Plaintiffs' Response to Motion for Extension
Alan L. Schneider, OSB No. 68147
Paula A. Barran, OSB No. 80397
Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, et al.,
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, et al.,
Defendants. CV No. 96-1481 JE
PLAINTIFFS' RESPONSE TO MOTION FOR EXTENSION
Defendants, who have always known that DNA analysis might clarify some of the questions surrounding the Kennewick man skeleton, have waited nearly 3-1/2 years to decide to think about DNA, and having decided that they have to make a decision about DNA, they now want more time to answer Plaintiffs' study requests -- that is, if they decide that they will do DNA testing.
The request should be denied. Defendants offer no excuse for not having done their thinking about DNA years ago when Plaintiffs asked them to do it and the Court suggested they should consider it. Nor have they offered any explanation for why their consideration of DNA testing should further delay answering Plaintiffs' request to study.
The Court's September 21, 1999 order established a deadline for responding to Plaintiffs' requests. Although Plaintiffs asked for an immediate response, and although the Court noted that Defendants had made little progress in resolving the factual and legal questions raised by the action, the Court extended the process a full six months, to March 24, 2000. The additional time beyond what Plaintiffs requested was in part because the Court noted that Defendants would probably have to perform DNA analysis, and therefore included sufficient time for that analysis to take place.
Apparently, once again, Defendants have waited until the very last moment to begin the thinking process and, once again, ask Plaintiffs and the public to bear the burden of their inaction. Moreover, time and time again Defendants have shown themselves not to be reliable, including in setting deadlines, and Plaintiffs continue to have grave concerns about the condition of the skeleton and the Government's complete control of information from it. Plaintiffs ask that the Court require Defendants to adhere to the Court-established deadlines.
A. DNA Testing is not a new concept to defendants; they have always known they will have to decide whether to perform it and they offer no explanation for ignoring the issue until the court-imposed deadline is upon them.
Plaintiffs first formally discussed the advisability of doing DNA testing in the Motion for Order Granting Access to Study, filed in March 1997 (about seven months after the government took custody of the skeleton). In that motion, Plaintiffs asked the Court to permit DNA extraction, replication ("or amplification") and analyses to be performed on a nondiagnostic bone sample. See Motion for Access, March 11, 1997.
DNA testing had, conceptually, been at issue in this case even before that, however. Because of Defendants' demands, Dr. David Smith at U.C. Davis was forced in October 1996 to halt his DNA testing of the original bone sample that was sent to U.C. Riverside for radiocarbon dating of the skeleton as part of the Benton County Coroner's investigation.
Defendants objected across the board to Plaintiffs' proposed tests (although they have now themselves performed most of them). Even so, early in this controversy the Court cautioned that DNA analysis should be considered. In the opinion setting aside the original agency action and remanding for further consideration, the Court advised the government that it should perhaps get a firm age for the skeleton (something that the government has only now gotten around to doing) and recommended that the government may also wish to consider other tests such as DNA. See Opinion of June 27, 1997 at note 28.
Perhaps all those suggestions fell on deaf ears. But the suggestions did not end even there. In December, 1997 three of the Plaintiffs (Dr. Bonnichsen, Dr. Owsley, and Dr. Jantz) participated in a telephone conference with the Army Corps of Engineers to assist in the administrative process. Lt. Col. Curtis (then the responsible agency officer; this case has long since been moved to the Interior Department) acknowledged the references to DNA testing in Plaintiffs' study plan (Tr. at 6) and asked a number of questions about the process. Tr. at 38-43.
Questions about DNA testing did not disappear when the government transferred Kennewick Man to the Interior Department in March, 1998. Dr. McManamon, on behalf of the government, prepared a declaration which Defendants filed with their July 1998 status report. He assured the Court that Defendants were proceeding to develop various protocols and procedures and provided a June 29, 1998 draft "DOI Approach To Documentation, Analysis, Interpretation, and Disposition" (McManamon Declaration of June 29, 1998, Attachment B). This, in turn, explained that "additional testing is being considered" and emphasized that DNA extraction and analysis were under consideration because modern and past Native American populations exhibit distinct patterns of mitochrondrial DNA. Later, the review document prepared for the government by Dr. Clark Spencer Larson on October 26, 1998 referred to DNA testing as "essential" and emphasized that "it will be crucial that we have a comprehensive documentation of the individual or individuals represented" and explained that "analysis of DNA extracted from ancient human skeletons has become an extraordinarily powerful tool for identification purposes." Review of DOI Approach at 7-8 (filed with the Court in conjunction with Plaintiffs' Motion for Immediate Response.)
Eventually, three years after Defendants took custody of the skeleton, Plaintiffs once again approached the Court, this time requesting that Defendants be directed to answer the in study request pursuant to 5 USC § 706, which requires a reviewing court to intervene where agency action is unlawfully withheld or unreasonably delayed. Five of the plaintiffs were by then at an age where the length of their careers could no longer be taken for granted. They presented evidence, all unrebutted, that the government's delay was impeding ongoing, important research as well as publication and review, and affecting present university students whose education and training is stifled. Plaintiffs also expressed the concern that the government's lock on study precluded multiple lines of inquiry as well as verification of results through study by independent observers. At the same time, the Asatru Folk Assembly, a plaintiff in another lawsuit, formally asked the court to order DNA testing (1). In the September 21, 1999 order which established the deadline for answering Plaintiffs' study request the Court made it clear that "DNA analysis probably will be required" (Opinion of September 21, 1999 at 6). Moreover, the Court also made clear to the government that Plaintiffs had a right to have an answer to their study request, and pointed out just how little progress the government had made in three years.
So, DNA testing is not a new issue. It has been under discussion for most of the time the government has had the skeleton. Defendants' own experts have emphasized its importance. The Court has done the same. As of January 31, 1999 Defendants have at last decided to think about whether to do DNA testing.(2)
B. Defendants have not shown any reason why DNA testing, if done, cannot proceed concurrently with the final evaluation of plaintiffs' requests.
The bone room at the Burke Museum is hardly a hive of activity. Aside from occasional visits to download data, Kennewick Man is in a morgue, and a quiet one at that. There is no reason, at least none that Defendants advance, to delay answering Plaintiffs' requests. DNA extraction and testing would not interfere with any activity supposedly going on in the bone room. Moreover, there is no reason Defendants could not decide whether to do the sampling and allow, or disallow plaintiffs' requests all at the same time. They are not mutually exclusive activities. Indeed, the government might even find that using Plaintiffs' expertise might avoid an embarrassment like the radiocarbon sampling, with its wasted bone and improper sample selection.
C. This is an unfounded request for further delay.
Plaintiffs repeat their concerns from their September 1999 motion for immediate response, except to add that they are all now older and have lost another several months of study and research. (3)
This is hardly the first time Defendants have failed to proceed in a timely fashion. They studied the site in December 1997, but failed to produce a report until January 1999. They were to have completed a skeleton preservation plan by September, 1998 but that has not yet been done. The Phase 1 studies they were to have completed in November 1998 took until March, 1999. Their decision on Native American status, which required only a date for the skeleton, was promised by Spring, 1999 but took to January 11, 2000, and in the meantime they missed two intervening deadlines on radiocarbon dating (Feb/June 1999, revised to September 15, 1999). They were to have consulted about additional testing of the skeleton by January 1999, but have yet to complete that. Since Defendants insist on doing everything one step at a time, each individual delay puts resolution of this matter off far into the future.
Meanwhile Plaintiffs continue to be concerned about the condition of this skeleton. The government has issued regular reports which use a lot of words and say nothing except to cause alarm in the Plaintiffs. For example, there is a crack, but nothing appears to be done about it. There is "color" and "change" but Plaintiffs are not allowed to understand what that is. Bones have not been stolen recently from the collection, at least that Plaintiffs are aware of, but a large mass of bone was unnecessarily destroyed by improper sample selection for C-14 dating. Defendants' sample selection was so inadequate that at least one of the bones chosen was dismissed by the testing laboratories as essentially worthless for dating purposes.
D. DNA testing does not affect the legal question of whether plaintiffs may study.
Defendants repeat frequently that NAGPRA was intended to stop "unfettered study," a supposed purpose that is not to be found in the law itself or its history. They insist that tribal consent is required or controlling, a concept that is also not to be found in the law or its history. They say this is a Native American skeleton by age only. That is a legal issue. There is simply nothing that DNA analysis can add to the purely legal question: may plaintiffs study the skeleton.
Despite all the briefs and reports filed and the hearings held in this case over the past 39 months, defendants have failed so far to offer a convincing reason why plaintiffs should not be allowed to study the skeleton.
For example, at the September 14, 1999 hearing, defendants' counsel stated that: ". . .it [i.e., NAGPRA] was a statute that was enacted, really, to stop this unfettered study on human remains that the tribes objected to." Transcript at page 56. However, there is no indication either in the statute or its legislative history that NAGPRA was adopted for the purpose of stopping the study of human skeletal remains, at least in circumstances like those presented here.(4) In fact, scientific study of human remains was not even viewed by Congress as a problem when it enacted NAGPRA. See Senate Report 101-472 at pages 4-5: "Native American witnesses have indicated that they do not object to the study of human remains when there is a specific purpose to the study and a definitive time period for the study."
Defendants have also argued that they are required to weigh "heavily" and to "defer" to tribal wishes on questions relating to the study of human remains. See, e.g., Federal Defendants' Opposition to Plaintiffs' Motion for Immediate Response Re: Study Request (August 1, 1999), at pages 5 and 10. Once again, there is nothing in the statute or its legislative history to support this position. Neither says anything about deferring to tribal objections on questions of study. In fact, NAGPRA requires tribal consent or concurrence for study only in the case of intentional excavations on "tribal land". See 25 U.S.C. 3002(c)(2). If Congress had wished to extend this requirement to other situations, it would have said so.
Defendants have also argued that scientific studies of human remains should be denied if they are "unnecessary to carrying out the purpose of the Act. . ." See Federal Defendants' Opposition, supra at page 5. This argument is apparently based on the case of NA IWI O NA KUPUNA O MOKAPU v. Dalton, 894 F. Supp. 1397 (D. Hawaii 1995). That decision merely accepted the argument made there by the government that NAGPRA does not prohibit studies conducted for the purpose of determining whether skeletons are Native Hawaiian. It did not hold, as the government contended, that all other types of studies are prohibited. Furthermore, even if one were to accept Defendants' premise that studies of human remains should be limited to carrying out the purposes of NAGPRA, it does not follow that plaintiffs should be precluded from investigation of the Kennewick skeleton. Plaintiffs and their research team colleagues are some of the most eminent authorities in First American issues. To exclude them from study of the skeleton only reduces the quality of the information available and ensures that only the government's version of the truth will ever be heard.
There is an even more fundamental flaw in Defendants' chain of reasoning. NAGPRA cannot be used as a pretext for denying study of the Kennewick skeleton unless the skeleton is "Native American" as defined by NAGPRA. Defendants claim that age alone is determinative of whether a skeleton is Native American for purposes of NAGPRA, and that it is not necessary to demonstrate any cultural or biological relationship to present-day U.S. Indian populations. See Federal Defendants' Second Quarterly Status Report, Exhibit 5 at page 2 (McManamon opinion letter); Federal Defendants' Notice of Radiocarbon Results and Notice of Determination that the Human Remains are Native American, at page 4. Plaintiffs believe that Defendants' interpretation of the term Native American is contrary to common-sense, the express wording of the statute, and sound rational reasoning. Whether Defendants or Plaintiffs are correct on this question is an issue of law that ultimately will have to be resolved by the Court. To delay resolution of that issue by the Court for another six months would serve no useful purpose.
In September 1999 the Court directed that the Defendants conclude their deliberations by March 24, 2000. Plaintiffs urge the Court to adhere to that deadline.
E. Defendants statements cannot be taken at face value.
Defendants have demonstrated repeatedly throughout this controversy that their statements cannot be taken at face value. This is important where, as here, Defendants have complete control over all information about the skeleton, leak to the public only what they want the public to know, and encourage members of the official government-sanctioned study team to make public presentations. Plaintiffs are deeply opposed to this lock and key approach to human knowledge. Their concerns about the validity of Defendants' representations are well founded.
In addition to the September 1999 representation that the delay in initiating radiocarbon dating was a result of an earlier desire to determine the skeleton's age by comparison with the soil strata (inexplicable in light of the burial of the site under tons of rubble, see Order of September 21, 1999), the following discrepancies appear in this record:
In a recent press release, the Department of Interior stated it had been ordered by the Court to come to conclusions based on their studies by March 24; the Court's order did not require completion of cultural affiliation studies. Rather, the deadline is to respond to the study request. Order at 5.
In that same document the Department of Interior described radiocarbon dating and said that two laboratories found the collagen levels below optimal levels. "Optimal" suggests the level of collagen was nevertheless acceptable. In fact, UC Riverside and University of Arizona would not even have done the tests under normal circumstances because the levels fell below their customary testable thresholds. Federal Defendants' Notice of Radiocarbon Results, filed January 12, 2000.
Defendants left the Court with the impression that Dr. Stafford refused at the last minute to participate in radiocarbon sample extraction for presumably selfish or irresponsible reasons of his own. In fact, he was not even invited until the last minute (4 days before the sampling and on the eve of a holiday weekend) and he ultimately refused to participate because he made firm recommendations about how to take the samples which the government rejected, in a decision he considered bad science.
Defendants told the Court that two of the persons who took the radiocarbon samples were "very familiar with the requirements" for doing so. But Dr. Cassman is an Assistant Professor of Museology (Attachment I to Defendants' 7th Quarterly Status Report), and Dr. McManamon is involved in public policy and cultural resource management rather than the actual practice of science. Real experts were available but Defendants elected not to use them.
Defendants advised the Court that under their protocols they were able to preserve information that would have been lost had they permitted Plaintiffs' tests. 10th Quarterly Status Report at 4-5. In fact, Plaintiffs have repeatedly explained that proper sequencing of testing is necessary including a complete taphonomic analysis done before any destructive testing. Defendants declined to adopt Plaintiffs' methodology resulting in much bone loss. At least 75% of the massive sample the government took for radiocarbon dating ultimately turned out to be unsuitable. See Defendants' January 12, 2000 notice, attachments 3 & 4 to exhibit A.
Defendants also assured the Court that Plaintiffs' observor, Ms. Hawkinson, was in a position to study their "excellent conservation." In fact, she was not. Ms. Hawkinson was required to observe from quite a distance, but was never allowed to assess the physical condition of the skeleton.
More "spin" appears in the government's press releases. Dr. McManamon stated publicly (press conference of early January, 2000) that the cranium shape (which points to non-Indian origins) "could have changed" in the river sediment. Four anthropologists have inspected the cranium (Owsley, Chatters, Powell and Rose) and none cites any postmortem deformation. Dr. McManamon at the same time asserted conclusively that Kennewick Man was a Native American person who did not wander to this area, but rather was born here. To date there is no evidence of where he was born, or died. We know only where his body was found.