Thursday, Apr. 16, 1998

Memorandum in support of motion to vacate second administrative action

II. THE CULTURAL AFFILIATION DETERMINATION MUST BE VACATED.

Defendants' Determination of cultural affiliation must be set aside. Almost four years ago, this Court told defendants:

The Determination misinterprets and misapplies the law, is not supported in the record, fails to evaluate all relevant evidence, and rests on faulty reasoning and analysis.

A. A Coalition Formed To Make A NAGPRA Claim Is Not A "Tribe."

The Secretary began his discussion with NAGPRA 3002 ("ownership"). He should have started with 3001(2) which defines cultural affiliation as "a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group." Since this definition speaks of a present day Indian tribe, it makes sense to consider the question of whether the Coalition is a "tribe" for purposes of NAGPRA.

B. The Coalition Is An Improper Claimant For Other Reasons As Well.

To accept the Coalition as a proper claimant under NAGPRA works other mischief to Congress' scheme. The Secretary concedes that one member, the Wanapum band, is unrecognized and has no standing under NAGPRA. ER 164; DOI 10017, n.1. Nonetheless, he concluded that since the other members of the Coalition do not object, the Wanapum are proper claimants. It is not the Secretary's prerogative to change Congress' qualification standards. See National Credit Union Administration v. First National Bank and Trust, et. al., 522 U.S. 479, 500, 118 S. Ct. 927, 140 L.Ed.2d l (1998) (invalidating NCUA's expansion of membership where statute requires "common bond").

Finally, the Secretary fails to explain how five separate tribes and bands can have the same "shared group identity" with Kennewick Man's group as required by NAGPRA when they do not share a group identity among themselves. 3001(2). Each is a distinct group with its own unique history, traditions and constituent members.

C. An ICC Settlement Is Not A Final Judgment As Required By NAGPRA.

A stipulation does not bind non-parties. Kneeland v. Luce, 141 U.S. 437, 440-441, 12 S. Ct. 39, 35 L.Ed 808 (1891). As was said in a different context, this was a "restricted railroad ticket, good for this day and train only." Washington County v. Gunther, 452 U.S. 161,183, 101 S. Ct. 2242, 68 L.Ed.2d 751 (1981).

D. Long-Term Continuity Is Not A "Shared Group Identity."

Defendants' determination asserts that evidence of long-term continuity in human occupation of the Columbia Plateau (supposedly demonstrated by geography and oral tradition) is sufficient to establish cultural affiliation. ER 162; DOI 10015. This conclusion cannot be supported.

E. The Determination is Arbitrary and Capricious for Other Reasons.

In 1997, the Court admonished defendants to "critically examine all of the evidence in the record as a whole" and not to "take one fact out of context and use it to support a pre-determined hypothesis." 969 F. Supp. at 652 n.26. The Secretary ignored those instructions, as well as his obligation to rely only on factors Congress intended, to consider all aspects of the problem, and to support his decision with evidence and plausible logic. Inland Empire Public Lands Council v. Glickman, 88 F.3d 697,701 (9th Cir. 1996). Here:

(2) The Secretary ignored evidence of oral traditions which attribute the mythical floods to rain, not sudden inundations characteristic of the calaclysmic floods of the late Pleistocene. See ER 120; DOI 07664 ("then it rained and rained. Pretty soon water was all over." (CTUIR oral history review)).

(3) The Secretary ignored his own expert who concluded that there is little archaeological evidence for human use of the Kennewick area between 11,000 and 4500 years ago. See ER 177; DOI 10137 (Ames report).

(4) The Secretary ignored evidence that oral traditions are unstable over time and are not inherently reliable explanations of distant past events. See ER 167, 171; DOI 10072, 10076 (DOI staff report); ER 139-40, 145; DOI 08986, 08987, 08992 (Simic Aff.).

(5) The Secretary ignored staff conclusions that no significance could be attached to the absence of migration stories in local oral traditions. See ER 169-70; DOI 10074-10075.

(6) The Secretary ignored staff reports that evidence for Sahaptin language usage in the Plateau cannot be extended beyond 2000 to 4000 years ago. See ER 167; DOI 10072.

(8) The Secretary did not consider the Umatilla admission that there could be no cultural affiliation (ER 60, 61; COE 9316, 9317), Dr. Taylor's affidavit on linguistics (ER 148; DOI 08995), the affidavits of Drs. Archambault, Denman and Simic on oral tradition (ER 126, 132, 138; DOI 08973, 08979, 08985), or the letters submitted by scientists. See ER 72; DOI 03160; ER 21; COE 6565. He failed to consider important scientific issues including the unlikelihood that Kennewick Man has any living descendants (ER 92; DOI 04405), the impossibility of knowing whether his group has any living descendants (ER 92-93; DOI 04405-04406; ER 50-51; COE 8038-8039), or where those descendants reside, if there are any. ER 63, 93, 130, 153; DOI 01582, 04406, 08977, 9000; ER 51; COE 8039.

Footnotes

See Memorandum (ER 500; dkt. #276) ("The Yakama Nation believes that the human remains at issue are the remains of an ancestor of its people."); ER 514-518 dkt. #302-303 (Motion and Memorandum of Colville); Umatilla letter to Colonel Bohn, ER 55; COE 8872 ("the CTUIR claims that it is entitled to the human remains.").

The court noted then "In addition some of the "facts" upon which the Corps relied have proven to be erroneous, e.g., that the site at which the remains were discovered is recognized as the aboriginal land of an Indian tribe." 969 F. Supp. at 641.

DOI's Solicitor conceded that: "NAGPRA's text refers to a 'final judgment' of the ICC" and that here "there is no such final judgment." ER 172; DOI 10087. See also the Army Corps' 1997 Rescission Notice: "there are no ICC final judgments establishing the lands as aboriginal lands of any particular tribe." ER 41; COE 7661.

It should also be noted that since aboriginal occupation claims are valid only where cultural affiliation "cannot be reasonably ascertained," 3002(a)(2)(C), both types of claims cannot be asserted simultaneously.

Defendants' own expert stated that the region was inhabited by at least two and possibly as many as 20 maximal bands during this period, ranging in size from 175 to 500 people. See ER 176; DOI 10136 (Ames report).

Early Holocene groups were "highly mobile," possibly moving as much as 400 km over a period of two to three years. ER 176; DOI 10136 (Ames report).

Such a shared group identity is very unlikely. Kennewick Man's language would be unintelligible today, and his way of living was vastly different from that of Coalition members 900 centuries later. See ER 150, 155; DOI 08997, 09002 (Taylor Aff.). See also the cultural changes described in the Ames Report (ER 173-75, 178-79, 180-82; DOI 10113-10115, 10156-10157, 10161-10163).