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. 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. 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.