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
- If the skeleton is not Native American, will plaintiffs be permitted
access to study it?
- 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?
- 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
We will post the complete transcript of this 90-minute Court session as
soon as it becomes available.
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