Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

V. DEFENDANTS IMPROPERLY PREVENTED STUDY BY PLAINTIFFS.

A. Defendants Ignored Plaintiffs' First Amendment Rights.

The remand admonished defendants for "categorically" dismissing plaintiffs' study claims, and instructed them to give this issue "more serious consideration." 969 F. Supp. at 646, 648. Defendants waited more than three years, then requested an opinion from the Department of Justice one week before the Court's deadline. ER 1, 1a-b. The brief, unsigned memorandum that followed five days later considered only four of the more than twenty cases cited by the Court, made the same arguments defendants offered in 1997, relied heavily on Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L.Ed.2d 553 (1978) (which the Court had distinguished), and once again categorically dismissed plaintiffs' study claims.

Defendants suggest that only criminal trials are required to be accessible, but that too is wrong. A right of access to government-held information has been found in other contexts. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976) (prescription drug prices). Access depends on the type of information involved and the existence of any valid countervailing interests against release.

Denial of study affects plaintiffs in their capacity as teachers, as well as scholars. Without access, plaintiffs cannot teach their students what Kennewick Man might mean for American prehistory. It is in education that the "transcendent imperatives of the First Amendment" are most apparent. Board of Education v. Pico, 457 U.S. 853, 864, 102 S. Ct. 2799, 73 L.Ed.2d 435 (1982). Individual thought, expression and creative inquiry may not be suppressed. Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 835-36, 115 S. Ct. 2510, 132 L.Ed.2d 700 (1995).

Defendants assured the Coalition they wanted to get the "right answer" to stop testing, and said that they wanted to suppress "diffusionist" theories about the peopling of the Americans. Plaintiffs and other scientists who do not share the government's views are denied access to the data needed to participate fully in this debate. Such content or viewpoint discrimination is impermissible. See Rosenberger, 505 U.S. at 391; Perry Ed. Assn v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S. Ct. 948, 74 L.Ed. 794 (1983). Government "may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored more controversial views," it may not select which issues are worth discussing or debating in public facilities, but "must afford all points of view an equal opportunity to be heard." Police Department v. Mosley, 408 U.S. at 95-96.

Defendants summarily dismiss any thought that plaintiffs could have study rights under the statutes cited four years ago. See Plaintiffs' Memorandum, ER 44-49; COE 8005-10. They argue that the Antiquities Act, 16 U.S.C. 431-433, and ARPA confer no benefits because they provide for access "through a permit system." But permits have never been required for study of human remains or other objects following their removal from a site.

Footnotes

The First Amendment protects speech even in the face of unwilling listeners. Erznozkik v. City of Jacksonville, 422 U.S. 205, 210-11, 95 S. Ct. 2268, 45 L.Ed.2d 125 (1975) (unwilling viewers of drive-in movies); Texas v. Johnson, 491 U.S. 397, 408-09, 109 S. Ct. 2533, 105 L.Ed.2d 342 (1989) (flag burning where offense depended on audience reaction). Moreover, speakers need not be "willing." Otherwise, there would be no Constitutionally protected right to publish works posthumously or to read letters written willingly to only one recipient. If "willing speaker/willing listener" were the only test, the Pentagon Papers could never have been published. See New York Times Co., v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L.Ed.2d 822 (1971) (refusing to enjoin publication).

Drs. McKeown and Powell spoke at a lecture series that helped launch the Burke Museum's traveling exhibit on Kennewick Man. ER 84, 89-90; DOI 04226; 04231-32. In addition to many press releases (ER 193-216; DOI 10814-10837), Dr. McManamon and members of the study team participated in press conferences at the Burke Museum creating the impression of government support for the museum's activities. ER 196, 212; DOI 10817, 10833.

Drs. Powell, Kaestle, Smith and Trimble have presented papers at private scientific conferences using data about the skeleton. See Jantz and Owsley affidavits. One of Dr. Rose's students used CT scans of the skeleton to obtain data for a paper presented at a public conference. Owsley affidavit.

Available at http://www.cr.nps.gov/aad/kennewick. See ER 383; DOI 1999 Performance Report at 32 (web sites are learning tools). Another website provides information on the Spirit Cave remains. Available at http://www.nv.blm.gov.

See notes of July 14, 1998 consultation meeting. ER 18; COE 05130.

See Plaintiffs' Response, ER 39-40; COE 7584-85. In Re Meriwether Lewis, 999 F. Supp. 1066 (M. D. Tenn. 1998) is inapposite. A permit was needed there because the remains had to be exhumed. Even if a permit were needed here, defendants give no reason why it would not be granted. See Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1512 (10th Cir. 1994), cert den. 513 U.S. 1044 (1994) (even "privileges" are constitutionally protected).

ER 10; COE 0000357. Coalition representatives were also given access to the skeleton to conduct religious ceremonies on at least five occasions prior to its transfer to the Burke Museum. See ER 78; DOI 03169; ER 34; COE 7128.

The Secretary's 1996-97 Report to Congress, ER 387, acknowledges the obligation to make federal collections available to researchers, emphasizing the need to "undertake, facilitate, and promote research using collections and records to better understand the past." (Report Preface).