Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

V. DEFENDANTS' FIRST AMENDMENT ARGUMENTS MISSTATE THE LAW AND FACTS.

A. Defendants Do Not Apply The Proper Standard Of Analysis For Laws That Implicate Constitutional Issues.

Thus, the first step in any analysis is to seek a construction of a statute that does not implicate constitutional questions. Here the court need not move beyond the that step, because it will not find any "clearly expressed" indication that Congress intended religion to be considered or speech to be affected. Defendants concede that NAGPRA makes no reference to religion. Defendants' Memorandum at 28. They do not dispute that NAGPRA does not direct that religious stories be considered in cultural affiliation determinations. Without such an affirmative intent, NAGPRA cannot be construed to reach these constitutional issues.

The same is true concerning plaintiffs' study claims. Defendants concede that NAGPRA is silent on the question of study of inadvertently discovered remains. Defendants' Memorandum at 32. Since there is no "affirmative intention" of Congress to ban study, and because serious constitutional questions would otherwise be created, NAGPRA must be construed to avoid those questions.

B. Defendants' Offer Insufficient Excuses for Their Establishment Clause Violations.

The Secretary and Dr. Boxberger make other assumptions that are not consistent with logic or accepted scientific practices. They assume, for example, that possible references to geologic events are matters that could only have occurred in the Kennewick area, disregarding the possibility that they could have occurred elsewhere. They also assume that such events must have been witnessed by the ancestors of the Coalition members, when it is equally plausible that the Coalition's ancestors may have borrowed elements of their origin accounts from other peoples. With such uncertainties, any conclusion in favor of cultural affiliation was pure speculation. Defendants' claims to have followed scientific methodology is litigation posture rather than a fair depiction of what happened.

Defendants complain that if origin accounts cannot be used to prove the truth of the religious stories they convey, it will be more difficult for Native Americans to establish their claims. NAGPRA does not permit defendants to resort to religious beliefs. Nor does the Constitution. Moreover, Congress established a standard of proof in NAGPRA (i.e., preponderance of the evidence). Defendants may not resort to something lesser because Congress' standard is too difficult.

Defendants do not dispute that they allowed Coalition members to veto study requests for religious reasons, both as to study of the skeleton and with respect to investigation of the discovery site. They do not dispute that their consultations included prayers. They do not discuss the implications of the authorities plaintiffs cited.

C. Defendants' Arguments On Study Are Still Insufficient.

Defendants have never deviated from the theme that there is no right of access to "all government-held information" or "all Native American remains," even after the Court disposed of that issue on remand. The question is not whether plaintiffs may study every skeleton in government collections, but whether they may study one extraordinary skeleton that is of critical import for scholarship and education. NAGPRA does not, and cannot, prohibit what they are requesting.

The First Amendment protects more than speech and extends to many forms of expression and sources of information including armbands, parades, advertising, flag burning, dancing, television programs, sit-ins, drive-in-movies, handbills, and drug prices. The overarching principle in these cases is that government may not unreasonably interfere with the flow of information. Defendants themselves concede that "[w]hile the information is there, a person has a right to receive it." SER 16, COE 7701.

Defendants also contend, rather perversely, that they have no obligation to make the skeleton available to plaintiffs because it is not the property of the United States. That claim is inconsistent with defendants' earlier statements (SER 134a, Tr. of Sept. 14, 1999 at 36), with the position of other federal agencies (BLM in Spirit Cave), and with other federal laws. See, e.g., ARPA 470cc(b)(3) (items found on federal land "remain the property of the United States"). Nor is it consistent with government objectives in other areas. Defendants' property theory would mean that looters of Native American graves on federal land could not be prosecuted for theft of government property, and prosecutions under ARPA and the Antiquities Act would be jeopardized. Such a Congressional intent cannot be presumed. Moreover, if the skeleton is not Native American, then defendants' theory is wholly inapplicable, and they cite no basis for denying study in that event.

Federal agencies may not interpret the "purpose" of a statute to impose requirements or qualifications not expressly authorized by the statute's words. See Plaintiffs' Memorandum at 4-5. Nor can they construe a statute to create substantial constitutional questions. See DeBartolo, 485 U.S. at 575. As the Ninth Circuit phrased the rule: "if Congress means to push the Constitutional envelope, it must do so expressly." Williams v. Babbitt, 115 F.3d 657, 662 (9th Cir. 1997), cert. den., 523 U.S. 1117 (1998). When the supposed restrictions of the law collide with constitutional protections, courts must return to the "isolated evils" that engaged Congress to pass the legislation. DeBartolo, 485 U.S. at 575; NLRB v. Fruit Packers, 377 U.S. 58, 63, 84 S. Ct. 1063, 12 L.Ed.2d 129 (1964) (Tree Fruits). The "isolated evils" that engaged Congress in 1990 when it passed NAGPRA did not include study of ancient remains.

Footnotes

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S. Ct. 1313, 59 L.Ed.2d 533 (1979) ("an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available"); Machinists v. Street, 367 U.S. 740, 81 S. Ct. 1784, 6 L.Ed.2d 1141 (1961) (construing Railway Labor Act to avoid serious doubt of the Act's constitutionality); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22, 83 S. Ct. 671, 9 L.Ed.2d 547 (1963) (refusing to sanction extension of NLRB jurisdiction where it would raise separation of powers questions and requiring proof of "the affirmative intention of the Congress clearly expressed").

See Webster's New Collegiate Dictionary, G.&C. Merriam Co., 1981 (credible: "offering reasonable grounds for being believed").

Defendants also refer to their "humanistic and qualitative methodologies." Defendants' Memorandum at 30. Since those terms are not defined in their memorandum or in the cited references, it is not clear what they mean or what they might have contributed to the inquiry.

For example, Dr. Boxberger cites an account which attributes cataclysmic floods to the action of giant beavers. See ER 187. Such accounts cannot be reconciled to existing knowledge of natural processes. Origin accounts are theological or metaphysical explanations for the creation of the world by supernatural beings, not scientific treaties, and cannot be interpreted literally. See ER 129 (Archambault); ER 140 (Simic).

In doing so, he disregarded all elements of the origin accounts that are incompatible with the Coalition's claim (such as the nomadic people who overran the Palouse country but were later destroyed by lava, or the Stick People, ER 133, 190).

Defendants' use of the Coalition's oral traditions were constitutionally flawed for another reason. Defendants assumed that the origin accounts they cited are genuine traditions of the Coalition's members. That may or may not be true. To assume that they are involves an impermissible determination of what is the accepted tenets of a religious belief system. See Plaintiffs' Memorandum at 26.

Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L.Ed.2d 290 (1974), was about employment preferences and not religion. Alaska Chapter v. Pierce, 694 F.2d 1162 (9th Cir. 1982), was about construction contracts. Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S. Ct. 740, 58 L.Ed.2d 740 (1979), was about criminal jurisdiction.

Rupert v. Director, U.S. Fish and Wildlife Service, 957 F.2d 32 (1st Cir. 1992); Peyote Way Church of God, Inc. v. Thornburgh, 992 F.2d 1210 (5th Cir. 1991).

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S. Ct. 733, 21 L.Ed.2d 731 (1969).

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L.Ed.2d 487 (1995).

Edenfield v. Fane, 507 U.S. 761, 113 S. Ct. 1792, 123 L.Ed.2d 541 (1993).

United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L.Ed.2d 287 (1991).

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 865 (2000).

Brown v. Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L.Ed.2d 637 (1966).

Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L.Ed.2d 125 (1975).

Giebel v. Sylvester, 244 F.3d 1182 (9th Cir. 2001).

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976).

Defendants concede the value of skeletal studies. See SER 118, DOI 05857 (uses of metric and nonmetric data) (McManamon); SER 119, DOI 07584 ("Independent of the Kennewick case, further investigation of the skeletal populations probably would be a useful undertaking in itselfve [sic]." (McManamon e-mail).

This information exists wholly apart from the government. It was not created by the government, and does not relate to the government's internal operations or activities (other than the accuracy of its NAGPRA decisions).

SER 114-16, DOI 04947, 48, 49-50 (taphonomic analysis); SER 102, DOI 04259 (nonmetric traits). Dr. McManamon himself concedes that "a total taphonomic picture is a good idea." SER 121, DOI 08353.

SER 139 (Owsley.); SER 138 (Steele); SER 92, DOI 03578 (checking for measurement error is "essential" for careful, detailed comparative analysis) (McManamon).

SER 164 (Owsley at 3); SER 108, DOI 04279; SER 142 ("An accurate reconstruction is difficult *.*.*.") (Defs' 7th Quarterly Status Report, Attachment D at 4); SER 117, DOI 05677 (misalignment in restored skull).

Because a court must interpret laws so as to harmonize them to the greatest extent possible, Morton v. Mancari, 417 U.S. at 551, a more reasonable interpretation of Congress' intent is that skeletal remains found on federal land continue to be the property of the United States until: (a) there has been a determination of cultural affiliation in favor of a qualified claimant (contrary to what has occurred here); (b) the claimant has accepted that determination and whatever responsibility it entails; and (c) the allowable period for challenges to the determination has passed. Defendants have pointed to no language in NAGPRA contrary to this.

Like defendants' property theory, this argument does not apply if the skeleton is not Native American. In addition, defendants have not explained how NAGPRA could bar study of the skeleton before it was declared to be Native American.

Cited by defendants as an authoritative guide on study and documentation of skeletal remains. See SER 93, DOI 03579. Plaintiff Owsley was one author of that guide.

SER 134b, Tr., September 14, 1999 at 41 ("And NAGPRA doesn't really address study. It is not a statute that is directed to study.") The Umatilla have said the same. See SER 78a, DOI 06986 ("NAGPRA does not specifically address scientific testing of inadvertently discovered human remains") (letter 2/11/00).

Defendants would exempt themselves from such restrictions. Only independent scientists such as plaintiffs would be prohibited from study, while government agencies would be free to conduct whatever studies they consider "good science." ER 210 (McManamon statement). The Coalition's opposition to plaintiffs' study requests did not extend to defendant's noninvasive studies. See SER 10, COE 6992 (Nez Perce); SER 11, COE 7080 (Umatilla). The Colville even advocated DNA testing. SER 98, DOI 02719.

The scientific study provision found in 25 U.S.C. 3005(b) does not compel a different conclusion. That provision applies only to existing collections. The problems and concerns involved in those situations are much different from the circumstances presented by new discoveries. In addition, section 3005(b) merely provides a mechanism for delaying repatriation of items that have been affiliated. It does not preclude other studies that have no effect on the timing of a repatriation.

Defendants retained the right to "coordinate" all public statements by the Burke Museum (SER 4, COE 5221), and they imposed only limited confidentiality restrictions on their study team members, but permitted them to use the information publicly. SER 99, DOI 04183 (Rose); SER 101, DOI 04189 (Powell).