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The Kennewick Man Case | News & Comment

Highlights of the Court Session on September 14, 1999

On Tuesday, September 14, 1999, oral arguments on plaintiffs' (scientists) motion for an immediate decision on their study request were presented in U.S. District Court, Portland, Oregon. Paula Barran (scientists' attorney) and Alison Rumsey (Department of Justice) presented their views and were questioned by the Court on a variety of issues. At the conclusion of the 90-minute hearing, the Court indicated that it intends to impose a deadline or other "guidelines" requiring the government to reach a decision on the scientists' study request. The Court will issue an opinion within the next 7 to 10 days that will set out what will be expected of the government.

The Court was not sympathetic to the government's statements that its handling of the case has been expeditious and reasonable. The Court sought clarity on the government's position and made comments on a number of issues. A few highlights of the Courts concerns include:

  • The Court queried whether it correctly understands the government's interpretation of the statute: the skeleton is Native American for purposes of NAGPRA if it is more than 500 years old even though it is morphologically very different from modern tribes. Ms. Rumsey confirmed that his understanding is correct. The Court commented later that Dr. McManamon's (National Park Service) definition would seem to say that a 10,000 year European is Native American.

  • The Court wondered why is there a question whether the skeleton is more than 500 years old. The original C14 date would have to be off by a factor of 20 for the skeleton to be less than 500 years old (and therefore outside Dr. McManamon's definition of Native American).

  • After reviewing the Congressional Record to NAGPRA, the Court did not see any reference to ancient remains.

  • The Court stated that the three questions asked by the plaintiffs in their Reply Memorandum are not difficult to understand and no additional evidence is needed to answer them. These questions are

    1. If the skeleton is not Native American, will plaintiffs be permitted access to study it?

    2. If the remains are determined to be Native American by age alone, but cannot be culturally affiliated to a present-day tribe, will plaintiffs be permitted access to study it?

    3. If the remains are determined to be Native American and are culturally affiliated (which even the claiming Umatilla tribe concedes is exceedingly remote), will plaintiffs be permitted access to study it?

  • The Court observed that it has an obligation to move the case along. More time has passed than contemplated two years ago. A cultural affiliation decision will take one to two years, according to Ms. Rumsey. In response, the Court observed that plaintiffs should not have to wait 5 or 10 years before this case is resolved (if all time spent to date and possible future appeals are considered).

In her opening remarks, Ms. Barran expressed concern and dismay at the amount of bone destroyed for the C14 samples taken by the government on September 8, 1999. The government had actually extracted 30.3g of bone rather than the 'about 20g' that it reported to the media after the samples were taken. Further, Ms. Barran noted that the choice of tibia was one of the least scientifically justifiable choices possible. Input given to the National Park Service by scientists was totally disregarded.

We will post the complete transcript of this 90-minute Court session as soon as it becomes available.

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