Wednesday, Jul. 01, 1998

Plaintiff's reply memorandum

III. DEFENDANTS' REPATRIATION TO A COALITION VIOLATES THE STATUTE.

Defendants misstate the law when they assert that they are entitled to Chevron deference when interpreting their own regulations. Defendants' Memorandum at 21. Chevron deference applies to a formal regulation adopted pursuant to APA's strict procedures, and then only as long as the regulation is consistent with the expressed intent of Congress. Chevron, 467 U.S. at 842-43. Chevron does not give agencies license to ignore the words used by Congress or to add qualifications and exceptions not authorized by the statute. See Plaintiffs' Memorandum at 4-7, 9. Interpretations, moreover, are not entitled to Chevron deference. Christensen, 529 U.S. at 586-87.

Defendants claim that the definition of Indian tribe found in 3001(7) of the statute contemplates disposition to multiple claimants because it defines a tribe to include an organized group of Indians. Defendants' Memorandum at 21. Congress' definition does not stop there. Congress provided that an "organized group" is an "Indian tribe" only if it is "recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." 25 USC 3001(7). Defendants made no showing that the Coalition is eligible for such programs and services. They do not have the authority to read that proviso out of the statute, and their assertion that they have repatriated to multiple claimants before is not authoritative. Connecticut Light and Power Co., 627 F.2d at 473 (agencies are not entitled to violate the law just because they do it often enough).

Defendants also argue that the Secretary found that each tribe was separately culturally affiliated to the skeleton. Defendants' Memorandum at 22. He did not do that, and none of defendants' citations to the record supports that assertion. The Secretary's discussion speaks only in terms of the claimants as a collective group. The sentence from the Secretary's Determination cited in Defendants' Memorandum at 22 is merely descriptive of the members of the Coalition and does not analyze any of them individually.

Footnotes

He never discusses, let alone finds, that any of the four tribes or the Wanapum band is separately, culturally affiliated to the skeleton. Instead he speaks consistently of "the present-day Indian tribe claimants" and the "two groups" (referring to Kennewick Man's supposed group and the group of claimants). SER 32, DOI 10015.