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Scientists' April 1, 2000 Status Report to the Court
Alan L. Schneider, OSB No. 68147
1437 SW Columbia Street, Suite 200
Portland, Oregon 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445
Paula A. Barran, OSB No. 80397
BARRAN LIEBMAN LLP
E-mail: pbarran@barran.com
601 SW Second Ave., Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, et al.,
Defendants. CV No. 96-1481 JE
PLAINTIFFS' APRIL 1, 2000 STATUS REPORT
Plaintiffs, for their April 1, 2000 status report, advise
the Court of the following:
A. Defendants' Response to Plaintiffs' request for clarification
of deadlines demonstrates the need for Court intervention.
As the Court is aware, plaintiffs have filed a motion for a clarification
of the Court's order extending the government's deadline to respond
to the study requests. Plaintiffs have asked the Court to direct
the government to respond to the portions of their study requests
that do not depend upon the government's DNA studies (which the
government states is being done solely to determine whether there
is any cultural affiliation). The government has objected, and
responded that while it "may" permit study if it is
unable to establish cultural affiliation, it is not able to be
more specific at this time, more than 3-1/2 years after it made
its first attempt to repatriate the skeleton. However, defendants
provide no reason why they cannot answer plaintiffs' questions
now.
B. The government is now stating that it believes plaintiffs
are obligated to make an "official administrative request
to study."
Over the past several weeks, the parties have exchanged correspondence
about the plaintiffs' study requests.
Defendants, had provided an incomplete summary of "the study
request," and, in connection with that, stated:
"... there has not been any official administrative request
to study..." Letter of Allison B. Rumsey, March 8, 2000
Plaintiffs have seen no regulation that requires them to make
an "official administrative request to study", and
frankly, plaintiffs thought that the Court settled that issue
long ago. Plaintiffs raised their concern about procedural traps
in the hearing held October 23, 1996. On that occasion, defendants
tried to avoid plaintiffs' lawsuit by stating that plaintiffs
had not "claimed" the remains. Plaintiffs' concern
then was that the government would argue that, technically, no
claim had ever been made despite thousands of pages being filed
with the court. As a result, plaintiffs raised that issue with
the Court just so nothing like this would happen again, and the
Court commented that a simple letter would suffice to avoid a
later argument that "filing a lawsuit isn't making a claim
under the Act" (Tr. 55). The then-attorney for defendants
accepted, without challenge, that plaintiffs had timely made
their position clear. Tr. 57.
Plaintiffs frankly don't know what defendants want by their apparently
secret rule that there has to be an "official administrative
request to study." Defendants have, incidentally, never
advised what sort of "official" request they need to
see. Plaintiffs sense that their study requests will be ultimately
denied in September, 2000 (or later) with the statement that
they were never made "officially." Plaintiffs accordingly
request the Court to require defendants to consider all the requests
contained in the administrative record, regardless of whether
they meet the government's definition of an "official administrative
request to study." Otherwise, this issue will undoubtedly
have to be addressed at the fourth anniversary of this litigation.
C. Defendants continue to refuse to share information needed
by plaintiffs to participate in the administrative process.
Defendants have stated a "commitment" to make their
study data "available and accessible to educators, reporters,
scientists, and interested citizens." See Kennewick Man:
The Initial Scientific Examination, Description, and Analysis
of the Kennewick Man Human Remains, Department of the Interior,
October 15, 1999, Chapter 1 at page 1. However, plaintiffs have
been excluded from reviewing that data.
Among other things, plaintiffs have requested copies of the x-rays
and CT scans that defendants made of the skeleton's cranium and
that portion of the hipbone containing the embedded projectile
point. Defendants have refused to provide these copies unless
plaintiffs agree not to disclose them to "anyone other than
plaintiffs" until the administrative record has been filed
with the Court. Other researchers, however, have apparently been
allowed unrestricted access to the same x-rays that CT scans.
See attached affidavit of Dr.
Douglas Owsley, who cites a request from a graduate student
who was apparently given that access.
In addition, plaintiffs have requested copies of the expert reports
and other information gathered by defendants relating to whether
the skeleton can be culturally affiliated to any modern tribe.
No response has been received to this request.
D. Defendants have provided further inaccurate information.
Defendants' February 18, 2000 filing with the Court includes
a statement by Dr. Trimble that the Munsell Soil Color Charts
could not be used to describe colors on the Kennewick bones because
the charts do not contain green sequences and because the colors
of the Kennewick bones are "mottled" rather than solid.
See Trimble Affidavit at page 7. In fact, however, the Munsell
Charts contain charts that depict green sequences, including
colors derived from plant materials (such as algae). See attached affidavit of Dr. Thomas
Stafford. Moreover, mottled colors can be described by giving
the appropriate color chart reference for each color (1).
See Stafford Affidavit at page 2.
Dr. Trimble also states that "[h]andling causes the greatest
damage to fragile bone," and cites as support "[r]ecent
research by the University of Bradford." Trimble Affidavit
at page 4. This statement is misleading to say the least. It
is unfair and inappropriate to compare students who are still
learning how to identify and handle skeletal remains with experienced
researchers like plaintiffs and their colleagues. Furthermore,
the University of Bradford research he cites is a study being
conducted by a graduate student. It is still preliminary and
has yet to undergo peer review of any kind.
E. Plaintiffs have provided further recommendation for DNA tests.
On March 23, 2000, Dr. Owsley answered questions from Dr. McManamon
concerning DNA testing of the skeleton. Their teleconference
which was scheduled on two day's notice lasted for approximately
one hour.
In addition to other recommendations, Dr. Owsley advised Dr.
McManamon that a complete taphonomic evaluation of the skeleton
should be conducted before any samples are taken DNA testing.
He informed Dr. McManamon that such an evaluation will require
a number of different experts, including specialists in physical
anthropology, geoarchaeology, bone fracture analysis, bone taphonomy,
photography and digital imaging. These experts should be experienced
in working with skeletal remains as old as the Kennewick skeleton.
Dr. Owsley also advised Dr. McManamon that important information
concerning the skeleton and its after-death history could be
lost if the necessary taphonomic data are not obtained before
more samples are removed. The importance of conducting a complete
taphonomic evaluation was also emphasized in a letter sent to
defendants on March 20, 2000.
Dated this 3rd day of April, 2000.
(signed)
By__________________________
Alan L. Schneider, OSB #68147
Telephone: (503) 274-8444
Attorneys for Plaintiff
BARRAN LIEBMAN LLP
By_______________________
Paula A. Barran, OSB No. 80397
Telephone: (503) 228-0500
Attorneys for Plaintiffs
FOOTNOTES
(1) Dr. Trimble's affidavit also
states: "[t]he soil chart includes 322 chips on nine charts
with seven hues of yellow-red." See Trimble Affidavit at
page 6, lines 21-22. This statement appears to be a carefully
edited re-write of the following (more accurate) sentence from
the Munsell website: "322 color chips are mounted on the
nine charts: seven (7) hues [of red, yellow, brown colors] and
two Gley (blue and green colors...)". See attachment 2 to
Stafford Affidavit. back
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