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The Kennewick Man Case | Court Documents | Affidavits & Declarations

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
601 SW 2nd, Suite 2300
Portland, OR 97204
Telephone: (503) 228-0500
Facsimile: (503) 274-1212

Attorneys for Plaintiff





USDC No. CV 96- 1481 JE

STATE OF Virginia County of Salem


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. I am a Curator and the Division Head of Physical Anthropology of the National Museum of Natural History, The Smithsonian Institution, Washington, D.C. Among my other duties, I supervise a bioarchaeological/forensic investigation team that is composed of specialists experienced in the excavation and examination of human remains. One function of this team is to recover and analyze newly discovered human remains for law enforcement and other government agencies (both federal and state). During the' course of my forensic and personal research activities, I have made taphonomic observations on hundreds of human remains. These include not only remains found at crime scenes, but also remains accidentally encountered during archaeological investigations and during construction projects and other land disturbing activities. The age of those remains has ranged from recently deceased to historic (such as Civil War and early Colonial period) and prehistoric (hundreds or thousands of years old). Further details of my professional background and qualifications are provided in earlier affidavits filed with the Court in support of Plaintiffs' Motion for Order Granting Access to Study and Plaintiffs' Motion for Immediate Response re Study Request.

3. The purpose of a taphonomic investigation is to reconstruct the postmortem processes that have affected an organism's remains (such as human skeletal remains or an animal bone assemblage) from the time of death to the time of recovery. Such assessments can help to determine the cause of death. The primary objective, however, is to determine the processes that contributed to the organism's location and condition at time of recovery. How was it transported to and deposited at the location where it was discovered? What factors led to its complete or partial preservation over time? To what extent was it modified by environmental or other factors after death? Because of the complexities of the issues involved, taphonomic investigations benefit from multidisciplinary input from various specialists such as archaeologists, geologists, physical anthropologists, biologists, botanists, chemists, skeletal photographers and so on.

4. Press reports indicate that Dr. McManamon's study team has concluded that Kennewick Man was intentionally buried by other humans. Reasons given for this conclusion include: (a) the condition of the skeleton; and (b) the absence of evidence of any carnivore damage. Reference was also made to the purported presence of red ocher on the skeleton. Based upon my observations of the skeleton and my understanding of the stated purposes of the government's first phase studies, I question whether there is sufficient data at hand to warrant the conclusion of an intentional burial by other humans. In my opinion, it is premature to publicize any conclusions concerning the cause of deposition without a thorough taphonomic analysis of the skeleton. In the following discussion, I will focus first on the question of red ocher. The skeleton's condition and the absence of carnivore damage will be addressed separately because they raise somewhat different issues.

5. Dr. McManamon's study team has claimed to have found evidence of red ocher on the skeleton. If there is red ocher on the skeleton, it must be very faint. I did not detect its presence during my inventory of the skeleton, and it is my understanding that Dr. Chatters did not detect any either. Red ocher is a form of iron oxide. When present on a skeleton, it often imparts a distinctive red or reddish brown color to the bones. Attachment 1 to this affidavit is a color photograph from an Archaic period burial in Maine. It illustrates the deep staining and vivid colors that can be produced by red ocher. Those conditions are not present on the Kennewick skeleton.

6. Even if the government's study team is correct that there are faint traces of iron on the skeleton (or parts of the skeleton), their significance has yet to be established. First, it must be determined whether the substance is the result of a cultural (i.e., human) practice or environmental causes (either while the skeleton was in the ground or while it was in the river). Elemental analysis of the bone surfaces may be able to assist in resolving this question. Second, even if the substance is the result of a cultural practice, it does not automatically follow that it was applied as part of a burial ceremony. Nonburial uses of red ocher by historic-era native peoples are well documented. Such uses include body decoration, as a cosmetic substance, a deodorant, an insect repellent and for waterproofing hides. Evaluation of stain patterns on individual bones and throughout the skeleton might help to distinguish between such nonburial practices and ocher that may have been used as part of a burial ceremony.

7. Since the government's study reports have not been released, I am not certain what is meant by the government's references to the skeleton's "condition." I am certain, however, that during my inventory of the skeleton I did not observe any condition (or conditions) that clearly point to the cause of the' skeleton's deposition at the discovery site. Its relative completeness is certainly a factor that should be considered, and the same is true of the apparent lack of carnivore damage. However, they are not sufficient, either alone or in combination, to distinguish a human-caused burial from a deposition due to natural causes (such as a flood, earthquake, or mud flow). The scientific literature contains many examples of intact unscavenged human skeletal remains that were buried as a result of natural as opposed to human causes.

Intact unscavenged remains are also commonly found of animals, both modern and extinct (such as mammoths, mastodons, camelids and so on). I have personally examined relatively complete skeletal remains that were buried by natural rather than human causes.

8. The Kennewick skeleton was recovered from a disturbed context, and according to my inventory notes is fragmented into approximately 350 pieces. The cause of its deposition below the surface of the ground cannot be determined solely by viewing the many bone fragments of the skeleton in their present state (i.e., as separate pieces rather than as reassembled skeletal elements). Such a limited examination cannot reveal all of the different circumstances that need to be evaluated in order to determine the cause of the skeleton's deposition. Some of the factors that should be considered (in addition to completeness and lack of carnivore scavenging) include the following:

  • Position. What was the position of the skeleton while it was in the ground? Was it lying face up, face down, or was it on its side?

  • Attitude. Was the skeleton in a level position, or was part of it elevated above the rest?

  • Surface Exposure. Do any of the bones display evidence that the skeleton (or parts of it) may have been exposed above ground for a period of time prior to sediment covering?

  • Depth of Deposition. How deep was the skeleton deposited below the surface of the ground?

  • Stratigraphic Context. Was the skeleton deposited within a single stratigraphic layer, or did its deposition cross two or more layers that were deposited at different times?

9. To answer questions such as these, it is necessary to obtain and evaluate as many different lines of evidence as possible. At a minimum, the investigation should include the following steps:

  • All bone surfaces must be carefully assessed for subtle differences in color, staining, and other conditions. It is generally difficult, and often impossible, to detect intraskeletal patterns of variation when examining numerous, small, individual bone fragments. Consequently, an essential step in any taphonomic examination of the Kennewick skeleton would be a reconstruction of the major skeletal elements (such as long bones, mandible, innominate, ribs, scapulae). After reassembly, the reconstructed bones should be examined for all observable conditions (e.g., color, staining, fractures, etching, surface deterioration). All differences in conditions within and between bones should be identified (for each bone surface) and recorded on bone diagrams. The presence (and in many cases the absence) of various conditions can provide important clues for building an overall picture of a skeleton's taphonomic history. For example, differential patterns of staining or discoloration on the surfaces of bones may aid in reconstructing the skeleton's position in the ground prior to recovery. Evidence of weathering on bone surfaces (e.g., cracking, flaking, checking, exfoliation, bleaching) could help to determine whether the skeleton, or parts of the skeleton, were exposed above ground for a period of time prior to deposition. Root etching and mineral concentrations, on the other hand, could indicate the depth of deposition below surface. Observations should be described and recorded in detail.

  • Bone fractures should be examined to distinguish old from more recent postmortem fracturing. Fractures (particularly of the long bones, mandible, innominate, ribs, scapulae) should be plotted on bone diagrams to aid in determining the direction of the forces that caused the bones to break. Such information could be helpful in determining how the body was positioned in the ground prior to recovery. Bone distortions (particularly in the cranium) could also indicate the direction of the forces that acted on the skeleton.

  • Any sediments still adhering to the skeleton or lodged in medulary cavities should be examined to determine their origins. Original burial sediments, if any remain, could help in reconstructing the skeleton's stratigraphic context prior to exposure. Likewise, any differences in the degree of compaction of the sediments inside the cranium might indicate which side of the cranium was down (and which was up) in the original subsurface context.

  • A complete photographic record should be made of the surfaces of the reconstructed bones to document their condition and appearance. The photographic record should include scaled color exposures suitable for high resolution digital imaging.

10. The above discussion is not intended as a complete list of all conditions that should be assessed in a taphonomic investigation of the skeleton. Other procedures and possible lines of evidence may be suggested as more is learned about the skeleton and its condition during the course of the investigation. Because of the circumstances of the Kennewick skeleton's discovery, the task of reconstructing its taphonomic history is a complex undertaking. All possible lines of evidence must be explored and evaluated, and even then what is learned may be less than definitive. Until a complete investigation has been conducted, however, any conclusions concerning the cause of the skeleton's burial must be considered premature.

11. As noted above, I have not seen the reports of the government's first phase study team. As a result, I do not know what specific observations they made and what data they recorded. However, it is my understanding that they were not assigned the task of conducting a complete taphonomic investigation of the skeleton. For example, the government's first phase studies apparently did not include reassembly and subsequent photography of all of the major skeletal elements. Without this protocol, it would be highly likely that important clues could be missed concerning the skeleton's taphonomic history. Since the government's studies were not complete, reexamination of the skeleton will be necessary. Such a reexamination should be as comprehensive as possible so all needed data will be obtained and documented. '

12. I would welcome the opportunity to participate in such an investigation with a team of other qualified scientists so we can assess the claims made by the government. During my inventory of the skeleton, I was not able to make the observations and obtain the data needed to reconstruct its taphonomic history. Among other things, I did not have access to the equipment and to the technical and scientific experts required for appropriate investigation of this important skeleton. I have no personal interest one way or the other in the outcome of the question of whether Kennewick skeleton was buried by human or natural causes. My only interest is to learn the truth about this important individual from the early prehistory of North America. Anything I learn will be made available to other scientists, the government and interested members of the public. I do feel quite strongly, however, that statements about the skeleton's origins and history should not be made without an adequate empirical basis. Such potentially misleading statements cloud the record and interfere with public understanding and appreciation of Kennewick Man's place in American prehistory.

13. I am concerned that our ability to reconstruct the skeleton's taphonomic history may have been impacted by the studies conducted by the government. It is my understanding that the government's first phase studies included removal of sediments from the skeleton and the mixing of sediments from different bones. As previously noted, important clues concerning the depositional history of a skeleton can sometimes be learned from an analysis of its associated sediments. When I inventoried the skeleton, I observed that two vertebrae and two metatarsals were fused together by ancient sediments. These observations were documented in my inventory report, and I cautioned that care should be taken to avoid loss of any potential information that might be obtained from the sediments. Since these sediments represent original deposition sediments, they could be important in reconstructing the skeleton's original site context. I hope they have not been disturbed and mixed with other (possibly more recent) sediments. To minimize such potential risks of lost data, taphonomic analysis of the skeleton should have preceded the government's first phase studies.

14. The government's recent removal of bone samples for radiocarbon dating may also have resulted in the loss of potentially important data. It is my understanding that the samples selected by the government consisted of the right first metatarsal and a 12 gram section from the proximal left tibia. I have a number of concerns about the choice of these samples and the manner in which they were obtained.

  • Samples should not have been removed from the skeleton without evaluation by a team of multidisciplinary specialists. Such a team should have included, at a minimum, a radiocarbon dating expert and scientists experienced in the different types of scientific studies that may be needed (e.g., taphonomy, DNA, skeletal reconstruction, health and lifestyle analyses). Dr. McManamon and the sample extraction team he assembled do not have the expertise needed for this task.

  • Taphonomic investigation of the skeleton should have been completed before any more bone was taken from the skeleton for radiocarbon dating. As noted above, one important part of a taphonomic investigation is reconstruction of the major skeletal elements. Such a reconstruction is essential as it provides an opportunity to observe and evaluate the skeleton (and its various pieces) as a complete entity. By improperly removing bone from the skeleton, the government has reduced the amount of information that can be obtained concerning the skeleton's taphonomic history.

  • I do not understand why the government chose these two bones for radiocarbon dating. Dr. McManamon is reported in the newspapers as stating that they were selected because other bones appeared to have been infiltrated by water and organic matter that could affect 14C readings. I am puzzled by this explanation. It is my understanding that all of the bones of the skeleton had been immersed in the river and exposed to the same potential contaminants. Moreover, the tibia fragment sampled by the government (i.e., Master Catalog number CENWW97.L.20B) was in fragile condition and had longitudinal postmortem cracks, broken ends and sediment in the medulary cavities and along the cracks. See my December 1998 Inventory Report. There were other bones in the collection that were in much better condition.

    Furthermore, modern radiocarbon dating techniques are capable of removing the types of contaminants' mentioned by Dr. McManamon.

  • The tibia fragment selected by the government for sampling is one of the least appropriate bones for radiocarbon dating. For one thing, this portion of the lower leg bone (i.e., the upper shin) is cancellous and cancellous bone loses collagen faster than dense cortical bone. Collagen is the protein from which different organic chemical fractions and amino acids are obtained for radiocarbon dating. Other denser bones usually provide much better material for dating. In addition, the left tibia was the only remaining major long bone of the skeleton's legs that was still complete. To use a portion of this bone for radiocarbon dating, when there were many other fragments available, is inexcusable.

  • This particular fragment was an inappropriate choice for other reasons. The upper tibia contains a key landmark from which a number of measurements are taken for the protocol developed by Dr. Jantz and myself. These measurements can provide important data concerning robusticity, sexual dimorphism (i.e., size differences between males and females), and other health and lifestyle issues. Other protocols for skeletal documentation do not always include all of these measurements, and consequently they may not have been taken by the government's study team before the samples were removed for radiocarbon dating. Even if they were taken, it would have been appropriate to have these measurements checked by other observers to determine whether they are accurate. The government has suggested to media reporters that any portions of the samples not used for radiocarbon dating will be returned to the skeleton. However, it is unlikely that the upper tibia can ever be restored to its original condition (even if the landmark was not destroyed).

  • The metatarsal used by the government for radiocarbon dating might also have provided information about this individual's health and lifestyles. For example, first metatarsals sometimes contain subtle clues that may indicate arthritic changes or other health conditions. They can also contain facets and other morphological changes reflecting the effects of lifetime repetitive activities (such as frequent kneeling).

  • I also do not understand why the government decided to take such large samples.

    Accelerator mass spectrometry ("AMS") dating allows a remarkable reduction in the amount of material needed for radiocarbon dating. To use more than 30 grams of bone in this day and age is unnecessary.

  • It is also unusual to use four different laboratories to date human bone. Concordant dates from two different laboratories are generally considered sufficient even for skeletons as important as Kennewick Man.

15. I understand that the government has claimed that the procedures it used for sampling the skeleton are "standard" or "conventional" for radiocarbon dating. I do not know what textbooks or other references defendants may have consulted in developing their sampling procedures. However, advice contained in textbooks is suitable only for routine cases. For complex bone dating problems such as those presented by the Kennewick skeleton, advice should be obtained from experts who are familiar with all of the latest developments in dating technology. Once that advice has been obtained, it should be followed.

16. As a scientist, I believe that it is indefensible for the government to claim that Kennewick Man was intentionally buried by other humans while it continues to block investigation of the discovery site. Site stratigraphy and geology can provide important information concerning the skeleton's original context. Without good site data, it will be difficult to determine whether the skeleton was deposited by human action or natural causes. In addition, the site may contain artifacts or other materials that could help to identify Kennewick Man's cultural background. Nonetheless, the government still refuses to permit study of the site or to provide any logical reasons for its refusal.

17. The need to conduct a thorough taphonomic investigation of the skeleton is not a new issue in this case. I raised this issue in my March 4, 1997, affidavit that was filed with the Court in support of Plaintiffs' Motion for Order Granting Access to Study. The Kennewick skeleton was found in a disarticulated condition out of its original depositional context. As a result, its full significance for American prehistory cannot be adequately determined without an understanding of how it was deposited at the site and what forces acted on it over time. The government should have been aware of these considerations before it began to destroy potentially important evidence contained in and on the skeleton.

DATED this 24th day of September, 1999.

Douglas Owsley

SUBSCRIBED and SWORN to before me this 24th day of September. 1999.

Christie A. Gibbs
Notary Public for City of Salem
My Commission Expires: Aug. 31 2001

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