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

Chapter 24. STAND AND FIGHT

October 24

Alan Schneider could not have been more pleased at how the previous day’s hearing went. He sensed that the judge would keep close tabs on Kennewick Man for the time being. Schneider was more immediately concerned with losing his clients. The memo that Owsley and Stanford had received from Lauryn Grant on stationery from the Smithsonian’s legal department said, “Our office has advised you to withdraw as plaintiffs in the above referenced litigation.”

Although the memo didn’t expressly state it, Owsley and Stanford felt they were being threatened with termination. But Schneider had a hunch that the Smithsonian had no such intentions. The Justice Department, he figured, knew it had inherited a terrible set of facts and was trying to avoid at all costs having a court examine the legitimacy of the Army Corps’ decision to repatriate Kennewick Man. The mere presence of Owsley and Stanford in court undermined the credibility of the corps’ decision. They had world-renowned expertise in prehistoric remains and were associated with the Smithsonian, the government’s institution for collecting, storing, and studying prehistoric artifacts and remains. Yet the Army Corps had completely avoided Owsley and Stanford when it deemed Kennewick Man a Native American worthy of repatriation. In fact, the corps had actively worked to block Owsley and Stanford from seeing the skeleton. The scientists’ willingness to speak out about the scientific errors being perpetrated by a fellow government agency put the Justice Department in a precarious position—it had to argue against the government’s best scientists.

Lacking a legal basis for requiring Owsley and Stanford to withdraw from the suit, the Justice Department had resorted to political pressure.

Schneider called Owsley to discuss what to do next.

“Doug, my impression is that the Smithsonian is not totally behind this attempt to bump you from the lawsuit,” Schneider said. “They are relaying what the Justice Department is saying. We have to keep nursing this thing along.”

To Schneider, the longer Owsley and Stanford could fend off the Smithsonian from officially removing them from the case, the more time the institution would have to realize that its public credibility as a science institution would be undermined by siding with the Justice Department.

Owsley wanted to keep stalling. But he and Stanford were unsure what to do about Lauryn Grant’s memo. She had spelled out the institution’s wishes that both scientists withdraw at once.

“Let’s respond to her memo with another memo,” Schneider said. “We can put this back to them with some questions. You’re entitled to get clarification on some of the things she said, as well as ask some questions. Let’s do it in writing and get them to respond. Meanwhile, the days keep ticking off.”

Over the weekend, Schneider drafted a confidential letter to Owsley, suggesting to him what to put in a memorandum to Smithsonian lawyer Lauryn Grant. After reviewing Schneider’s letter, Owsley wrote his memorandum. “Neither Dennis [n]or I are attempting to cause difficulties for the Smithsonian Institution,” he wrote to Grant, before launching into the science-based motivations behind their decision to sue. “I have carefully reviewed your letter and am uncertain about some issues that are mentioned.”

He listed those issues for Grant.

“The memorandum refers to 18 U.S.C. 205 which is said to bar federal employees from acting as an agent or attorney in any claim or ‘covered matter’ against the United States,” Owsley wrote. “As I am not a lawyer, I don’t even know where to look up that particular statute, but I can assure you that Dennis and I don’t see ourselves as agents or attorneys.”

Owsley also listed some questions.

“By forcing us to withdraw as private citizens,” he concluded, “it makes it look like there is some sort of government conspiracy to hide the truth. Your help and advice [are] greatly appreciated.”

After having Schneider review his memo, Owsley initialed it and dated it October 26. To buy himself more time, rather than walking the memo over to her office, he put it in the Smithsonian’s interoffice mail system, which usually moved slower than the U.S. Postal Service.

Barran and Schneider were concerned about the pressure being applied to Owsley and Stanford. Owsley, in particular, was the engine driving the lawsuit. Without him the whole case could evaporate.

“What are we going to do about this?” Barran asked Schneider.

Angry, Schneider suggested a suit against the government for interfering with the plaintiffs.

“There are legal issues that Doug and Dennis can raise if they want to,” said Barran, calling on her background in labor law. Barran could go to a federal judge and say that the federal government was interfering with and harassing the plaintiffs, and interfering with something that is now a federal court lawsuit.

But Barran felt that decision was a personal choice that only Owsley and Stanford could make. Filing a harassment complaint might only make matters worse in the long run.

Schneider agreed. On November 4, Schneider and Barran sent Justice Department lawyer Daria Zane a letter.

“We have been informed that an individual from the Environmental Section of the Department of Justice has contacted the Smithsonian Institution to express objections to Drs. Owsley and Stanford’s participation as co-plaintiffs in this action,” they wrote. “We are very concerned about this matter and we wish to make sure there is no misunderstanding. Accordingly, please confirm or deny whether anyone from the Environmental Section, or to your knowledge any other section of the Department of Justice, has contacted the Smithsonian.”

The next day Barran received a voice-mail message from Zane:

“Hi, Paula Barran. This is Daria Zane. I have talked to the attorney Steve Carroll in our office. And in no form or fashion has the Department of Justice directed, asked, or in any other fashion asked the plaintiffs to remove their name from the complaint. I do have the name of someone at the Smithsonian that you can call and talk to about this matter. It’s Lauryn Grant at the Office of General Counsel.”

Zane’s message directly contradicted the memo sent to Owsley and Stanford. The Justice Department was saying one thing and doing another.

“This is smoke,” Barran said to herself. She instructed her secretary to transcribe Zane’s message.

November 7
Smithsonian Institution

Should they stay or should they go? Ultimately, the decision whether to allow Owsley and Stanford to go forward in the lawsuit had landed on the desk of museum director Robert Fri. A seasoned, high-level administrator both in the private sector and in several federal agencies, Fri had only a few minutes until Owsley and Stanford and lawyers from the Smithsonian’s legal department assembled in his office to discuss the matter. He had a couple of questions on his mind as he awaited their arrival.

He knew federal employees typically couldn’t sue the government, but exceptions existed. He didn’t know whether this case qualified as an exception.

Nor did he know whether Congress had intended for NAGPRA to apply to remains as old as Kennewick Man. The law seemed silent on that question. The fact that Congress had neglected to address the issue of ancient remains in NAGPRA didn’t surprise Fri. He had worked under Presidents Nixon and Ford as a senior administrator in the Environmental Protection Agency. During his tenure at the EPA, the agency routinely filed lawsuits and had lawsuits filed against it in an attempt to resolve problems that didn’t get resolved cleanly in a federal law. Fri felt that Congress had dodged the thorny issue raised by ancient remains that have scientific value on the one hand, but are also regarded by certain Native American communities as having high cultural value.

As his door pushed open, he didn’t know what his decision would be. Attorney Lauryn Grant and her boss, John Huerta, lead counsel for the Smithsonian, filed in. Stanford and Owsley soon followed. After everyone sat down, Fri asked Owsley to explain why he felt litigation was necessary.

As Owsley talked, Stanford nodded his head in agreement.

It seemed to Fri that it was up to the Smithsonian and consistent with its mission to find a way to advance the scientific side of the argument—knowing that others would advance the other side of the argument—and see what happens.

Fri looked at Grant and Huerta. He had one question. Was there a problem of policy or law that got in the way of Owsley and Stanford being plaintiffs in this case?

Grant reiterated the Justice Department’s position as outlined in her previous memo to Owsley and Stanford.

“Look,” said Stanford. “I talked to our lawyer and he read the memo. He found that the Justice Department’s position isn’t valid. His opinion on that issue is that the Justice Department is flat wrong and that we don’t have to get out of the lawsuit.”

Fri had already decided that if a statute prohibited Owsley and Stanford from suing, he would ask them to withdraw. But he sensed no such prohibition existed. He turned to Huerta. “Is this a legal issue?”

Huerta paused, then conceded that he didn’t think they could really ask Dennis and Doug not to be involved. But he would prefer that they weren’t.

His arms folded across his chest, Stanford looked at Fri, wondering if he would back science or take the politically safe position and ask them to withdraw.

Fri looked around the room. “If there is no legal prohibition,” he said, “then I’m of the view that as a matter of policy, this intervention by two Smithsonian scientists is appropriate and the right thing to do.”

Owsley could not conceal his glee. He looked at Stanford and raised his eyebrows. Pleased and relieved, Stanford remained straight-faced and silent.

“Our role in life here at the Smithsonian is scientific research,” Fri continued diplomatically. He believed that if they were going to get this dispute over ancient remains sorted out, it required legal action. “Certainly we respect the traditions and cultures and beliefs of Native Americans,” he said. “But here we are confronted with an issue.

“There are two sides to it. It’s not clearly resolved in the legislation. We’re going to have to resolve it through litigation. I think they should go forward.”

A relieved Owsley and Stanford left Fri’s office. Their jobs were safe.