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The Kennewick Man Case | Court Documents | Communications with the Court

Plaintiffs' Request for Clarification of March 8 Order

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 Defendant







Defendants. CV No. 96-1481 JE


Plaintiffs file this motion to request a clarification of the order of March 8, 2000 which provided defendants with an additional six months to conduct DNA testing. There are certain questions that were not addressed in that order, largely because defendants made clear that they intend to DNA testing solely for purposes of determining cultural affiliation. Plaintiffs ask that the Court apply the original March 24, 2000 deadline to those issues that are unrelated to cultural affiliation. In particular, plaintiffs request that defendants be ordered as follows:

(a) To respond by the original deadline of March 24, 2000 to plaintiffs question whether they will be permitted to study the Kennewick Man skeleton if the remains cannot be culturally affiliated to any of the claiming tribes; and

(b) To respond by the original deadline of March 24, 2000 to plaintiffs' question whether they will be permitted to study the Kennewick Man skeleton if the remains are determined not to be Native American under NAGPRA.

Because the defendants have made clear to the Court that they intend to do DNA testing solely for the purposes of cultural affiliation, there is no reason they need additional time to respond to these two questions. Neither of them implicates consideration of cultural affiliation.

These questions are not merely academic. Defendants' responses will be indispensable elements of the full administrative record, and each is potentially necessary for a full and final adjudiction of the issues of this case. Moreover, the Court has noted already that plaintiffs' questions are policy and legal questions that can be answered without further factual or scientific inquiry. See Transcript of September 14, 1999 hearing pp. 28-30.


When plaintiffs approached the Court in September 1999 on the third anniversary of this litigation, they articulated a limited universe of questions that defendants needed to answer: whether plaintiffs could study if the skeleton is not Native American, whether plaintiffs could study of the skeleton is Native American but not culturally affiliated, and whether the plaintiffs could study if the skeleton is Native American and culturally affiliated.

Although plaintiffs have always urged defendants to do DNA testing, they believe that it belongs in a different stage of the analytical process; DNA is largely irrelevant for cultural affiliation, and defendants have all but conceded that it is so (1). Among the problems with defendants' plan, there is no reliable way to link the skeleton to an established earlier group, as contemplated by 25 USC 3001(2) since there is no comparative DNA from other humans who lived in the area where the skeleton was found at the same time as Kennewick Man. Plaintiffs, for their part, believe that DNA testing properly belongs in analyzing whether any particular skeleton may be Native American, an issue that is largely academic now in light of defendants' naïve insistence that anything predating 1492 is Native American.

Those considerations do not argue against doing DNA testing, and plaintiffs believe it should be done. But given defendants' express limitations on how the result will be used, plaintiffs also urge the Court to require an answer from defendants to the two questions for which these DNA results will be irrelevant.
DNA testing is not at all necessary for the defendants to tell plaintiffs whether they can study the skeleton if it cannot be culturally affiliated. At its simplest, without a cultural affiliation to the claiming tribes, there is no group to which the government must (in its opinion) defer to grant permission. If there is no worry about a group that could possibly claim 'ownership' of the skeleton, the question for the government is quite simple: may the plaintiffs study.

Nor is the question whether the plaintiffs may study if the remains are not Native American an academic inquiry. Although defendants have already issued their decree that age and age alone is the determining factor, every person involved in this case knows that position is subject to challenge as a most arbitrary and capricious definition. Plaintiffs intend to raise such a challenge. If the Court eventually rejects defendants' definition, an answer now to the study question will expedite the case. Otherwise, the Court would have to remand the case again to the Department of Interior for an answer to plaintiffs' question (i.e., may be study the skeleton). If the past is any guide to the future, plaintiffs would need to wait another year or two for an answer. It would be much better to require an answer now, by the original deadline, and avoid dragging this case out beyond the life spans of the plaintiffs and their lawyers

Requiring an immediate response to the two questions, which do not involve cultural affiliation will help ensure that valuable ground is not lost. Looking ahead, plaintiffs anticipate amended pleadings and extensive discovery when the stay is lifted, and the Court has already alluded to certain issues that will be most ripe for challenge when that happens. The six month DNA extension creates further down time during which plaintiffs, hobbled by the defendants' glacial pace, must simply wait. To require the government to answer at least some of the questions now would mitigate this delay. It would permit plaintiffs to begin research and prepare at least that much of their case now.

Plaintiffs are also mightily concerned, and rightfully so, that the 'six months more' request is going to be only one of many. There is good reason for that. The Court's September 21, 1999 Order was accommodating. It gave defendants a full six months, in addition to the three years already elapsed, to conduct whatever studies or inquiries the government felt necessary to make its decision. Had defendants acted promptly, which they did not, they could have completed the DNA testing in that time. Their papers give little reason to believe they will meet this new six month deadline. Their motion for an extension suggests they need 'at least' six months time, laying the groundwork for an additional reuest about the time the parties reach the fourth anniversary of this litigation. See January 31, 2000 Declaration of Francis P. McManamon, at 5. Their recent correspondence makes it clear they have only just begun the process because they are now only 'in the midst of discussions' with possible experts. They asked plaintiffs for recommendations for the first time on March 14, 2000. That degree of collective boot dragging makes it nearly inconceivable that defendants intend to meet this new deadline. Their movements are remarkably slow. With further requests inevitable down the road, plaintiffs and the Court remain frustrated as this case drifts.

In their September, 1999 request, plaintiffs apprised the Court of events in their lives and scholarship which require more expeditious consideration of their concerns than their government has seen fit to mete out to date. Since that time, one of the plaintiffs (i.e., Dr. Haynes) has retired, and another (i.e., Dr. Steele) has undergone major surgery. Those events should not be taken lightly, for al the reasons plaintiffs raised in September 1999.

In light of these concerns, and because the Order of March 8, 2000 did not address these questions but focussed instead on the DNA process, plaintiffs request clarification that the extension applies only to the question which implicates cultural affiliation.

Dated this 17th day of March, 2000.


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

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

Of attorneys for Federal Defendants

(1) Indeed, Stephanie Hanna, a spokeswoman for the Department of Interior, was recently quoted as stating that DNA will not be able to establish any historical ties to any modern tribe. While this statement certainly casts doubt upon the good faith of defendants in claiming DNA is needed in the cultural affiliation stage of the analytical process, it also raises questions whether the government has properly analyzed the potential relevance of DNA data to situations of this kind.

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