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The Kennewick Man Case | Court Documents | Affidavits & Declarations

Joint Tribal Claimants Motion for Stay Pending Appeal

Affidavit of Brent Hicks

Rob Roy Smith, OSB 00393
David J. Cummings, OSB 92269
Nez Perce Tribal Executive Committee
Office of Legal Counsel
P.O. Box 305
Lapwai, ID 83540-0305
Telephone: (208) 843-7355
Facsimile: (208) 843-7377

Attorneys for Defendant/Intervenor Nez Perce Tribe

Thomas P. Schiosser, WSBA 06276
Suite 1115 Norton Building
801 Second Avenue
Seattle, WA 98104-1509
Telephone: (206) 386-5200
Facsimile: (206) 386-7322
E-mail: t.schlosser(@)
Attorney for Defendant/lntervenor Colville Confederated Tribes






Defendants. Civil No. 96-1481 JE


Pursuant to Fed. R. Civ. P. 62


1. I am a professional archeologist employed by the Confederated Tribes of the Colville Reservation My professional credentials and experience include a Masters of Arts in Anthropology (Archaeology concentration) and have sixteen years experience working in the field of archaeology throughout the Northwest, both in the private sector and for the Tribe. I have been involved in the Ancient One issue since the find was first made known to the Tribe. I am a member of the Society for American Archaeology and a past board member of the Association for Washington Archaeology. As requested by legal counsel, this declaration addresses (1) to what extent are the Plaintiffs' October 10, 2002, studies duplicative of the Interior Department's studies already conducted; and (2) the harm effected by each proposed study. The following analysis presents technical descriptions of banns, which are better described as potential impacts or effects upon the remains. Spiritual and cultural harms are summarized elsewhere.

2. Plaintiffs' plan for study of the remains is a laundry list of the kinds of studies one might do on human remains. There is little attempt to explain why these studies are critical to study of this particular set of human remains. The uniqueness of the Ancient One's remains is described in the Introduction, but most of the studies do not focus on gathering information specific to the remains' potentially unique features. Rather, the full breadth of common physical anthropological data recording is proposed, sometimes redundantly.

3. The stated "Objectives of the Study Plan" are poorly defined. Objectives 3 and 4 are in fact anticipated outcomes of Objectives 1 and 2. There is no attempt after this section to tie any of the proposed studies to these objectives. The overriding objective of any further study of the Ancient One's remains should be to provide interpretive information regarding this set of human remains beyond that already presented and beyond that which may be concluded from data already collected. The point cited in Objectives 3 and 4 do address this to varying degrees, but most are redundant to the objectives (and outcomes) of the DO! studies. It is my professional opinion that the Plaintiffs' studies should have to be limited to those that are demonstrated to seek unique information r where errors or shortcomings in the DOl studies can be demonstrated.

4. There has been no attempt to reduce redundant data gathering) neither to studies already completed by DO! nor to those proposed in this plan. In particular, several different people appear poised to conduct largely the same examinations and measurements. Some of the proposed studies are intended to fill out several of the Plaintiffs' own personal databases, but it is unclear if these are proprietary or available to all researchers. Evidently, those databases do not contain more than a small number of measurements unique to the Plaintiffs' particular research interests, if any. A related form of redundancy is that several of the exams/measurements sought will use the same methodologies (e.g., measurement sets) used by DOJ.'s experts. The point of having standardized measurement sets is so that remains don't have to be examined by all who would be interested in using the data.

5. Several of the people proposed to conduct studies are not plaintiffs in the case. While Plaintiffs have been represented to the Court and the media as the 'leading experts' in their subfields, it appears that the Plaintiffs now believe that many of these studies can be adequately conducted by people other than themselves. Some of those proposed to participate are still students.

6. The Judge's Opinion indicates that the Archaeological Resources Protection Act (ARPA) is the appropriate law to govern Plaintiffs study of the remains. As such, the federal agency should refer to ARPA and its implementing regulations at 43 CFR Part 7 for guidance in how to approve or decline the Plaintiffs request for study of the Ancient One's remains. In particular, 43 CFR 78 notes that the agency shall determine that a proposed study "including time, scope, location, and purpose is not inconsistent with any management plan or established policy, objectives, or requirements applicable to the management of the public lands concerned." For the purposes of this technical review of the Plaintiffs' proposed study, particular note is paid to the applicability of the 'scope' and 'purpose' of the proposed studies.


I have coded each of the studies alphanumerically with each letter associated with a major heading in the Plaintiffs study plan (e.g., "Collection Inventory, Assembly, and Reconstruction" is A) and each number with the specific numbered study under that heading. My comments are organized by these alphanumeric codes.

Study Plan Part A1 - Preparation of an inventory of the remains is redundant with DOI's work (referenced as Table I in Walker, Larsen, and Powell 2000). Plaintiffs' example for the need for reinventory, that not all of the rib fragment identifications have been finalized (p.2), is a poor one since unidentified rib fragments are common in osteological reconstructions and has little function here other than for verifying Chatter's hypothesis that the Ancient One sustained a massive blow to the thorax, a hypothesis disposed of by the 1999 Powell and Rose studies. In other words, even if further identification of rib fragments were possible, it would not contribute to what should be the objectives of further study of the remains.

The fact that Owsley has conducted inventories of 6,000 sets of human remains (p.3) does not change the fact that a more specific inventory of these remains, if even attainable, offers no interpretive benefit for study of the Ancient One or those 6,000 remains.

Harm for Part A1: This task would require much more handling, of the bones. Each additional handling increases the possibility that the bones would be damaged. If the damage includes fragmentation and/or flaking off of even very small pieces of the bones this would have to be considered loss. Control/collection of these tiny flakes of bone does not mitigate the damage. In addition, each handling that leads to such alterations of an element undermines the accuracy and applicability of subsequent measurements, particularly weight. Thus, extensive handling would almost assure that the Plaintiffs' quantitative results from measurement, weighing, and image documentation would produce different results than those obtained by DOI and, given the multiple, redundant measurements proposed by the Plaintiffs, from each other. Also, the Plaintiffs previously had complained about the possible deleterious effects of atomized spittle and higher humidity being introduced to the remains during the DOI studies. The same concern should be shown for the extensive handling proposed by these studies. Similarly, there is the potential for dripping sweat, something r observed frequently during Owsley's inventory at Batielle in 1998. Owsley also split open one of his latex gloves during that inventory, but didn't change it until instructed to do so by one of the Corps representatives. Every handling of an element introduces the possibility of a reoccurrence of such events.

Study Plan Part A2 - Reassembly arid reconstruction would be necessary for the Plaintiffs to be able to conduct most of the other proposed studies. However, rather than reassembling all elements, this should be limited to only those elements needed for those studies determined to meet agreed upon objectives of the study. Much of this was done for the 1999 studies by DOL More handling, just to provide redundant results, should not be allowed.

Harm for Part A2: Unnecessary handling (as described for Al).

Study Plan Part B1 - Redundant with study by Powell and Rose in 1999, and by Walker, Larsen, and Powell in 2000. Interestingly, Stage 3 says that "Key bones and skeletal elements will be reconstructed.. ." which is what, in my opinion, should be the case for all the proposed studies. This description does not identify what bones are considered "key" nor the specific study objectives that make them so.

Of the studies proposed under 'Purpose" on p.5, (b) is redundant (to the extent I believe it possible to determine) with Wakeley et al. 1998, Huckleberry et al. 1998, and Huckleberry and Stein 1999, arid so is (c) but to a limited extent. (a), (e), (f), (g), (h), and (i) have all been addressed by Powell and Rose 1999 and Walker, Larsen, and Powell 2000. Examination to address (d) would be a new and potentially interpretive study.

Harm for Part B1: Extensive handling (as described for Al).

Study Plan Part B2 - The analysis of calcite concentrations is redundant to Huckleberry and Stein 1999 and should not be done. But examination to determine orientation of the burial based on the surface where concretions collected has not been done (but this is redundant with (d) in BI).

One caution: concretions have been removed from the bones by previous studies. Chatters did so while 'cleaning' the remains in 1996, especially on the skull fragments. The extent of such removal is not documented. Huckleberry and Stein removed concretions for study in 1999. These removals could undermine attempts to determine the orientation of the burial based on patterns of concretion presence on certain bone surfaces, especially if such 'cleaning' was disproportionately applied on elements that would have been on the bottom of the burial feature. Thus, it should first be determined if enough concretions are still present on enough bones to be able to assert the Ancient One's orientation before a more thorough examination to collect the specific data is conducted. The extent of handling required to collect the specific data, element by element, would be extensive. If a positive result cannot be predicted from an initial examination, the more thorough data collection should not be conducted.

Harm for Part B2: Minimal handling to do overall assessment; extensive handling to do the complete examination.

Study Plan Part B3 - This appears to be entirely redundant to Fagan's and Powell and Rose's 1999 studies. Pagan is far better versed in point styles and lithic material types of the Northwest than any of the people proposed to conduct the Plaintiffs' study (except perhaps the unspecified mother scientists").

Harm for Part B3: Handling

Study Plan Part B4 - This appears to be entirely redundant to the Powell and Rose 1999 study. Brace proposes to take 24 measurements of the cranium; Powell and Rose collected 52 measurements (although I do not know if they include all 24 of those proposed by Brace). Brace proposes to compare his measurements to 5,000 samples; Powell and Rose compared theirs to over 9,000 samples of 330 populations around the world. Brace proposes to use the same methods as that used by Powell and Rose, who also used a secondary methodology created in part by Brace (Brace and Hunt 1990).

Harm for Part B4: Handling.

Study Plan Part B5 - This appears redundant with that conducted by Powell arid Rose in 1999; this may be intended to be a more thorough exam but it doesn't say as much (see Powell and Rose pages 8 and 11 for their minimal reporting on hands and feet findings indicating to a certain extent the degree of their examination). Case is Ph.D. student; would his results be considered 'better' than Powell and Rose's who were both acknowledged experts when they did their work?

Harm for Part B5: Handling.

Study Plan Part B6 - Redundant to Powell and Rose 1999. Chatters is not a Plaintiff nor has he ever been described by the Plaintiffs as a 'leading expert

Harm for Part B6: Handling (Chatter's hands shook badly during his examination during the inventory conducted at Battelle in 1998).

Study Plan Part B7 - Same as B6 for skeletal observations. Projectile point examination is redundant with Fagan 1999 and Chatter's ow work in 1996. Also, the following sentence in the section should be called into question as a justification for this study: "Comparisons among populations on the basis of nonmetric traits are one means for establishing genetic interrelationships among populations..." Nonmetric traits are non-pathological variations of tissues difficult to quantify by measurement." (White 2000:527). Such variations are highly susceptible to factors of the environment (e.g., climate, diet) where a person lives. Short-term changes in the environment can lead to changes in physiology that would be reflected in nonmetric traits. Thus, it would take large datasets of consistently redundant measurements of such traits to assert any pattern, especially a genetic one. It is incorrect to assert that information from a single set of remains would inform on genetic interrelationships among 'populations' without a comparative dataset large enough to represent a population(s); such a dataset does not exist for early human remains in the Americas.

Harm for Part B7: Same as B6.

Study Plan Part B8 - Redundant with Powell and Rose 1999 and Walker, Larsen, and Powell 2000; in fact, dentition is Powell's area of particular expertise. Also, regarding the sentence in Purpose that: There are several genetically mediated joint diseases that are relatively common in modern American Indian groups from the Northwest ...and several of these are quite variable in their distribution across human populations." What objective does examination for these disease indicators serve for these remains? Have these diseases been shown in early North American people (as opposed to "modern American Indian groups")? Is there an extant database of the modern Indian groups with which to compare such data? Without answers to these two questions, this study serves only as a data gathering exercise with no interpretive outcome possible. This topic has never before come up as a topic of particular interest to the Plaintiffs. Cook is not one of the Plaintiffs.

Harm for Part B8: Handling.

Study Plan Part B9 - Redundant with Powell and Rose 1999, who used Gill's measurement sets for comparisons.

Harm for Part B9: Handling.

Study Plan Part B10- Use of the digitizer on the cranium could contribute to less handling of the cranium for the overall study but Plaintiffs do not assert that it would be used for that purpose. Measurement of the cranium also would appear to be redundant with parts of B4, B6, N9, and D6 (p.27 - see comment below). These measurements were collected by Powell and Rose in 1999, who compared them with more measurement sets than proposed here. The concern stated in the Purpose section that Powell and Rose's "measurements are the only data available to the scientific community..." a. a justification for this study would appear to be somewhat offset by the methodological safeguards Powell and Rose took against interobserver variation in 1999.

Harm for Part B10: Handling.

Study Plan Part B11 - Redundant with Powell and Rose 1999.

Harm for Part B11: Handling.

Study Plan Part B12 - Powell and Rose 1999 and Walker, Larsen, and Powell 2000 did this, but Owsley's data from 24 skeletons predating 8000 B.P. may include data not available to DOL It's not clear from this if this data is in a personal, proprietary database of Owsley's, if so, this would appear to be in violation of ARPA (43 CFR 78(a)(7)).

Harm for Part B12: Handling including the use of dental picks and spatulas.

Study Plan Part B13 - Redundant to Powell and Rose 1999, and Walker, Larsen, and Powell 2000. Also, if the sentence under Purpose about collecting "additional information on the pattern of post cranial adaptation..." refers to data related to physiological effects of lifestyle, this also would be redundant to other studies proposed herein.

Harm for Part B13: Extensive handling.

Study Plan Part B14 - Redundant to some extent with Powell and Rose 1999. Turner is not a Plaintiff.

Harm for Part B14: Handling, including moving for x-rays. It's not clear if Turner will use any destructive techniques.

Sampling and Testing - regarding the introductory paragraph on p. 16: these tests will result in the destruction of relatively small amounts of the remains. Most of these are redundant to DOFs tests - DO! took 8 such samples in 2000 following Walker, Larsen, and Powells assessments which looked at all four of these subject areas ((a) through (d)): (b) also was conducted in 1996 by Chatters (C14) and Smith (potential for DNA); (c) also was conducted in association with the 2000 C14 dating; and, (d) was conducted in association with the 1996, 1999, and 2000 C14 dating. Tests related to the calcium carbonate concentrations were conducted previously by Huckleberry et al. 1998 and Wakeley et al. 1998 (from the on-site geological studies), and by Huckleberry and Stein in 1999.

Study Plan Part C1 - If any of this must go ahead it should be pared down to only those tests that have not been done previously where obtaining results can be confidently predicted, and the result will directly contribute to interpretive objectives for these remains. Micro sampling for nearly all the stated purposes was conducted by DOl, and it is not clear what contribution the proposed tests not previously conducted by DO! (i.e. CHN analysis) would have for interpretation of these remains and for assessing whether DOJ followed an appropriate process in determining affiliation.

Harm for Part C1: Bone destruction - up to 20 bones would be sampled for up to 50 mg from each element, equaling a maximum of 1,000 mg. The photograph (p.18) of the drill bit and dime with 10 mg of powder shown represents just 1/100th of the potential amount of bone that would be collected. Also, this will require more forceful handling (DOl's use of a drill in removing sediments in 1999 caused some bone fragmentation and loss).

Study Plan Part C2 This has the same desired outcome as Study Plan Part Cl. This still is destructive, but only to samples already removed from the remains and already submitted for previous testing. This would require no more collection of bone from the intact remains.

Harm for Part C2: Destruction of samples previously collected and submitted for testing.

Study Plan Part C3 - Redundant with Walker's study (reported in attachment to 2000 report from DOD, except perhaps the nitrogen isotope measurement.

Harm for Part C3: Destruction of micro samples from remains.

Study Plan Part C4 - This has not been previously studied. The result of this test could be compared with the result of dating of a sample of soil from the burial location profile by Wakeley et al. 1998 to assert veracity of previous radiocarbon dating of the remains. This would be preferable to dating more bone from the skeleton.

Harm for Part C4: Handling and potential damage to bones during collection of samples of the calcite concentration for dating. Certainly a minimal harm in comparison to dating more bone.

Study Plan Part C5 - Similar application as C4 with result comparable to results of Wakeley et al. 1998 and Huckleberry et al. 1998.

Harm for Part C5: Same as C4.

Collection and Study Session Imaging - Such imaging was previously collected.

Study Plan Part D1 - The digital photographs proposed might be considered redundant to D6 depending on the resolution of the latter and proposed applications of the outcomes.

Harm for Part D1: Handling -

Study Plan Part D2 - X-rays of these elements were conducted by Powell and Rose. Powell and Rose 1999 note the destructive effects of x-rays on genetic material. Thus, if they xray an element they should not be allowed t select that element, or one that was x-rayed by previous studies, for DNA. This would preclude DNA testing of the teeth, which most experts say is the best source of intact DNA in older remains.

Harm for Part D2: Handling, including movement to a lab. Also, destructive effects of x-rays as noted above.

Study Plan Part D3 - Done by Powell and Rose in 1999, and some by Chatters in 1996.

Harm for Part D3: Same as D2.

Study Plan Part D4 - Some done by Powell and Rose in 1999 although their report does not provide an element-by-element accounting.

Harm for Part D4: Same as D2.

Study Plan Part D5 - Done by Powell and Rose in 1999.

Harm for Part D5: Same as D2, including potential damage during reconstruction.

Study Plan Part D6 - This may make measurements under B4, B6, B9, and BlO superfluous.

Harm for Part D6: Handling.

Study Plan Part D7 - It is not clear if incisions will be made to expose internal bone structure. It should be made more explicit how better understanding the 'potential variation in preservation throughout the skeleton' will contribute to any of the interpretive objectives of study. It may prove unnecessary given the many other studies proposed that would address bone condition and taphonomy.

Harm for Part D7: Handling, including transport to a lab.

Study Plan Part D8 - I am not familiar enough with dentition analysis to know if these are contributory to interpretation or not.

Harm for Part D8: Appears limited to handling, although it would be fairly intensive handling.

Other Considerations -

Observers - No tribal observers would be allowed in the rooms! Native American Tribes have status under ARPA (see in particular 43 CFR 7.7), NAGPRA (see in particular 25 USC S 1001 S. 3(c)(2) and (4)), and NHPA (see in particular 16 USC S 470(d)(l)) that is not accorded anyone else. Under each of these laws, Tribes are specified as parties that the federal agencies must engage with as opposed to unspecified "interested parties." Due to -this special status, allowing tribal observers at a federal action that uniquely affects Native Americans, and in particular the coalition of tribal claimants, is a reasonable accommodation for the federal agency to make.

In addition, the Burke Museum is a Washington State institution, which also must obey State and Federal laws, as well as meet the State's expectations for relations with Tribes in the State as declared in the 1989 Centennial Agreement. Further, the Burke Museum's role in support of any study of the remains should be directed by the stipulations of the storage agreement with the Corps of Engineers, stipulations the Corps also should consider when deciding what proposed studies to allow and to what extent they will meet these Other Considerations

The collective demands of the Substitutes Other Tests, and Other Investigators sections would give the Plaintiffs open license to do whatever they want with the remains and to include whomever they want. If this study plan is supposed to take the place of an ARPA permit request, as indicated in the Court Opinion, the permitting agency should reject such demands as too nonspecific.

Attribution of Views - The last sentence suggests that there is disagreement among the Plaintiffs of the applicability and importance of some of these studies.

I declare wider penalty of perjury pursuant to the laws of the United States that the foregoing is true and correct.

EXECUTED this _14th_ day of Novembei 2002, at Nespelem, Washington.


Brent Hicks

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