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Scientists' April 1, 2000 Status Report to the Court

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
601 SW Second Ave., Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212

Attorneys for Plaintiffs







Defendants. CV No. 96-1481 JE



Plaintiffs, for their April 1, 2000 status report, advise the Court of the following:

A. Defendants' Response to Plaintiffs' request for clarification of deadlines demonstrates the need for Court intervention.

As the Court is aware, plaintiffs have filed a motion for a clarification of the Court's order extending the government's deadline to respond to the study requests. Plaintiffs have asked the Court to direct the government to respond to the portions of their study requests that do not depend upon the government's DNA studies (which the government states is being done solely to determine whether there is any cultural affiliation). The government has objected, and responded that while it "may" permit study if it is unable to establish cultural affiliation, it is not able to be more specific at this time, more than 3-1/2 years after it made its first attempt to repatriate the skeleton. However, defendants provide no reason why they cannot answer plaintiffs' questions now.

B. The government is now stating that it believes plaintiffs are obligated to make an "official administrative request to study."

Over the past several weeks, the parties have exchanged correspondence about the plaintiffs' study requests.
Defendants, had provided an incomplete summary of "the study request," and, in connection with that, stated:
"... there has not been any official administrative request to study..." Letter of Allison B. Rumsey, March 8, 2000

Plaintiffs have seen no regulation that requires them to make an "official administrative request to study", and frankly, plaintiffs thought that the Court settled that issue long ago. Plaintiffs raised their concern about procedural traps in the hearing held October 23, 1996. On that occasion, defendants tried to avoid plaintiffs' lawsuit by stating that plaintiffs had not "claimed" the remains. Plaintiffs' concern then was that the government would argue that, technically, no claim had ever been made despite thousands of pages being filed with the court. As a result, plaintiffs raised that issue with the Court just so nothing like this would happen again, and the Court commented that a simple letter would suffice to avoid a later argument that "filing a lawsuit isn't making a claim under the Act" (Tr. 55). The then-attorney for defendants accepted, without challenge, that plaintiffs had timely made their position clear. Tr. 57.

Plaintiffs frankly don't know what defendants want by their apparently secret rule that there has to be an "official administrative request to study." Defendants have, incidentally, never advised what sort of "official" request they need to see. Plaintiffs sense that their study requests will be ultimately denied in September, 2000 (or later) with the statement that they were never made "officially." Plaintiffs accordingly request the Court to require defendants to consider all the requests contained in the administrative record, regardless of whether they meet the government's definition of an "official administrative request to study." Otherwise, this issue will undoubtedly have to be addressed at the fourth anniversary of this litigation.

C. Defendants continue to refuse to share information needed by plaintiffs to participate in the administrative process.

Defendants have stated a "commitment" to make their study data "available and accessible to educators, reporters, scientists, and interested citizens." See Kennewick Man: The Initial Scientific Examination, Description, and Analysis of the Kennewick Man Human Remains, Department of the Interior, October 15, 1999, Chapter 1 at page 1. However, plaintiffs have been excluded from reviewing that data.

Among other things, plaintiffs have requested copies of the x-rays and CT scans that defendants made of the skeleton's cranium and that portion of the hipbone containing the embedded projectile point. Defendants have refused to provide these copies unless plaintiffs agree not to disclose them to "anyone other than plaintiffs" until the administrative record has been filed with the Court. Other researchers, however, have apparently been allowed unrestricted access to the same x-rays that CT scans. See attached affidavit of Dr. Douglas Owsley, who cites a request from a graduate student who was apparently given that access.

In addition, plaintiffs have requested copies of the expert reports and other information gathered by defendants relating to whether the skeleton can be culturally affiliated to any modern tribe. No response has been received to this request.

D. Defendants have provided further inaccurate information.

Defendants' February 18, 2000 filing with the Court includes a statement by Dr. Trimble that the Munsell Soil Color Charts could not be used to describe colors on the Kennewick bones because the charts do not contain green sequences and because the colors of the Kennewick bones are "mottled" rather than solid. See Trimble Affidavit at page 7. In fact, however, the Munsell Charts contain charts that depict green sequences, including colors derived from plant materials (such as algae). See attached affidavit of Dr. Thomas Stafford. Moreover, mottled colors can be described by giving the appropriate color chart reference for each color (1). See Stafford Affidavit at page 2.

Dr. Trimble also states that "[h]andling causes the greatest damage to fragile bone," and cites as support "[r]ecent research by the University of Bradford." Trimble Affidavit at page 4. This statement is misleading to say the least. It is unfair and inappropriate to compare students who are still learning how to identify and handle skeletal remains with experienced researchers like plaintiffs and their colleagues. Furthermore, the University of Bradford research he cites is a study being conducted by a graduate student. It is still preliminary and has yet to undergo peer review of any kind.

E. Plaintiffs have provided further recommendation for DNA tests.

On March 23, 2000, Dr. Owsley answered questions from Dr. McManamon concerning DNA testing of the skeleton. Their teleconference which was scheduled on two day's notice lasted for approximately one hour.
In addition to other recommendations, Dr. Owsley advised Dr. McManamon that a complete taphonomic evaluation of the skeleton should be conducted before any samples are taken DNA testing. He informed Dr. McManamon that such an evaluation will require a number of different experts, including specialists in physical anthropology, geoarchaeology, bone fracture analysis, bone taphonomy, photography and digital imaging. These experts should be experienced in working with skeletal remains as old as the Kennewick skeleton. Dr. Owsley also advised Dr. McManamon that important information concerning the skeleton and its after-death history could be lost if the necessary taphonomic data are not obtained before more samples are removed. The importance of conducting a complete taphonomic evaluation was also emphasized in a letter sent to defendants on March 20, 2000.

Dated this 3rd day of April, 2000.

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


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


(1) Dr. Trimble's affidavit also states: "[t]he soil chart includes 322 chips on nine charts with seven hues of yellow-red." See Trimble Affidavit at page 6, lines 21-22. This statement appears to be a carefully edited re-write of the following (more accurate) sentence from the Munsell website: "322 color chips are mounted on the nine charts: seven (7) hues [of red, yellow, brown colors] and two Gley (blue and green colors...)". See attachment 2 to Stafford Affidavit. back

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