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Plaintiffs' October 1, 1999 Status Report to the Court

Alan L. Schneider, OSB No. 68147
1437 SW Columbia Street, Suite 200
Portland, OR 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445

Paula A. Barran, OSB No. 80397
BARRAN LIEBMAN LLP
520 SW Yamhill Street, Suite 600
Portland, OR 97204
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' OCTOBER 1, 1999 STATUS REPORT

Plaintiffs, for their October 1, 1999 status report, provide the following information to the court.

A. Defendants have damaged to the skeleton in collecting samples for C 14 dating and during other procedures.

On September 8, 1999 defendants took 30.3 grams of bone from the skeleton to distribute to four separate laboratories for radiocarbon dating. Cleone H. Hawkinson attended as plaintiffs' observer. Her affidavit detailing her observations is filed with this report. Also attached are affidavits from Dr. James Chatters, Dr. Douglas Owsley and plaintiffs' counsel.

Defendants' activities in collecting their samples for radiocarbon dating were ill conceived and unnecessarily destructive. In apparent haste to make up for lost time, defendants disregarded expert advice that preliminary chemical analyses should be conducted to determine how much bone was actually needed for radiocarbon dating. Defendants also ignored recommendations that the samples should be selected by a team of multidisciplinary specialists to ensure that the bones used for radiocarbon dating would not be important for other testing, study or evaluation.

Defendants elected to remove two different bones for dating, rather than follow standard scientific procedure and have all dates taken from pieces of the same bone.

Through a combination of poor judgment, inadequate advance planning, and faulty procedures, the following errors occurred:

  • Defendants selected a tibia, one of the least appropriate bones for radiocarbon dating. Owsley affidavit.

  • Defendants selected a fragile bone which was part of the only remaining major long bone of the skeleton's legs that was still complete and suitable for measurement. Owsley affidavit.

  • Defendants selected a bone which contained a key landmark from which measurements are made, which may now have been lost. Owsley affidavit.

  • Defendants also used an intact metatarsal which might also have provided important information about the skeleton. Owsley affidavit.

  • The two bones taken by defendants together measured 30.3 grams. Hawkinson affidavit. This is an unnecessary amount given current technology which allows a remarkable reduction in the amount of material needed for dating. Owsley affidavit. The radiocarbon date obtained for Dr. Chatters only required 0.7 of a gram. Chatters affidavit. Preliminary chemical analyses could have determined accurately how much bone was needed for dating the skeleton. Stafford affidavit (Plaintiffs' Reply Memo).

  • The sample was taken by personnel who are not believed to have experience in removing radiocarbon samples from human bones as old as the Kennewick Man skeleton. Hawkinson affidavit. Ms. Taylor was assisted by Dr. McManamon and the curator, neither of whom to plaintiffs' knowledge have the experience necessary for this task.

  • No proper image record was taken. Hawkinson affidavit. Owsley affidavit.

  • Taphonomic study of the skeleton should have been conducted before any samples were taken for radiocarbon dating. Owsley affidavit.

Plaintiffs advised defendants well in advance of September 8 of the appropriate techniques and cautions for this important procedure. See Schneider affidavit to this status report and affidavits of Dr. Thomas Stafford and Dr. R.E. Taylor attached to Plaintiffs' Reply Memorandum.

Plaintiffs also understand from reports that defendants removed and mixed sediments from the skeleton's bones during the first phase of government study. If this is accurate, that error endangers data which could provide information about the skeleton's original site context, Owsley affidavit, and which compounds the effect of the government's destruction of the discovery site.

In addition, there are indications that the skeleton's condition may be deteriorating. At least one of the cracks in the skull appears to be wider than when the skeleton was examined in October 1998. Chatters affidavit. While defendants claim that the skeleton is safe, their reports to the court have not included any specific information on the status of potential issues of concern (such as current condition of cracks, flaking bone, etc.).

The cumulative effect of defendants' handling of the skeleton since they took possession in September 1996 are grave and should have been avoided. Bones stolen, lost or used for the government's testing include most of both femurs, a complete metatarsal, a section from the only remaining major long bone of the legs, and part of a vertebra and other pieces found on the beach.

In addition, between August 1996 and October 1998, when the skeleton was finally moved from an admittedly inadequate repository, new cracks appeared in the skull and old cracks widened and lengthened. Chatters Report. Defendants now claim the collection has increased to 380 pieces, suggesting that there has been additional breakage. Schneider affidavit, Ex. 1 at p.. 2.

B. The federal defendants are disseminating propaganda about Kennewick Man.

Defendants are using their exclusive access to the skeleton to create a one-sided, distorted picture of Kennewick Man and their study activities. Defendants have to date declined to release the full results of the first phase of study. Instead, pieces of "information" have been fed to the public in a variety of ways. Given the extent of the misinformation that has been circulated, plaintiffs believe that defendants are deliberately misstating data, providing inaccurate information, and releasing certain selected information in an attempt to create false impressions about the origin of this skeleton as well as to suggest that plaintiffs lack credibility. There are many examples:

  • Defendants' press release issued September 8 stated that approximately 20 grams of bone were taken or to be taken for radiocarbon dating. Schneider affidavit, Exhibit 1 at p. 1. In fact, 30.3 grams were taken, half again as much as announced.

  • Defendants have leaked through the press claims that the skeleton was intentionally buried by other humans because of the presence of red ochre. Neither Dr. Owsley nor Dr. Chatters detected red ochre, Owsley affidavit, Chatters affidavit. And even if present, there are multiple other explanations for red ochre other than "intentional burial by other humans." Owsley affidavit. The claim of intentional burial is apparently designed to suggest that there was a group of people living as a culture 9,000 years ago (of whom only this one skeleton has ever been found).

  • The condition of the skeleton and the apparent lack of carnivore damage have also been cited as proof of an intentional burial, despite the fact that those two factors are not sufficient to distinguish a human-caused burial from a deposition due to a flood event or other natural cause. Chatters affidavit; Owsley affidavit. The cause of the skeleton's deposition cannot be determined without a complete taphonomic investigation. Owsley affidavit.

  • Defendants' published statements to the press after the September 14 hearing at which plaintiffs' discussed the damage to the skeleton were that they have proceeded with caution. This is not a correct view of defendants' acts on September 8. Defendants challenged the original dating of the skeleton by stating that Dr. Chatters chose an inappropriate bone, the metacarpal. There is no difference in the selection of that bone and the metatarsal the government used, except for a vast difference in size.

  • Defendants press reports have referenced a "prior agreement" with the labs as to the handling of bone residue. Plaintiffs are unaware of such "prior agreement."

  • At oral argument defendants advised the Court that collecting data on cultural affiliation could take years. Plaintiffs note that NAGPRA has been in effect 9 years, and that defendants have been repatriating remains and objects for a long time using just such cultural affiliation data. This case is not entirely a situation of a "first impression", unless other prior repatriations have been carried out without adequate data.

  • Defendants have claimed that the radiocarbon dating samples were taken by a team of "experts." In fact, Dr. McManamon and his team did not have the expertise needed for that task. Owsley affidavit.

  • Defendants have claimed that the box taken from Batelle in April 1998 did not include any bones from the Kennewick skeleton. In fact, however, the box contained part of a vertebra and other fragments of bones collected from the discovery site. See Chatters report at p. 4 (plaintiffs' supplemental report on transfer of the skeleton). The only reason they were not included with the rest of the collection is because Dr. Trimble failed to catalog them.

Plaintiffs are concerned about defendants' use of their exclusive access to the skeleton to disseminate this and other false and/or misleading information. Unfortunately, at least for now, the defendants have complete control over what the public learns about Kennewick Man. In addition to the possible effect on scientific inquiry in other matters, defendants are creating a public understanding about Kennewick Man and the parties involved in this litigation that suggests plaintiffs are wrong, or inexpert, or insensitive, or improperly taking up the time of the Court.

The cumulative effect of this misinformation campaign is not only damaging to plaintiffs' reputation but also creates other impressions that are wrong. Because of it, countless people have heard the government's message that it is being careful, selecting experts, and has not caused damage to this skeleton. Because of it, countless people have heard the government's suggestion that the skeleton was intentionally buried by some social group in some ceremony.

C. Curation and preservation of scientific value.

As the Court is aware, defendants have not curated the skeleton properly in the past. The damage from September 8 and other occurrences causes further concern that defendants have again violated the Court's directives in this regard. Plaintiffs ask that defendants be directed to provide the court with full protocols for any further intrusions no later than 20 days in advance so that plaintiffs will be able to review and object. Such protocols should describe precisely what is proposed to be done with the skeleton, when it will be done, who will conduct the procedures in question, and all other details needed in order to access the potential impacts on the skeleton. In addition, defendants should be required to file with the Court semi-annual condition reports detailing the current condition of the skeleton and any changes that have occurred since the last inspection.

Plaintiffs also ask that defendants be required to do any DNA or other testing and analyses from the overly-generous samples taken for radiocarbon dating and to take no further samples without a prior comprehensive taphonomic investigation.

Dated this 1st day of October, 1999.

BARRAN LIEBMAN LLP

By (signed)
Paula A. Barran, OSB No. 80397
Telephone: (503) 228-0500
Attorneys for Defendants

(signed)
Alan L. Schneider, OSB #68147
Telephone: (503) 274-8444
Attorneys for Defendants

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