Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

IV. DEFENDANTS VIOLATED THE ESTABLISHMENT CLAUSE.

The First Amendment's proscription that "Congress make no law respecting an establishment of religion" is at the heart of a government founded upon neutrality to religion and complete separation between church and state. Regardless of the purpose, a practice violates the First Amendment if it affiliates with religion, conveys a message of endorsement, or can be perceived as official approval of one faith over another, or faith over non-religion. Lee v. Weisman, 505 U.S. 577, 599, 112 S. Ct. 2649, 120 L.Ed.2d 467 (1992) (Blackmun); Lynch v. Donnelly, 465 U.S. 668, 687, 104 S. Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor), reh. den. 466 U.S. 994 (1984); Separation of Church and State C'tee v. City of Eugene, 93 F.3d 617, 619 (9th Cir. 1996).

Although NAGPRA states that "oral tradition" evidence can be used to determine cultural affiliation in museum collections; it does not direct consideration of religious

Defendants repeatedly link religious stories with historical events, all in an effort to show that those religious beliefs point to a prehistory that is "true" for purposes of cultural affiliation. To use religious belief for such purposes violates the Establishment Clause. A factfinder may not decide the truth of religious tenets and thereby transform "rational debate into theological decree." Lee v. Weisman, 505 U.S. at 607; Ballard, 322 U.S. at 86. Government may not even decide which religious beliefs are traditional or accepted by a group, and which are not. "It is the role of theologians, not courts, to define the accepted tenets of a particular faith." Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 425 (Tex. App. 2000)(Hudson). See also Burgess v. Rock Creek Baptist Church, 734 F. Supp. 30, 33-34 (D.D.C. 1990) (court presiding over church dispute may not base ruling on doctrine and practice).

A private consultant such as Dr. Boxberger might not understand the significance of these laws for his work, but defendants should have. His report does not indicate that he was ever instructed to avoid probing the doctrinal content of religious belief, ER 184; DOI 10267, and defendants always intended that traditional beliefs would be considered in their cultural affiliation study. ER 489-90; Tr., Sept. 14, 1999 at 43-44. Nor is there any indication that he was ever told to consider the contrary evidence supplied by plaintiffs. He and defendants engaged in a "manifestly religious exercise" to answer a secular question, which "conveys a message of exclusion to all those who do not adhere to the favored beliefs." Lee, 505 U.S. at 604, 606.

Plaintiffs are teachers, and defendants have restricted their teaching on religious grounds even though the Constitution "does not tolerate laws that cast a pall of orthodoxy over the classroom" nor permit government to require that teaching and learning be tailored to the principles of any religion or dogma. Epperson, 393 U.S. at 106.

Footnotes

"[M]an's relation to his God was made no concern of the state" which is forbidden to favor any creed. U.S. v. Ballard, 322 U.S. 78, 87, 64 S. Ct. 882, 88 L.Ed 1148 (1944).

See 25 U.S.C. 3005(a). Defendants assume this standard should also apply to inadvertent discoveries, 43 C.F.R. 10.14, even though Congress did not.

Even where the regulations require consultation there is no suggestion that religious beliefs play a part in determining cultural affiliation. See 43 CFR 10.2(e) (defining cultural affiliation and citing list of evidence); 43 CFR 10.5(b)(3) (traditional religious leaders should be consulted for information about possible descendants). Neither provision directs that claimants or religious leaders be consulted for the religious content of their beliefs.

See ER 118; DOI 06932 ("religious teachings tell our people their ancestors have always lived in the Columbia Plateau"); Joint Amici Memorandum at 5 (ER 432; dkt. #83) ("when remains are distributed and remain above the ground, their spirits are at unrest"); Memorandum in Support of Motion to Intervene (ER 500; dkt. #276) (referencing traditional religious law); Minthorn Affidavit attached to Memorandum in Support (ER 476; dkt. # 86) (referencing Washat religion); ER 52; COE 8253 ("there cannot be scientific, educational, or informational reasons enough to override the moral, ethical and spiritual rights of the Indigenous Peoples"); Response Opposing Motion to Compel, Dick Affidavit (ER 526a; dkt. #389) ("human remains and the images and data derived from them are sacred").

See ER 162; DOI 10015 (Determination); ER 191; DOI 10298 (Boxberger). But the Secretary ignored evidence of the difficulties inherent in the use of oral traditions. See ER 139-147; DOI 08986-08994 (Simic); ER 167-171; DOI 10072-10076 (DOI staff). DOI staff concede that oral traditions "are difficult, if not impossible" to place in chronological time. ER 168; DOI 10073.

Dr. Boxberger cites more than 100 references, including the "Colville Tribal Statement of Traditional Belief," Kuykendall's "Graphic Account of the Religions or Mythology of the Indians of the Pacific Northwest," Jacobson's "Myths and Legends of the Pacific Northwest," Miller's "Prophetic Worlds," and Mooney's "the Ghost Dance Religion." No reference is made to anything written by plaintiffs or their experts, such as Dr. Archambault, who is Native American. See ER 127, 129; DOI 08974, 08976.

ER 94; DOI 04581.

ER 292-93; COE S-486-87; ER 482; Plaintiffs' Third Status Report Ex. B at 24, dkt. #137.

ER 416; (Bevan, 12/20/00), ER 519-20; Response to Motion at 6-7, dkt. #385.