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


February 10, 1997
Jamestown, Virginia

In 1670 the Virginia Colony enacted legislation that made all African servants slaves for life. Over the following forty years, approximately five thousand Africans were shipped to Virginia by the Royal African Company. But the historical record is slim when it comes to the experience of Africans who entered the colony prior to 1670. Ship logs and correspondence between Jamestown colonists establish that the first Africans—twenty in number—arrived at the colony aboard a Dutch vessel in 1619. Historians believe that the Dutch obtained the Africans after plundering a Portuguese slave ship that had originated in Angola. The Portuguese had been trafficking slaves from Africa to the West Indies since the late 1500s.

But varying views exist over the status of the Africans who came to the colony after 1619 and before passage of the slave law in 1670. During that period the emergence of tobacco production required a massive increase in labor. An estimated seventy-five thousand whites came from the British Isles to the Virginia and Maryland colonies. Indications are that upwards of three quarters of them were indentured servants who were eligible for freedom after four to seven years of service in the tobacco industry. Far fewer Africans—some scholars suggest that five percent or less of the population was black—entered the colonies during this period. Census and muster records indicate that some Africans came to Jamestown with white households that had migrated from England. But historians disagree over the legal status of Africans at Jamestown prior to 1670, and whether the social conditions were distinguishable between servants and slaves. Archaeology has done little to inform the debate. The Parks Service excavated a couple of pairs of shackles in the 1930s. Alone, the shackles do not confirm blacks’ presence. Shackles were used for prisoners of all races in the colony.

Owsley was not part of the debate. But the African skeleton he had discovered in the Jamestown Museum promised to shed light on the medical and social conditions of the time. Historians and archaeologists alike awaited his analysis. The moment had arrived. With his assistant Kari Sandness at his side, Owsley began. “Present are the remains of an adult male. Leave the age blank. Sex: male. Ancestry: African. The skeleton is nearly complete.”

Wearing a white lab coat and latex gloves, he picked up the skull, running his fingers over the rough surface. “That’s a classic feature of cranial syphilis,” Owsley said. After giving Sandness a complete description of the skull, he examined the skeleton’s other bones for syphilis. He saw a pattern. From head to toe, the skeleton’s bones exhibited extreme roughening and irregular contours along the exterior surfaces. The bones also indicated a long-term chronic condition of bone formation, destruction, and remodeling. All the symptoms pointed to syphilis, the sexually transmitted venereal disease characterized by hard red lesions, ulcerous skin eruptions, and systemic infection that results in partial paralysis and brain damage that can lead to insanity.

As Sandness recorded notes on her laptop, Owsley picked up the skull again, noticing a foreign substance on the left side of the forehead. “Putty,” he said, touching the rubberlike patch. “Somebody did a pretty good job with the restoration here.” The putty, nearly identical in color to the skull, covered a key-shaped hole in the forehead. Owsley examined the hole more carefully. “This is a perfect little hole,” he said. “And there are radiating fractures coming out from it. See that?”

Sandness put her hand on the skull, looking at the area Owsley pointed to.

“These archaeologists,” he said to her, “when they dug, weren’t expecting to hit a skeleton. Then they hit the skeleton. And they thought they damaged the skull, so they very neatly patched it up.”

“What do you think caused it?” she asked.

“Actually, it looks to me like a gunshot wound.”

Sandness said nothing.

Owsley summoned David Riggs. “Dave, we need to borrow this skeleton.”

He showed Riggs cracks traveling away from the possible gunshot hole in the skull. “The way to prove it is if we can find the lead fragments embedded in the skull. But it’s too complicated to study here. We need X-ray equipment.”

Intrigued, Riggs agreed.

Portland, Oregon

Dismayed, Alan Schneider tossed aside the latest memorandum that the Justice Department had filed with the court. Still attempting to block the scientists from studying Kennewick Man, the government’s lawyers had come up with a new strategy. The Justice Department was arguing that Schneider’s clients shouldn’t be allowed to study Kennewick Man because they were biased and used unscientific methods.

Schneider knew he represented some of the most talented anthropologists and geologists in the country. He knew that the government knew it too, since Owsley and Stanford worked for the Smithsonian. But he had to show that the government’s argument was disingenuous.

Schneider called Owsley. “Doug, the government is essentially arguing that your studies are not scientific and that you’re biased. We have to refute that.”

“What do you need me to do?”

“Let’s start with the bias issue. Tell me all the federal agencies you have done work for.”

Owsley rattled them off. The State Department had dispatched him to Croatia to help that country identify war dead. The FBI had sent him to Waco to identify disaster victims. The U.S. embassy had used him to help identify American journalists in Guatemala. The Defense Department had brought him in to identify military personnel killed in Desert Storm. Schneider interrupted Owsley with laughter.

“Wait a minute, Doug. All these agencies are using you to identify skeletons in all these top-priority federal cases?” The irony amused Schneider. The government was relying on Owsley and his method of analysis in all kinds of cases, and trusting his judgments. Yet, the government was arguing in the Kennewick case that Owsley should not be trusted because his methods were not scientific.

Owsley explained that the irony was even richer than Schneider realized. Since the passage of NAGPRA, other federal agencies, including the Army Corps of Engineers, had routinely enlisted Owsley to examine Indian remains to make sure they were repatriated to the correct tribes. No one had examined any more Native American remains since NAGPRA’s passage. In some cases, without Owsley’s intervention, federal agencies would have repatriated Indian remains to the wrong tribes.

“Jantz and I have gone in and showed where Native American skeletons that were identified as Sioux were in fact Pawnee,” Owsley said.

“Really?” Schneider said.

Mistakes were easy to make, Owsley explained. There are certain obvious skeletal characteristics that distinguish Native Americans from other human populations. However, the skeletal differences among tribes are very subtle. But Owsley had personally studied more than five thousand Native American remains, more than any other scientist in the world. No textbook could substitute for his hands-on experience. His eyes were trained to spot small differences in human populations that were evident in the bones.

Schneider asked for more examples in which Owsley had prevented Native American remains from one tribe being mistakenly repatriated to another tribe.

Owsley instantly thought of a better example. He told him about the Jamestown burial of African descent that had been identified as Native American.

“How…how could someone misidentify a skeleton so that an African could be mistaken for a Native American? Did the original scientist just blow it on the identification?”

Owsley explained. A professor named George Neuman identified this particular skeleton in the 1940s. Neuman was a very good physical anthropologist. And he used what were state-of-the-art techniques for his day.

“So how did he get it wrong?” Schneider asked.

“Today we just know so much more and the technology has advanced so much further along that we can make much more accurate identification.”

The African skeletons from Jamestown highlighted the danger of arbitrarily repatriating old remains to tribes under NAGPRA without performing proper scientific techniques. “Little historical information is available for blacks prior to the eighteenth century,” Owsley added. “These physical remains represent a century for which records are extremely rare, especially for American minorities.”

Listening to Owsley, Schneider got an idea. The Jamestown case needed to be brought to Judge Jelderks’s attention. It provided a powerful argument for why Kennewick Man had to be properly identified before being repatriated. “Doug, when can I get you to put what you just told me into an affidavit?”

“Well, I want to finish my analysis of the skeleton first, then produce a paper on the case.”

By the end of February, Owsley had identified two more African skeletons, a man and a woman, in the Jamestown collection. He brought those two and the syphilis-ridden skeleton to the Smithsonian to have them X-rayed. The pictures of the skeleton with syphilis also revealed metal fragments embedded in the fractured bone. The pattern indicated that the bone had shattered on impact. The victim had been shot in the head at point-blank range.

Searching for motive, Owsley considered the colonial time period in which the death occurred. Brutality against a slave seemed a natural answer. But the bone pathologies didn’t fit that scenario. It was the most advanced case of syphilis Owsley had ever seen. The subject had little hope of survival. Yet Owsley could tell from the bones that the subject had lived to approximately forty years of age, far beyond the life expectancy for someone whose bones demonstrated years of disease.

For a person to have survived that long with such an extreme expression of disease, Owsley reasoned, somebody must have gone through great lengths to keep him alive, and nursed him. He looked at the wound location again, off to the side of the forehead. A scenario started to emerge. When the caregivers knew that their health care had no prayer of saving him, they killed him so that he wouldn’t have to suffer anymore. Euthanasia, Owsley figured, could very well have been the motive behind the shooting.

The burial style also suggested something other than murder. The body had not been hastily discarded, as was standard practice in the seventeenth century for disease-ridden individuals, wherein shallow pits were used for graves. The practice was sometimes literally to pitch the dead into the pit, causing corpses to land on their stomachs, the bodies halfway twisted, with arms and legs sprawling in random directions. Soil was then thrown on the bodies. Out of fear, no one wanted to touch the diseased bodies.

This African skeleton had received an entirely different burial. He had been perfectly laid to rest in a grave, hands properly clasped and tucked under his chin, the body in a semi-flex position. If he had been murdered or discarded, someone would not have taken the time to meticulously arrange and inter the body. Even in the end, it seemed that somebody had done the best that he could do for the African. “The gunshot wound to the forehead was likely precipitated by severe dementia caused by advanced syphilis,” Owsley wrote in his report.

Between the well-preserved, syphilis-riddled skeleton and the two more fragmented African skeletons, Owsley confirmed an African presence at Jamestown prior to the slave law. But the skeleton with the gunshot wound particularly interested Jamestown archaeologist Bill Kelso. Its medical condition, manner of death, and burial suggested a life different from that of the typical slave. The possibility complemented an observation he had made with regard to Indians and Jamestown colonists. Since beginning his preservation and restoration project at the colony in 1993, Kelso had found evidence that Indians lived inside the fort with whites, as was suggested by the stone arrow points, as well as the stone chips generated in the manufacturing stage found there. Kelso was convinced that the colonists would not make stone arrow points. They didn’t know how to make arrows. Nor did they have the need; they had access to metal. The prospect of Indians and colonists living together—even if only for a brief period before hostilities broke out—intrigued him. Owsley’s observations bolstered the notion that Indians, blacks, and whites all lived at the fort. To Kelso, this suggested that America hasn’t just evolved into a racially diverse country; it began as one.

When Owsley finished working on the Jamestown skeleton, he called Schneider, telling him he could start drafting an affidavit.

“Alan, the Jamestown case is an example of why we have collections and why we study collections,” he told him. “The techniques that we use—the forensic experience—were not part of past scientists’ repertoire. This is a perfect example of how science evolves.”

With Schneider’s help, Owsley completed his affidavit.

I, Douglas Owsley, being duly sworn, do depose and state as follows. I give this affidavit to respond to defendants’ attempt to create the impression that plaintiffs are not qualified to provide scientific data and input in the present case. Dr. Jantz and I have examined and documented more than 350 skeletal remains for NAGPRA purposes for…federal agencies and more than fifteen museums, universities and state agencies. In the course of these NAGPRA projects, we have been instrumental in correcting the record in a number of cases where skeletal remains were misidentified to geological age, provenance, race or tribal affiliation. One recent incident involved three burials at the Jamestown Colony that had been identified as Native American. In fact, they proved to be Africans. They represent the earliest known Africans in the British North American colonies. If we had not reidentified these individuals through visual observation and comparison of their cranial measurements to Dr. Jantz’s reference data, they would have been subject to repatriation and African-Americans would have lost an important part of their heritage.

Schneider filed Owsley’s affidavit with the court in Portland on May 23, 1997.