Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

II. DEFENDANTS' CULTURAL AFFILIATION DETERMINATION VIOLATED THE ADMINISTRATIVE PROCEDURE ACT.

Defendants argue the narrowness of judicial review of administrative decisions, but ignore the exacting requirements that are a quid pro quo for such narrow review.

A. Defendants Failed To Consider Plaintiffs' Evidentiary Submissions.

To support their claim that all relevant information was considered, defendants cite DOI 10014 (i.e., page 3 of the Secretary's Determination letter). This merely says that "all lines of evidence were deemed equally important and all were accorded equivalent weight." SER 31, DOI 10014. Such a conclusory statement is not sufficient. See Beno v. Shalala, 30 F.3d 1057, 1075 (9th Cir. 1994) ("stating that a factor was considered is not a substitute for considering it"). "Conclusory administrative determinations may conceal arbitrariness," so courts must look for reasoned evaluations rather than "bald conclusion[s], unsupported by reasoning or evidence." Jordan v. Califano, 582 F.2d 1333, 1335-36 (4th Cir. 1978).

"Human Culture" does not demonstrate that the evidence submitted by plaintiffs was actually considered. Its one passing reference to plaintiffs' evidence ("some information submitted by the Bonnichsen plaintiffs" was received and "considered") is insufficient. None of plaintiffs' evidence was actually discussed in the summary, most was not even cited, and the summary concedes that only "some" of plaintiffs' evidence was considered. Appendix C is a partial list of materials that plaintiffs submitted to defendants. Not a single one of these submissions is cited in "Human Culture." Some are not even included in DOI's administrative record.

B. The Secretary Failed To Consider Other Relevant Evidence.

Plaintiffs have already mentioned some of the other evidence that the Secretary ignored. Plaintiffs' Memorandum at 12-13. Defendants' sole response is that this evidence "was contained in the administrative record and which was considered." Defendants' Memorandum at 18. Such a conclusionary statement is insufficient as a matter of law to demonstrate that the evidence was actually considered. Beno, 30 F.3d at 1075.

C. Defendants' Memorandum Is At Odds With The Determination.

D. Defendants Apply An Erroneous Standard In Discussing The Evidence.

To these cases there should be added the Court's order on remand to "critically examine all of the evidence in the record as a whole, and make specific findings that are supported by reliable evidence." Bonnichsen v. U.S., 969 F. Supp. at 652, n.26. Defendants did not comply with that order.

E. Defendants Erred In Considering A Non-Precedential ICC Decision.

Defendants have again shifted their position on what to make of the Umatilla's prior Indian Claims Commission case. They argue that the "factual findings" in that case could be used as additional evidence of cultural affiliation. Defendants' Memorandum at 18, 19, 20. That is not what the Secretary did. He used the ICC case only to find that there was a valid aboriginal occupation claim under 3002(a)(2)(C)(1) of the statute. SER 33, DOI 10016. This was an alternative basis for awarding possession of the skeleton to the Coalition, and had nothing to do with the cultural affiliation claim.

F. A 5500 Year Gap Is Not Reasonable.

Defendants cite the Senate Report on NAGPRA for the proposition that a finding of cultural affiliation should not be precluded solely because there are "gaps in the record." Defendants' Memorandum at 15, n.13. The Report referred to "reasonable gaps." The gap here is not trivial or inconsequential. Defendants' own "Human Culture" summary points out that linguistics do not support the presence of Sahaptin speaking peoples in the Columbia Plateau beyond 4000 years ago, if even that far back. SER 55, DOI 10070. That summary also reports that references to past geologic events in Coalition oral traditions could be relatively recent events. SER 59, 61, DOI 10074, 76. A gap of 5500 years (or more) cannot be called reasonable. It is longer than the period separating the modern world from the creation of the Egyptian pyramids and leaves ample time for biological connections to have been severed, or for cultural processes to have changed group identities so much they are no longer "shared." See the BLM decision rejecting cultural affiliation for the Spirit Cave remains and noting that the natural evolution of cultures over 9,000 years diminishes the likelihood that any set of remains is, or can be, affiliated.

See http://www.nv.blm.gov/Spirit%20Cave%20Man.htm

Footnotes

See Also City Federal Sav. & Loan Ass'n v. Federal Home Loan Bank Bd., 600 F.2d 681, 693 (7th Cir. 1979) ("courts should not routinely accept agency explanations phrased broadly in terms of the governing statute, 'a formal abracadabra to which it has added a few words as a sop to us'"); NLRB. v. E-Systems, Inc., Garland Div., 103 F.3d 435, 439 (5th Cir. 1997) ("we are free to disregard the agency's findings when it ignores relevant evidence without explaining and justifying its decision to do so"); NLRB v. McCullough Environmental Services Inc., 5 F.3d 923, 927 (5th Cir. 1993) (court is not compelled "to the sheer acceptance" of the agency's conclusions).

To argue that the Coalition had a valid aboriginal occupation claim to the skeleton also overlooks the fact that only one tribe, the Umatilla, was a party to the ICC case.

The Senate Report also stated there should be a "reasonable connection" between the claiming tribe and the item being claimed, and that cultural affiliation should "be reasonably established through an offer of evidence which shows a continuity of group identity from the earlier to the present day group." SER 147-48.