Originally published in Science Express on 2 June 2005
Science, Vol 309, Issue 5734, 597-599, 22 July 2005

Genomic Sequencing of Pleistocene Cave Bears
James P. Noonan,1,2 Michael Hofreiter,3 Doug Smith,1 James R. Priest,2 Nadin Rohland,3 Gernot Rabeder,4 Johannes Krause,3 J. Chris Detter,1,5 Svante Pääbo,3 Edward M. Rubin1,2*

Despite the greater information content of genomic DNA, ancient DNA studies have largely been limited to the amplification of mitochondrial sequences. Here we describe metagenomic libraries constructed with unamplified DNA extracted from skeletal remains of two 40,000-year-old extinct cave bears. Analysis of ~1 megabase of sequence from each library showed that despite significant microbial contamination, 5.8 and 1.1% of clones contained cave bear inserts, yielding 26,861 base pairs of cave bear genome sequence. Comparison of cave bear and modern bear sequences revealed the evolutionary relationship of these lineages. The metagenomic approach used here establishes the feasibility of ancient DNA genome sequencing programs.

Published online 2 June 2005

Anyways, I think its worth remembering when people discuss whether this is the “right” answer, that “right” has two parts when dealing with the law. The first is whether its the right answer in terms of whether its the legally best answer. The second is whether its morally, ethically, pragmatically, or generally normatively best.

To operationalize this in colloquial terms, think of these as letting you know who did or did not get screwed, and by whom.

If an answer is legally right, but (in your opinion) normatively wrong, then the court is blameless, and whoever wrote the law is at fault for screwing whoever lost.

If the answer is legally right and normatively right, no one got screwed.

If the answer is legally wrong and normatively right, then whoever wrote the law tried to screw someone, but got cut off by the courts, who then screwed the legal system.

If the answer is legally wrong and normatively wrong, then the courts screwed whoever lost.

This is a useful shortcut to knowing who to blame. What this basically does is let you see exactly what people mean when they say a decision is “bad.”

Normatively, you can all make your own calls.

Legally, its fun to note that this case really did turn on what the definition of “is” is. NAGPRA only applies to remains that are connected to a tribe, culture, etc, which “is indigenous” to the americas. What about tribes, cultures, etc, which *were* indigenous? The court talked about giving words their ordinary everyday meaning, said that “is” means present tense, discussed what evidence existed (or did not exist) of cultural continuity, gave an argument about how congress’ intention probably wasn’t to apply NAGPRA to give bodies from one culture to an entirely different one just because the original wasn’t around anymore, and closed up the case.

Ok, the opinion was many, many pages long. But that’s what it did.

I think its interesting how the court dealt with the task of determining whether the Kennewick man was of the same culture etc as any modern day native american tribe. Personally, I think that’s the sort of decision that the courts should avoid where possible, but they didn’t write NAGPRA so that’s not their fault. It certainly brings into contrast the legal world with the academic: in academia, we can debate the Kennewick man’s origins until the end of time. In law, we often get handed a case which turns on a contentious academic question, a pile of amicus briefs from various academics, and a deadline at which an absolute, permanent, never revocable decision must be made.

Alright, its not quite that absolute. But for practical purposes, its usually the final decision.

On a personal note, this blog is fun. I think the blog format encourages the mixing of the political with the academic, and that’s a fun place for a law student to be.

I’m working up a long entry on some related issues, but it takes me back to some of the claims Oneman made a while back here about the ethics of anthropological research. You can argue that the obligation of an anthropologist is to assist discrete social communities in the work of self-definition and assertion of autonomy, but if so, that obligation has to extend in all directions. If you want to implicitly or explicitly suggest that the Native American claim here should be upheld, you also ought to support Christians who are creationists in their assertions of the right to understand the universe as they see fit: the two demands stack very neatly alongside each other. The only thing that allows at least some anthropologists or others to split the difference is a kind of subsurface metanarrative about which communities have an authenticity worthy of assisting and which do not. You can’t even gloss it as a narrative of empowerment, that Native Americans are downtrodden and evangelical Christians are not: the real physical communities in which creation science strikes the strongest chords in the United States are relatively marginalized in economic and social terms from the centers of American wealth and influence. Evangelical Christians may have access to political power, but that access does not return to them any substantive changes in their real social status or social power, at least not so far.

You can read my comment there, but in short, once the case hit the courts, from the perspective of the scientists it had to be litigated for precedential value, and in order to litigate it they had to treat the remains as having further scientific value, and once they did that, they *have* to do some studies now that they’ve won, and publish some data. Because if they don’t, the native american press will go berserk even more than it already has. That’s my interpretation, at least.

As for studying the remains prior to the trial’s completion, I don’t know the law on that. My suspicion is, absent some alteration to the general rules by NAGPRA, whoever had the remains could do what they wanted to with them, within the confines of general US law regarding human remains. The native americans could have applied for an injunction until the completion of the trial, and I bet they did, but apparently they weren’t granted one, or they didn’t file it fast enough.

Generally, if you and I are in a lawsuit over who is the true owner of an automobile, and its in my possession, I can paint it red if I feel like, even if you think it should remain blue. If you want to stop me, you’d ask for an injunction against me altering or disposing of the property until the lawsuit was resolved.