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Notice of Motion to Intervene by the Confederated Tribes and Bands of the Yakama Nation

Memorandum in Support of Motion to Intervene by the Confederated Tribes and Bands of the Yakama Nation

Tim Weaver
Cockrill & Weaver, P.S.
316 N. Third St.
PO Box 487
Yakima, WA 98907
Phone: (509) 575-1500
Fax: (509) 575-1227

Thomas A. Zeilman
Yakama Nation Office of Legal Counsel
PO Box 151, Fort Rd.
Toppenish, WA 98948
Phone: (509) 865-7268
Fax: (509) 865-4713

In the Unitead States District Court for the District of Oregon

Robson Bonnichsen, et al.,


United States of America, et al.,

Memorandum in Support of Motion to Intervene by the Confederated Tribes and Bands of the Yakama Nation

Intervention applicant Confederated Tribes and Bands of the Yakama Nation (hereinafter Yakama Nation or YN) submits the following points and authorities in support of its Motion to Intervene:


The requirements of intervention of right under Fed.R.Civ.P. 24(a)(2) have four elements, each of which must be demonstrated in order to provide a non-party with a right to intervene. Smith v. Marsh, 194 F.3d 1045, 1049 (9th Cir. 1999). The elements are: (1) the application must be timely; (2) the applicant must have a "significantly protectable" interest relating to the transaction that is the subject of the litigation; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest: and (4) the applicant's interest must be inadequately represented by the parties before the court. Id. These requirements are interpreted broadly in favor of intervention. U.S. v. State of Washington, 86 F.3d 1499, 1503 (9th Cir. 1996). The Yakama Nation's application for intervention as a defendant in this litigation satisfies all four of the required elements.

A. Intervention is timely because the federal defendants have not vet made a final agency decision under §3 of NAOPRA regarding ownership of the human remains at issue.

Timeliness is "the threshold requirement" far intervention
as of right. United States v. Oregon, 913 F.2d 576, 588 (9th Cir. 1990). In determining whether a motion for intervention is timely, a court must consider three factors: (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay. San Jose Mercury News v. U.S. District Court, 187 F.3d 1096, 1100 (9th Cir. 1999).

The Yakama Nation is applying for intervention at this particular time because it has become increasingly clear, as discussed further in §I.D., infra, that the federal defendants may not be adequately representing its interest in the human remains at issue. Although over three and a half years have elapsed since the plaintiffs filed their complaint, YN has worked during that time with other interior Columbia Basin Indian peoples to forge a common effort in reclaiming the remains. This has resulted in the joint Columbia Basin Tribal Claim, filed by YN and four other Indian nations with the U.S. Army Corps of Engineers, Walla Walla District, on January 25, 2000. See Request for Repatriation of Human Remains (Techaminsh Oytpamanatityt): The Columbia Basin Tribal Claim, Exhibit A. This administrative claim under authority of §3(a)(2) (B) of NAGPRA is a statement of ownership and a request for custody of the remains for reburial under traditional law. Exhibit A, 2. YN was not comfortable applying for intervention in this case until the joint administrative claim was executed and filed with the federal government.

Despite such delay, intervention is appropriate at this stage of the proceedings because the Corps of Engineers' final agency action of September 1996 regarding transfer of the human remains to YN and other claimant Indian tribes was vacated by the Court on June 27, 1997. Bonnichsen v. United States, 969 F.Supp. 628, 645 (D.Or. 1997). The Court then remanded the matter to the agency for reconsideration of its decision under the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. § 3001 et seq. Id. Although the case had gone through an eight month pre-trial stage that included motions for dismissal and summary judgment by the defendants, the Court's remand order essentially returned the litigation back to its starting point. The Department of the Army has since delegated substantial responsibilities for determining disposition of the remains to the Department of the Interior under authority of §3(d)(3) of NAGPRA (25 U.S.C. 5 3002(d)(3)). See Federal Defendants' Third Quarterly Status Report, April 1, 1998.

As a result of the remand, the case has returned to a stage where the plaintiffs' claims are not yet fit for judicial decision. See 5 U.S.C. § 704 (final agency action is fit for a judicial review; see also US West Communications v. MPS II Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999) (claim is fit for decision "if issues are primarily legal, do not require further factual development, and the challenged action is final"). The only stated reason why the Court retained jurisdiction was to ensure protection of the remains which are the res of the suit. Bonnichsen, 969 F.Supp. at 645. However, the Court has not given any indication that it will review the issues of this case until the defendants have made their decision whether to grant plaintiffs' request to study the remains; it has ordered that such decision be made by September 24, 2000. Order of March 8, 2000, 3.

The defendants have also made it clear from their filings that their decision concerning scientific study will be based on their final determination regarding disposition of the remains according to NAGPRA. See Federal Defendants' Opposition to Plaintiffs' Motion for Immediate Response Re: Study Request, 12. This would constitute a "final agency action" suitable for adjudication. See Gallo Cattle Co. v. U.S. Dept. of Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998) (agency action is final if action "marks the consummation of the agency's decision making process" and is "one by which rights or obligations have been determined or from which legal consequences flow").

Consequently, since judicial review of the plaintiffs' claims will not begin until after September 24, intervention by the Yakama Nation at this stage of the proceeding is proper. The fact that almost three years have passed since the Court's remand is immaterial because the litigation has essentially been suspended pending final agency action.

For similar reasons, intervention will not prejudice any other present parties. In evaluating this second timeliness factor, courts have emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed. County of Orange v. Air California, 799 F.2d 535, 538 (9th Cir. 1986). The facts of this case are clearly distinguishable from those decisions within this circuit that have found serious prejudice where intervention disrupted delicate or complex settlements. See Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th Cir.), cert.denied, 439 U.S. 837 (1978) (intervention filed seventeen days after consent decree had become effective was prejudicial); Air California, 799 F.2d. at 538 (possibility that tentative settlement agreement would unravel was prejudicial); U.S. v. Oregon, 913 F.2d at 588 (same for multiparty settlement involving fishing rights). The Corps of Engineers and the Department of the Interior have yet to take the final administrative action that will be the basis of the litigation in this case, and no settlement of the matter is in sight. The present hiatus during the government's NAGPRA decision making process allows the Court to grant intervention without any significant delay to the litigation.

B. The Yakama Nation has a federally-protected property interest in the human remains which are the subject of this action.

An applicant seeking intervention has a "significantly protectable interest" in an action if (1)it asserts an interest that is protectable under some law, and (2) there is a relationship between its legally protected interest and plaintiff's claims. Donnelly v. Glickman, 159 F.3d 405, 409 19'" Cir. 1998). Property rights are such "protectable interests" as will support a motion for intervention. Sierra Club v. U.S. EPA, 995 F.2d 1478, 1482 (9'" Cir. 1993).

The Yakama Nation claims ownership of the human remains, the res which is the subject of this litigation. YN claims such ownership under authority of S 3 of NAGP8A, 25 U.S.C. S 3002. NAGPRA states in §3 that "ownership and control" of Native American cultural items, including human remains, which are excavated or discovered on Federal lands shall be "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." 25 U.S.C. § 3002(a)(2)(B). The Yakama Nation believes that the human remains at issue are the remains of an ancestor of its people; the remains are called Techaminsh Oytpamanatityt ("from the land the first native") in the Yakama language. YN traditional religious law dictates that the remains must be i immediately reburied in the earth for all eternity.

As noted above, the Yakama Nation filed a formal claim for ownership of the remains with the U.S. Army Corps of Engineers in a joint effort with other Columbia Basin Indian tribes. Exhibit A. The claim was filed under authority of §3(a)(2)(B) of NAGPRA. YN's property interest in regaining custody of the remains for reburial is therefore protected under federal statute, meeting the first requirement for a significantly protectable interest for intervention of right.

This interest is related to the plaintiffs' claims because the plaintiffs have claimed a right to study the remains for purely scientific and academic purposes in contravention of the Yakama Nation's claim of ownership under NAGPRA. Complaint Judicial Review, 6. The "relationship" requirement is generally satisfied only if the resolution of the plaintiff's claims will actually affect the applicant. Donnelly, 159 F.3d at 410. A granting by the Court of plaintiffs' wish to take possession for study would be a denial of the YN's property right of exclusive ownership under federal law, thereby causing significant injury to the applicant. The second prong of the interest test, requiring a relationship of the applicant's interest with plaintiff's claim, is therefore satisfied.

C. A decision for the plaintiffs will completely impede the Yakama Nation's ability to protect its property interest by alloying the plaintiffs to study the remains instead of awarding YN full custody under §3(a)(2)(B) of NAGPRA.

As stated above, if the Court decides to grant the plaintiffs their wish to study the human remains for purely scientific, academic and professional purposes, it will deny YN its claim of ownership. A primary purpose of NAGPRA is to repatriate Native American human remains, associated funerary objects, sacred objects, and objects of cultural patrimony currently held or controlled by federal agencies. See United States v. Corrow, 119 F.3d 796, 799 (10th Cir. 1997). YN, as owner of the human remains, wishes to immediately rebury them in conformity with traditional law. This proprietary right of reburial cannot be exercised if the plaintiffs prevail on their claim that they have a statutory and/or constitutional right to study the remains for their own purposes. Therefore, as a practical matter, such a result will undoubtedly impede the Yakama Nation's ability to protect its right under federal law.

D. The federal defendants do not adequately represent the Yakama Nation's property interest in the remains because the United States is charged with making the administrative decision regarding ownership under NAGPRA.

In determining whether an intervention applicant's interest is adequately represented by the parties, the Court should consider (1) whether the interest of a present party is such that it will undoubtedly make all the intervenor's arguments: (2) whether the present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect. Northwest Forest Resource Council (NFRC) v. Glickman, 82 F.3d 825, 838 (9th Cir. 1996). The prospective intervenor bears the burden of demonstrating that existing parties may not be adequately representing its interests. Id. (following Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).

The interest of the federal defendants in this case is very different from the Yakama Nation's property interest. Although the United States currently has control over the remains, it does not claim that it has ultimate ownership. However, NAGPRA directs the government to make an administrative decision regarding their ultimate disposition. 25 U.S.C. S 3002(d)(2). In addition, the Court instructed the defendants in its June 27, 1997 Order to reconsider the Corps of Engineers' decision in September 1996 to award custody of the remains to YN and the other parties to the Columbia Basin Tribal Claim. Bonnichsen, 969 F.Supp. at 651. Based on a series of questions posed to the government on remand, the Departments of Justice and the Interior are currently charged with deciding, inter alia: whether the remains are subject to NAGPRA; whether there is a cultural affiliation between the remains and a contemporary Indian tribe; whether scientific study and repatriation are mutually exclusive; and whether the plaintiffs have a legal right to study the remains. Id. The plaintiffs have made repeated requests to study the remains, and the defendants have indicated that they may grant such requests once the agencies make their decision under NAGPRA. Federal Defendants' Opposition to Plaintiffs' Motion for Immediate Response RE: Study Request, 12.

As a result, at this stage of the litigation it is unclear what the federal defendants' arguments will be once the Interior Department makes its final decision regarding cultural affiliation. It is also uncertain whether the defendants are capable and willing to make the Yakama Nation's arguments. Because the government has been asked to start over and make a more deliberate administrative decision than the one it made in October, 1996, the Yakama Nation has no way of knowing how the federal defense will proceed after the September 24 deadline. Although the 1997 remand order asked the defendants to consider a host of issues that will help determine the outcome of this case, there is no guarantee that their positions will "undoubtedly" be the same as those of the Yakama Nation.

It is not even clear whether the respective litigation goals will be similar. Where an applicant for intervention and an existing party have the "same ultimate objective," a presumption of adequate representation arises. NFSRC 82 F.3d at 838. However, because its interest in the human remains is proprietary rather than administrative, YN's ultimate objective in the defense is custody of those remains. The nature and scope of United States assistance in that objective depends on what type of decision the Interior Department reaches concerning the cultural affiliation of the remains under NAGPRA. This possibility that the objectives of the U. S. may diverge from those of YN should be fully sufficient to warrant granting intervention.

In addition, the Yakama Nation's claim of ownership of the remains provides a necessary element to the case that no other party can provide. Since it is a federally recognized Indian nation that has inhabited the interior Columbia basin since time immemorial, YN as a party ot this case would have the only real interest which NAGPRA was actually designed to protect. Congress intended for the statute to allow return of cultural items, including human remains, to Indian linear descendants or culturally affiliated Indian tribes. See Corrow, 119 F.3d at 799. As an intervening party to this litigation, the Yakama Nation would provide the best legal perspective on how federal agencies should implement the statute in order to fulfill that intent. The Court should therefore grant the Yakama Nation's Motion to Intervene as of right under Fed. R.Civ.P. Rule 24(a)(2).


There are three necessary prerequisites for allowing permissive intervention under Fed. R.Civ.P Rule 24(b)(2). A court may grant such intervention where the applicant shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and the main action have a question of law or a question of fact in common. San Jose Mercury News 187, F.3d at 1100. The Yakama Nation meets these requirements.

First, YN's intervention is timely as already noted in I.A.,supra. Second, independent jurisdiction of this Court is proper under both 28 U.S.C. §1331 (federal question) and 25 U.S.C. §3013 (enforcement of NAGPRA) because YN has stated a claim of ownership of the human remains under authority of § 3(a)(2)(B) of NAGPRA; the claim also requests transfer of the remains to YN under the same authority. Columbia Basin Tribal Claim, Exhibit A. YN is also making a counter-claim in this Court for custody of the remains which states that the plaintiffs have no rights to their possession or study under NAGPRA or any law. See attached Answer and Counterclaim In Intervention by the Confederated Tribes and Bands of the Yakama Nation, 5. The claim is a direct challenge under NAGPRA to the plaintiffs' allegations that the United States has violated the statute and the U.S. Constitution by denying requests for scientific study of the remains.

Third, YN's defense/counterclaim and the plaintiffs' claim share common questions under §3 of NAGPRA concerning which parties should be awarded the remains and whether full scientific study is permissible before transfer to an Indian tribe for reburial. Complaint-Judicial Review, 7-13; Answer and Counterclaim In Intervention, 5-6. In determining whether common questions of law or fact exist for permissive intervention, a court will look to whether the intervenor would contribute to a full development of the underlying issues in the suit. Oregon. Envtl. Council v. Dept. of Envtl. Quality, 775 F. Supp. 353, 359 (D. OR. 1991). In this case, the applicant's intervention would provide for complete litigation of both the plaintiffs' claim of right to study the human remains and the Yakama Nation's claim of ownership and right of reburial of the remains under NAGPRA. Such a situation will allow the Court to fully examine NAGPRA's ownership provisions as they relate to inadvertent discovery and/or intentional excavation of Native American human remains. Permission to intervene under Fed.R.Civ.P Rule 24(b)(2) should therefore be granted by the Court.


For the reasons set forth above, the applicant for intervention respectfully requests that the Court grant its Motion for Intervention as of right under Fed.R.Civ.P. Rule 24(a)(2), or alternatively for permission to intervene under Fed.R.Civ.P. Rule 24(b)(2).

Dated this 26th day of May, 2000.

Tim Weaver, WSBA #3364
Cockrill & Weaver, P.S.
Attorney for intervention applicant
Yakama Nation

Thomas Zeilman WSBA 28470
Yakama Nationa Office of Legal Counsel
Attorney for intervention applicant
Yakama Nation

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