DRI- 128 for week of 10-11-15: The U.S. Government Vs. the Public

DRI-10-11-15

The U.S. Government Vs. the Public

Find an easy chair. Sit down and lean back. Close your eyes and take a deep breath. Exhale slowly and breathe rhythmically. Think pleasant thoughts. Now that you’re in a receptive state, give the first answer that comes to mind to this question: “What is the function of government?” Ordinary people will quickly blurt out answers like “To do the right thing,” “Protect the public” and “Make us safe.” A political economist wouldn’t be satisfied with such vague generalities, but they capture the visceral appeal that government action holds for us.

Now, respond off the top of your head to this: “Why can’t we rely on our own voluntary activities to do the right thing, protect us and keep us safe?” And the answer will come back: “Because we are selfish and act in our own interest; we need government to act in the public interest for all rather than the selfish interest of one or a few.” Again, this wouldn’t satisfy any rigorous student of political economy, but it is seems to summarize the inchoate feelings of the general public.

Accepting these feelings as our baseline for public expectation of performance by government, consider the following incident.

The Discovery of Kennewick Man

Two college students were spending a summer day in 1996 wading in the Columbia River near Kennewick, Washington. They noticed what appeared to be a human skull in shallow water and called police. The police notified Benton County coroner, Floyd Johnson. Johnson quickly realized that this was no ordinary skull. He brought in local archaeologist, James Chatters, who quickly returned to the location where the students had found the skull. Working in the twilight, Chatters painstakingly unearthed nearly an entire skeleton from the sandy, muddy water.

Upon examination in his laboratory, the skeleton dealt Chatters a succession of shocks. First, the archaeologist noted that the bones were obviously quite old. But they did not appear to belong to a Native American or American Indian. (As we will see, there is good reason for equivocation in usage here.) Second, they were apparently not those of a white pioneer or trapper, either, because the teeth were not only cavity-free but also worn down to the roots. This suggested a prehistoric origin. When Chatters found a stone spearpoint stuck in a hip joint, this confirmed that suspicion.

When carbon-dating estimated the age of the skeleton as over 9,000 years old, it established “Kennewick Man” as an archaeological find of historic proportions. Physical anthropologist Douglas Owsley of the Smithsonian Institution told writer Douglas Preston of Smithsonian Magazine (Smithsonian, September 1994, pp.52-63) that “you can count on your fingers the number of ancient, well-preserved [North American] skeletons there are.” This is “one of the oldest skeletons ever found in the Americas.” It goes without saying, then, that scientists were frantic to get their hands on Kennewick Man for study.

Before this could happen, though, there was a legal question that had to be answered. Who had ownership of the bones? Or, more properly, who had legal jurisdiction over the bones – a question whose answer might well determine who owned them and whether or not the bones would be examined prior to burial.

It seemed that the U.S. Army Corps of Engineers was the legal custodian (manager) of the land on which the bones were found. The publicity attendant to the find and radiocarbon dating alerted them and they claimed jurisdiction over the bones. This would give them the right to make all decisions relating to handling of, and access to, the bones.

Stop right there. Is it right for government to involve itself in the questions of possession, handling and access to the bones? What do we want government to achieve by its involvement?

Answer: We want government to do the right thing. What is the right thing? Uh… well, this is obviously one of the great scientific finds of all time, so we want government to make sure that the bones are safe, properly cared for and scrupulously examined by our leading scientists. And we want government to make sure that the bones are not … uh… exploited by one person or a comparatively small group of persons for their private gain when they could benefit “the country as a whole.” Yes, that sounds like what the man or woman on the street would say. OK, on with our story.

The Fight Over Possession of Kennewick Man

County Coroner Johnson objected to the Engineers’ claim, saying that he had jurisdiction. And his argument had one very practical aspect – he had physical possession of the bones in an evidence locker in the county sheriff’s office. When the Corps of Engineers weighed in, Johnson decided to enlist a heavy hitter for his team. He called in Douglas Owsley, curator at the National Museum of Natural History. Owsley may be the leading expert in the field of physical anthropology, having performed over 10,000 examinations for institutions ranging from the CIA, FBI and State Department to local police departments. He has reassembled skeletons from mass graves, from the fire that consumed the Branch Davidians in Waco, Texas and from the terrorist attack on the Pentagon on 9-11.

Owsley knew the enormous scientific implications of this finding. He put together a team of scientists to study the bones. Unfortunately, attorneys for the Corps of Engineers persuaded county lawyers that federal law superseded local jurisdiction. The Corps took possession of the skeleton and stored it with another federal agency, the Department of Energy at DOE’s Pacific Northwest National Laboratory. That laboratory takes its name from the Battelle Corporation that operates it.

Why was this “unfortunate?” Isn’t this precisely what we want and expect – the federal government taking possession of the skeleton in order to make sure that it is in safe hands and properly stored prior to its study by qualified scientists?

Had the skeleton remained in county custody, it would have been handed over to Douglas Owsley, probably the country’s leading physical anthropologist. In his care, it would have been studied carefully by the country’s leading – that is to say, some of the world’s leading – scientists. But when the federal government’s Corps of Engineers took possession of the skeleton, bad things began to happen. First, portions of both femurs disappeared somewhere in transit between Benson County and Battelle. To this day, the disappearance remains mysterious. Second, the skeleton was improperly stored, according to Owsley’s panel of scientists. “Substandard, unsafe conditions” were the words they used to describe the excessive variations in temperature and humidity at Battelle and subsequently at the Burke Museum of Natural History and Culture in Seattle, Washington, where the skeleton was later transferred. The skeleton suffered damage due to this mishandling.

The FBI was called in to investigate the case of the missing femurs. Its leading suspects were country coroner Floyd Johnson and archaeologist James Chatters. Despite intensive search and questioning, neither the culprit(s) nor the femurs were found. Years later (remember, the find occurred in 1996), the femurs mysteriously reappeared in the country coroner’s office.

OK, OK – but at least the scientists eventually got to examine Kennewick Man, didn’t they?

We haven’t come to the end of our story. This is just its beginning. The fight that wounded Kennewick Man was perhaps less fierce and definitely much shorter than the one waged over his remains 9,000 years after his death.

The Fight Against Premature Burial of Kennewick Man

The Corps of Engineers wasn’t the group with a special interest in Kennewick Man. While the Corps was sharpening its legal claws to acquire the skeleton, a group of American Indian tribes native to the Columbia River basin lodged a claim for the skeleton. They based their claim on a 1990 federal law called the Native American Graves Protection and Repatriation Act (hereinafter, NAGPRA). This is how Smithsonian’s Douglas Preston rationalized NAGPRA: “In the 19th century, anthropologists and collectors looted fresh Native American graves and burial platforms, dug up corpses and even decapitated dead Indians lying on the field of battle and shipped the heads to Washington to study. Until NAGPRA, museums were filled [sic] with American Indian remains acquired without regard for the feelings and religious beliefs of native people. NAGPRA was passed to redress this history and allow tribes to reclaim their ancestors’ remains and some artifacts.”

Both Smithsonian Museum and Owsley himself had participated in such repatriations in the past. But, as Preston pointed out, this case was different. This skeleton had nothing to link it with any particular one of the Columbia River Basin tribes. In fact, it had none of the characteristic features of American Indians.

The statement issued by a tribal spokesman made it clear that ceding Kennewick Man to the tribes would kiss goodbye to any hope of further scientific study. “Scientists have dug up and studied Native Americans for decades. We view this practice as desecration of the body and a violation of our most deeply-held religious beliefs. From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated here from another continent, as the scientists do.” Upon receiving the skeleton, the tribal coalition declared, they would bury it in a secret location to prevent any future study by scientists.

What do you suppose would happen if Christian fundamentalists decried scientific study of human fossil remains as a desecration and called for the reburial of all uncovered skeletons without subjecting them to tests or examination? Uh… the government would allow scientific research to proceed. And the fundamentalists would be publicly excoriated.

In this case, though, the Corps of Engineers said that after a standard 30-day period for public comment, the skeleton would be “returned” to the tribal coalition.

Well… perhaps the Corps didn’t appreciate the magnitude of the scientific value represented by Kennewick Man.

Owsley phoned the Corps and left messages expressing his disbelief and chagrin at the huge loss that science was about to suffer. So did the members of his team. Owsley stressed that he and his colleagues would themselves bear the expenses of any study of the skeleton.

The Corps of Engineers didn’t return any of the phone calls.

Members of Congress tried to intervene on Owsley’s behalf. They got nowhere. Owsley and his colleagues hired an attorney, Alan Schneider. They pointed out to Schneider that the law seemed to be on their side. The terms of NAGPRA seemingly required that a study of the skeleton be made in order to verify that the bones really were those of a “Native American.” Otherwise, the law would simply give tribes carte blanche to seize any skeleton they chose. Schneider made the usual legal overtures to the Corps of Engineers.

The Corps of Engineers ignored him.

The decisive moment had arrived. From a legal standpoint, the next move would be to file a lawsuit against the Corps of Engineers and seek an injunction against the release of the skeleton to the tribes. But, as Schneider forcibly told his clients, this involved suing the federal government. As he put it: “If you’re going to sue the government, you better be in it for the long haul.”

Owsley had collected an impressive panel of scientists from leading universities and museums. He hoped they would join him as plaintiffs in the lawsuit. Now he got his first taste of what Schneider meant. All of those prestigious institutions took a pass on the suit. Why? First, suing the government was bound to be more than just expensive. The government has resources that are virtually unlimited. It wins lawsuits simply by outlasting opponents, regardless of the merits of the action. Second, almost all universities are creatures of government since they get funds from governments, and “governments” means the federal government since it supplies funds to lower governments. Third, museums get funds from donations and a lawsuit against the government generates bad publicity, which tends to repel donors.

And if all that wasn’t enough to discourage plaintiffs, Schneider explained what the long haul entailed. A plaintiff “had to be strong enough to stand the heat, knowing that efforts might be made to destroy their careers. And efforts were made.”

Owsley went ahead with the lawsuit because “this [study of Kennewick Man] was one of those extremely rare and important discoveries that come once in a lifetime.” To lose that chance would be “unthinkable.” Undoubtedly that was what persuaded his colleagues to stand with him purely as private citizens, without the backing of their employers.

Sure enough, when the suit went public the Society for American Archaeology opposed their efforts. Censure rained down on them from all sides. They really knew what it felt like to sue the federal government when the Justice Department sent a letter to the Smithsonian Institution suggesting that Owsley might be guilty of a criminal conflict of interest by violating the federal statute prohibiting federal employees from making claims against the U.S. government. Despite an advisory by his general counsel, Owsley’s boss Robert Fri backed the lawsuit.

Eventually, the scientists were required to broaden the scope of their action to include not merely the Corps of Engineers but also the Army, the Department of the Interior and individual officials. Schneider and his co-counsel were forced to do much of the work pro bono in order to see the case through to completion. In order to recover their fees, they would have to not only win the case but recover attorney’s fee as well. This rarely happens; judges only grant attorney’s fees when the other side is deemed to have acted in bad faith.

The federal government apparently employed as many as 93 different attorneys against the scientists. The case took years to work its way through the courts.

The first victory for Owsley, et al, came just before the expiration of the public comment period. With only hours before the skeleton was scheduled to be awarded to the tribes, a judge stayed that event until the litigation was resolved. In 2002, six years after the college students found Kennewick Man awash in the Columbia River shallows, a court ruled that the skeletal remains were not related to any living tribe, thereby invalidating any claim based upon NAGPRA. The federal government appealed to its most friendly venue, the Ninth Circuit Court of Appeals. In 2004, eight years after the discovery, the Ninth Circuit reaffirmed the lower court’s finding for the scientists. And that wasn’t all. Presiding Judge John Jelderks ruled “that the Corps on multiple occasions misled or deceived the court. He found that the government had indeed acted in ‘bad faith’ and awarded attorney’s fees of $2,379,000 to Schneider’s firm. Counting the government’s own attorney’s fees, Schneider estimated that the case had cost the taxpayers a minimum of $5 million. An economist, reckoning the true cost in opportunity-cost terms, would undoubtedly put the cost much higher.

But this story has been told from the perspective of a hostile, unfriendly observer of government. Surely the Corps of Engineers had good reasons for acting as they did.

Here is the response by the Corps of Engineers to Smithsonian magazine’s query about its actions: “The United States acted in accordance with its interpretation of NAGPRA and its concerns about the safety and security of the fragile, ancient human remains.”

It doesn’t take a hostile observer to recognize that this rationale is insanely illogical. The actions of the Corps of Engineers make a mockery of NAGPRA for the reason already stated; namely, to grant the tribes’ claim without scientific verification of it allows them carte blanche. The actual result reinforces the necessity for scientific study and validates the lawsuit. The claim that the Corps of Engineers acted to preserve the skeleton is equally absurd because (1) the skeleton suffered damage due to their improper handling and its transfer away from the care of Owsley, et al; (2) parts of the skeleton were lost or stolen during the transfer of the skeleton from the country coroner to the Corps; and (3) the Corps resolved to prevent scientific study and secure the skeleton for burial by the tribes, which would make “the safety and security of the fragile, ancient remains” superfluous. Why was the Corps ostensibly safeguarding the safety and security of the skeleton – so it would hold up better underground after it was buried?

Since the scientists won their lawsuit in 2006 and it is now 2015, I assume they finally got to perform a full examination of the skeleton. What were their conclusions?

You’re showing more scientific curiosity than the U.S. government did. Yes, the long-delayed scientific examination did finally take place. And it’s safe to say that its findings justified the trouble and expense that everybody endured.

The Scientific Significance of Kennewick Man

When the case was first decided in 2002, Owsley’s band of scientists presented a plan for study to the Corps of Engineers. It proposed that the scientists be allowed to examine Kennewick Man for a limited period before the skeleton was relinquished to the Corps. The Corps -following a pattern that was by now all too familiar – took its own sweet time about responding to the proposal. Finally, after the government’s appeal was heard and denied, the scientists were given 16 days to examine the skeleton. The first examination took place in July, 2005 – nine years after Kennewick Man’s discovery. The second and last examination occurred in February, 2006. The results of these studies are presented in detail in Kennewick Man: The Scientific Investigation of an Ancient American Skeleton (Texas A&M University Press, 680 pages; October, 2014). The book credits 48 authors and 17 researchers as contributors to the project. Smithsonian called it “the most complete analysis of a Paleo-American skeleton ever done.”

Kennewick Man was about 5 feet, 7 inches tall and weighed about 160 pounds. He was right-handed. His age at death was approximately 40 years. From markings on the bones of his shoulders, we know that he often threw something with his right arm. Presumably, it was a spear. This hypothesis is reinforced by the fact that his left leg was apparently stronger than his right leg. He also spent much time raising and lowering something in front of him, as he would if spearing fish or seals in water. He often waded in shallow water and had “surfer’s ear,” caused by swimming underwater. He subsisted on a diet of marine animals and glacial meltwater – such as might have been found in latter-day Alaska.

Douglas Owsley believes that Kennewick Man believes that Kennewick Man traveled to what is now North America by sea from another continent. His people were the original settlers of our land, not the people now known as Native Americans. If Owsley is correct, that means that the stylized plaint of Native American about having been displaced from their original ancestral homeland by barbaric European intruders is somewhat quaint – the Native Americans themselves displaced at least one other race of peoples who arrived here before them. What we know of Indian life tells us that the vast majority of the tribes lived as hunter-gatherers who befriended some tribes and warred endlessly with others. This suggests that they displaced the Polynesian competitors primarily through warfare and annihilation.

High-radiation CT scans of Kennewick Man’s bones verify that he does not belong to any living human population. His closest relatives among contemporary humans seem to be a Polynesian people, the Moriori of the Chatham Islands. They are located about 420 miles southwest of New Zealand. The Ainu people of Japan are another close relation.

Kennewick Man belonged to the class of people who originally populated both Polynesia and Japan. The modern-day Ainu have light skin and light-colored eyes and sport heavy beards. The reconstruction of Kennewick Man in Owsley’s office is built on this model.

Kennewick Man alters the traditional view of North American prehistory. Previously it was thought that the original settlers of North American traversed the Bering Strait to reach what is now Canada and, later, the U.S. (The Bering Strait was then a connecting land mass that is referred to as the “Bering Land Mass.”) These humans came from Central Asia. Now it appears that the first humans to settle North America came from what is now Polynesia by sea in boats made of wooden planks, following the coastline down from what is now Alaska to today’s Pacific Northwest. This migration may have occurred some 15,000 years ago. (In emulation of Kon-Tiki, an American daredevil paddled a kayak from Japan to Alaska beginning in 1999 and finishing in 2000.)

Owsley believed that the Polynesian migration came first, followed by the Asian migration. But the Asian migration was larger. The Asians eventually overcame the Polynesians. Owsley claims that there is a tiny, but detectible, strain of the Polynesian DNA remaining in some North American tribes today. It seems highly likely, though, that the victory of the Asians was primarily martial rather than cultural; that is, through war rather than intermarriage and assimilation. The DNA material is so small and weak, according to Owsley, that we cannot call possessors “descendants” of the Polynesians.

Ever since the discovery of Kennewick Man, the field of physical anthropology has been buzzing with activity. In Mexico, the bones of a teenage girl found in an underwater cave have been dated at approximately 13,000 years old. Her skull appears to be similar to that of Kennewick Man but she shares DNA features with North American Indians.

At this point, it seems likely that the discovery of Kennewick Man will turn out to be one of the momentous scientific discoveries of the 21st century. To be sure, that conclusion is premature. Time is the only sure test.

This is the scientific discovery that the U.S. Army Corps of Engineers spent years trying to bury forever.

Why was the Corps of Engineers desperately anxious to prevent scientific study of Kennewick Man and bury the skeleton forever?

Lawyer Alan Schneider was asked by writer Kenneth Preston to explain the behavior of the Corps of Engineers toward the scientists. Schneider noted that the Corps “was involved in tense negotiations with the tribes over a number of thorny issues, including salmon fishing rights along the Columbia River, the tribes’ demand that the Corps remove dams and the ongoing, hundred-billion-dollar cleanup of the vastly polluted Hanover nuclear site.” According to Schneider, “‘They weren’t going to let a bag of old bones get in the way of resolving other issues with the tribes.'”

Summing Up: A Theory of Government

Previously we tentatively advanced a “theory” of government. Actually, it is better called an emotional, heartfelt wish that government behave in a certain way. That wish was for government to (a) do the “right thing” – whatever in the world that might mean; (b) “protect the public and make us safe;” and (c) “act in the general or public interest rather than the selfish interest of one or a few.” The Nobel Laureate James Buchanan, co-originator of the Public Choice school of economic thought, referred to this line of (wishful) thinking as the “romantic” theory of government. Smithsonian writer Douglas Preston is apparently an adherent of this view. In commenting on his article, he says, “What shocked me the most in my research was the illogical resistance of the government.”

This is what shocked Preston. The federal government – specifically, the Corps of Engineers, backed by the Department of the Interior and the Justice Department – blatantly violated all of the above tenets. The Corps did the wrong thing by spending years thwarting scientists in their determination to unearth of the notable scientific discoveries of the young century. The Corps harmed the public by suppressing scientific knowledge and acting in bad faith in legal proceedings. It made the world unsafe for science by storing Kennewick Man under unsuitable conditions. It acted in its own selfish interest by putting the interests of its dams ahead of those of science, by putting the financial interests of the government ahead of those of science and by putting the anti-scientific bias of the American Indian political movement ahead of the legitimate advance of science. In pursuit of these selfish interests, the Corps was willing to completely distort the meaning of the law.

All I can say is that this is only one isolated case.

Students of government and regulation can attest that this is how every government agency behaves. It is not atypical. This is the typical case. It varies only by degree, not by kind. The true theory of government is that of a self-interested body promoting “its” own interests at the expense of the interests of its citizens. What remains to be fleshed out is the content of the word “its.” What can be said is that it includes politicians, bureaucrats and the people who depend on government for their livelihood. People like Douglas Preston, who apparently view government in the hazy light of Buchanan’s “romantic” theory, are living in a fool’s paradise.

Epilogue

As of late last year, Kennewick Man lay in storage in the Burke Museum, under the control of the Corps of Engineers. Owsley and the scientists would like to perform a few more tests to narrow down Kennewick Man’s age more precisely and pin down his geographic origin. Meanwhile, the tribes continue to insist that Kennewick Man be buried with no further testing.

The Corps of Engineers continues to deny the scientists’ requests for more tests.

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