Tuesday, Jun. 03, 2003

Final federal court brief for Judge Jelderks

I. INTRODUCTION

For several centuries Native American human remains and cultural items have been disinterred for collection and study. Often, these human remains and cultural items were held in collections by federal agencies and museums rather than being returned or re-buried. In 1990, Congress, responding to Native American objections to the disrespectful treatment of their ancestors' human remains and cultural items, enacted the Native American Graves Protection and Repatriation Act (NAGPRA), 25 USC 3001 et seq., to protect Native American burial sites and prevent the removal of human remains and cultural items from federal and tribal lands. H.R. Rep. N 877 (191st Cong) at. 8.

Plaintiffs offer an array of challenges to the Secretary's NAGPRA determination which resulted in the denial of Plaintiffs' request to study. In particular, the Plaintiffs urge that (1) DOI's interpretation of "Native American" is contrary to the express language of NAGPRA; (2) DOI's determination that these human remains are culturally affiliated with the claimant tribes is arbitrary and capricious; (3) DOI's administrative process was procedurally tainted; (4) DOI's consideration of oral history in determining cultural affiliation violated the Constitution's Establishment Clause; and (5) Plaintiffs have a First Amendment right to study these human remains.

The United States seeks a ruling upholding DOI's determination under NAGPRA and the COE's denial of Plaintiffs' request to study. COE AR 1. 2/ Defendants also seek resolution of the unresolved constitutional issues. In addition, Defendants seek a ruling that the COE has not violated the National Historic Preservation Act (NHPA) or the Freedom of Information Act. (FOIA).

II. BACKGROUND

III. NAGPRA STATUTORY BACKGROUND

Section 3 of NAGPRA establishes a process for the disposition of Native American human remains and cultural items excavated or removed from federal or tribal lands to claimants possessing standing under the Act. NAGPRA provides lineal descendants, Indian tribes, and Native Hawaiian organizations a means to participate in the protection, treatment, and disposition of Native American human remains and cultural items that are located on or excavated and removed from federal and tribal lands.

The enactment of NAGPRA was a sea-change in the handling and disposition of these cultural items. Prior to 1990, the collection and study of Native American human remains was given relatively free rein despite many Native Americans' objections. With the passage of NAGPRA, the emphasis shifted to returning human remains and cultural items to the appropriate lineal descendants, Indian tribes, and Native Hawaiian organizations. Under Section 3, scientific study is permissible only to the extent necessary to determine whether the remains are "Native American" and their appropriate disposition.5/

The second tier of the process seeks to determine the appropriate claimant(s) for disposition of the remains. The highest priority claimant is a lineal descendant. If there are no lineal descendants, the human remains or cultural items must be returned to claimant(s) in the following priority: (1) to the Indian tribe or Native Hawaiian organization on whose tribal lands the items were found; (2) to the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains and which states a claim for their custody; or (3) if the cultural affiliation cannot be reasonably ascertained and if the remains were discovered on Federal land that has been recognized by the ICC as being the aboriginal land of a particular tribe, to that tribe. 25 USC 3002(a).

IV. ARGUMENT

A. THE KENNEWICK HUMAN REMAINS WERE PROPERLY DETERMINED TO BE NATIVE AMERICAN AND THEREFORE SUBJECT TO NAGPRA

Plaintiffs argue that DOI based its determination on a faulty interpretation of the term "Native American" and that DOI's interpretation was adopted without proper procedures. Plaintiffs take the position that ancient human remains can only be "Native American" if they are proven to be related to present day American Indians, and argue that Defendants' have adopted a "substantive rule" in which human remains are considered to be Native American based solely on age. As discussed below, Plaintiffs arguments are incorrect.

1.DOI Has Not Violated The APA By Interpreting The Meaning Of "Native American."

We consider that the term "Native American" as used in NAGPRA applies to human remains and cultural items relating to tribes, peoples, or cultures that resided within the area now encompassed by the United States prior to the historically documented arrival of European explorers.... We base these views primarily on the statutory definition of the term "Native American" ... and in the NAGPRA implementing regulations ....

Id., DOI AR 941 at 10842. Plaintiffs' assertion that this explanation constitutes a "rule" cannot be taken seriously. Pl. Br. at 3. In preparing the responses to the Court's questions, Defendants did not engage in "rulemaking" but simply sought to inform the Court of its longstanding interpretation of statutory and regulatory terms. Moreover, even if the response were considered to be an "interpretive rule," its adoption would not require notice and comment. 5 USC 553(b)(A).

2.DOI Properly Interpreted the Meaning of Native American.

More recently, the SAA- amicus in this case - made it clear that they do not dispute DOI's determination that the remains in this case are Native American. In a paper presented at the "Clovis and Beyond" Conference on October 28, 1999, Dr. Keith Kintigh, President of SAA, stated that "it is SAA's position that under NAGPRA, First Americans [Paleo-Indians] are Native Americans, regardless of how many migrations there were, where they came from, when they came, or whether some groups died out." Id. at DOI AR 491 at 05058. Later that year in a statement to the NAGPRA Review Committee, Dr. Kintigh "explained that SAA agrees with the DOI that Kennewick Man, and other ancient human remains, is Native American." See Minutes, Native American Graves Protection and Repatriation Review Committee, Eighteenth Meeting, November 18-20, 1999 Salt Lake City, Utah.

B. DOI'S CULTURAL AFFILIATION DETERMINATION COMPLIED WITH NAGPRA

DOI's initial determination that the Kennewick remains were Native American confirmed the application of NAGPRA and triggered a second inquiry regarding appropriate disposition. NAGPRA establishes the following priority for remains that are excavated or removed from Federal or tribal lands after November 16, 1990:

(1)in the case of Native American human remains and associated funerary objects, in the lineal descendants of the Native American; or

(2) in any case in which such lineal descendants cannot be ascertained, and in the case of unassociated funerary objects, sacred objects, and objects of cultural patrimony

(A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered;

(B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or

(1) in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered, if upon notice, such tribe states a claim for such remains or objects, or

(2) if it can be shown by a preponderance of the evidence that a different tribe has a stronger cultural relationship with the remains or objects than the tribe or organization specified in paragraph (1), in the Indian tribe that has the strongest demonstrated relationship, if upon notice, such tribe states a claim for such remains or objects.

25 USC 3002 (a). If found to fall under one of the hierarchical priorities enumerated at 25 USC 3002 (a) and 43 CFR 10.6 (a), the disposition of Native American human remains and cultural items rests with the appropriate entity that claims their custody. Native American human remains and cultural items that are not claimed under subsection (a) are considered unclaimed. (25 USC 3002 (b)).

1. The Process For Determining Whether The Remains Were Culturally Affiliated With The Claimant Tribes Was Consistent With NAGPRA.

Following the order of priority for disposition as set out in NAGPRA, DOI first determined that a claim based on lineal descent (3002 (a)(1)) could not be validated. In this regard, Plaintiffs submitted information regarding the unlikelihood of living descendants, which was considered by the Secretary in his determination that no present day lineal descendants exist. See 43 CFR 10.2 (b)(1); DOI AR 904 at 10014.

DOI then had to analyze whether a claim could be validated based on cultural affiliation. 3002(a)(2)(B). Cultural affiliation is defined as "a relationship of shared group identity that may be reasonably traced historically or prehistorically between a present-day Indian tribe or Native Hawaiian organization and an identifiably earlier group." 43 CFR 10.14(c). NAGPRA requires cultural affiliation to be determined by a "preponderance of the evidence" and the regulations state that cultural affiliation does not have to be established with scientific certainty. Id at 10.14(f).

Plaintiffs do not dispute the evidence that members of the present-day tribal claimants have always lived in the area where the remains were found. Pls. Br. at 11. However, they claim that evidence of "long-term continuity" is not enough to show a "shared group identity." In fact, they claim that it is impossible to determine whether there was a shared group identity between the earlier group and the present day tribal claimants "without evidence of the language Kennewick Man and his group spoke, their religious practices and customs, how they interacted with other groups, or any of the other factors that contribute to 'group identity.'" Id. Plaintiffs also speculate that the remains could belong to a "stranger" to the area, rather than to one who resided there.

To prove cultural affiliation, the standard the claimant must meet and the federal agency must apply is a preponderance of evidence. Here, taking into account the tribal claimants' oral history that they had always inhabited this area, as well as the absence of any migration stories, and all of the other relevant evidence, the Secretary determined that there was a shared group identity between the earlier group and the present day claimants. DOI AR 904 at 10015. The Secretary was aware that the evidence before him did not establish a shared group identity to a scientific certainty - but also realized that NAGPRA does not demand such certainty.15/

The oral tradition, folklore, traditional history and geographic evidence demonstrated a strong enough nexus between the present day tribal claimants and the cultural group representing the remains to establish a cultural affiliation under the preponderance of evidence standard.16/ The Secretary reasonably considered this evidence in determining whether a shared group identity could reasonably be traced, and determined that the tribal claimants had met the required standard of proof.

b.The Secretary Properly Considered the Indian Claims Commission's (ICC) Findings of Fact In Making The Cultural Affiliation Determination.

The land where the remains were discovered was originally ceded to the United States by the Umatilla, Cayuse, and Walla Walla Indian tribes in the Treaty of June 9, 1855. Id. See also Attachment A to Memorandum, DOI AR 909 at 10090-10095; DOI AR 1 at 00001-00002; DOI AR Map 1. This land was the subject of several cases brought before the ICC in the 1950s and 1960s by the Confederated Tribes of the Umatilla Reservation, which were comprised of the Umatilla, Cayuse, and Walla Walla Indian tribes. AR DOI 908 at 10086. One of these cases sought additional compensation for the lands ceded by the Umatilla in the 1855 Treaty, including the site where the remains were discovered. AR DOI 909 at 10090.

As a result, it was reasonable for the Secretary to consider the ICC factual findings in determining whether the remains were culturally affiliated with any of the tribal claimants. Clearly, NAGPRA's direction that in those cases in which cultural affiliation cannot "reasonably be ascertained," the remains should go to the Indian tribe(s) recognized by an ICC final judgment as aboriginally occupying the area where the remains were discovered, indicates that Congress believed that evidence of aboriginal occupancy was relevant to disposition. Where, as here, the ICC made Findings of Fact that the present-day Indian tribes did in fact aboriginally occupy the lands where the remains were discovered, it was appropriate to take that fact into account in making the cultural affiliation determination.19/

2.NAGPRA Contemplates Disposition to Multiple Claimants.

NAGPRA itself contemplates that several tribes may have a "cultural affiliation" with human remains or cultural objects, and requires that disposition be to the tribe with the "closest" cultural affiliation. 3002(a)(2)(B). Although NAGPRA does not explicitly state that a cultural affiliation can be found to exist with multiple tribes, DOI's regulations interpreting NAGPRA (43 CFR 10.14) state that such affiliation may be established with a group of present day Indian tribes filing a joint claim. See also 60 Fed. Reg. 62155 (Dec. 4, 1995). Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), DOI's interpretation of its own regulation is entitled to deference.

Furthermore, NAGPRA defines Indian tribe as including "any tribe, band, nation, or other organized group or community of Indians ... which 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)(emphasis added). This definition clearly would include a coalition or group of Indian tribes that have filed individual or joint claims and have been found to be culturally affiliated with the human remains.

Moreover, DOI never considered the coalition as a single tribe but evaluated each tribes' claim individually. See Secretary Babbitt's Letter to Secretary Caldera, at 4 ("Four of the five Indian groups who have submitted a joint claim for the Kennewick remains constitute identifiable present- day Indian tribes with standing under NAGPRA and it implementing regulations.") (DOI AR 904 at 10015). The administrative record shows that DOI consistently treated each tribe as separate sovereign entities. DOI's plans for consultation clearly specify communication with "tribes," not the single Coalition. See, DOI AR 290 at 03575. Numerous letters in the record, written as part of the consultation requirement under NAGPRA, are addressed to each individual tribe, not the Coalition. See, e.g., DOI AR 218-222, 292-296. (separate letters to each tribe).

3. Consultation With The Tribal Claimants Is Required under NAGPRA.

Plaintiffs assert that DOI had improper ex parte contacts with the tribal members of the coalition.23/ However, Plaintiffs' argument ignores the specific requirements for consultation with a claimant during the cultural affiliation and disposition determinations. 43 CFR 10.4, 10.5. 24/ Accordingly, the contacts that Plaintiffs allege were improper were part of the required consultation process.

4. Plaintiffs' Views Were Fully Considered In The Cultural Affiliation Determination.

Even before the transfer of the remains to the Burke Museum, Plaintiff Brace wrote to the COE concerning study of the remains. DOI AR 240 at 03161. In October 1998, Plaintiff Owsley, working with the COE curation team, inventoried and examined all of the remains. DOI AR 240 at 03261. Defendants specifically requested that Plaintiff Haynes be a part of the expert research team, but he declined the request. DOI AR 328 at 04177. However, Dr. Joseph Powell, an expert recommended by Plaintiffs, was selected as part of the team for the Phase I investigation and provided a report on the osteological characteristics of the remains. Id.; DOI AR 297 at 03606- 03607; DOI AR 84 at 01571, DOI AR 317 at 04065, DOI AR 758 at 08492, DOI AR 922 at 10673.

Plaintiffs also had meaningful opportunity to submit whatever evidence they thought relevant to the cultural affiliation determination. Defendants submitted Dr. McManamon's Scope of Work, which set out the type of investigations to be conducted to evaluate cultural affiliation, to the Plaintiffs and the Court. See Defendants' Tenth Quarterly Status Report filed January 3, 2000; DOI AR 544, 546, 559, 566. The Plaintiffs could have submitted whatever evidence from the existing literature they believed disputed the claimants' cultural affiliation. In fact, Plaintiffs did submit affidavits from experts concerning the cultural affiliation of the remains (DOI AR 843 at 08972), as well as nine articles authored by themselves. DOI AR 95 at 01713; DOI AR 138 at 02155; DOI AR 141 at 02235; DOI AR 152 at 02607; DOI AR 306 at 03854, DOI AR 554 at 05310; DOI AR 311 at 03892; DOI AR 312 at 03908; DOI AR 555 at 05318.

C. THE NAGPRA PROCESS DOES NOT VIOLATE THE CONSTITUTION

1. The Secretary's Use of Native American Oral Tradition And Folklore As Evidence of Cultural Affiliation Does Not Violate the Establishment Clause.

The First Amendment of the United States Constitution prescribes that "Congress shall make no law respecting an establishment of religion." NAGPRA and its implementing regulations make no reference to religion, nor do they mandate a preference for one religion over another.28/ See 25 USC 3002; 25 USC 3001 (2); 43 CFR 10,14 (c) and (e). Clearly, there is nothing in the text of the statute or the regulations that would implicate the Establishment Clause.29/

NAGPRA specifically provides that information supplied by or obtained from Native Americans, as expressed through oral tradition and folklore, may be utilized as an evidentiary source to determine the existence of a cultural affiliation between present-day Indian tribes and Native American human remains. See 25 USC 3002 (a)(2)(B); 43 CFR 10.2 (e) and 10.14 (e). In authorizing the use of such evidence, as long as it is relevant and credible, NAGPRA allows orally or traditionally derived Native American knowledge of the past to be given the same credence as scientific information. See 43 CFR 10.14 (d) and (f). To preclude this type of evidence would severely limit the role of Native Americans in determining the treatment and disposition of Native American human remains and cultural items under NAGPRA. See generally Roger C. Echo-Hawk, Ancient History in the New World: Integrating Oral Traditions and the Archaeological Record in Deep Time, 65 American Antiquity, 267, 269, (2000), DOI AR 704 at 08149.

2. The First Amendment Does Not Encompass a Right to Study Native American Remains In The Custody Of the Government.

In remanding this matter to the COE for further consideration, the Court stated that Plaintiffs' arguments that they had a First Amendment right to study the remains were "not frivolous." Bonnichsen, 969 F.Supp. at 648. The Court stated:

Plaintiffs' contention is that to the trained eye the skeletal remains are analogous to a book that they can read, a history written in bone instead of on paper just as the history of a region may be 'read' by observing layers of rock or ice, or the rings of a tree. Plaintiffs are not asking the government to conduct the tests and publish the results. Plaintiffs simply want the government to step aside and permit them to 'read that book' by conducting their own tests.

First, as the Court has acknowledged, the First Amendment provides no right to the public to inspect, without conditions, all the property in the custody of the United States.

Assuming, arguendo, that there is a First Amendment right for researchers to study materials in the possession or control of the federal government, of necessity there would have be some limits upon its exercise.

Second, the United States has made the data and reports associated with the agency decision regarding the remains available to the Plaintiffs and to the public.34/ Much of this data was generated as a result of the very testing that Plaintiffs themselves proposed. The United States does not dispute that the Plaintiffs should have access to this generated data: what the United States disputes is that the Plaintiffs - or any member of the public - have the right to conduct their own studies on Native American remains in the custody of the United States. The United States is not required under the First Amendment to "step aside" to provide any special access to the remains simply because Plaintiffs desire to conduct examinations of the remains themselves. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978).

3. The COE Has Properly Curated The Human Remains.

The current preservation plan is, because of the circumstances, a continual and evolving action plan that maintains a high level of inspection, participation, reaction, and response. A finite, long-term preservation plan could not hope to address all the dynamics to which these remains have been subjected. In a museum, a preservation plan might refer to policy and procedures that would impact repeatable events such as loans, access, and handling conditions. However, in the case of the Kennewick remains, there have not been repeatable events; the actions have been unique. It would have been foolhardy to develop a long-term preservation plan while the long-term conditions or status of the collection had not been identified and the events of intense handling were continuing to occur.

D. THE COE COMPLIED WITH NHPA IN ITS SITE PROTECTON

The NHPA is essentially a procedural statute, and does not dictate a particular outcome. See Apache Survival Coalition v. United States, 21 F.3d 895, 913 (9th Cir. 1994); Gettysburg Battlefield Preservation Ass'n. v. Gettysbury College, 799 F. Supp. 1571, 1580 (M.D. Pa. 1992), aff'd. 989 F.2d 487 (3rd Cir. 1993). The role of the court in reviewing a challenge under NHPA is to determine whether the agency has followed the procedures for consultation. See Walsh v. U.S. Army Corps of Engineers, 757 F.Supp. 781, 784 (W.D. Tex. 1990). Abenaki Nation v. Hughes, 805 F. Supp. 234, 250 (D. Vt. 1992), affd., 990 F.2d 729 (2nd Cir. 1993).

Plaintiffs contend that they should have been "consulted" during the 106 process. As the record shows, the COE did advise Plaintiffs of their site protection plans and Plaintiffs submitted their views to the COE, the SHPO and the ACHP. Despite Plaintiffs' objections, the SHPO concurred with the COE's finding of "no adverse effect" as did the ACHP. There is no question that the COE followed the 106 procedures here.

As an initial matter, the Plaintiffs are not "consulting parties" under the NHPA regulations for the 106 process (36 CFR 800.1(c)(1)), but only "interested persons." 36 CFR 800.1(c)(2). Interested persons may be invited to be consulting parties in some circumstances "when they so request" but they are not automatically entitled to be consulting parties. 800.5(e)(1). Here, Plaintiffs do not allege, and no record evidence supports, that they ever requested to participate in the 106 process as "consulting parties."

The COE initiated contact with the SHPO regarding its site protection plans on December 30, 1997, and the SHPO responded on January 14, 1998. SAR 78, S-544. On February 20, 1998, COE advised the SHPO of its determination that the bank stabilization project would have no adverse effect. SAR 68, S- 486. On March 3, 1998, the SHPO's office, aware of the Plaintiffs' objections, concurred with the COE's determination that the site protection work would have "no adverse effect," i.e., that it would not damage or harm any historic properties or cultural resources listed on or eligible for listing on the National Registry of Historic Places. SAR 65, S-474. However, the SHPO encouraged "continued discussions with the concerned tribes and other parties to assure this significant site is protected." On March 6, 1998, the COE forwarded its finding of "no adverse effect" and the SHPO's concurrence to the ACHP. SAR 59, S-450.

During the same time period, Plaintiffs' counsel was also expressing his clients' views to the SHPO and the ACHP. On February 25, 1998, Plaintiffs' counsel submitted information to the SHPO opposing the site protection plan. SAR 67, S-480.42/ On March 12, 1998, the State Archaeologist in the SHPO's office informed Plaintiffs' counsel that the SHPO's office had reviewed the submitted materials but had determined that "[s]uch bank stabilization approaches [as the COE proposes] are widely employed in current cultural resource management. While such bank covering may increase the cost of the archaeology it does not preclude the possibility of future archaeological research at the site. SAR 55, S-435. The State Archaeologist also invited Plaintiffs' counsel to inform the ACHP of the Plaintiffs' concerns. On March 19, 1998, Plaintiffs' counsel wrote to the ACHP requesting that it intervene to delay work on the site plan. SAR 46, S-351. The ACHP declined to do so.

In addition, Plaintiffs raised their objections to the site protection project in proceedings before this Court. See Plaintiffs' Second Quarterly Status Report dated January 2, 1998. On March 16, 1998, Plaintiffs filed a lengthy Supplemental Status Report setting out their objections to the pending site protection work. SAR 54, S-382. On March 24, 1998, Plaintiffs filed a Second Supplement advising the Court that the ACHP had concurred in the COE's site protection plan and implementation. SAR 46, S-348. Plaintiffs also advised the Court that legislation to prohibit the site protection was pending in the U.S. Congress.

E. THE COE COMPLIED WITH THE FREEDOM OF INFORMATION ACT

Plaintiffs assert that the COE has not responded fully to each of their six requests for documents under the Freedom of Information Act (FOIA). Pls. Br. at 38. Plaintiffs' claims must fail.

Between August 13, 1997, and October 24, 2000, Mr. Alan Schneider submitted six separate FOIA request to the COE.43/ For each of those requests, the Freedom of Information Act Administrative Record (FOIA AR) demonstrates that either the agency provided the requested documents or withheld documents under recognized exceptions.44/ The administrative record also demonstrates that in some instances Mr. Schneider failed to comply with FOIA and the COE's regulations, and has also failed to exhaust his administrative remedies for the COE's alleged violations of FOIA45/

Plaintiffs claim that the COE's failure to fully respond to these FOIA requests impeded their participation in the administrative process challenged here. Pls. Br. at 39. However, the only substantive relief Plaintiffs is entitled to under FOIA is the production of the requested documents. 5 USC 552(a)(4)(B). Here, unless Plaintiffs can otherwise specify, all of the documents relevant to the decisions at issue here have been provided. To the extent that Mr. Schneider disputes that the production of the administrative records satisfies his FOIA requests, additional briefing or trial on this issue will be required.

F. PLAINTIFFS ARE NOT ENTITLED TO THE REQUESTED RELIEF

Under the APA, a reviewing court can "decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." A reviewing court can "compel agency action unlawfully withheld or unreasonably delayed"and "hold unlawful and set aside agency action ... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "without observance of procedure required by law." 706. Nothing in these authorizations suggests that the Court can require Defendants to grant access to property in its custody. If the Court were to find that Defendants violated any of their obligations under NAGPRA, the remedy would be to enjoin the Defendants from proceeding with disposition and remand the matter with instructions.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Court deny Plaintiffs' Motion to Vacate Second Administrative Action. Defendants respectfully request that the Court enter an Order upholding the Department of Interior and the Corps of Engineers' determinations under NAGPRA. Defendants also request that the Court find that the Corps of Engineers has not violated the NHPA or FOIA.

Respectfully submitted this __ day of May, 2001,

JOHN CRUDEN

Deputy Assistant Attorney General

MICHAEL W. MOSMAN, OSB 87111

United States Attorney

DAVID F. SHUEY

Senior Attorney

Env. & Natural Res. Div.

U.S. Dept. of Justice

____________________________________

TIMOTHY W. SIMMONS

Assistant U.S. Attorney

OSB 92461

Attorneys for Federal Defendants.

OF COUNSEL:

Carla Mattix Office of the Solicitor

Jason Roberts Department of Interior

James R. Baker Assistant District Counsel Walla Walla District Army Corps of Engineers Walla Walla, Washington

1/ NAGPRA provides for delegation of this decision to the Department of Interior, the agency with primary responsibility for NAGPRA. 25 USC 3002. In March 1998, the U.S. Army Corps of Engineers entered into an agreement with DOI to conduct the NAGPRA process. COE AR 1 at 20.

2/ The COE denial of Plaintiffs' Request to Study is attached as Exhibit 1.

3/ The scientific studies included osteological assessment, sediment analysis, lithic analysis, radiocarbon analysis, and DNA analysis. The cultural affiliation studies focused on archeology, biology, history, ethnography and linguistics. See Comparison Between Studies, DOI AR 838, 08880-08926.

4/ The Secretary's Decision Memo dated 9/21/00 (DOI AR 904) is attached as Exhibit 2.

6/ As recently as last year, Senator Inouye, the primary Senate sponsor of NAGPRA, remarked "so let me assure one and all that [NAGPRA] is indeed an Indian law, and the federal courts have so stated." Oversight Hearing on the Implementation of the Native American Graves Protection and Repatriation Act Before the S. Comm. on Indian Affairs, 106th Cong. (July 25, 2000).

7/ A copy of Dr. Francis McManamon's January 2000 Determination (DOI AR 905) is attached as Exhibit 3

8/ DOI considered alternative interpretations. See DOI AR 673 at 07856-07867; DOI AR 707 at 082505-08209; DOI AR 460 at 04906-04913; DOI AR 108 at 01928; DOI AR 915 at 10690-10692; DOI AR 555 at 05337-05341.

12/ Under Plaintiffs' interpretation, remains that belonged to a tribe that was eradicated due to disease in the 19th century would not be "Native American" because that tribe no longer exists and would not be protected by NAGPRA. 25 U.S.C. 3002 (a)-(d) and Section 4 ( 1170. Illegal Trafficking in Native American Human Remains and Cultural Items)

13/ With respect to the application of evidence to determine cultural affiliation, the Senate Select Committee on Indian Affairs stated:

Where human remains and funerary objects are concerned, the Committee is aware that it may be extremely difficult, unfair or even impossible in many instances for claimants to show an absolute continuity from present day Indian tribes to older, prehistoric remains without some reasonable gaps in the historic or prehistoric record. In such instances, a finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of gaps in the record.

14/ Interestingly, in arguing that consideration of religious practices and customs is essential to determine cultural affiliation, Plaintiffs raise no Establishment Clause objection to the use of such evidence.

15/ The Cultural Affiliation Report states that "the existence of earlier human groups in the same geographic location as the historic period ancestors of the present-day tribes does not automatically indicate cultural affiliation between the former and the latter, but it can be an important fact in determining whether a shared group identity can be reasonably traced." DOI AR 907 at 10058.

16/ DOI used the existing evidence in making the following findings supporting the cultural affiliation determination : 1) that the tribal claimants possessed similar traditional histories that related to the presence of their antecedents on the Columbia Plateau's landscape; 2) that the tribal claimants' oral traditions often corresponded to known ancient geological events that occurred in the Plateau region; and 3) that there was no reference in the claimants' oral tradition to a migration of people into or out of the Plateau. DOI AR 904 at 10015; DOI AR 907 at 10072-76; DOI AR 914 at 10265-10299, 10324-10325; DOI AR 844 at 09004-09054; DOI AR 847 at 09100- 09107; DOI AR 609 at 06931-06932; DOI AR 655 at 07624-07627, 07632-07633.

18/ A copy of Solicitor Leshy's Memorandum is attached as Exhibit 4.

20/ Jason C. Roberts, Native American Grave Protection and Repatriation Act Census: Examining the Status and Trends of Culturally Affiliating Native American Human Remains and Associated Funerary Objects Between 1990 and 1999, Topics in Cultural Resource Law 79, 84-85 (2000). Information regarding cultural affiliation determinations is published as a "Notice of Inventory Completion" in the Federal Register by the National Park Service and available at http://www.cast.uark.edu/other/NPS/NAGPRA/NIC.html.

21/ For example, reports by Boxberger (DOI AR 913 at 10265-10299), Hunn (DOI AR 914 at 10324-10325), Uebelacker (DOI AR 844 at 09004-09054), Moura (DOI AR 847 at 09100-09107), the Colville (DOI AR 609 at 06931-06932) and the Umatilla (DOI AR 655 at 07624-07627, 07632-07633) trace ancient oral tradition individually to each of the five tribal claimants, not to the Coalition as a whole.

23/ Plaintiffs also allege various improper ex parte contacts within the Executive Branch. Pls. Br. at 16-17. Defendants responded to those allegations in their Motion to Strike Extra Record Evidence filed on May 7, 2001, and incorporate the arguments of that pleading by reference.

24/ As part of the consultation process, the regulations direct that the federal agency (1) shall notify any tribal organizations likely to be culturally affiliated with the human remains (43 CFR 10.5(b)(1)(ii)); (2) must propose a time and place for meetings or consultation to further consider the inadvertent discovery and the proposed disposition of human remains (10.5(b)(2)); and (3) must share with the claimant tribes a wide variety of information pertaining to the treatment and cultural affiliation determination. 10.5(c)-(e).

25/ Under the NAGPRA regulations, the only participants designated for consultation in the process are Indian tribes or Native Hawaiian organizations "likely to be culturally affiliated" with the remains or cultural items. 43 CFR 10.5(a)(ii).

26/ As the Court is aware, the Coalition claimants opposed testing of the remains. Defendants conducted fourteen of the seventeen tests recommended by Plaintiffs. DOI AR 838 at 08880 - 08926.

28/ Courts have consistently interpreted the Establishment Clause as prohibiting the government from enacting laws that prefer one religious group over another religion or a religion over a non-religion. See Edwards v. Aguillard, 482 U.S. 578 (1987); Larson v. Valente, 456 U.S. 228, 244 (1982); Epperson v. Arkansas, 393 U.S. 97 (1968).

29/In People v. Van Horn, 267 Cal. Rptr. 804, 819 (Cal. Ct. App. 1990), defendant raised an Establishment Clause objection to a California statute that protected Native American burials, human remains, and grave goods, contending that the statute enhanced the rights of Native Americans to practice their religions. The Court held that the statute did not make a reference to religion and thus did not violate the Establishment Clause. Id.

31/ A copy of the DOJ legal analysis is attached as Exhibit 5.

32/ NAGPRA expressly recognizes that Indian tribes have standing to assert property and possessory rights in their heritage resources. Here, the remains are subject to "disposition" to the claimant tribes pursuant to the "Ownership" section of the Act. 25 USC 3002. A determination of ownership for the disposition of the remains presumes that these items have not been acquired or possessed as government property. Instead, ownership is determined in the first instance, as part of the NAGPRA process. In this regard, NAGPRA significantly differs from the Antiquities Act of 1906 and the Archaeological Resources Protection Act (ARPA) of 1979, both of which treated Native American human remains discovered on federal land as federal property It is this change from the prior statutory scheme that Plaintiffs resist so strongly.

34/ Plaintiffs assert that by making these materials public and allowing "staff and study team members to participate in public discussions about the skeleton" (Pls. Br. at 40-41) , the United States has "fostered debate" and cannot now bar Plaintiffs from access to the data that they need to fully participate in the debate. Plaintiffs rely on a line of cases dealing with the prohibition of content-based governmental regulation in the context of a "limited public forum." Plaintiffs are mistaken. The United States neither fostered debate nor created a limited pubic forum, but simply responded to the public's demand for information on the remains by releasing relevant non-confidential information during DOI's decisionmaking process. There is no prohibition against the United States regulating its own content when the United States is the speaker. Rosenberger v. Rector of University of Virginia, 515 U.S. 819, 833 (1995). In instances where Defendants participated in forums sponsored by other organizations, no restrictions were imposed on the content of the presentations of any of the other participants.

36/ The First Amendment prevents the government from interfering with a person's attempt to speak or publish, Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), protects the right to hear or read information being communicated, Pell v. Procunier, 417 U.S. 817, 832 (1974), and prohibits the government from closing certain governmental proceedings historically open to the public, Press Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984). The First Amendment does not, however, impose an affirmative duty on the government to disclose all information or sources of information within its possession to the public, and no first amendment right to study government property has ever been established.

38/ Plaintiffs also allege that there have been unacceptable variations in the relative humidity and temperature in the remains' storage. Defendants responded to these extra-record allegations in the Declaration of Dr. Trimble filed with Defendants May 2001 Status Report. Defendants incorporate Dr. Trimble's Declaration by reference. Defendants also cite to Dr. Trimble's testimony at 10/25/00 hearing at pp. 36-44.

39/ The implementing regulations for the NHPA are found at 36 CFR 800. As the regulations have been revised since 1998, references in this brief are to the regulations in existence at the time of the shoreline protection, 36 CFR Ch. VIII (7-1-90 Edition).

40/ The NHPA process is documented in the COE's Supplemental Administrative Record (SAR).

42/ The correspondence suggests the Plaintiffs had applied for an ARPA permit for on-site work. However, on the ARPA application for on-site work, only Dr. Huckleberry's name is shown. See SAR 118, S-855; S-856, item 7.a & b; S-860, E (i) & (iii); S-862, Exhibit C. Plaintiffs Bonnichsen and Haynes are to perform "laboratory analyses." S-860.

44/ COE withheld some documents responsive to Mr. Schneider's second, third and fourth requests as pre- decisional under FOIA Exemption 5 . See National Wildlife Fed'n. v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir., 1988). FOIA AR 30 at 75; AR 29 at 373. Mr. Schneider's appeal of his second and third requests was based on the COE's assertion of deliberative process privilege. FOIA AR 16 at 310. Documents responsive to the fourth request were provided to Mr. Schneider on March 31, 1999, after a final decision on the selection of experts had been made. FOIA AR 2 at 2-69.

45/ On July 10, 1998, after receiving Mr. Schneider's second (4/98) and third (6/98) FOIA requests, the COE requested that Mr. Schneider pay $250.00 for the work performed to that point. Mr. Schneider declined to do so. FOIA AR 17 at 328-29. Until Mr. Schneider paid that charge, COE was not obligated to comply with his pending requests. See 5 USC 552(a)(4)(A)(i); 32 CFR 518.59. Mr. Schneider subsequently submitted a fourth (11/98), a fifth (3/99), and a sixth (10/00) FOIA request. COE again advised Mr. Schneider that it would not process these requests until the prior fee was paid. FOIA AR 5 at 73. Mr. Schneider subsequently paid the required $250.00 by letter dated December 12, 2000. At that point, Mr. Schneider had already been provided with the Administrative records for the decisions at issue in this case. Nonetheless, on December 22, 2000, and on March 12, 2001, the COE provided additional responsive documents, but withheld others based on Exemption 5.