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

Chapter 35. SHOW TIME

June 18, 2001
Portland, Oregon

Trailed by Barran, Owsley entered the spacious glass-enclosed conference room on the twenty-third floor in her law office. The other scientists—George Gill, Richard Jantz, Dennis Stanford, Gentry Steele, Loring Brace, and Rob Bonnichsen—were seated around a massive cherry-wood conference table in front of a window that offered a breathtaking view of Portland and Mount Hood. Beneath the window, cans of soda and bottled water sat in a bucket of ice. Alan Schneider stood at the head of the table, sipping a can of Sprite and grinning. For five years he had longed for the day when all the scientists—his plaintiffs—would get their day in court. They were less than twenty-four hours away.

In preparation, Schneider and Barran had asked the scientists to come in for a briefing on what to expect. Instead of their case going before a jury as it would in a trial, they were going before a judge in a hearing. The court’s primary role was to review whether Bruce Babbitt had acted lawfully when he determined that Kennewick Man should be returned to the tribes. Lawyers from the U.S. Justice Department would appear on Babbitt’s behalf and argue that he had complied with the law. Barran and Schneider planned to argue that NAGPRA did not apply in this case because Kennewick Man was not Native American.

After Owsley took a seat, Schneider and Barran joined each other at the head of the table. “On behalf of Paula and myself,” Schneider began, “I’d like to thank all of you for showing up in what we hope will be a red-letter day for science in America.”

Her black suit perfectly pressed, Barran surveyed her clients. In her legal career she had never had so many brilliant minds in one room. “Let me give you a little bit of an outline of what’s going to happen tomorrow,” she said.

Barran began with security measures. The high profile and controversial nature of the case promised to attract spectators, protestors, and a large media contingent. The courtroom had only 150 seats. Lines might form outside the courthouse early in the morning. Two armed federal marshals were assigned to the courtroom. Barran advised the scientists to arrive in a group. A courtroom deputy would escort them in. Photo ID was required. Tape recorders, personal computers, and cell phones were prohibited. They would be required to pass through a metal detector. Barran glanced at Dennis Stanford, seated to her right, his black jeans held up by suspenders with metal clips. “The suspenders will have to go,” she said, smiling. “They will set off the detector.”

Owsley jotted down everything Barran said.

One by one, she talked the scientists through the major issues that she and Schneider expected Jelderks to address. The scientists wanted to know what their chances were of prevailing. Schneider assured them that their case was strong. The law was on their side. But lawsuits are like gambling, unpredictable. It was impossible to predict what a judge might do.

The media, on the other hand, are very predictable. Barran warned the scientists that the courtroom would be packed with reporters, some of whom would approach them for comments. She was sure they would try to frame this case as the scientists versus the Indians. Dennis Stanford rolled his eyes. He, Gill, and Owsley had dedicated the majority of their careers to helping tribes recover and identify their dead and recovering their culture. He had no patience for the press’s tendency to pit him and his colleagues against the Indians.

“You will get asked,” Barran said, “‘Why are you doing this?’”

The group debated how to respond. Schneider offered some suggestions. As the discussion continued, Owsley remained silent. He never worried about what to say to the press. His habit was simply to tell the truth and let the chips fall where they may.

But Owsley had another concern. He believed that he and his colleagues would prevail in court. That, he feared, would trigger a backlash against science. He raised his hand for permission to speak. Everyone stopped talking. “I think that our real problem is that there’s going to be a tremendous lobbying effort to tighten the NAGPRA law,” he said. “Many of our colleagues are all too willing to duck and dodge. They will continue to do that. I see the Native American lobby coming in with lots of lobbying bucks. My real concern is that we may really outdo them here, but our colleagues will remain silent and we’ll lose the battle.”

No one disagreed.

“I think that covers it,” Schneider said.

Owsley raised his hand again. “We’re all very excited,” he said. “But however it turns out, I want you to know on behalf of all of us how much we appreciate what you’ve done for us.” He started clapping and all the scientists joined in applause. “We could not have got this far on our own.”

After everyone left the room, Owsley remained behind, staring silently out the window at Mount Hood, his eyes fixed on a point. Observing him alone in the room, Barran stepped back inside. She marveled at how he managed to stand out even among a group of rare scientists. She walked over and stood beside him, wondering what he was thinking. He was merely marveling at the view.

The next day

One by one, the scientists filed into a jury box to the right of the judge’s chair. Barran and Schneider took their place at a table in front of their clients. As Schneider reviewed his notes, Barran read an E-mail she had just received from her brother, entitled “What a Difference 30 Years Makes.” It said: “1970: Growing Pot. 2000: Growing potbelly. 1970: Rolling Stones. 2000: Kidney Stones. 1970: Peace sign. 2000: Mercedes logo.” She laughed to herself, then looked up as the Justice Department lawyers strolled into court. She immediately concluded that the E-mail was right on the money. The Justice Department had sent Generation X attorneys from Washington: young, cocky, and dressed to the nines. Chewing gum and sporting a blue checked suit with a hip blue shirt and colored glasses, lead attorney David Shuey was flanked by a suntanned assistant in a form-fitting skirt and pink spandex sweater. One of Shuey’s colleagues, tribal attorney Rob Smith, had sideburns shaved to a lightning-rod point and a wool suit with a green tie and green shirt. Together, they looked like a GQ model and a poor imitation of Brad Pitt. Barran and Schneider, products of the sixties, felt old and conservative.

Suddenly, Judge Jelderks entered the courtroom through a nine-foot-high wooden door. “All rise,” the clerk said, banging the gavel.

Owsley leaped to his feet and stood motionless, staring at the judge as if at attention.

Perched in a high-backed chair elevated above the courtroom, Jelderks then asked Barran to start by briefly summarizing the scientists’ argument.

She stood up and rattled off the highlights of their case.

Jelderks then turned to the government’s lawyers. David Shuey pushed aside his oversize paper coffee cup and pulled the microphone closer to his mouth, not bothering to stand up. “Basically our argument is that the plaintiffs have no right to study these human remains in the custody of the United States,” he said. “In terms of NAGPRA determinations, we believe the Secretary’s determination that these remains were Native American is fully supported by the record.”

A confused look crossed Owsley’s face. This was a landmark case, yet Shuey could not have been more nonchalant. Owsley wondered if he even cared about the skeleton or the outcome.

Jelderks asked if both sides agreed that Kennewick Man was found on federal land.

Both agreed.

“I took a look at the state of Oregon to see what portion of Oregon is federal land that would trigger issues like we have today if there were remains found at some point in the future,” Jelderks said.

He turned to his clerk and asked him to unveil an oversize map of Oregon situated at the head of the courtroom. All the federal territory within the state was shaded. That encompassed more than half of the state’s land. The illustration was clear. The odds were that any ancient skeletons found in the future in Oregon were more likely than not going to surface on federal land. And any remains found on federal land would trigger the federal NAGPRA law.

“So the threshold issue in this case,” Jelderks said, “is the definition of ‘Native American’ as Congress used the term in NAGPRA.” The answer to that question would impact all future discoveries of human remains on federal lands.

Jelderks had the clerk dim the courtroom lights and turn on an overhead projector. The definition of “Native American” from the NAGPRA law appeared on a large screen at the head of the courtroom. It read: “Native American means of, or relating to, a tribe, people, or culture that is indigenous to the United States.”

The lawyers from the two sides disagreed over the interpretation of the definition. The government argued that any remains predating the arrival of Columbus were by definition indigenous and therefore Native American. Under this interpretation, it didn’t matter how recently a contemporary tribe, such as the Umatilla, had moved into the geographic region where Kennewick Man surfaced, or whether Kennewick Man was culturally or biologically related to the Umatilla. As long as Kennewick Man predated any documented presence of Europeans in North America, he had to be Native American.

Barran and Schneider disagreed, insisting that Congress had not defined “Native American” by a calendar year, choosing instead to use the phrases “relating to” and “that is indigenous.” These words, they argued, called for some proof of a relationship between discovered remains and an existing tribe.

Jelderks questioned whether Congress had intended the term “Native American” to require some proof of relationship between discovered ancient remains and a present-day American Indian tribe. The government said no connection was required. The scientists said a connection was essential. Jelderks asked Barran to support her argument.

She started with the plain wording of the law. If Congress had wanted to define Native American by using the 1492 date, it would have put it in the definition. But NAGPRA’s definition of Native American is silent with respect to dates. Barran pointed out that the first mention of 1492 as a cutoff year for determining which skeletons are Native American arose in 1997, a year after the scientists had filed their lawsuit. By that time, Barran and Schneider had raised serious questions about the identity of Kennewick Man, and the Interior Department had asked National Park Service archaeologist Dr. Francis McManamon to aid them in the case. McManamon then wrote an advisory letter that said any remains older than 1492 were pre-Columbian and therefore Native American.

“The first thing Dr. McManamon did,” Barran said, “was forget what Congress said and forgot that his obligation was to back what Congress wrote: ‘Native American means of, or relating to, a tribe, people, or culture that is indigenous.’

“Dr. McManamon says we don’t need that ‘relating to’ stuff.”

Justice Department and tribal attorneys smirked and rolled their eyes as Barran criticized Dr. McManamon’s 1492 rule. “If you find a Viking civilization in Maine,” she said, “they will immediately be turned over under NAGPRA because it will predate 1492 because we know the Vikings were exploring that coast in the year 1000.” Taken to its extreme, the 1492 rule would even require an obviously European skeleton that is twelve thousand years old to be defined as Native American.

“Where is the analysis?” she asked, before answering her own question. There was no analysis. The 1492 rule, she argued, was nothing more than a desperate attempt to justify the Army Corps’ initial decision to award Kennewick Man to the tribes. When it became clear that the corps had erred, the Interior Department expanded the definition of Native American in the NAGPRA law in order to ensure that Kennewick Man fit within it. And that, she argued, was unlawful. The Supreme Court had ruled that an agency did not have authority to deviate from the words of Congress unless Congress’s words are ambiguous.

To Barran, there was nothing ambiguous about the definition Congress had drafted for Native American. She repeated the definition: “‘Native-American means of, or relating to, a tribe, people, or culture that is indigenous to the United States.’” The words were plain. The word is required proof that Kennewick Man is related to a presently existing tribe or people. If, on the other hand, he was related to a tribe that was at one time indigenous but no longer exists, Kennewick Man did not fit the definition of Native American under the statute and should not be returned to a tribe to which he shared no affiliation.

“I’m sure before the end of this morning I will be sounding like Clinton, depending on what ‘is’ is,” she said.

Jelderks grinned.

The opposing lawyers did not.

Barran talked faster. “Forget Kennewick Man for a moment,” she said. “Suppose we had a skeleton that radiocarbon-dated at exactly 1492.” The scenario exposed the flaw in the 1492 rule. Radiocarbon dating is not precise, leaving in question whether a skeleton dated at 1492 was actually forty years younger or forty years older. “Why would we treat 1490 differently from 1492, except all of us went to primary school and learned a little ditty that ‘In 1492, Columbus sailed the ocean blue’?”

Expressionless, Jelderks pressed his index finger across his lips.

“NAGPRA requires a relationship of some sort, and it requires a group that is indigenous,” Barran said, relentlessly making her point. “Present tense indicative. That is indigenous. The agency can’t turn around and say, ‘We interpret that to mean 1492, even if there is no relationship, and even if there is no group that is indigenous that we can point to.”

“I think we all would have to agree,” Jelderks said, “that there is nothing in the statute that creates a presumption that remains of a certain age are presumed to be Native American.”

Jelderks gave Barran a hypothetical: If science confirmed that a group had occupied land in the United States ten thousand years ago, then became extinct five thousand years ago—therefore satisfying the definition of “indigenous”—would a modern American Indian tribe have a claim to such remains?

“If we have a tribe that had died out entirely and that is extinct,” she said, “why would Congress be interested in repatriating that set of remains to a people that have no connection with those remains? If it had died out and been extinct, it has no modern-day relatives, no modern-day progeny. We don’t have a link between those two groups.”

Barran sat down and Shuey stood up. He began by saying that Congress had intended NAGPRA to apply to all prehistoric remains. Owsley scribbled the word “prehistoric” on his notepad, waiting to hear what Shuey said next. But Jelderks cut him off.

“Let’s stop on that,” Jelderks said, “because words are important. ‘Prehistorically,’ as applied to this case, simply means prior to recorded history, correct?”

Owsley was eager to hear Shuey’s response. Shuey hesitated. “It would be prior, really, to European exploration,” Shuey said. “‘Prehistoric’ means before there was written history. Who wrote the history of this country? Europeans, not Native Americans.”

George Gill lowered his glasses to the tip of his nose and glanced at Owsley. They had a broader view of the definition of prehistoric.

“Some people, when they hear the term ‘prehistoric,’ think of dinosaurs,” Jelderks said.

“I think it is very important when you are talking about prehistoric, we define it by European culture because it is when the Europeans arrived here that we have a written history,” said Shuey.

Barran and Schneider exchanged notes. Shuey was making their argument for them. By saying that any remains predating the arrival of Columbus were prehistoric and therefore Native American, Shuey had essentially confirmed their allegation: that the government relied on a 1492 cutoff date to decide which skeletons were Native American.

Yet Shuey kept denying the existence of a 1492 rule. He quoted from a Department of the Interior memorandum that had previously been supplied to the court. “DOI defines ‘Native Americans’ as those ‘tribes, peoples, or cultures that were present in the United States prior to documented European exploration.’”

Shuey was trying to have it both ways. While insisting there was no 1492 rule, he was saying that anything prior to the arrival of Columbus had to be Native American. And he offered no explanation for how the Interior Department would treat Viking remains. Questions about Vikings, he insisted, were irrelevant in the Kennewick Man case. Shuey pointed out that the Viking explorations happened in Maine. “We are talking about remains that were found in Oregon,” he said.

“Washington, actually,” Jelderks said.

“In Washington. Excuse me,” Shuey said, repeating his point about a Viking skeleton. “It would not be considered Native American because it would not be related to tribes, people, or cultures indigenous to the United States.”

Jelderks stopped Shuey again. “Maybe ‘indigenous’ is a word that sounds simple, [but] isn’t quite so simple.” Jelderks offered an example. His yard, he said, contained a species of plant that people in the area insisted had been around since the dinosaurs. “Would we all agree that that plant was indigenous?”

“Correct,” Shuey said.

“To Portland, Oregon?” Jelderks probed.

Shuey didn’t answer.

Jelderks probed further. He asked Shuey to assume that other than the old plant species in his yard, all other plants and trees in the Portland area were the result of seeds that were transported to the area by birds, people, or the elements. Although those seeds didn’t originate in Portland, at some point in time the plants and trees those seeds produced would be defined as indigenous to Oregon and the United States.

Jelderks gave Shuey a hypothetical to consider. A group of blond-haired, blue-eyed people is discovered frozen in an ice cave atop Mount Hood. They lived in the region for generations before getting caught in an ice storm. “Why wouldn’t they be Native American?” Jelderks asked. “They lived here; they resided here.”

“If your hypothetical includes that they were here for several generations, then I think they would be indigenous.” Shuey said it would be necessary to look for other evidence in the ice cave, such as artifacts, to determine whether the people were just passing through the area from someplace else.

“But to say that based on the color of their hair or the color of their skin or the color of eyes that they are not Native American,” Shuey said, “I don’t think anyone can buy that.”

As was the case with Kennewick Man, Shuey said there were a variety of types of evidence to consider when determining its origin. But morphology—the study of the structure of humans—was not among them. “The fact that the cranium of these remains is not the same cranium that you would find in a present-day tribe today is not determinative whether those remains are Native American,” he said.

Owsley immediately picked up on Shuey’s backhanded slight. Without mentioning Owsley or Jantz by name, Shuey had attacked the credibility of their scientific conclusion. They had compared Kennewick Man’s skeletal structure to the skeletons of thousands of Native Americans and confirmed that he was dramatically different. As a lawyer, Shuey did not personally handle or study human skeletons. He had grossly misrepresented the importance of skeletal structures as a key piece of evidence when determining what human population a particular skeleton belongs to.

Schneider scribbled, “Does he sound totally snotty to you?” on a yellow sticky pad and slipped it to Barran. “Just like the nerd who knew it all in high school!” she wrote back.

Itching to speak, Owsley kept a straight face. Next, Shuey disputed the scientists’ suggestion that Kennewick Man could have migrated to North America, by boat or some other means, and merely been traveling through the area at the time of his death. To prove it, Shuey referenced the lithic point found lodged in Kennewick Man’s hip. Shuey insisted it was a Cascade point, indicating that it was associated with the geography of the Kennewick area. Additionally, Kennewick Man had a marine diet, which Shuey said was consistent with eating salmon, a fish that is known to travel the Columbia River, on the banks of which Kennewick Man had surfaced.

Owsley immediately identified the scientific flaws in Shuey’s conclusions. But the errors were not what caught Owsley’s attention. It was the fact that Shuey was making a scientific argument for why Kennewick Man was indigenous to the area. Yet he was simultaneously taking the legal position that under NAGPRA all prehistoric skeletons—which he defined as pre-Columbian—should be defined as Native American. In such instances skeletons would not be subject to any study. But without some study, no one would have known that Kennewick Man had a lithic point in his hip or a marine diet.

“Let me ask you this,” Jelderks said, returning to his hypothetical of remains surfacing in an ice cave on Mount Hood. This time Jelderks changed the fact pattern. He wanted Shuey to assume that scientific testing had confirmed that the remains in the cave were four hundred years old. “Do we accept as absolute fact without analysis that those 400-year-old remains would be related to modern American Indians rather than some other culture from some other part of the world?”

“You mean based solely on age without any other evidence?” Shuey asked.

“Let’s make them 600 years old,” Jelderks said.

“They are found in a vacuum with no sort of other evidence?” Shuey asked.

“Right.”

“Were they found here on Mt. Hood?”

“Mt. Hood,” Jelderks said.

“I would think that there is not any European exploration documented in this area until long after 600 years ago. If that were the case, I think the presumption would…be Native American, in the absence of any other evidence that suggested they were not.”

“What would that evidence be?” Jelderks asked.

Shuey used Kennewick Man as an example. When government scientists performed carbon testing on Kennewick Man’s bones, they found evidence of a marine diet.

Jelderks wanted Shuey to stick to the six-hundred-year-old remains in his hypothetical. “Since those remains are…clearly prior to documented Europeans in the area, regardless of what’s with them or what their physical characteristics are, those would be Native American by definition,” Jelderks said. “I don’t understand what the criteria would be to apply other than age to show that those are not Native American unless we require some relationship to modern American Indians.”

Shuey concluded that age would be determinative.

Now it was clear. Under the federal government’s interpretation of NAGPRA, any future skeletons found on federal land and predating 1492 would be treated as Native American.

Jelderks asked Shuey to consider one more hypothetical involving the group in the ice cave: that before the group froze to death, its members had lived in the area long enough to be considered indigenous. However, every member of the group died in the cave, leaving behind no progeny. As a result, the group was extinct and had no affiliation to modern Native Americans. “Would that group be considered Native American or not?”

“Yes,” Shuey said, explaining that the remains would be subject to NAGPRA.

“Those people then would never be studied unless the particular tribe or coalition of tribes…agree to that,” Jelderks said.

“Congress gave that determination to the tribes,” Shuey said.

In other words, scientists, archaeologists, and historians exploring the question of whether more than one ancient migration took place in the Americas would be precluded from looking at ancient skeletons, the most primary source of evidence. Anything predating 1492 would forever be treated as Native American.

Owsley grinned. The flaws in Shuey’s argument were glaring. And it went beyond the example of Vikings. Owsley had personally examined human remains of Portuguese fishermen who had reached Canada before Columbus reached the Americas. The Portuguese had migrated by boat. To Owsley, Shuey’s view of the peopling of the Americas was quite shallow.

Jelderks asked Shuey for clarification. “As of today it is the position of the Department of Interior that if there was a prior group of people living in what’s now the United States who are no longer around—became extinct, for whatever reason—and with no identifiable connections with modern Native Americans, that they would still be classified as Native Americans under NAGPRA.”

“That’s correct,” Shuey said.

Jelderks looked at his watch. It was after 12:00. He had one last question before recessing for lunch. “As you noticed, Ms. Barran did make significant issue of ‘is’ and ‘was,’” Jelderks said. “If the statute said ‘is or was indigenous to the United States,’ it would be much easier for me to accept the Department’s position on this. How can I accept the DOI’s definition without, in effect, inserting a couple more words in the statute?”

He asked Shuey to consider the question over lunch.

Witnessing the justice system in action, Owsley was not sure he liked what he saw. He had spent his entire career at the Smithsonian studying skeletons. His groundbreaking work had opened a new window onto America’s ancient past, shedding light on the possibility of multiple migrations to North America. The Justice Department had dispatched lawyers to try to stop future study, casting doubt over the ability of future scientists to flesh out the answers. The future of science in terms of ancient skeletons hung on the definition of the word is.

During the lunch recess, Barran and Schneider went back and read Bruce Babbitt’s formal decision awarding Kennewick Man to the tribes. In it they found words that flatly contradicted what Shuey had just told the judge.

Following the break, Shuey stood at the microphone.

“I don’t think that there is a difference between ‘is’ and ‘was’ in this instance,” Shuey said, arguing that something indigenous, even if it becomes extinct, is still indigenous.

Jelderks stared at Shuey. He had had the entire lunch recess to come up with a better answer.

“Okay,” Jelderks said, breaking the long, awkward silence.

Barran couldn’t wait to rebut what Shuey had said before lunch. She had observed that the hypotheticals put to him by Jelderks had a common theme: surprises or unexpected discoveries that challenge traditional thinking.

She stepped to the microphone and pointed out that her clients were in the business of uncovering surprises. The fields of archaeology and anthropology were driven to discover. Barran told Jelderks about Owsley’s recent experience at Jamestown. The revelation that Owsley had identified Africans captivated the courtroom. None of this had yet been published in American history books. Barran explained that the skeletons had initially been presumed Native American and had been on the verge of being repatriated. Jelderks leaned forward in his chair.

“I raise this to point out the fact that throughout this, much of the debate has been characterized as science for the sake of science,” she said. In the Jamestown case, scientific inquiry prevented a rare window into African American history from being forever closed. Kennewick Man, she suggested, was a lot like Jamestown. It was a surprise discovery that challenged the traditional view of history. A skeleton this rare was too important to cavalierly turn over to Indian tribes without sufficient proof that he was indeed a Native American. She reached for Bruce Babbitt’s ruling. “I think Your Honor should be rather shocked to hear Mr. Shuey’s argument that there is no 1492 rule,” she said, holding the paper. “This is from the Secretary himself. ‘A series of radiocarbon dates clearly indicates a pre-Columbian date for the remains. It is reasonable to conclude that they are Native American.’”

The government’s own documents confirmed that it had decided Kennewick Man was Native American based on its age. Scientific inquiry was not required.

Owsley shifted his eyes from Barran to the judge. He sensed that Barran was gaining the upper hand. Some of Shuey’s colleagues appeared to be thinking the same thing. One of them passed Shuey a note. As he read it, Barran attacked Shuey’s argument that the spear point in Kennewick Man’s side and the marine diet were evidence that he lived in the area that he died in. Barran had asked Owsley about the spear-point injury. He explained that the bone around the point had regenerated, indicating a healing process. Owsley suspected that the point had been embedded in Kennewick Man’s hip for up to twenty years prior to his death. Rob Bonnichsen studied CAT scans of the point and concluded it likely did not come from stone in the Kennewick region. These factors made it clear that Kennewick Man could have been stabbed somewhere far away from the place he died.

Barran also disputed Shuey’s argument that a marine diet of salmon proved Kennewick Man was indigenous to the Columbia River region. “Kennewick Man’s diet does not necessarily have to come from the Columbia River,” she said. “There are, by the way, salmon in Japan where Kennewick Man may have come from.”

Shuey smirked.

Barran’s point was clear. Definitive scientific research by experts was required. Shuey countered that the government had already conducted three forms of scientific testing: DNA, morphological, and taphonomic.

“But the Secretary didn’t find anything in any of those three types of testing that would support his final conclusion, did he?” Jelderks asked.

“Well,” said Shuey, “not in the DNA testing and not in the morphological or taphonomic testing.”

Jelderks asked Barran her view on the testing done by government scientists. “I take it one step further,” Barran said. “What came from the testing was evidence that Kennewick Man is unlike the claimants. In fact, his closest relations are Polynesian and Ainu of Japan.”

Jelderks turned back to Shuey with a question. If scientists working for the U.S. government could not link Kennewick Man to the tribes, why and how did Babbitt? Shuey cited Babbitt’s report. It said the evidence “reasonably leads to a conclusion of cultural affiliation.”

“That was his final conclusion,” Jelderks said. “But what specific pieces of evidence did he point [to] to support that conclusion?”

Linguistics, Shuey said. An expert linguist hired by the government said he could trace modern tribes’ language back 4,500 to 5,000 years ago. “He believed that it was reasonable, and there was a strong possibility that he could take that language family back an additional 4,000 years to approximately 8,000 to 9,000 years ago.”

“With no evidence, though, of what the language was 9,000 years ago?” Jelderks asked.

“That’s correct,” Shuey said.

The government had made some huge assumptions. First, it assumed that Kennewick Man was residing in—not passing through—the area in which he died. Second, it assumed that the language he spoke—whatever that was—had remained unchanged for roughly 9,000 years.

Jelderks detected another flaw. The NAGPRA law requires proof that a “shared group identity” exists between a present-day tribe and an “identifiable earlier group” to which human remains belong. Jelderks asked Shuey what the name of Kennewick Man’s group was.

Shuey didn’t have an answer.

Jelderks asked about the size of the group.

Again, no answer.

“Can we say what language he spoke?” Jelderks asked.

“I don’t think we can say definitively.”

The name, size, and language of the group to which Kennewick Man belonged were mysteries to Shuey and the Army Corps.

“There might well have been some evidence in the area of artifacts that would support a group culture,” Jelderks said. “The Corps decided to put 500 tons or so of boulders and debris over the site. So that evidence is not available for either the Secretary or me, if it ever was available.”

Jelderks checked the time. It was nearly 5 P.M. He was barely done with the definitions portion of the hearing. He asked both sides to reconvene in the morning. Shuey pointed out that the hearing was supposed to last one day. He and other Justice Department lawyers had morning flights back to Washington. Jelderks asked them to reschedule them.