Friends of America's Past

The Kennewick Man Case | Court Documents | Affidavits & Declarations

Plaintiffs' Request for Immediate Response Re Study Request


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
520 SW Yamhill Street, Suite 600
Portland, Oregon 97204-1383
Telephone: (503) 228-0500
Facsimile: (503) 274- 1212

Attorneys for Defendant






CV No. 96-1481 JE


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.

2. My birthdate is July 21, 1951. I have been employed by the National Museum of Natural History, The Smithsonian Institution, since 1987. I am a Curator and the Division Head of Physical Anthropology of the National Museum of Natural History. Further details of my professional background are provided in my affidavit dated March 4, 1997 that was filed with the Court in support of Plaintiffs' Motion for Order Granting Access to Study.

3. Dr. Richard Jantz and I have spent the past 17 years developing a computer database of human skeletal measurements and observations. Our database is designed to serve a number of objectives. One purpose is to examine and analyze the biological affinities or relationships between different New World populations and individuals, both Historic and Prehistoric. Such analyses can be used for theoretical research and for practical applications. An example of the latter is evaluation of skeletons subject to potential repatriation under NAGPRA to help ensure that remains are returned to the correct tribe. Dr. Jantz and I have conducted such evaluations of skeletal collections for many different museums, federal agencies (including the U.S. Army Corps of Engineers and the National Park Service), and tribes (e.g., Cheyenne, Crow, Wichita). Our database has also been used as a reference series for evaluating potential NAGPRA and ARPA violations involving looting of archeological sites. Federal agencies requesting this assistance have included the FBI, National Park Service, and the U.S. Fish and Wildlife Service. I have also assisted in the prosecution of NAGPRA violations in several states. Another purpose of our database is to document and evaluate differences and changes over time in the health and lifestyles of Prehistoric populations. Such information can provide important insights into the biological, cultural and environmental factors that contributed to the peopling of the Americas. Such information may also prove helpful in developing more effective strategies for meeting the specific health needs of modern Native Americans. Some tribes, for example, suffer from rheumatoid arthritis and diabetes at higher frequencies than other populations.

4. Our research has been, and continues to be, impacted by the government's refusal to allow us to measure and document the Kennewick skeleton. Our research to date indicates that the early inhabitants of the New World may have comprised a number of biologically different populations. For example, the early inhabitants of Minnesota and the northern midwest appear to be quite different from the people who inhabited Nevada at approximately the same time period. Based upon the few photographs and the cast we have seen of the Kennewick cranium, this individual may represent another different biological population. What his relationship is (if any) to other New World populations cannot be determined accurately without actual examination of the skeleton itself.

5. Dr. Jantz and I have been invited to present a paper at a major scientific conference that will be held in October of this year in Santa Fe, New Mexico. This conference, which will involve scientists from a number of different disciplines (archaeology, human skeletal biology, genetics, geology and geochemistry), has been called to explore current theories and the latest data on the peopling of the Americas. Dr. Jantz and I intend to present a new assessment of skeletal data from the western United States and a comparison of this data to other North American and circum-Pacific populations. Without data on the Kennewick skeleton, our assessment will be incomplete. As the oldest nearly complete skeleton found in the Pacific Northwest, Kennewick Man can provide a critical comparison to the few other skeletons of similar age found elsewhere in the western United States. Analysis of this skeleton and an opportunity to discuss its significance with other leading scientists at the Santa Fe conference would significantly benefit our research and would help to advance the work of other researchers.

6. I am pleased that the government has finally abandoned its opposition to scientific analysis of this important discovery. I am also pleased that the government has begun the process of studying the skeleton. However, the limited studies conducted to date by the government are only a small part of what needs to be done. The government's studies will not provide all of the data needed to answer the many important questions that should be asked of this skeleton, and they are not an adequate substitute for independent examination of the skeleton by the plaintiffs (and by other interested scientists as well).

7. The examination protocol developed by Dr. Jantz and myself involves 78 different measurements (not including teeth) of those skulls (like Kennewick Man) that are complete enough for a full set of measurements. Some of these measurements are not normally taken by Dr. Powell or other researchers. Even if Dr. Powell did take our measurements (or some of them), the skeleton should still be re-examined by someone familiar with our techniques and forms. Kennewick Man is a key individual. As such, it is important that the measurements be consistent with our standardized protocols so we can ensure the integrity and reliability of our data and analyses. In addition, it is a basic tenet of science that all data should be subject to testing and re-verification by independent observers. Independent verification of data is essential for ensuring the reliability and credibility of the scientific process.

8. As noted above, the database developed by Dr. Jantz and myself also contains information concerning the health and lifestyles of the skeletons we examine. Among other things, we record information on: age at time of death; sex; dental health; general robusticity; traumatic injuries; disease (e.g., arthritis, infections); muscular development; and evidence of repetitive activities. When I inventoried the skeleton on October 28/29, 1998, I was required to comply with the government's narrow interpretation of what constitutes an inventory. As a result, I was not allowed to bring into the examination room all of my standard recording forms or instruments, and I was not permitted to take standard osteometric measurements. Moreover, even if I had been allowed to gather health and lifestyle data during the inventory, conditions were not favorable for making such observations. None of the bones were reassembled, time was extremely limited, space was cramped and the lighting was inadequate. The Kennewick skeleton is important for my studies of the health and lifestyles of the earliest known inhabitants of North America. Even though our database includes thousands of individuals, it presently contains only four skeletons (Horn Shelter man, Wizard Beach, Spirit Cave and Browns Valley) that are as old, as well preserved, and as nearly complete as Kennewick Man. Because the existing sample base is so limited, every additional piece of information we can obtain is irreplaceable. My work during the inventory only allowed me to obtain generalized impressions, and I need an opportunity to work comprehensively with the skeleton as it is now rehoused in a more completely assembled arrangement.

9. The fact that the government's study team may have gathered information concerning these issues is not a substitute for examination of the skeleton by myself and other scientists. No two scientists can be expected to address all of the issues that are of interest to all other scientists. Scientists often have different perspectives and views on what is important. All perspectives are needed to bring as much clarity as possible to the past. In addition, it is important that the observations of the government's scientists be checked by other observers. As noted above, independent verification of data is a fundamental rule of science. Such verification is particularly important in the case of skeletal observations relating to health and lifestyles issues. Evidence concerning these matters is complex and subtle, and scientists may disagree as to their interpretation. Even questions that may seem straight forward, such as age at time of death, can be difficult to establish (except in broad ranges). To ensure consistency of observations, all health and lifestyles information entered into our database for key skeletons like Kennewick Man is gathered by myself or someone trained in my scoring techniques.

10. One potential issue in this regard has already arisen. I understand that Dr. Fagan, one of the government's study team, has recently expressed an opinion that the projectile point in Kennewick Man's hip may have entered his body from the rear. This interpretation is contrary to my impressions from my inventory of the skeleton. When I examined the fragment of ilium that contains the projectile point, it appeared to me that the point of entry was from the front. It is my understanding that Dr. Chatters shares the same opinion. This difference of interpretation, and any others that might arise, cannot be resolved if I and other scientists are not permitted to examine the skeleton under the same favorable conditions enjoyed by the government's scientists.

11. Further examination of the skeleton could also aid in other ways. I understand that Dr. Fagan has stated that the CAT scans taken of the projectile point in February were too unclear for interpretation. As a result, he was reportedly unable to identify the projectile point's form or type. The Smithsonian has access to a research CAT scanning facility that takes images which are more precise than the images needed for most medical applications on living individuals. This facility has been tested on projectile points embedded in human bone, and the result is a clear, three dimensional model that is detailed enough to show flaking techniques and edge serrations. With this facility, the projectile point in the skeleton's hip can be examined without removing it from the bone. The images it would take would provide a valuable record of the projectile point that could be used for future reference by other researchers, and the process would not injure the skeleton in any way. Since the particular facility I am referring to is located in the Washington D.C. area, its use would require that the bone fragment containing the projectile point be moved for a short period of time. However, there may be other facilities of this caliber elsewhere in the country closer to the Burke Museum.

12. An issue that has arisen from time to time during the course of this case is the question of whether the skeleton was buried as a result of intentional human activity or as a result of a natural event such as a flood. I do not know what conclusions the government's study team has reached in this regard, but this is another issue that should not be resolved without input from other scientists. Taphonomic assessments of a skeleton's origins, deposition and post-depositional history can be complex, and these complexities are increased when as in this case the skeleton has been moved from its original depositional context. Among other things, the skeleton must be examined for possible differences in the preservation or condition of different bones, differences in the sediments adhering to (or inside) different bones, subtle erosion patterns on the bones, etching by roots, and other clues of this nature. In addition, thorough analysis of the geologic processes that acted on the discovery site during and after the time of deposition will be necessary. I have conducted taphonomic assessments of many different skeletons in a wide variety of contexts. Drs. Bonnichsen, Gill and Stafford also have expertise in these matters. We would be willing to undertake an appropriate analysis of the Kennewick skeleton or assist the government's scientists.

13. Over the course of my career, I have examined thousands of complete and partial skeletons. Despite my familiarity with human skeletal remains, I would not attempt to reconstruct by myself an important skeleton like Kennewick Man. Reconstruction of fragmented skeletal remains is a complex process, and subtle misjudgments can have significant consequences for the accuracy of any measurements that are obtained. I have seen the Kennewick skeleton, and its reconstruction is a task requiring special expertise. Dr. David Hunt is one of the most gifted and experienced specialists in human skeletal reconstruction I have worked with. He is recognized as an expert in this field, and I strongly recommend him for this task.

14. I would also welcome the opportunity to examine the photographs taken of the skeleton by the government's study team. Development of an accurate and suitable image record is an important part of the documentation that needs to be obtained for this skeleton. To be useful to future researchers, the image record must be free of distortion, standardized and as comprehensive as possible. My Smithsonian study team includes Roy ("Chip") Clark who is a specialist in the photography of skeletal remains. He has photographed hundreds of skeletons, including many Paleoamerican and Archaic Period remains (e.g., Wizard's Beach; Spirit Cave; Horn Shelter, Browns Valley, Pelican Rapids, and Sauk Valley). Over the past decade Mr. Clark has developed a method for photographing human skeletal material that involves the use of diffused lighting and professional studio lighting techniques. His system is completely portable and requires only a power source and table for setup. He is able to produce images that are technically accurate and far more suitable for educational publication than the standard techniques employed by most technical photographers. He has agreed to photograph the skeleton when (and if) it is examined by plaintiffs' study team. Skeletal remains are customarily rephotographed whenever they are reconstructed by a new study team in order to maintain an accurate record of the new reconstruction. Photography is completely nondestructive.

16. The government's refusal to permit examination of the skeleton by plaintiffs and our study team colleagues is grossly unfair. But for plaintiffs' timely intervention, the skeleton would have been reburied in October 1996, and there would have been no opportunity to learn what it can tell us. The government seeks to exclude us from study of this skeleton, and yet in other situations it does not hesitate to call on our expertise. As noted above, Dr. Jantz and I have conducted affiliation studies for the government in other potential (or actual) repatriation situations. In one recent case, we were asked by the National Park Service to re-examine and re-analyze a collection of skeletons discovered at Colonial Jamestown, Virginia. Some of these skeletons had been identified in the 1940's (using the best techniques then available) as Native American. On that basis, they were targeted for eventual repatriation. Our analysis disclosed that five of these individuals were not Native American, but in fact were African. These early 17th Century skeletons represent the oldest known Africans in British North America. Had these skeletons been "repatriated", an important part of African-American history would have been lost. Likewise, Dr. Thomas Stafford was recently called on by the National Park Service to re-date a human thigh bone found on Santa Barbara Island, off the coast of Southern California. Previous dates for the bone had ranged from 6600 to 10,000 radiocarbon years B.P. (i.e., Before Present). Using new techniques, Dr. Stafford re-dated the bone to approximately 11,000 radiocarbon years B.P. It is now the oldest known human remains ever found in the New World.

17. I still believe that all of the studies and tests described in Plaintiff' Motion for Order Granting Access to Study should be allowed, and I am confident that all of the other plaintiffs share the same opinion. Those studies and tests represent the minimum procedures that should be conducted on this remarkable individual from the past. In any event, given the government's acceptance of the propriety of noninvasive studies, there is no legitimate reason for its continued refusal to permit similar studies by plaintiffs. Those studies will not harm the skeleton in any way, and they can all be performed at The Burke Museum where the government conducted its studies.

DATED this 16th day of July, 1999.

Douglas W. Owsley

SUBSCRIBED and SWORN to before me this 16th day of July, 1999.
Jay E. Hammond
Notary Public for Wyoming
My Commission Expires: 11/23/99

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