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

Chapter 39. THE DECISION

August 30, 2002
Portland, Oregon

“It’s coming.”

That’s all Alan Schneider had to say when he called Paula Barran midway through the morning on the Friday heading into Labor Day weekend. Since arguing their case before Judge Jelderks 436 days earlier, they had eagerly anticipated his decision. The moment had arrived. Earlier that morning Alan had received several calls from reporters. They said the decision would be released by day’s end.

Barran tried to remain reserved. For six years she and Schneider had battled the federal government, which had used twenty-five government lawyers and close to fifty engineers, archaeologists, scientists, and other personnel, and spent an estimated $3 million of taxpayers’ money to prevent the scientists from studying Kennewick Man. Schneider logged over 6,000 hours on the case. Barran and her partners put in an additional 2,000. Combined, Schneider and Barran had run up roughly $1.5 million in legal fees. But they hadn’t billed their clients a penny. Lawyers conducting a cost-benefit analysis would judge this case a colossal loss from a business perspective. But for Schneider and Barran the case was never about money. The federal government’s efforts to bar scientific study of Kennewick Man were, in their view, a political injustice that begged for a legal remedy. They never regretted their decision to underwrite the cost of the litigation. They just wanted to win. And waiting for Judge Jelderk’s ruling on their motion to dismiss the Interior Department’s decision that Kennewick Man belonged with the tribes had been like waiting for the biggest jury verdict in their careers.

When ready, Jelderks would post his decision on the federal court’s Electronic Case Filing (ECF) system. Then ECF would instantly E-mail it to the accounts of the attorneys representing all interested parties. Using a security code password, Barran and Schneider would access a link to the decision and download the text. Barran told Alan that she and her husband Richard Hunt had plans to spend the long holiday weekend in central Oregon at their vacation home in Bend. They were set to leave the law offices just after noon to get a jump on the traffic. If the decision had not been posted by then, she would take her laptop with her for the weekend.

Schneider assured Barran he would call her on the road as soon as any E-mail came from the court. He instructed his secretary to log on and check their E-mail every thirty minutes. Soon he had her checking every fifteen minutes, then every five. By mid-afternoon, the secretary was logging on every three minutes. Schneider felt like a kid on Christmas eve; waiting for the moment it seemed would never arrive.

By 1:30 P.M. Barran and Hunt were in their BMW SUV headed toward Central Oregon. With Richard at the wheel, Paula plugged her cell phone in to the cigarette lighter and attached her earpiece. They were not outside Portland before she called her secretary to see if the decision had come. It hadn’t. “Call me the instant you hear anything,” Barran told her.

Driving through mountainous passes that continually disrupted service to Paula’s cell phone, Richard smiled wryly every time they hit a stretch of road where the cell phone regained its signal. Each time, Barran redialed her secretary to make sure she hadn’t tried to call while the phone was out of range. The secretary had no news to report. Paula’s stomach was in knots.

At 3 P.M. Pacific Standard Time Richard glanced at the dashboard’s digital clock. Then he looked briefly at Paula. “Elvis has left the building, you know,” he said.

She knew what he was getting at. If Jelderks truly planned to release the decision on the Friday before Labor Day, he would probably exit the courthouse by 3 P.M., leaving behind instructions for his clerk to post the decision at 4:30, right when the courthouse closed for the day.

Nonetheless, Paula called her secretary right up to 4:30. Still, no E-mails had come from the court.

Then at 4:36 Barran’s cell phone rang.

She fumbled for her earpiece.

It rang again.

“Answer it. Answer it,” Richard said.

She slammed the earpiece in her ear and reached for the phone. “Where’s the button?” she shouted, frantically trying to answer before losing the call.

“This is Paula,” she said.

“It’s here!” her secretary said. “You want me to read it?”

The decision was seventy-six pages long. Paula told her to scan down to the last page and read the conclusion.

“For the reasons set out above,” the secretary began, “Plaintiffs’ motion for an order vacating Defendant’s decision on remand (#416-1)…”

“C’mon. C’mon,” Paula whispered.

“…is GRANTED.”

“Son of a bitch,” Paula said slowly, turning toward Richard and putting her thumb up. “We won!” she shouted. “We won. We won.”

Richard laughed.

The secretary kept reading.

Paula kept yelling.

“Let me listen,” Richard yelled. “Let me listen.”

“Plaintiffs shall submit,” the secretary continued, “a proposed study protocol to the agency within forty-five days.”

“Holy shit!” Paula said. “We got study rights. Yes. Yes. Yes.”

By now the secretary was yelling so loudly that Richard could hear her through Paula’s earpiece.

“We won,” Paula shouted. “We won. We won.”

Paula hung up and immediately called Alan.

He had already read the first fifteen pages of the decision. “It’s beautiful reading,” he told her. “It’s a home run.”

As Schneider went through each detail with Barran, she shouted and cheered. Richard could not stop laughing. But he had a more global question on his mind: Was their victory decisive? In other words, how strongly was the judge’s reprimand of the federal government?

It was so strong that the decision read more like an indictment.

To begin with, Jelderks found that the Army Corps of Engineers had failed to act as fair and neutral decision-makers from the moment it took possession of Kennewick Man. Under the Administrative Procedure Act (APA), the federal law governing agency conduct in decision-making situations, the corps is obligated to be fair and impartial toward all affected parties. Jelderks concluded by censuring the corps for engaging in a litany of “secret” communications with the tribes. In addition to secretly providing documents and advance copies of reports, the corps carried out private meetings with the tribes, meetings that were aimed at producing a preconceived result. At the same time, the corps ignored or rejected repeated requests from the plaintiffs to see the same documents and reports, essentially foreclosing them from information needed to respond to agency decisions.

Such actions are unlawful under the APA.

Jelderks saved his strongest condemnation for Interior Secretary Bruce Babbitt, who ultimately took control of the case from the corps and subsequently determined that Kennewick Man was Native American and belonged with five tribes in the Northwest. Babbitt’s decision was virtually equivalent to passing a law. Under the APA, a judge cannot substitute his judgment for that of an agency, or set an agency’s decision aside on the basis that a court might have reached a different conclusion. Agencies are afforded a great deal of deference. To rescind Babbitt’s decision, Jelderks had to conclude Babbitt acted arbitrarily, abused his discretion, or failed to act in accordance with law. This required proof that Babbitt failed, as required by the APA, to demonstrate a rational connection between the facts before him and the choice that he made.

Jelderks excoriated Babbitt for failing to do just that. The only facts Babbitt relied on to judge Kennewick Man a Native American were that the bones were pre-Columbian and found in America. If Jelderks put his judicial seal on Babbitt’s decision, it would set a precedent that would require that any skeleton found in the United States older than 510 years to be automatically defined as Native American, even if it had no relationship to a present-day tribe. Babbitt, Jelderks decided, had stretched the definition of Native American far beyond the one Congress identified under NAGPRA. Worse still, he made the stretch arbitrarily, without authority from Congress or soliciting proper comment and input from interested parties, which is a violation of the APA.

Babbitt’s decision had other legal problems. He had determined that Kennewick Man belonged to five confederated tribes. Yet NAGPRA explicitly authorizes repatriation of remains to a single tribe, the one with the closest cultural affiliation. Implicit in this requirement is proof of tribal affiliation. “The Secretary’s analysis contradicts the plain language of the statute,” Jelderks wrote, chiding him for failing to make a real effort to analyze the claims separately.

Jelderks determined he had no choice but to set aside Babbitt’s decision. The question was, what next? Normally, under the APA, a judge in this situation would remand the case to the agency with instructions to reevaluate the decision. But Jelderks took the extraordinary step of removing the jurisdiction of Kennewick Man from the Interior Department. He said it would be futile to give the agency another chance to reevaluate the evidence. It had proven itself unable to act in an unbiased fashion. “There is no reason to believe,” Jelderks wrote, “that another remand would yield a different approach or result.”

The move was a harsh rebuke for a governmental agency that had played fast and loose with the facts and violated the due process protections in the APA.

For Schneider, the decision vindicated his clients. Paula could not wait to read the decision for herself. She and Alan were still on the phone when Richard pulled up to their vacation home in Bend. “Let me call you back from a land line,” she said, racing inside with her laptop. Moments later she was on line checking her E-mail account.

She scanned down to an E-mail with a link to the decision. She clicked on the icon and printed all seventy-six pages.

“You’re going to be useless tonight,” Richard said, carrying in their bags.

Museum of Natural History
Washington, D.C.

The halls of the museum were closed for the day and most Smithsonian scientists were off for the long holiday weekend. Not Doug. It was after 8:30 P.M. and he was still in his office, seated at an observation table reviewing the butchered bones of a hitchhiker who had been picked up and murdered by drug dealers. Shivering on account of a malfunctioning air conditioner that had reduced his office to an icebox, Doug sipped a cup of hot beef vegetable soup as he tried to write up the forensic report on the cause of the hitchhiker’s death.

It occurred to him that Judge Jelderks had imposed a deadline on himself to issue his decision before Labor Day. Doug called Alan Schneider’s assistant Cleone Hawkinson to see if anyone had heard anything from the court. Hawkinson broke the news to Doug that the judge had ruled in his favor and that he and the other scientists would get the chance to study Kennewick Man. Her words had not yet sunk in when Owsley’s other line started ringing. It was Susie calling from the hospital. She had a rare break and just wanted to see if he was still at his office.

Doug told her that he and the scientists had prevailed.

His tone was measured, but Susie could hear the satisfaction in his voice.

“Congratulations,” she said.

It was 1 A.M. by the time Susie and Doug met up at home. Exhausted, they went to bed without much discussion of the decision. The following morning Doug telephoned his father in Wyoming to give him the news. By that time, it had started to sink in. Doug felt an overwhelming sense of affirmation. The sense of relief was similar to what he felt when he finally earned his Ph.D., only this was greater. The satisfaction was akin to being hired by the Smithsonian, only this was richer. His legal and political saga to save Kennewick Man was a lifetime achievement. He had risked his job and his reputation by stepping into the teeth of a politically charged controversy. No one forced him to sue the federal government. He volunteered to do it. And he won.

The victory was monumental and had ramifications far beyond Kennewick Man. But for Doug the triumph, like his motivations, was internal. He never doubted that Kennewick Man was not Native American and should not be repatriated to the tribes. The only question was whether to risk his career and reputation by standing up to the powerful political forces working to bury the remains. He alone was uniquely positioned to fight the fight. If he hadn’t, Kennewick Man would have gone underground six years earlier and all future discoveries of his vintage would be at risk of repatriation without study.

I did what was right, he thought, feeling as though he had passed the most significant personal test of his career. And that’s all that matters.

Owsley’s Virginia farmhouse phone rang all weekend. Reporters called to get his reaction. Colleagues and friends called to congratulate him. Everyone wanted to talk. But he did not answer the calls. Nor did he feel deserving of accolades.

Wearing beat-up workboots, blue jeans, and a baseball cap, Doug spent his weekend picking the season’s last crop of vegetables and pushing a rotor tiller through his garden. Alone, he was at peace, his hands working the machine and his mind visualizing the study of Kennewick Man.