go back to the Ice Age?”

Barran hesitated. The question seemed far beyond the scope of a courtroom. “I don’t know that I can answer that scientifically,” she said. “But I think your observation is right, you have to pick a particular point in time to decide whether something is or was indigenous.”

The issue intrigued Jelderks. “We can go back to when the first Europeans came to the shores of what is now the United States, back in Jamestown. Is that what we mean when we are saying indigenous?”

As Schneider watched, he tried to figure out where Jelderks was headed with this line of questioning. He could see the Justice Department arguing that the Europeans who migrated to Jamestown were not indigenous because they did not originate here, and there were other people here before them—Native Americans. But thanks to Kennewick Man, the same argument might apply to tribes that migrated to the Americas via the land bridge. They had not originated here, and Kennewick Man seemed to suggest that he had been here nearly ten thousand years ago.

Jelderks had a reputation for being very scholarly, very inquisitive. Barran sensed he was fascinated with the philosophical and scientific issues raised by this case. To her, that was a good thing.

“Your Honor, I think they picked a word and a concept and didn’t realize, because they didn’t have Kennewick Man in mind when they wrote this statute. It makes sense if you think about 1,000 years ago or 2,000 years. But to talk about something being indigenous when you are dealing with 9,000 years ago, and a major geological upheaval [taking place] in this area just doesn’t make sense.”

“Let’s talk about the Constitution for a moment,” Jelderks said. “I am having a hard time finding a constitutional right in your clients.”

Barran suggested that under the First Amendment, the scientists had a right to know Kennewick Man’s true identity. She also argued that their due process rights had been denied. She knew the First Amendment did not really protect a person’s right to obtain knowledge. But she was sure her clients had been denied any access to the process of appealing for access to Kennewick Man.

“We usually talk about due process rights in relation to property rights,” Jelderks said. “You are suggesting a due process right in relations to speech-slash-information?”

She was unsure how to classify a right to knowledge under the First Amendment. But Barran knew that due process is a limit on the actions of the government. In this case, the scientists were convinced that Kennewick Man was not a Native American. Yet the government was denying them the chance to prove it, opting instead to repatriate without any evidence of Kennewick Man’s ancestry. “They would feel a lot more comfortable if the Army Corps had said not just ‘we have to make up our mind,’ but, rather, ‘we will permit you a process to make a challenge’ and ‘we will give you access to information.’ They have not done that.”

Jelderks turned to Tim Simmons and Daria Zane, U.S. attorneys representing the Army Corps of Engineers. Their aim was to dissuade Jelderks from issuing an injunction that tied up Kennewick Man. Jelderks asked them to explain why they felt this case did not require the court to step in and block the transfer of the remains.

Zane spoke first. “On behalf of the United States and federal defendants we do not believe that there is any immediate irreparable injury that the plaintiffs could suffer.”

Jelderks immediately interrupted. He wanted to know if she thought NAGPRA applied to Kennewick Man. “It seems that the defendants and the Corps just presumed that the Act applied without there ever being any findings made to support that,” he said. “If the Act does not apply, what rules apply to the disposition of the skeleton?”

Zane insisted that even if NAGPRA did not apply in this case, Kennewick Man still belonged in the hands of the Army Corps because he had surfaced on federal land. Under ARPA, Zane argued, Kennewick Man was the property of the United States and subject to the authority of the Army Corps of Engineers. “So either way we go,” she said, “they [the remains] are with the Corps of Engineers.”

Zane could not resist weighing in on Jelderks’s earlier question to Barran about the word “indigenous.” “On the issue of the definition of Native American, I think we have to look at the definition under NAGPRA,” she said. “And NAGPRA says indigenous to the United States. Indigenous means of or connected with. It doesn’t limit it to present day Native American tribes.

“If you look at it in the context of these remains, you have not only that they were located in an area that was known to be…occupied by Native American tribes, but you have that they are 9,000 years old. Once it was raised that these were 9,000 years old…and when the evidence became apparent that this was not an 18th-century settler, it was then that the Corps said, ‘NAGPRA applies. We must take possession.’”

Jelderks stopped her. “But I don’t know if it’s quite as simple as saying this skeleton is 9,000 years old; therefore, it’s a Native American.” The law required proof that Kennewick Man descended from a tribe or people indigenous to the United States. He suspected that if one went back far enough in history, at some point the land that we now call the United States was void of any human beings. And if the first humans arrived here from somewhere else, were they truly indigenous? To Jelderks the issue needed to be resolved. But that question was for another day. He was more immediately concerned with Barran’s insistence that the government had denied the scientists any procedure to appeal to the Army Corps for access to the skeleton.

Zane denied that claim. She said all the scientists had to do was file a claim to Kennewick Man under NAGPRA.

“But,” Jelderks interjected, “if they filed a claim under the Act, they are conceding, in effect, that the Act applies.” Barran and Schneider’s argument was that NAGPRA did not apply. And even if they did file a claim under NAGPRA, it would be immediately dismissed. Only Native Americans are entitled to recover remains under NAGPRA.

Jelderks had one more question for Zane. “Since your argument appears to be that there is, in effect, a conclusive presumption that this is a skeleton of a Native American, based on the age, at what point in time does that conclusive presumption attach? And would we have the same result if it was a 100,000-year-old skeleton as a 9,000-year-old skeleton?”

The Justice Department’s view of NAGPRA held that it was safe to assume that any old skeletons found in America were Native American. But at what point did the presumption kick in? Anything older than two hundred years? One thousand years? Three thousand years? And was it safe to assume that something one hundred thousand years old must be Native American?

Zane did not have an answer. But she assured Jelderks that Kennewick Man would not be repatriated until the corps determined what to do with him. She offered no specifics on what the decision-making process would entail.

The time had come for Jelderks to decide whether to issue an injunction. As a general rule, judges are reluctant to intervene in federal government agency action until a decision has been finalized. It now appeared that the Justice Department was saying that the Army Corps’ decision to repatriate was being reconsidered. This removed any immediacy for the judge to step in.

“Ms. Zane, if you will assure me that…14-day notice will go to Ms. Barran, I see no reason for the court to get involved in it at this period in time.”

“Yes, absolutely, Your Honor.”

Barran rose to her feet. A verbal promise from the government was not good enough. She wanted it in writing. Barran asked Jelderks to issue an order mandating that notice of any future decision to repatriate Kennewick Man be given fourteen days in advance.

“Based upon the government’s representations, I will order that they comply with their agreement to give you 14 days’ notice prior to any transfer of the remains in question.”

Barran had one more request. She wanted to make clear that her clients purposely had not filed a claim to Kennewick Man under NAGPRA because they believed the legal reach of NAGPRA did not extend to Kennewick Man.

“Your claim simply is that the Act does not apply, and you want the record to be clear, with the government, that you have formally stated that position in a timely fashion.”

“Yes, sir,” Barran said.

Jelderks turned to Zane, who acknowledged Barran’s argument but repeated what she had said earlier. Even if NAGPRA did not apply, the skeleton was still the property of the United States. “And,” she said, “there is some concern that the United States, at this point, does not have all those remains returned to them that were in the hands of some of the plaintiffs. And we would like to have the court order that those remains be returned to the United States, the Corps as custodian.”

Stunned, Barran and Schneider looked at each other. None of the scientists they represented had ever laid eyes on Kennewick Man, much less hands. They had not been granted any access to the remains. Schneider suspected something was amiss. Why else would the government, out of the blue, raise questions about missing bones?

“You have noticed I haven’t asked any specifics about the skeleton,” Jelderks said. “I have no idea whether something like this is of value in the world in general, whether it might be subject to thievery, or something happening to it.”

Peeved at Zane’s insinuation that the scientists might have stolen bones from the skeleton, Schneider reached for the microphone. “Your Honor,” Schneider interjected, “can I address that first point about the remains that are in the hands of a laboratory?”

“Yes.”

“It appears the Army Corps is not providing any better information to its counsel than it is to us,” quipped Schneider.

“Do you have adequate information to represent to me that your clients are not in possession of any skeletal remains?”

“Yes, Your Honor,” said Schneider. “I can categorically assure you that they are not in possession of any of the remains relating to this individual.”

“I think that takes care of it then,” said Jelderks. “Thank you for coming in on short notice, all of you. At some point in time we will be having a status conference. Anybody have any questions before we close?”

No one spoke.

“Okay. That’s all for today then.”

Barran looked at her watch: 3:10. She and Schneider had not convinced Jelderks to issue the injunction halting Kennewick Man’s transfer. But the end result was essentially the same. Kennewick Man was not going to the tribes, at least not yet. And the government was under court order to give the scientists fourteen days’ notice before making any repatriation. Barran was pleased. The government was now warned that a federal judge had his eye on them, and that any action from here on out would be brought to the court’s attention and subject to examination at another hearing.

Kennewick Man is safe, she thought.