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

Chapter 36. WHITE HOUSE INVOLVEMENT

The next morning, the Justice Department legal team arrived in court early. While waiting for Jelderks, they stood at the table discussing their wardrobes and where they had gone drinking the night before. “How late were you at a bar last night?” Shuey asked one colleague, unaware that the microphone at his table was on. Barran and Schneider, who were seated at their table discussing strategy, glanced in his direction. The government lawyers fumbled to turn off the microphone.

Moments later Jelderks entered court carrying a stack of papers under his arm. He picked up right where he had left off, asking Shuey for evidence that linked Kennewick Man to the five tribes. Shuey had just one more suggestion: the tribes’ oral traditions. Jelderks said he might accept oral traditions if Shuey could provide some specific stories or accounts that talked about Kennewick Man. Shuey had none.

Ready to move on, Jelderks turned to Barran. The most serious allegations raised in the scientists’ brief accused the White House of applying political pressure on the Interior Department to ensure that Kennewick Man went to the tribes. Jelderks asked Barran to explain. She began with some history.

On August 30, 1996, the Army Corps had a telephone conversation with Umatilla leader Armand Minthorn. Barran read from an E-mail that a corps official wrote after the meeting. “I told him we will do what the tribes decide to do with the remains,” the corps official had written.

The E-mail had been sent before anybody knew much about Kennewick Man and before the tribes had filed a claim. Then the tribes filed a claim, and the corps promised to return Kennewick Man to the tribes without having conducted any testing to determine his identity. But the lawsuit thwarted the plan. Once it was filed, Judge Jelderks directed the government to conduct a full, fair, and complete evaluation of Kennewick Man. This instruction put the government in an awkward political position, since the government had already promised Kennewick Man to the tribes. As a result, the government had tried to engineer evidence that would justify their promise while simultaneously burying any evidence that indicated Kennewick Man was not Native American.

A couple of tribal lawyers seated near Shuey laughed at Barran’s charges, drawing a glance from Jelderks. But Barran cited a July 14, 1998, meeting between Department of the Interior officials and Umatilla leader Armand Minthorn. At it, they discussed Jelderks’s court-ordered testing of the skeleton. The tribes opposed the testing, but the government had no choice but to carry it out. “Mr. Minthorn asked, ‘If we get our answer on the first try, will we go forward with additional testing?’” Barran read. “The Department of Interior’s response was, ‘We will add language that if we get the right answer the first time, we will not go forward.’”

The other lawyers stopped laughing.

Barran reminded Jelderks that he had directed the government to conduct testing that would produce an unbiased, fresh look at Kennewick Man’s origin. But the government, she insisted, had approached the testing with another goal in mind: getting the right answer for the tribes. Yet the government’s scientists did not produce the result the government wanted. They concluded that Kennewick Man did not share a connection to any population groups currently residing on the North American continent. On the contrary, the testing indicated Kennewick Man most strongly showed links to Polynesia and Japan, a conclusion Owsley and Jantz had reached four years earlier.

Government and tribal lawyers fixed their eyes on Barran. One Army Corps official seated behind Shuey arched his neck upward.

“I think,” Barran said, her voice slowing down to a hardly audible whisper, “you have a very clear record before you that every single ancient skeleton is irreplaceable, and this one is potentially magical because of its completeness. We don’t have anything like it.”

Every eye in the courtroom was riveted to Barran. Jelderks asked how many ancient skeletons from the Kennewick Man era were or had been available in the United States.

Barran looked Owsley’s way and suggested to Jelderks that he be given a chance to speak. The last thing the government wanted to see was Doug Owsley testifying about ancient skeletons that he had studied, few of which were Native American.

“Your Honor,” Shuey interjected.

Jelderks repeated his question to Barran. How many skeletons from the Kennewick Man era had been found in North America?

“Under a dozen,” she said.

Jelderks was aware of only two, the Spirit Cave mummy and the partial skeleton from Idaho called Buhl Woman. He wanted more details about them. Barran deferred to Schneider.

Schneider explained that there were very few additional intact skeletons of the same vintage as Kennewick Man. None were as complete as Kennewick Man and the Spirit Cave mummy.

With so much evidence that Kennewick Man was not Native American, and with its being such a natural treasure, the government’s decision to hand it over to the tribes raised the question: why? Where was the pressure coming from?

Barran had an answer: the White House.

Shuey rolled his eyes.

“We know the White House was involved in this case,” she told Jelderks, causing scowls to arise on the faces of government lawyers. She said that at least six meetings took place between unnamed White House officials and Justice Department attorneys representing the Army Corps in the lawsuit against the scientists. Because there were few records and notes from those meetings, little was known about what transpired there. But Schneider and Barran were able to document the White House’s influence in the decision to bury the discovery site under tons of rock. “We do know,” Barran said, “it was the White House that put the covering up of this site on the fast track.”

She had Jelderks’s attention. He squinted his eyes as she referred to “secret meetings and secret talking points.” Barran argued that the White House influenced the repatriation decision and that Interior Secretary Bruce Babbitt based his decision on political reasons rather than the scientific evidence.

Shuey dismissed this. He admitted that meetings took place. But he downplayed their significance. “In terms of contacts with the White House, it is a rather ambiguous term,” he said. “I don’t want anyone to get the impression that anyone at a high level was involved in these discussions.”

“Let me back you up for just one moment,” Jelderks said, reaching for a document that was part of the court record. He read it aloud. “‘Colonel Curtis has been directed by the White House to get the bank stabilized. He wants the bank stabilization to be completed by placing rift-raft and finished no later than 1 January 1998.’”

Jelderks put the paper down. It appeared clear that the directive to bury the discovery site came from someone higher up at the White House than a visiting scientist. “Just knowing the way the government works, knowing how the military works,” Jelderks said, “a colonel in the Army has been directed by the White House to get something done, the chain of command would indicate that that get done.”

Shuey said he was not prepared to respond to the Colonel Curtis memo.

Jelderks turned back to Barran. He wanted more specifics. Who at the White House, or what agencies at least, were involved in secret meetings?

“We don’t know because notes are so sketchy, and there are no notes from at least four of those meetings. So I don’t know how counsel for the government can say nobody from a high level was involved because there isn’t anything to tell us who was involved.”

Jelderks grimaced as he listened, then called a brief recess after Barran concluded. Owsley walked out to the lobby and stared out a large glass window at the street sixteen stories below. The government and tribal lawyers huddled in a circle behind him, joking and laughing. Arrogance, he thought, supreme arrogance.

Suddenly Jantz walked up beside him. His plane was scheduled to leave in an hour, forcing him to miss the closing arguments. “I’m leaving,” he said. “Carry on, Doug. Keep up the fight.”

Most of the other scientists had caught flights earlier in the day. Besides Owsley, only Dennis Stanford remained. Owsley felt very alone. But he was used to that. He walked back into court and took a seat in the empty jury box. Five years earlier he had decided on his own to launch the fight to save Kennewick Man. That single decision had grown into an epic legal battle that pitted him against the combined forces of the Justice Department, the Interior Department, the Army Corps of Engineers, five Indian tribes, and the White House. His relentlessness had caused government officials to violate their own rules and policies. A national press corps had shined a spotlight on the case. Most important, Kennewick Man remained aboveground. One person, he had been taught as a boy, can make a difference.

In closing arguments, one tribal attorney summed up the sentiments of the rest. “Your Honor,” he said, “there is simply no right to study under NAGPRA.”

Shuey agreed. “Plaintiffs’ claim seems to be that there may be some break in the historic record between these tribes and the remains that were found at the Kennewick site,” he said, thumping the table and pointing his finger. “Plaintiffs cannot accept what the Indians know; that is, that their ancestors have always been there.”

The pace of Shuey’s speech escalated with each word. “We seem unwilling to believe that the Indians are the descendants of the people who were always here and want to hypothesize that there may have been someone else here, someone else who looks like us.”

Struggling to keep pace with Shuey’s speech, the court reporter checked his count. Shuey was talking at a clip of 280 words per minute, 80 words per minute faster than the average person speaks.

“Inadvertently or not, plaintiffs’ theories are just another way to savage Indian heritage.”

Owsley stared at Shuey. He had never met the man. But Shuey had shifted from a legal argument to a direct personal attack on Owsley. Yet Owsley was not permitted to defend himself.

But Barran could defend him. She was furious that Shuey had stooped to accusing Owsley and his colleagues of savaging Indians. After exposing the flaws in Shuey’s statements, she turned her eyes from Jelderks to Owsley and Stanford in the jury box. “These are men who have devoted their lives to the study of human beings and people,” she said. “They are passionate in their admiration for these cultures. It [their work] is not under any circumstances to be perceived or to be characterized by their own government as savagers of the heritage of this country.”

Jelderks thanked all the parties and promised to issue his decision as quickly as possible. But he set no date. The case file had grown to over twenty-two thousand pages in five years. He wanted to read all of it before writing his opinion.

As the hearing recessed in Oregon, Benton County coroner Floyd Johnson was finishing up a law enforcement training seminar in Moses Lake, Washington. One of his colleagues there shared some disturbing news. The county building that houses the sheriff’s department and the coroner’s office in Kennewick was undergoing renovation. As a result, all materials from the evidence locker were put in temporary storage at an off-site location. Between the time that the evidence moved from the sheriff’s office to the temporary site a mysterious box of bones turned up.

The news perplexed Johnson. He did not recall the presence of a shoebox in his evidence locker. Nor would it be easy to miss such an item in his locker, which measured approximately three feet in height, two feet in width, and four feet in depth. That night Johnson returned home from the conference. The following morning he tracked down the evidence technician and asked to see the newly discovered box. Inside he found femur bones. They were in what appeared to be the same Ziploc bags in which Jim Chatters packaged Kennewick Man’s femurs nearly five years earlier.

The timing of the discovery was peculiar. Just two months earlier, on April 3, 2001, the FBI closed its investigation into the missing femurs after the U.S. attorney’s office in Spokane, Washington, officially declined to prosecute the case for lack of evidence. Federal prosecutors had originally asked the FBI to investigate whether the bones had been stolen and if so, by whom. But besides Floyd Johnson, the FBI found few people willing to answer questions. Some members and employees of the Umatilla tribe who had access to Kennewick Man at the Battelle facility refused to be interviewed, or in some cases simply did not return repeated calls from investigators.

The FBI had a bigger problem. It was unable to document a chain of custody for the Kennewick Man. No one at the coroner’s office, sheriff’s department, Army Corps of Engineers, or the Battelle facility had conducted an inventory of the bones at the various points where custody of the Kennewick Man changed hands. Unable to confirm who had custody of the bones and when, the FBI could not determine when the bones disappeared, much less whether the disappearance was the result of a criminal act.

And now the bones had suddenly turned up.

Confused, Johnson called Chatters. The news dumbfounded Chatters. But he was even more surprised when Johnson described the box that contained the femurs. It was cardboard and labeled Columbia Park II. Chatters recognized the description at once. In the days following Kennewick Man’s discovery, Chatters combed the discovery site and found other human bone fragments that were not part of the Kennewick Man skeleton. To avoid confusion, Chatters placed the non-Kennewick Man bones in a cardboard shoebox, labeled it Columbia Park II, and immediately turned it over to Johnson. It was weeks later that Kennewick Man, femurs included, was placed in a larger wooden box labeled Columbia Park I and turned over to Johnson. Both Chatters and Johnson agreed that the smaller Columbia Park II box was never put with or inside Columbia Park I. Yet when the Columbia Park II box turned up in Johnson’s locker, it not only had the non-related Kennewick Man bones, but also contained the missing femurs from Kennewick Man.

For Chatters, something didn’t add up. The night Johnson went to his home to take back Kennewick Man per the Army Corps’s demand, Chatters had personally placed the Kennewick Man femurs, along with the rest of the skeleton, in a large box with a screw-down lid. His friend Tom McClelland was his witness. Johnson was also present. Then they wrapped the box, labeled Columbia Park I, in evidence tape. Days later Johnson transported it to the Battelle facility. According to Johnson, the evidence tape was still wrapped around the box when he released it to Battelle, raising a question as to how the femurs got from one box to another.

There was another inconsistency. The second box surfacing in the evidence locker raised the presumption that it had always been there. But that seemed inconceivable. How could two large femur bones, each a foot long, that were valued at an estimated $25 million and the subject of a federal search have been sitting in Johnson’s evidence locker all that time? Surely they would have been discovered. Yet the FBI had not searched Johnson’s locker.

When the FBI learned of the discovery, it reopened the case. But the same problem remained, no paper trail. So in July 2001 the U.S. attorney’s office again declined to prosecute the case for lack of evidence. Then on July 13, the FBI formally closed the case for good. No charges were filed. Nor was Jim Chatters, who was the last known person to handle the femurs, asked to examine the newly discovered femurs to confirm whether they were in fact the missing ones. Instead, the femurs were transported to the Burke Museum in Seattle and put with Kennewick Man.