Friday, Jan. 02, 1998

Plaintiff scientist second status report, Jan. 2, 1998

A. Plaintiffs' efforts to participate in the administrative process.

Since last quarter's status report, plaintiffs have continued their efforts to ensure that the Corps has sufficient information to make unbiased and reasoned decisions in its administrative process. On December 4, 1997, three of the plaintiffs (Drs. Bonnichsen, Jantz and Owsley) participated in a telephone conference with Lt. Col. Curtis and responded to his questions about the scientific studies and tests recommended by plaintiffs. At plaintiff's request the teleconference was transcribed by a court reporter. If the Court wishes, plaintiffs will provide the Court with a copy of the transcript after corrections are completed.

Plaintiffs have also provided defendants with a number of leading scientific articles and other publications which contain information relevant to the issues set out in the Court's opinion of June 27, 1997. Among other things, the submitted materials provide information on the morphological differences between known Paleoamerican skeletal remains and modern Indian populations; the scientific basis for use of cranial morphometric characteristics to measure population affinities; evidence indicating possible colonization of the Americas by multiple groups; and the difficulties inherent in establishing modern relationships to ancient remains.

Plaintiffs are also concerned about the wide range of speculation, claims and misinformation that has circulated in public discussions of the Kennewick Man discovery. They have requested information from the Corps regarding the "evidence" being considered in the administrative proceedings, but those requests have been denied. As a result, plaintiffs are limited in their ability to ensure that the Corps' ultimate decisions will be factually and scientifically sound. The documents sought by plaintiffs in their FOIA request would provide some of that information (see discussion in Section "H" below).

B. Plaintiffs' efforts to properly investigate the site.

Dr. Huckleberry's site study request appears to have been denied in response to objections made by the Nez Perce Tribal Executive Committee and the Confederated Tribes of the Umatilla Indian Reservation (the "CTUIR"). Those groups filed objections on September 30, 1997, and October 7, 1997, respectively, to which Dr. Huckleberry promptly responded. Plaintiffs consider the Corps' refusal to grant Dr. Huckleberry's proposal as a de facto veto by the tribes precluding legitimate scientific study of public resources.

C. Corps' initiation of a competing project and plaintiffs' objections thereto.

Plaintiffs have objected to the Corps' project and to unreasonable restrictions that were imposed on Dr. Huckleberry and his research team. During Phase 2 of the Corps' project, Dr. Huckleberry's research team was allowed to collect some organic samples for radiocarbon dating and to make observations of some limited sediment exposures at the site. They were not allowed, however, to: (a) excavate a trench as requested in Dr. Huckleberry's permit application (b) take core drillings at the site; (c) excavate a vertical sediment exposure of appropriate length at the discovery location and at other locations in the area; or (d) obtain all sediment samples needed for dating purpose and other analyses. Plaintiffs believe that defendants' refusal to allow Dr. Huckleberry's research team to conduct the foregoing activities is inconsistent with sound scientific practices, and will deny plaintiffs access to important information needed to interpret the site and the depositional history of the Kennewick Man skeleton.

A report of the data obtained by Dr. Huckleberry and his research team from their limited investigation of the site will be provided to the Corps. Plaintiffs hope that, but do not yet know whether, defendants will reciprocate by providing plaintiffs with a copy of all data obtained by defendants from their study of the site.

D. Defendants' continued deference to tribal wishes.

While defendants were limiting Dr. Huckleberry's research in apparent deference to tribal demands, they were permitting the CTUIR to avoid compliance with the requirements of federal law. In apparent violation of ARPA, the CTUIR was issued a permit by the Corp allowing the CTUIR to participate in Phase 2 of the Corps' site study project described in Section B above. Under ARPA and its implementing regulations, a permit applicant must demonstrate his or her qualifications to carry out the proposed activity. See 16 USC 470cc(b)(1); 32 CFR 229.8(a)(1). In response to plaintiffs' concerns that the CTUIR's permit application did not conform to this requirement, the Corps declined to hold the CTUIR to the same standards expected of other permit applicants. Instead, it stated that it would permit the CTUIR to judge the qualifications of its own team members.

E. Questions raised by preliminary results of sedimentary analysis.

Dr. James Chatters, who examined the Kennewick Man skeleton for the Benton County Coroner, has completed a preliminary analysis of sediments taken from the discovery site and has reported the results to defendants. His report indicates that a comparison of site sediments with sedimentary concretions from the skeleton does not appear to support the hypothesis that the skeleton was intentionally buried at the site. It also indicates that the bones display characteristics which may support the hypothesis that it was deposited at the site as a result of a flood or other natural event. Plaintiffs do not know what consideration defendants are giving to this information, but believe that Dr. Chatters' observations reinforce the need to obtain more site data of the kind that could be provided through the study proposed by Dr. Huckleberry. It also reinforces the need for a thorough taphonomic analysis of the skeleton.

F. Proposed activities harmful to the discovery site.

Plaintiffs have strongly objected to the Corps' proposed actions. See letters from Alan Schneider dated December 29, 1997, and December 30, 1997, attached hereto as Exhibits C and D. Regardless of the Corps' actual intentions in altering the site, the result is that the Corps will have destroyed potential evidence during the Court's stay.

G. Questions raised by tribal contacts with the skeleton.

The Supplemental Status Report filed with the Court by defendants on November 10, 1997, states that an examination of the skeleton has disclosed the presence of "one bone" that "appeared to belong to another individual." See Defs', Supp. Status Report at page 3. However, Army Corps documents indicate that on at least two separate occasions defendants permitted representatives of the CTUIR to visit the skeleton for the purpose of "reuniting" newly discovered bones (implying that more than one bones was added to the collection).

H. Plaintiffs' further efforts to obtain documents through the Freedom of Information Act.

On November 12, 1997, plaintiffs filed an appeal with the Secretary of the Army appealing the Corps' denial of their request for documents under the Freedom of Information Act (the "FOIA"). The Corps has, to date, continued to assert that plaintiffs may not have documents from the administrative record because of this Court's stay on discovery in the litigation. Plaintiffs understand that the Corps is not responding in this manner to requests for information by tribal representatives.

I. Introduction of bill to amend NAGPRA.

On November 7, 1997, Representative Doc Hastings from the State of Washington introduced legislation into Congress to amend NAGPRA by adding provisions specifically authorizing the study of human remains and other cultural items found on federal land after November 16, 1990. See Exhibit E. This bill (H.R. 2893) has been referred to the Committee on Resources. As of the filing of this Status Report, hearings have not yet been scheduled on the bill.

Plaintiffs' Request For Action By The Court.

Plaintiffs ask the Court to require defendants to give them 14 days notice and an opportunity to object to this Court before defendants take any action that modifies the discovery site in any way, including stabilization, erosion control or other ground disturbing activities.