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

Chapter 34. SPIN CYCLE

August 15, 2000
Reno, Nevada

“Ancient human remains from Spirit Cave are Native American but they cannot be culturally affiliated with the Fallon Paiute–Shoshone Tribe, or with any other contemporary group.”

The announcement from the federal government’s Bureau of Land Management surprised Paula Barran and Alan Schneider. They had expected the government to declare the mummy Native American, as it had done with Kennewick Man. “Spirit Cave Man will remain in federal ownership,” the announcement concluded.

“The probability is high that the government is going to say Kennewick Man is not culturally affiliated to the tribes in our case,” Barran told Schneider.

Schneider agreed. Every argument he could come up with—scientific, legal, or otherwise—convinced him that Kennewick Man could not be deemed an ancestor of the contemporary Umatilla Indian tribe. Roughly 440 generations separated them. If any marriage outside the tribe took place during that span, the amount of genes passed to the next generation was cut in half. Schneider figured that if you cut something in half 440 times, the contribution of DNA would be comparable to a blade of grass in an entire football field.

The Spirit Cave decision encouraged Barran. It also got her thinking. With Kennewick Man virtually as removed from present-day populations as the Spirit Cave man, a consistent ruling by the federal government would deem it also unaffiliated to modern tribes. She wondered how such a decision would impact her case. What would happen to the lawsuit?

Interior Secretary Bruce Babbitt, meanwhile, faced a tough political decision. Two agencies within his department disagreed vehemently over the future of Kennewick Man. The National Park Service and its chief archaeologist, Francis McManamon, felt more scientific testing was in order. But Babbitt’s undersecretary, Kevin Gover, who headed up the Bureau of Indian Affairs, argued that further testing was offensive and unnecessary. Gover told the Washington Post that he “couldn’t conceive of what possibly could be learned and why it would be significant” to study Kennewick Man.

Prior to taking over at the BIA, Gover, a lawyer and a Pawnee Indian, had established himself as an influential fund-raiser and organizer for President Clinton. After casinos were legalized on Indian reservations in 1988, the tribes with lucrative casinos became powerful donors. In 1994, the Umatilla opened a casino resort and eighteen-hole golf course. With the revenue the tribe hired lawyers and lobbyists, enabling them to establish a presence in Washington.

The political stakes for Babbitt were high. Native American tribes had become big financial backers of President Clinton and the Democrats, and the upcoming presidential election was looming. Furthermore, the results from the government-sponsored study of Kennewick Man had hemmed Babbitt in. In order to deem Kennewick Man a Native American and repatriate him to the five tribes that had claimed him, Babbitt had to conclude that by a preponderance of evidence—more likely than not—a cultural link existed between the tribes and Kennewick Man. Although preponderance of evidence is the lowest standard of proof in law, a degree of evidence that is more in favor than against is nonetheless still required.

Judge Jelderks imposed a fall 2000 deadline for Babbitt to decide. Politically, the timing of the deadline could not have been worse.

September 25, 2000
Portland, Oregon

It was 1:00 P.M. when Alan Schneider’s secretary informed him that Richard Hill, a reporter from the Oregonian, was on the phone. Since the start of the Kennewick Man litigation, Schneider had come to know Hill well. He had been covering the case from the beginning. Schneider had his secretary put the call through.

“Have you heard about the government’s decision?” Hill began.

“No. Have they reached a decision?”

“Well, apparently so.”

“What is it?”

Hill explained that earlier in the day the Department of the Interior had faxed him a series of documents: a September 25 press release announcing the Interior Department’s determination to repatriate Kennewick Man to the Indian tribes; a seven-page letter dated September 21 from Interior Secretary Bruce Babbitt to the secretary of the army, explaining his decision to repatriate; and a forty-page report. Hill told Schneider that Babbitt had concluded that the tribes were culturally affiliated with Kennewick Man on the basis of geography and oral tradition.

This is classic government action, thought Schneider as he listened to Hill while scribbling the words “Geography” and “Oral tradition” on his notepad.

Hill wanted a comment from Schneider.

Schneider wanted to see the documents first.

At 1:11, Hill faxed Schneider a copy of the press release from Babbitt’s office and the seven-page letter Babbitt had written to the army secretary. Schneider saw the heading on the Interior Department’s press release first: “INTERIOR DEPARTMENT DETERMINES ‘KENNEWICK MAN’ REMAINS TO GO TO FIVE INDIAN TRIBES.” Schneider smirked at the subheading: “Determination by Interior Secretary follows two years of scientific research.”

Schneider pulled the page from the machine and started reading.

“The Department completed a careful, detailed series of scientific investigations involving world-class experts to learn as much as possible,” the release quoted Babbitt as saying. “After evaluating this complex situation, I believe that it is reasonable to determine that the Kennewick Man remains should be transferred to the Tribes; tribes that have inhabited, hunted and fished this area around the confluence of the Columbia and the Snake Rivers for millennia.”

Schneider shook his head, thinking that if the government really wanted to learn as much as possible about Kennewick Man, it would let Owsley and his peers study the skeleton.

“Although ambiguities in the data made this a close call, I was persuaded by the geographic data and oral histories of the five tribes,” Babbitt continued in the press release. “If the remains had been 3,000 years old, there would be little debate over whether Kennewick Man was the ancestor of the Upper Plateau Tribes. The line back to 9,000 years, with relatively little evidence in between, made the cultural affiliation determination difficult.”

The leap Babbitt had made stunned Schneider. The secretary admitted that if Kennewick Man had been only three thousand years old it would have been easier to link him to the tribes. But Kennewick Man was nine thousand eight hundred years old, and Babbitt admitted that there was virtually no evidence to close the six-thousand-year gap. Yet he decided the skeleton should go to the tribes anyway, citing geography and the tribes’ oral traditions as the reasons.

Schneider shared the news with Owsley. From a political standpoint, Babbitt’s decision did not surprise Owsley. The tribes had political influence. The scientists did not. Ruling against the tribes would assure a backlash at the Interior Department.

Owsley relished the chance to challenge Babbitt’s decision in court. Schneider did too. After notifying Owsley, he called Barran at her office across town.

“Paula, they’re gonna give it to the Indians.”

“No shit.”

“No, I’m serious,” he snickered.

“You gotta be shittin’ me.”

“The decision’s out. I’ve got a copy of it right here. I’m going to fax it to you right now.”

Amazed, Barran said nothing while Schneider highlighted Babbitt’s conclusions.

“The court told the government in 1997 that they can’t affiliate the skeleton to the tribes on the basis of geography and oral tradition,” he said. “And Babbitt has come back and done it anyway, in effect telling the court, ‘We don’t care what you said in ninety-seven.’”

Barran was speechless.

“What do you think we ought to do?” Schneider asked.

“Well, let’s request a status conference with the judge.”

“How should we do that? Should we do that by a phone call? Or do you want to file something?”

“Let’s file something so that we can clearly control or at least have influence on the issues that are going to be discussed.”

Agreeing to reconvene after Schneider faxed the decision to her, Barran hung up. Her phone rang instantly. A reporter wanted her comment on the government’s decision to award Kennewick Man to the tribes. “I haven’t seen anything yet, because consistent with what’s happened throughout this case, the government has decided to tell everybody in the world before they tell us.”

Offering no comment, Barran hung up and retrieved from her fax machine a copy of Babbitt’s letter to the secretary of the army. At her desk she skimmed it in search of legal arguments she could make to challenge the decision.

“While some gaps regarding continuity are present,” Babbitt wrote, “DOI finds that, in this specific case, the geographic and oral tradition evidence establishes a reasonable link between these remains and the present-day Indian tribe claimants. Cultural affiliation is defined as ‘a relationship of shared group identity that may be reasonably traced historically or pre-historically between a present-day Indian tribe…and an identifiably earlier group.’”

Barran stopped reading. She knew Babbitt was wrong. But how was she going to prove it?

She looked back at the letter, which went on to explain that the Umatilla and other tribes that had claimed Kennewick Man met the definition of a present-day Indian tribe. Babbitt said that evidence existed linking the cultural characteristics of the present tribes with “the group that lived in the Columbia Plateau region during the lifetime of the Kennewick Man.”

Barran scratched her head. If there was a group that had lived in the area at the time of the Kennewick Man, she wondered where the bones of the other members of the group were.

She read on. “The oral tradition evidence reveals that the claimant Indian tribes possess similar traditional histories that relate to the Columbia Plateau’s past landscape,” Babbitt wrote. “After considering and weighing the totality of the circumstances and evidence, DOI has determined that the evidence of cultural continuity is sufficient to show by a preponderance of the evidence that the Kennewick Man remains are culturally affiliated with the present-day Indian tribe claimants.”

Barran zeroed in on four words: “preponderance of the evidence.” Preponderance means outweighing. In law, it represents the lowest standard of proof, merely requiring evidence that the fact sought to be proved is more probable than not. Babbitt had concluded that more likely than not, Kennewick Man was culturally affiliated with the Umatilla and its associated tribes. But what was the evidence? Babbitt hadn’t cited any evidence. Owsley and the other plaintiffs had assured Barran that it is virtually impossible to establish cultural affiliation between Kennewick Man and any modern population, much less the Indian tribes that had claimed him.

By couching his decision in language that is required by the statute, like “preponderance of the evidence,” Babbitt had made the decision look and sound correct. On its face, the decision paid lip service, she thought, to the wording required under the law. But the evidence to support the wording had been omitted.

Babbitt’s letter concluded, “This determination of disposition to the claimant Indian tribes under NAGPRA precludes any study of the remains by the public. The claimants have been found to be the legal custodians of the remains and study may only be conducted with their permission.”

Barran put down the letter, knowing that the newspaper reporters awaited her return calls to comment on the story. Babbitt’s ruling would grab front-page headlines in the morning paper. She knew the spin would be that the scientists had lost. Yet they hadn’t. Barran wanted an immediate counterattack to balance the spin. She figured the best way was to get something filed in court that afternoon, forcing the press to reflect that in the headline. She looked at her watch. It was 1:30. Time was not her ally. The courthouse closed in three hours.

Rather than calling back the press, Barran jotted down a list of legal issues raised by Babbitt’s decision, ones that she could cite in order to request a status conference with the judge. While she produced a list, Schneider telephoned Cleone Hawkinson and told her to send an urgent E-mail to all the plaintiffs, notifying them of the news. As he hung up with Hawkinson at 1:50, Schneider received a fax from Barran, listing six questions raised by Babbitt’s decision letter. Schneider quickly reviewed the list, made some edits, and faxed it back to her. Barran typed up a final version and passed it to her secretary to put on the firm’s letterhead. “Get a runner ready to go to court,” Barran told her. “This has to be filed before they close the clerk’s office.”

Then Barran called Schneider.

Reading from her computer screen, she rattled off the things she intended to ask from the court, concluding with an opportunity to challenge in court Babbitt’s ruling.

At 4:30, an assistant in Barran’s law office filed the request at the U.S. District Court in Portland.

The following morning

As Barran picked up the Oregonian, she immediately spotted the headline on page one: KENNEWICK MAN BELONGS TO FIVE TRIBES, U.S. SAYS. She quickly read the first two paragraphs of the article, then turned the page, spotting a new headline: SCIENTISTS’ LAWYERS FILED A CONFERENCE REQUEST WITH THE COURT. Her strategy had worked; the government did not dominate the headline. “After four years of the federal government ducking and dodging this issue, we’ll now have our day in court to challenge their decision,” the story quoted Schneider saying.

Beneath Schneider’s quote, Barran spotted a quote from Umatilla tribal leader Armand Minthorn. “This is a truly great victory for us,” Minthorn said. “It gives me a tremendous feeling knowing that this Ancient One has been reaffirmed as one of our ancestors. As tribal people who have lived on the Columbia Plateau for thousands of years, we are eager to rebury our ancestor and give him back to the Earth.”

Schneider sent the story to Owsley at the Smithsonian. Owsley didn’t mind Minthorn’s comments. Minthorn was claiming that his religion told him Kennewick Man was Indian. People, Owsley felt, should be free to believe what they want to believe. But no one, Minthorn included, has a right to force his beliefs on others, particularly religious beliefs. To Owsley, however, this dispute was not really over religion; it was over politics. Owsley had always figured that science would take a backseat to politics as long as Kennewick Man’s future was in the federal government’s hands. With Babbitt’s decision issued, Kennewick Man’s destiny finally shifted to the hands of Judge Jelderks. Law, Owsley hoped, would be friendlier to science than politics had been.

He asked Schneider when a court date would be set. Months down the road, Schneider predicted.