Plaintiffs Memorandum in Opposition to Intervenors Request for Stay Pending Appeal
Affidavit of Douglas W. Owsley
Alan L. Schneider, OSB No. 68147
Paula A. Barran, OSB No. 80397
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, C. LORING BRACE, GEORGE W. GILL, C. VANCE HAYNES, JR., RICHARD L. JANTZ DOUGLAS W. OWSLEY, DENNIS J. STANFORD and D. GENTRY STEELE
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, FRANCIS P. McMANAMON, DAVID A. FASTABEND, EDWARD J. KERTIS, THOMAS E. WHITE, GALE A. NORTON, CRAIG MANSEN, ROBERT G. FLOWERS,
CV. 96-1481 JE
AFFIDAVIT OF DOUGLAS W. OWSLEY
STATE OF WYOMING
I, Douglas W. Owsley, being first duly sworn, do depose and state as follows:
1. I am one of the plaintiffs in the above-entitled case. My professional qualifications are described in earlier affidavits filed with the Court. See attachment to Plaintiffs' Motion for Order Granting Access to Study (Docket No. 54).
2. I have read the affidavits of Dr. Manfred Jaehnig (Docket No. 549) and Mr. Brent Hicks (Docket No. 550) filed in connection with the Joint Tribal Claimants' Motion for Stay Pending Appeal. Dr. Jaehnig and Mr. Hicks are archaeologists, not physical anthropologists. Their affidavits do not accurately depict the purposes of the studies proposed in plaintiffs' study plan, or the procedures that will be followed in conducting those studies.
3. For example, Dr. Jaehnig states that microsampling of the skeleton to assess its variability in bone preservation and to obtain chemical data will "jeopardize the integrity of the remains." Jaehnig affidavit, paragraph 10. That is not true. No more than two microsamples will be taken from any single bone, and the appearance and structural integrity of a sampled bone will not be affected. The microsampling will be conducted by Dr. Thomas Stafford. He is experienced in this procedure, and has safely conducted it on bones older and in poorer condition than the Kennewick skeleton.
4. Dr. Jaehnig also states that "there is no way the remains of the Ancient One will not be severely impacted" by plaintiffs' proposed studies. Jaehnig affidavit, paragraph 17. He is mistaken. The utmost care will be taken during our study team's investigation and documentation of the skeleton. None of our studies either individually or collectively will affect the skeleton's safety, stability, or integrity. In this regard, Mr. Hicks complains that very small flakes or particles of bone may become dislodged during handling of the skeleton. Hicks Affidavit, page 5. Such incidents, if they should occur, would have no affect on the skeleton's overall stability or integrity. Indeed, they would be less of an impact than the gradual disintegration that will inevitably affect parts of the skeleton over time if they are left in an unconsolidated state or the complete destruction that will happen if the skeleton is buried. It is more likely that our studies will help to promote preservation of the skeleton. Some of the information that we obtain may help to identify potential chemical or structural problems that need to be addressed.
5. With only a few exceptions as noted below, all members of plaintiffs' study team have many years of experience in the handling of skeletal remains. Each of us has examined (or in the case of Mr. Clark photographed) hundreds if not thousands of human skeletons, and we know how to avoid damage to the bones being examined. Although D. Troy Case and Kate Spradley do not yet have their doctorate degrees, they have worked extensively with skeletal remains both in classroom and in museum settings. Their work with the Kennewick skeleton will be performed in the presence of other more experienced scientists. Digital photography and laser scanning of the skeleton by Carl Hansen and Robert Francis will not require extensive handling of the bones by them.
6. As an added precaution, an evaluation of the skeleton will be conducted prior to start of the study session to identify any bones or pieces that require special treatment or care. I and other members of the Smithsonian Institution's bioarchaeological/forensic investigation team have conducted similar evaluations of hundreds of human skeletal remains ranging in age from modern to more than 8,000 years old and varying in condition from excellent to extremely fragile. In addition to dozens of museum collections, we have worked on skeletal remains from the Jamestown Colony, Civil War battlefields (e.g., Antietam, Brandy Station, Gettysburg, Glorieta Pass and Petersburg to mention only a few), and the Confederate submarine C.S.S. Hunley.
7. Our proposed studies of the skeleton are not redundant as Dr. Jaehnig and Mr. Hicks assert. The measurements and observations reported by the government's investigators must be checked to determine if they are accurate and what types of corrections are needed if they are not accurate. Independent verification of data is a critical part of the scientific process. Without it, there can be no confidence that reported data is reliable. Such verification is particularly important here because the government's investigators are unlikely to be proficient in all of the measurements and observations that will be conducted by plaintiffs' study team. For example, Dr. Powell does not normally use the type of simometer that Dr. Gill uses in his study protocol. Dr. Powell's lack of familiarity with that instrument may have affected the accuracy of some of the measurements he took for the government in 1999.
8. Plaintiffs' study plan also includes many studies, tests and procedures that were not conducted by the government's investigators or that were only partially performed. Some of these new or more complete investigations include: (a) reassembly and reconstruction of most major elements of the skeleton; (b) complete taphonomic examination of the skeleton; (c) measurement and charting of most bone fractures; (d) analysis of calcium carbonate concretions; (e) comprehensive examination of the hand and foot bones; (f) collection of digital coordinate data; (g) revised estimates of stature; (h) analyses of amino acid preservation and stable nitrogen isotopes; (i) scanning electron microscopy examination of selected bones; (j) analysis of dental peels for evidence of microscopic wear patterns on dentition; (k) creation of an accurate, comprehensive image record. These investigations will provide new data about the skeleton and will create a documentary record that can be used by future investigators.
9. The fact that some of the measurements and observations will be repeated by more than one member of the study team is not a sign of needless redundancy. It is an example of how good science is done. Each member of the study team has something special to add to our investigation of the skeleton, either in terms of perspectives, skill or knowledge. Each will help to increase the accuracy, reliability and scope of the data that are obtained.
DATED this ____ day of November, 2002.
Douglas W. Owsley
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