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

Chapter 25. INTENT

February 3, 1997
U.S. District Court

Portland, Oregon

Their shoulders nearly touching, Barran and Schneider sat at a table. A microphone was positioned in front of them, amid stacks of legal files and notepads. Three feet to their right, lawyers from the Justice Department sat at an identical table. Both parties anxiously anticipated Judge Jelderks’s entrance into the courtroom. Three months had passed since the initial court hearing, which halted the transfer of Kennewick Man to the tribes. Without coming forward with its plans for the skeleton, the Justice Department had filed a motion asking Jelderks to dismiss the scientists’ case. Barran and Schneider came prepared to challenge the motion.

Anxious, Barran glanced to her right. She found it ironic that representatives from the Army Corps of Engineers were huddled around the Justice Department’s table. The corps is an agency that is supposed to issue unbiased decisions. Yet Justice Department lawyers who were sworn to contest Barran and Schneider were advising them. It hardly appeared unbiased.

When Jelderks entered the courtroom, he greeted the lawyers, then asked the Justice Department to make an opening statement.

Attorney Daria Zane stood up. “First of all,” Zane began, “I think it’s important to understand exactly what is the issue before the Corps of Engineers and how NAGPRA operates on that issue. NAGPRA involves the disposition of human remains to groups. And these groups are Indian tribes or native Hawaiian groups that have a relationship with those remains; they are culturally affiliated.

“Where there is a remain that’s discovered, and a tribe comes in and makes a claim and says this is related to us, it is disposed of to that tribe. The custody is transferred.

“And the procedure that NAGPRA does this is if a remain is found on federal property, it imposes some responsibilities on the federal agency. And one of those responsibilities is to notify tribes that are likely to be culturally affiliated. The purpose of this is so that the tribes can go and determine if they believe they are culturally affiliated to make a claim.”

As Zane spoke, Schneider scribbled on his legal pad, noting what he thought were errors in her understanding of NAGPRA. Barran sat still, listening to Zane explain how after Kennewick Man was discovered, the Army Corps notified numerous Indian tribes that occupy land closest to the discovery site. One tribe, the Umatilla, claimed that the site of the discovery was on land that had been ceded to them by the United States in a treaty signed in 1855.

“Based on that information,” Zane said, “the Corps found that it was likely that those tribes should be the legal custodian.”

The corps then published a notice of its intention to repatriate Kennewick Man to the tribes. “And what happened,” Zane said, “is in response to that notice of intent, there were a number of other claims filed. In addition, there was information that was derived that indicated that maybe these weren’t ICC [Indian Claims Commission] judgment lands, and we need to go back and look at this. And so they [the Corps] have had this proposed action, they got comments, they got other claims, and they now are in the process of going back and looking at that.”

Barran glanced at her typed notes, listening for whether Zane said anything that wasn’t covered in her planned response. So far Zane had said nothing unexpected. She told the court that whether the lawsuit had been filed or not, the same process would have been followed, and the remains would not have been turned over to the tribes prematurely. “Now the plaintiffs have said that they have been precluded since they can’t claim under NAGPRA,” Zane said. “But the point is not that they can’t claim. The Corps currently has before it a decision as to whether or not these should be transferred under NAGPRA, [whether] there is cultural affiliation. And if there is, the remains should be transferred to the tribe with the closest [cultural affiliation]. And the point is moot.

“But if the remains are not [culturally affiliated], they are not going to be disposed of under NAGPRA. And there is nothing to prevent a group from coming in and establishing that they have a link under some other statute.

“But in any event, the fact of the matter is this is all premature because there has been no decision by the Corps at this point. There has been no decision by the Corps to transfer custody under NAGPRA. And until that time, this isn’t fit for review.”

Judge Jelderks looked toward Barran and Schneider. “Miss Barran,” he said.

Barran stood up and adjusted the microphone, pointing it upward.

“Good morning, Your Honor. Listening to the government’s opening argument, you would assume that once a claim is made, the remains would automatically be transferred.”

“Miss Barran,” the clerk interrupted, struggling to hear her, “why don’t you be seated and pull the microphone to your face.”

Perplexed, Barran stopped. In the countless oral arguments she had made throughout her career, she had always stood—it was protocol when addressing a judge. “I am not sure I can possibly do oral argument seated,” she said, sitting down. “Old habits die hard.”

Placing a Federal Express box under the microphone in order to elevate it, she pulled the microphone to her. “Right now the attorneys in the case are taking a different position from what their clients have been taking,” continued Barran, referring to Zane’s opening argument. “The position is: ‘we are under NAGPRA’; ‘we are attempting to find out cultural affiliation—it is only one decision, but we are operating under it’; and ‘we have invited other claimants to come forward.’ Well, if they are inviting our clients to come forward, they are violating the very law that they are proceeding under, because we are not allowed to come forward under NAGPRA.

“The first thing that we believe that we can prove,” she said, “is that there was a predetermination made of Native American status. You don’t get into NAGPRA until you have first decided that you have something before you that is Native American. The government has been behaving as if this is clearly a Native American skeleton. That is why they are off onto cultural affiliation already.”

Barran and Schneider had brought with them to court a series of documents to prove their point. “The first is the notice that was issued,” Barran said, reaching for a photocopy of the intent-to-repatriate notice that the corps published in the newspaper after seizing Kennewick Man from Benton County officials. Barran had highlighted a passage in yellow. “It says—and I’m quoting—‘officials of Walla Walla District have determined the human remains listed above represent the remains…of Native American ancestry.’” Barran looked up at Jelderks. “We challenge that determination, but that has already been determined. That is why we are under NAGPRA, according to the government.”

She looked back down at the notice, locating another highlighted passage. “Further language in the notice says, quote—‘officials of the Walla Walla District have also determined that there is a relationship of shared group identity which can be reasonably traced between the human remains and five Columbia River Basin tribes and bands’—end quote. There is no reference to may be or possibly. They have determined.”

Barran flipped to another document, a court transcript. “There were also statements made in open court in October,” she continued, referring to the original hearing. “Counsel for the government said there, quote—‘there clearly was a basis for saying these are Native American.’

“Our plaintiffs challenge that determination, because we do not believe that there was a basis for saying the remains are Native American. Let me give you an example of something we just learned.”

Schneider handed Barran a copy of a letter recently written by Lieutenant Colonel Curtis from the Army Corps. “Colonel Curtis admits now that something that was said in the notice was wrong,” Barran said. “The notice says that the remains were found on aboriginal lands. The letter admits that that apparently was in error. That seriously undercuts the basis for issuing the notice in the first place.”

Barran put the letter down. “We believe that we can prove, on this record and under the complaint, first, that there has already been a determination that the remains are Native American, and, therefore, NAGPRA applies. And if the government is not there, then I question why we are under NAGPRA at all, because that is an essential predicate to the statute.”

Barran reached for one more document. Looking at Jelderks, she continued. “You have, in the record from the injunction proceedings in October, an affidavit signed by Colonel Curtis. And he says in that affidavit—and again, I am quoting—‘I determined this individual to be subject to the inadvertent discovery provisions of the Native American Graves Protection and Repatriation Act and implementing regulations.’”

Barran set the affidavit aside. “I determined. Not, ‘It seemed to me possible.’ Not, ‘It seemed to me likely.’ Not, ‘It appeared.’ But, ‘I determined.’ And then counsel, at oral argument in October, said the same thing. It was then that the Corps said NAGPRA applies.

“Our clients have been excluded from the process. The notice says ‘any other Native American tribe which believes itself to be culturally affiliated with the human remains should contact…’ That is a very far cry from what the Department of Justice has been saying, which suggests that we may come forward and make our own claim. Once we are under NAGPRA, the Corps is not allowed to consider our claim. We have no right.”

As Barran concluded her argument, Schneider was itching to speak. In addition to teaching the NAGPRA law and its application to federal government employees, Schneider had studied the law more than anyone else in the courtroom. The law had become his hobby.

“Your Honor, if I may be permitted [to speak]. What’s happening here is the government keeps making up the rules as they go along. And somehow, we always tend to lose when they make up the rules. The government is ignoring the fact that the notice of intent to repatriate does not start the process. It’s, in effect, the culmination of the process.”

After listening to all the arguments, Jelderks thanked the attorneys and promised to issue a ruling soon on the government’s request to have the scientists’ case dismissed. The Justice Department’s argument was simple: The Army Corps of Engineers had the authority to decide what to do with Kennewick Man. The scientists’ lawsuit was premature because the corps had not yet made up its mind regarding Kennewick Man. And a federal court could not intervene until after an action was taken.

Barran and Schneider had done all they could to convince the judge that the corps had made up its mind months ago, and had only held back because of the lawsuit. If the judge dismissed the case now, they feared, Kennewick Man would go back in the ground in a heartbeat.