Friends of America's Past

The Kennewick Man Case | Court Documents | Briefs



No. 02-35994
(District Court No. 96-1481JE (D. Or.))



UNITED STATES OF AMERICA, ET AL., Defendants-Appellants,





Paula A. Barran
Amy Brenner
601 SW Second Avenue, Ste. 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500

Alan L. Schneider
1437 SW Columbia St., Ste. 200
Portland, OR 97201
Telephone: (503) 274-8444

Of Attorneys for Plaintiffs-Appellees


I. Statement of Jurisdiction

Appellees (Plaintiffs) accept appellants' (Defendants') statement of jurisdiction.

II. Issues Presented

Plaintiffs accept Defendants' statement of the issues on appeal except: Defendants misstate the Magistrate Judge's interpretation of "Native American." It was not limited to a demonstrated cultural relationship with a presently existing tribe.

III. Statement of the Case

Defendants' statement of the case is incomplete and inaccurate.

When two young men stumbled onto the 9,000 year old Kennewick remains in 1996, scientists immediately recognized the importance of the discovery. Relatively complete and well-preserved skeletons from this era are rare and important to understand the peopling of the Americas, a study to which Plaintiffs have devoted their lives and careers. These remains were all the more important because the brief examination done before the U.S. Army Corps of Engineers (the "Corps") seized them suggested they were unlike anything found in the Northwest and unlike present Columbia basin tribes. Access to study the skeleton is important; it is irreplaceable to those who wish to understand prehistory.

The Corps ordered the coroner's investigation to stop, and seized the remains, which were otherwise to be sent to Dr. Owsley for study. The Corps ignored repeated communications from scientists and announced the remains would be given to claiming tribes for reburial. Citing NAGPRA, the Corps announced within days of the discovery that the remains were Native American, had been found on land that was subject to a final judgment of the Indian Claims Commission (later admitted to be false), and that they were culturally affiliated to the tribes. Other Native Americans were invited to state claims. Internally, Corps officials discussed their need to be a "compassionate and supportive partner" of the tribal claimants, and admitted they were denying access to scientists because of commitments to the tribes. They promised the tribal claimants that the skeleton would be handled the way claimants wished. Those commitments continued unabated for years, in contrast to the manifest indifference to Plaintiffs' views, even after the Magistrate Judge vacated the first repatriation and ordered the case to be reexamined. Although some government studies were scheduled, the tribes were promised studies would not go forward "if we get right answer 1st time."

When the Corps refused to acknowledge Plaintiffs' concerns, this lawsuit was filed. Defendants moved to dismiss and for summary judgment, both of which the court denied. On June 27, 1997, the court found "the agency's decision-making procedure was flawed" and its decision "premature," that the Corps "failed to consider all of the relevant factors or all aspects of the problem," "did not fully consider or resolve certain difficult legal questions," "assumed facts that proved to be erroneous," and "failed to articulate a satisfactory explanation for its actions." Bonnichsen v. United States, 969 F. Supp. 628, 645 (D. Or. 1997). The Corps had by then withdrawn the initial repatriation notices; after Plaintiffs asked for proof, the Corps admitted there was no ICC final judgment.

The court vacated whatever was left of the Corps' determinations and remanded with an instruction "to fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved," and to reach a decision based upon all of the evidence, applying relevant legal standards and providing a clear statement of reasons. The district court provided the Corps with a non-exclusive list of issues to consider on remand.

Plaintiffs continued to submit information to the decisionmakers, who had been ordered to consider it. But in contrast to how the decisionmakers treated the tribal claimants, Plaintiffs had to speculate on what was important because the agencies refused to answer their questions. The decisionmakers, through counsel, told Plaintiffs it would be "inefficient" to tell them what issues were under consideration. Nevertheless, Plaintiffs submitted scholarly articles, letters, and affidavits. Their submissions were rarely acknowledged. There is no evidence that any was read. Not all of Plaintiffs' submissions were included in the administrative record. At the same time, decisionmakers had extensive contacts with the tribal claimants (beyond that contemplated by regulations), identified areas in which the record did not completely reflect claimants' views so they could provide more support, and permitted the claimants to have access to the skeleton for religious ceremonies. Plaintiffs were not given access.

Without disclosure to the public or Plaintiffs, Defendants furnished the tribal claimants with advance copies of their cultural affiliation reports for use in preparing the tribes' submissions and comments. Plaintiffs first saw these materials when the final determination was publicly announced. Defendants had at least eighteen private meetings and conferences with the tribal claimants. Only a few of the meetings and conferences were memorialized in the record. Claimants were allowed to survey the discovery site before the Corps destroyed it.

In 1995, before the remains were discovered, Interior had issued regulations which defined "Native American" as "of, or relating to, a tribe people or culture indigenous to the United States." The statute's definition is "of or relating to a tribe, people or culture that is indigenous to the United States" (emphasis supplied). In 1997 the regulations were amended with no change to the definition. Interior never suggested that it intended to make a substantive change by deleting the words "that is." During this litigation, however, and only a few months after the regulations were amended, Interior's Departmental Consulting Archeologist (Dr. McManamon), responded to some of the district court's questions. Although he said the statute and regulations were clear and self-explanatory, and "provide all necessary guidance," he explained "our views" that "Native American" meant human remains and other cultural items regardless of relationship to present day people, so long as they were from a tribe, people or culture that resided in the United States before the arrival of European explorers. He thought that the scope of the definition was not limited by Congress' use of the word "indigenous," but that in any event "indigenous" merely meant "occupied."

Defendants' attorneys agreed with the Magistrate Judge's observation that this interpretation meant remains could be Native American by age alone. On appeal Defendants now claim there was no chronological test, that "indigenous" is a critical component of the definition, and they disagree with Dr. McManamon and, by implication, the Secretary.

In January 2000 Interior issued the first of two post-remand determinations, this one applying Dr. McManamon's "views" to the remains and concluding that its age (pre-Columbian) made it Native American. To the extent Interior looked at other evidence, it was to support the chronological decision. The determination that the remains were Native American did not consider, cite or explain the evidence Plaintiffs had submitted, even though the court's order required all the evidence to be considered.

Interior and the Corps assembled a study team to assist in making the second decision, whether the remains were culturally affiliated to the tribal claimants. Defendants' assertion on appeal that Plaintiffs participated as members of the study team is false. The government's study team conducted only some of the tests Plaintiffs recommended. Many important studies were not done at all and none of the government studies has been confirmed or subjected to peer review. Some of the underlying data are not available even in the administrative record. Plaintiffs received some primary source documentation (such as electronic data from CAT scans) only after the Magistrate Judge ordered it. Even this small amount of data showed that the government's conclusions were not necessarily accurate, including that there was a likely misidentification of the nature of the spear tip and its orientation. Defendants' suggestion that the Magistrate Judge acknowledged that perhaps all of the studies Plaintiffs requested were done ("some, if not all") is a misstatement. He never used that phrase; he noted that only some of the requested studies were done.

The discovery site had much information to offer. The Corps refused to permit any study of substance, allowed the tribal claimants to do the site survey, disregarded recommendations by scientists, and then covered it with tons of rubble and trees, all on the pretext of "stabilizing" it. The real motivation for the destruction of the site was to prevent further exploration or discovery. Since legislation to forbid site changes had passed both houses of Congress, the Corps timed the destruction of the site for Congress' Easter recess, having first announced its intention to abide by the pending legislation. The site was protected by the National Historic Preservation Act at the time of its destruction; that law was disregarded.

The district court ordered a hearing on the failure to curate the remains properly. After pieces of the skeleton were lost or damaged, Interior moved the remains to a more secure facility. Many essential curation protocols were not developed until after the court scheduled a hearing on the faulty curation.

The Secretary issued the second post-remand determination in September 2000, reaffirming that the remains were Native American because they were pre-Columbian and were found in the United States. He concluded they should be turned over to a coalition of tribes. In doing so he:

  • Did not consider or explain contrary evidence;
  • Ignored conclusions of his own experts and staff;
  • Decided a coalition that included an unrecognized band was a proper claimant when the statute requires a single tribe, and despite Dr. McManamon's earlier published statements contradicting him;
  • Resurrected the ICC judgment which the Corps had admitted was not a proper basis for repatriating;
  • Ignored Congress' directive to find a "shared group identity" and used the concept of "continuity";
  • Never named the required "identifiable earlier group";
  • Imposed a presumption in favor of repatriation; and
  • Provided an incomplete record for review.

In April 2001 Plaintiffs moved to vacate this second administrative action. Following oral argument in June 2001 at which Plaintiffs, Defendants, and amici participated, the Magistrate Judge studied the entire administrative record. In August 2002 he vacated the second administrative action (the two determinations as well as Dr. McManamon's chronological test) and concluded that the agencies' bias and procedural violations precluded another remand.

The Magistrate Judge did not retain jurisdiction to determine what studies would be done, contrary to Defendants' representations. He directed that the Secretary allow for study, subject to the terms and conditions normally imposed, and established only the deadlines for Plaintiffs to present a proposal and Defendants to respond. No further study has occurred since the government's study team concluded its work.

On appeal Defendants do not dispute that the destruction of the discovery site violated federal law or that it was intended to prevent study rather than the pretextual explanation the Corps gave. Nor do Defendants appeal the conclusion that they were biased and failed to meet any standard of fairness.

Defendants appeal only the rejection of the determination that the Kennewick remains are Native American and the equitable decision not to give the biased agencies another opportunity to dispose of the remains.

IV. Supplemental Statement of Facts

Defendants' statement of facts is incomplete and not always accurate. Because they appeal the court's refusal to remand, a more complete factual summary is essential.

A. Discovery and seizure of the remains.

After the Kennewick Man's skull was discovered by accident in July 1996, the Corps authorized anthropologist Dr. James Chatters to collect the remains pursuant to the Archeological Resources Protection Act ("ARPA"). COE 9494-9499, 9500-01; SER 394-95, 400. The initial investigation was at the direction of the local coroner. COE 9489-9492; SER 389-92. When the great age of the remains became clear through radiocarbon dating, Dr. Owsley, Division Head for Physical Anthropology for the National Museum of Natural History at the Smithsonian Institution, arranged for Dr. Chatters to transport the remains to him at the Smithsonian for study. COE 9465-9466; SER 377-78. Before that could occur, however, the Corps seized the skeleton. COE 9388-9390; SER 364-66. Dr. Owsley responded immediately to emphasize the importance of study. COE 9382a; SER 363. At the same time, Dr. Jantz, Dr. Gill, Dr. Bonnichsen and other experts began to express that it was premature to say the remains were Native American. COE 9365-9416; SER 355-76.

B. First Repatriation.

Despite protests, including by members of Congress, the Corps announced its decision to repatriate the remains to a group of four Columbian Basin Tribes and one unrecognized band. COE 9129-9130, 9167, 9192, 9265c-9265-e, 9409-9412; SER 329-31, 333, 341-43, 370-74.

This litigation began. Defendants' Motion to Dismiss was denied February 19, 1997 (969 F. Supp. 614) and their Motion for Summary Judgment was denied June 27, 1997 (969 F. Supp. 628). The first repatriation was vacated as improper. The Magistrate Judge concluded that Defendants had failed to consider all of the relevant factors or all aspects of the problem, acted before they had all the evidence or fully appreciated the scope of the problem, did not fully consider or resolve certain legal questions, assumed facts that proved to be erroneous, and failed to articulate a satisfactory explanation for their actions. The court remanded to the Corps with this direction, which mandated an adjudication-like process:

"I am directing the Corp of Engineers to fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved, and to eventually reach a decision that is based upon all of the evidence, that applies the relevant legal standards, and that provides a clear statement of what the agency has decided, and the reasons for that decision." 969 F. Supp. at 645.

The first repatriation had concluded that the remains were Native American solely because of their age and the location of discovery. COE 9276, 9279; Curtis (dkt #21); Opposition to Motion at 9-10, dkt #20; SER 346-49; 1299-1300; 1346-48. Defendants also concluded without analysis that the remains were culturally affiliated to the tribes, and that there was a final ICC judgment, which was untrue. DOI 10087; COE 7661; SER 286, 1176.

The Corps rescinded the notice after it admitted the ICC error. COE 7661-62; SER 286-87. However, the Magistrate Judge was not persuaded that the Corps had become neutral, expressed concerns about discrepancies between what the agency was saying and doing in comparison to what its attorneys were saying, and vacated what remained with the instructions cited above. 969 F. Supp. at 638, 645.

C. The Agencies' Bias.

Soon after the discovery the Corps assured the tribal claimants that it would "do what the tribes decide to do" and expressed its compassionate and supportive partnership with the tribes. COE 656, 7905; SER 37, 298. Internal documents confirmed repatriation was a priority. COE 0650-53; SER 33-36.

Defendants allowed the tribes access to the skeleton at least five times for religious ceremonies which permitted likely contamination. COE 6835-6843b, 7128; DOI 550, 03169; SER 236-40, 266, 550. Religious ceremonies continued into 2000; at the same time Plaintiffs were barred "because of the district's commitment to the tribal coalition" COE 00357, 0760; SER 32, 47.

Investigation of the site was severely restricted because the tribal claimants opposed it. COE 4509, 4547-48, 4562-63, 4922-27, 5672-73, 5838-40, 5925-26, 6713-14; SER 131, 135-36, 139-40, 154-59,167-68, 181-83, 188-89. Coalition members received early notice of the site cover up plan. COE 5679; 8684-8685; SER 171, 320-21.

Defendants secretly furnished the tribal claimants with advance copies of the Interior's cultural affiliation reports so they could be used in preparing claimants' submissions and comments, with the caution that "we are not planning to release these reports to the public until the Department of the Interior has made its decisions and recommendations in this matter." DOI 6982; 8695; SER 706, 850.

Interior corresponded privately with the tribal claimants about the evidence supporting their claim. DOI 6982, 8695-96, 8703-05, 8713-19, 9101-06; SER 706, 850-61, 990-95. Defendants urged the tribal claimants to supplement the record with reports of their own, and to address the issues that Defendants had identified; claimants responded by furnishing supplemental reports as requested. DOI 7304-10, 7592, 7621-30, 9003-9240; SER 734-40, 764, 791-800, 892-1128.

Despite Plaintiffs' repeated requests for clarification of the issues and for access to the administrative record, they were not given similar information. Defendants' counsel told Plaintiffs they needed to decide for themselves what to submit. Other requests were not answered. Letter of April 29, 1998 (not in record; added by court order, dkt# 494); June 20, 1997 Tr. 320-21, dkt #457; COE 7083, 7236; DOI 8228-29; SER 265, 269, 839-40, 1834, 1836-41.

While preparing the determination, Defendants met privately with the tribal claimants to discuss the merits of the cultural affiliation claim. DOI 8695-8705, 9101-06, 9499; SER 850-54, 990-95, 1135. Defendants did not invite Plaintiffs to participate, nor did they otherwise disclose the substance of these communications.

Coalition members sent many letters directly to Secretary Babbitt, arguing their position on study and ownership of the skeleton. There is no indication he was screened from them, and aides responded to several. App. A, Motion to Vacate, dkt #418; SER 1705-14.

Other decisionmakers had substantial direct contacts with the Coalition. See App. A, dkt #418; SER 1705-14. Dr. McManamon had face-to-face meetings and telephone conferences with Coalition members to discuss studies of the skeleton and information needed to establish cultural affiliation. App. A, dkt #418; SER 1705-14. He addressed how the tribes could present their claims more effectively. COE 2811-14; SER 82-85. Mr. Roberts participated in at least one telephone conference with a Coalition member. DOI 08607; SER 848.

Defendants' litigation counsel repeatedly advised the decisionmakers; some documentation of their meetings was withheld from the record as privileged. At times Defendants kept no notes of a discussion (or failed to include them in the record), and existing documents do not always identify the participants in meetings or conferences. Defendants withheld evidence of more than 50 communications on a claim of privilege. SER 1844-52, dkt #417 (District Court ER 321).

Kennewick Man was the subject of a special interagency "advisory group" apparently created in 1997 which included representatives of the Corps, DOJ, DOI and White House. COE S-616, 0002504; DOI 02002; SER 49, 435, 465. The record has notes for only two of the meetings; notes mention that other meetings were held. Dr. McManamon attended both, and discussed curation, investigation of the discovery site, and consultation with the Coalition. COE 2504-05; DOI 3977; SER 49-50, 571. An e-mail from Dr. McManamon also refers to "the details of cultural affiliation and disposition, the scientific testing, cultural affiliation research." DOI 01993; SER 464. Defendants either did not keep, or withheld, documentation of the substance of the other meetings; because the record is incomplete, Plaintiffs cannot tell how many other meetings were held. App. A; SER 1705-14, dkt #418.

D. Importance of the Skeleton.

Human skeletons of this antiquity in North America are rare, and are generally incomplete. The Kennewick Man remains are virtually intact and were in relatively good condition when discovered. They are of incalculable importance to science. Bonnichsen Aff., dkt #60; Brace Aff., dkt #59; Jantz Aff., dkt #57; Steele Aff., dkt #51; Gill Aff., dkt #58; Powell Aff., dkt #55; Chatters Aff., dkt #62; Owsley Aff., dkt #54; Stanford Aff., dkt #63; Gill Aff., dkt #102; Jantz Aff., dkt # 106; Owsley Aff., dkt #107; SER 1351-1431; 1435-37; 1444-54.

The Kennewick Man remains are unlike any known present-day population, American Indian or otherwise. DOI 10665, 10685-92; SER 1244, 1261-68. "The Kennewick individual can be excluded, on the basis of dental and cranial morphology," not just "from recent American Indians" but "from all late Holocene human groups" (emphasis in original); DOI 10692; SER 1268.

In spite of the court's June 1997 order to preserve the potential scientific value of the remains, many curation protocols were not developed until after the court scheduled a hearing to review the adequacy of the skeleton's curation. Dkt #141, Attachment B to Defendants' Response, dkt #145; SER 1473-91.

E. Destruction of the Discovery Site.

In April 1998 the Corps buried the discovery site under tons of rubble and dirt, topped with willow, dogwood, and cottonwood plantings. COE 5873-74; S-669; DOI 2347-51, 2515; SER 184-85, 439, 521-25. The record documents only some of the decision making but still shows that the primary objective was to prevent additional remains or artifacts from being discovered; "stabilizing" the site was a pretext. The directive to bury the site came from the "White House." The Corps had a budget of $200,000 to accomplish the task. S-323, S-821; SER 411A, 444.

Legislation was introduced to prohibit projects of this kind without approval from the district court. COE 6004, 6316-20, 6341; SER 201, 216-221. It passed both houses of Congress. The Corps acted before it became law, in spite of a promise to obey it. S-279-80, 291, 320-323, 329-36; COE 4535, 4654-57; SER 132, 141-44, 409-411A, 412-14.

The Corps denied requests by Plaintiffs to excavate a test pit at the site to investigate its contents and geological characteristics. COE 4084, 4163, 4167-80, 4300-01, 5139, 5550, 5664; S-1-26; SER 110, 113, 114-27, 129-30, 162, 164, 166, 401A-Z.

V. Standard of Review

Defendants' description of the standard of review is partially incorrect.

A. The court reviews de novo whether the actions of Defendants were arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, unsupported by substantial evidence or without observance of procedure required by law. League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002); Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1175 (9th Cir. 2002); Arizona Cattle Growers' Ass'n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1241-1243 (9th Cir. 2001), and whether the district court properly interpreted the law. Dickinson v. Zurko, 527 U.S. 150, 152 (1999).

B. The court reviews for abuse of discretion the district court's decision not to remand. Biodiversity Legal Foundation, 309 F.3d at 1176; Sierra Pacific Indus. v. Lyng, 866 F.2d 1099, 1111 (9th Cir. 1989); Greene v. Babbitt, 943 F. Supp. 1278, 1287 (W.D. Wash. 1996); United States v. Washington, 157 F.3d 630, 642 (9th Cir. 1998), cert. denied, 526 U.S. 1060 (1999).

C. The Secretary's determinations do not warrant the highest degree, or any degree, of deference under Chevron USA Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984). Agency interpretations are not entitled to deference unless the statute is ambiguous. M-S-R Public Power Agency v. Bonneville Power Admin., 297 F.3d 833, 841 (9th Cir. 2002). Even when a statute is ambiguous, the degree of deference varies according to the weight Congress intended the interpretation to have. Wilderness Society v. USFWS, 316 F.3d 913, 921 (9th Cir. 2003); M-S-R Public Power Agency, 297 F.3d at 841. That intent is measured by the authority granted to the agency. Ragsdale v. Wolverine Worldwide Inc., 122 S. Ct. 1155, 1163 (2002); United States v. Mead Corp., 533 U.S. 218, 226-227 (2001). An agency interpretation advanced for the first time in litigation receives "almost no deference" or "near indifference." Mead, 533 U.S. at 228; Wilderness Society, 316 F.3d at 921. No deference is due an interpretation which conflicts with the plain language of the law, or an unreasonable interpretation. Public Employees Retirement System v. Betts, 492 U.S. 158, 171 (1989); Arizona Cattle Growers' Ass'n, 273 F.3d at 1237.

VI. Summary of Argument

A. The district court properly rejected Interior's chronological test for determining whether something meets the statutory definition of Native American and properly rejected application of this test to the Kennewick remains. Deference to an agency interpretation is not automatic, and little if any deference is due an interpretation advanced for the first time in litigation, as the chronological test was. This chronological test conflicts with the law. It reads words out of the law, and adds different words into the law. Interior was delegated authority only to "carry out" the law, not to broaden its coverage. Interior's chronological test is not entitled to respect because it was not thoroughly considered, shows no analysis, is based on invalid reasoning, is indiscriminate in its sweep, ignores critical words of the statute, and impermissibly broadens its coverage. It does not represent the considered or consistent views of the agency, and all evidence in the record shows that the chronological test was developed for this controversy, not before. On appeal, Defendants cannot disavow the existence of the rule, its role in the determination, or the legal arguments made by counsel before the district court.

B. The Kennewick remains were determined to be Native American by applying a chronological test; to the extent other evidence was considered, it was used only to support the placement of the remains in time. Defendants did not consider or explain the contrary evidence in the record.

C. This court should not disturb the district court's decision not to remand, which is reviewed for abuse of discretion. The district court made uncontroverted findings of agency bias. Consistent with governing law it concluded that a remand was not appropriate since it could have no confidence that Defendants would decide further issues expeditiously and fairly.

VII. Argument

A. The District Court Properly Rejected Defendants' Chronological Test for Native American Status, and its Application to These Remains.

1. Defendants used a chronological test, and the court properly declined to defer to it.

a. Requirements for Deference. Before deference to an agency interpretation is proper, the "first question is always 'whether Congress has directly spoken to the precise question at issue.'" M-S-R Public Power Agency, 297 F.3d at 841 (citing Chevron, 467 U.S. at 842-43). Only if Congress has not spoken, or has crafted an ambiguous law - and Defendants conceded there is no ambiguity here - will the question of deference arise. "The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron, 467 U.S. at 843 n.9. Chevron deference is limited "to cases in which congressional intent cannot be discerned through the use of the traditional techniques of statutory interpretation." Arizona Cattle Growers' Ass'n, 273 F.3d at 1237.

Ambiguity is not determined by reasoning backwards from the agency interpretation. "[A] court must first ask if the language of a statute is ambiguous." John v. U.S., 247 F.3d 1032, 1041-42 (9th Cir. 2001) (criticizing analysis that began with agency). "Statutory ambiguity cannot be determined by referring to the parties' interpretations of the statute." Id.

Even if a statute is ambiguous, deference is not automatic. Mead articulated the next question: what authority did Congress give the agency? That analysis determines whether the agency interpretation is the kind that Congress intended to carry the force of law. Wilderness Society, 316 F.3d at 921.

The degree of deference to an agency's decision varies according to the weight Congress intended that decision to carry. M-S-R Public Power Agency, 297 F.3d at 841. Deference "lies on a continuum based on the nature of the agency's action" with the greatest deference (Chevron deference) due when Congress has delegated authority "to make rules carrying the force of law," and the interpretation claiming deference "was promulgated in the exercise of that authority." Wilderness Society, 319 F.3d at 921. The Secretary glosses over this step, perhaps because of the remarkable origin of the chronological test, which was devised for this case.

Even if the first two steps are passed, deference is not certain. Approaching the opposite end of the continuum from Chevron deference, "almost no deference" or "near indifference" is due to "an agency interpretation 'advanced for the first time in a litigation brief.'" Mead, 533 U.S. at 228; Wilderness Society, 319 F.3d at 921; Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13 (1988). Anchoring the far end of the continuum is an interpretation which conflicts with the plain language of the law, which receives no deference. Public Employees Retirement System, 492 U.S. at 171.

Defendants consistently avoid discussing whether "Congress has spoken," disregard the scope and nature of their authority, gloss over the remarkable origin of the chronological rule, and now even disavow the rule and what they said in court. All of that matters.

b. Congress has spoken. NAGPRA § 3001(9) defines "Native American" as "of, or relating to, a tribe, people, or culture that is indigenous to the United States." In Chevron terms, that definition means that Congress has already spoken to the question of what constitutes Native American status. Dr. McManamon, who wrote the new chronological rule, acknowledged that the Act's definition is "clear and self-explanatory." DOI 10842; ER 399. He said NAGPRA is not silent on the issue, and that the law and formal regulations "provide all necessary guidance." DOI 10848, ER 405. The Secretary has never retreated from that position. If that is so, deference is not proper here. Rather than making up its own definition, Interior should have applied Congress' definition to these remains.

By requiring a case-by-case determination whether any remains are "of, or relating to" a "tribe, people or culture that is indigenous" Congress made important distinctions that cannot be evaded. See Lechmere Inc. v. N.L.R.B., 502 U.S. 527, 537 (1992) (Congress' use of "employee" in the National Labor Relations Act "in Chevron terms, * * * speaks to the issue of nonemployee access to an employer's property").

Although Congress has spoken here in a "clear and self-explanatory" way even according to Defendants, they still insist upon deference for their interpretations. Because there is no ambiguity, they are not entitled to it; but even if this law permitted interpretation, Mead next requires consideration of what authority Congress gave Interior when it passed NAGPRA.

c. Narrow Grant of Authority. Section 3011 contains only a narrow authorization; Interior is authorized to promulgate regulations "to carry out this chapter." Defendants assume, with no apparent analysis, that this language carries with it the right to make law, and they argue for the kind of deference that is reserved for agency actions which are the result of "express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed." Mead, 533 U.S. at 229. Mead requires more than NAGPRA's words to find Congressional authority to rewrite a statute by deleting words ("that is") and adding other criteria ("resided in," "the area now encompassed").

Because classification as Native American is the irreducible minimum for application of NAGPRA, this is no small question. A reviewing court "must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency." Food and Drug Administration v. Brown & Williamson Tobacco Corporation, 529 U.S. 120, 133 (2000), see also American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965) ("judicial inertia" should not allow agencies to make policy decisions properly belonging to Congress); Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001), (implausible that Congress would give agencies broad policymaking powers through "modest words").

Ragsdale illustrates why Defendants sidestep any analysis of Congress' delegation of authority here. There the Court invalidated a notice-and-comment regulation of the Department of Labor, explaining that Labor had been told only to issue regulations "necessary to carry out" the Family and Medical Leave Act. Labor had decided that the case-by-case analysis required by the Act, i.e., whether an employee would have taken leave in the absence of notice, was too cumbersome. Its regulation codified an easy-to-administer categorical penalty. Because there must be authority "generally to make rules carrying the force of law" as well as an interpretation that "was promulgated in the exercise of that authority," Labor's regulation was improper. See also, Wilderness Society, 316 F.3d at 921, citing Mead, 533 U.S. at 226-27.

Congress often writes narrowly when it chooses and these limits must be respected. Clackamas Gastroenterology Assoc. v. Wells, 123 S. Ct. 1673, 1678 (2003) (decision to limit coverage of statute must be respected). Congress' decision to write narrow grants of authority must also respected. So, Mead concluded that Chevron deference was not due when Treasury was directed to write rules "not inconsistent with the law" and to "disseminate such information as may be necessary." That narrow language did not permit Customs classification rulings to have the force of law. See also, Bowen, 488 U.S. at 210-11 holding that an instruction to "provide for the making of suitable retroactive corrective adjustments" did not permit categorical rules because Congress wanted a case by case analysis. "The structure and language of the statute require the conclusion that the retroactivity provision applies only to case-by-case adjudication, not to rulemaking." 488 U.S. at 209.

When Congress wishes to write broadly it does so in unmistakable language. See Gemsco v. Walling, 324 U.S. 244, 257-58 (1945) (Congress directed Labor to "prevent the circumvention or evasion" of wage orders). In United States v. O'Hagan, 521 U.S. 642, 667 (1997) the Court noted that the Securities Exchange Act of 1934, at 15 U.S.C. §78n(c), authorized the Secretary to "define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative."

NAGPRA did not give Interior broad authority like that. Mead commands that Interior's interpretation be reviewed through the narrower prism of the authority Congress gave it.

d. Interior's Formal Regulations. Because the determination conspicuously avoids discussing the remarkable genesis of the McManamon letter, it would be easy, but wrong, to assume that the interpretation at issue here came from Interior's formal regulations. Since that is not so, a detour is in order to consider the formal regulations.

Interior's notice-and-comment regulations, published in December 1995, 60 FR 62134-01, and corrected in August 1997 while this litigation was pending, 62 FR 41292-02, adopted some of the statute's words, "of, or relating to, a tribe, people, or culture" but where Congress had ended the definition with the phrase "that is indigenous to the United States," Interior deleted "that is" 43 C.F.R. 10.2(d). Defendants argue, Br. at 45, that this was a conscious choice, made to articulate Interior's interpretation of the term. No law or principle, however, gives an agency the right to edit the law under the guise of interpreting it. "[I]t is one thing to give a word limited effect and quite another to give it no effect whatever." Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159, 172 (2001) (invalidating rule). See also, Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114 (2001) (interpretation of Act improper where it failed to give independent effect to Congress' enumeration of categories of workers for then "there would be no need for Congress to use the phrases"); Government of Guam ex rel. Guam Econ. Dev. Auth. v. United States, 179 F.3d 630, 634 (9th Cir. 1999), cert. denied, 529 U.S. 1017 (2000) (improper to "interpret a statute in a way that renders a provision superfluous"); M-S-R Public Power, 297 F.3d at 844 (deference unwarranted when interpretation does not give effect to every clause and word in the law, without rendering any of the language surplusage). Even though Congress "means in a statute what it says there," In re Transcon Lines, 58 F.3d 1432, 1437 (9th Cir. 1995), cert. denied, 516 U.S. 1146 (1996), Defendants deleted words from the law.

The Magistrate Judge did what he was supposed to: he began his analysis with the words that Congress wrote. Siripongs v. Davis, 282 F.3d 755, 758 (9th Cir. 2002). "The starting point in every case involving the construction of a statute is the language itself." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197 (1976), reh. den., 425 U.S. 986 (1976); TVA v. Hill, 437 U.S. 153, 173 (1978); Consumer Products Safety Commission v. GTE Sylvania, 447 U.S. 102, 108 (1980). Because NAGPRA uses the present tense so that the law applies only to remains that are "of, or relating to, a tribe, people, or culture that is indigenous to the United States," 25 U.S.C. §3001(9), Defendants ought to have given at least some consideration to the idea that Congress meant what it said. A construction "which implies that the legislature was ignorant of the meaning of the language it employed" is impermissible. Montclair v. Ramsdell, 107 U.S. 147, 152, (1883). See also South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 510 (1986) (duty to give effect to every word of statute).

It is no answer to suggest that the words "that is" can be ignored because verb tenses might be interchanged "in common parlance." Br. at 31. This law is not "common parlance." Common parlance might not use a "cumbersome phrase," but Congress often does when it wishes to make its meaning clear. Its choice of verb tense cannot be ignored. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-483 (1999) (Congress' use of present indicative verb to define "disability" as an "impairment that substantially limits" requires present impairment); Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115-116 (1983), reh. den., 461 U.S. 911 (1983) (use of tenses is significant and demonstrates Congress distinguished between present status and past event); Barrett v. United States, 423 U.S. 212, 217 (1976) (no unintended misuse of tense is apparent; Congress knew the significance of its language); Scarborough v. United States, 431 U.S. 563, 570 (1977) (tenses chosen with care); Flowers v. Carville et al., 310 F.3d 1118, 1124 (9th Cir. 2002) (defamation claims timely brought in Nevada because statute's use of present tense meant plaintiff only needed to be citizen of Nevada on day complaint filed); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1112 (9th Cir. 2000) (present tense requires that disability exist at time of discrimination); McGray Const. Co. v. Director, Office of Workers Compensation Programs, 181 F.3d 1008, 1015 (9th Cir. 1999) (present tense implies engaged in at time of employment, not engaged in during the past); Donovan v. Southern California Gas Co., 715 F.2d 1405, 1407 (9th Cir. 1983) (discussing use of present tense); In re Pederson, 230 B.R. 158, 160 (9th Cir. BAP 1999) (use of gerund "fixing" refers to a temporal event).

It is not Defendants' right to "improve legislation by altering the basic coverage provisions that Congress has written into the law," Brungart v. Bell South Communications, 231 F.3d 791, 797 (11th Cir. 2000), cert. denied, 532 U.S. 1037 (2001) or to construe a statute in a way that "nullifies textually applicable provisions meant to limit its discretion." Whitman, 531 U.S. at 919. See also Williams v. Babbitt, 115 F.3d 657, 661 (9th Cir. 1997), cert. denied, 523 U.S. 1117 (1998), (rejecting Interior regulations; act does not say "the one thing the agency reads it to say").

Those same concerns animated the Court's decisions in Ragsdale, in Sutton, and in Lechmere, all of which rejected agency action which extended coverage of a law beyond the limits set by Congress.1 A court, and by extrapolation an agency, "must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop." United States v. Article of Drug ... Bacto-Unidisk, 394 U.S. 784, 800 (1969); National Credit Union Administration v. First National Bank and Trust, et. al., 522 U.S. 479, 500 (1998) (invalidating expansion of membership where statute required "common bond"). "[T]he task of improving the basic provisions of statutes [must] be left to the same body that wrote them in the first place." Brungart, 231 F.3d at 797. "It is for the Congress * * * to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes." Circuit City Stores, Inc., 532 U.S. at 120. See also Guerrero v. Stone, 970 F.2d 626, 636 (9th Cir. 1992) (invalidating calendar date restriction limiting military benefits).

The formal regulations deserve comment for what they do - alter Congress' language - as well as for what they do not do. Despite altering Congress' words, there is no evidence the regulations were intended to change the meaning of the definition. They do not hint at a chronological test. That test came from the McManamon letter that first appeared in this case in 1997 to answer the Magistrate Judge's question.

e. Chronological Test. The Secretary denies the existence of a chronological test, but the Magistrate Judge did not make it up.

The 1997 remand included a list of questions one of which asked "what is meant by terms such as 'Native American' and 'indigenous' in the context of NAGPRA and the facts of this case." Bonnichsen, 969 F. Supp. at 651. In December 1997 Dr. McManamon, whose authority was limited to "drafting regulations, providing staff support to the Review Committee, administering grants, and providing technical aid under the Act," 60 FR 62134-01 (preamble to final regulation), wrote a letter to the Corps. He said that for purposes of NAGPRA, "Native American" was to be determined by reference to a chronological cut off, the "historically-documented European exploration" of the lands comprising the United States. ER 399. This was later clarified as Columbus' arrival. DOI 10019; ER 194 ("pre-Columbian").

In language completely ignored by the Secretary in this appeal, Dr. McManamon made it clear that he did not think that the word "indigenous" was a limitation on the scope of "Native American." He thought it "implausible" that Congress intended "indigenous" to exclude immigrants from other areas. He said that NAGPRA applies to all tribes, peoples and cultures that resided in the area that is now the United States before European explorers arrived, and said that the term indigenous "cannot properly be construed as to exclude descendants of immigrant peoples," and that in any event something can be indigenous merely by occupying an area. ER 400.

Defendants now argue in favor of this "implausible" view, and insist that it was Interior's interpretation all along. They say, Br. at 29-30, that Defendants' view of the law comports with the plain meaning and common usage of "indigenous" which in turn requires that something be "born or produced naturally," "native," an "original inhabitant" and "not introduced from the outside." That is precisely the opposite of what Dr. McManamon wrote in 1997. He said that "Native American" included immigrants, so long as they just "occupied" the area now the United States some time before the "historically documented arrival of European explorers," later defined as "pre-Columbian." ER 399-400.

The Magistrate Judge made no error when he observed that swapping "that is indigenous" for "resided" or "occupied" meant that the critical determination of Native American status would be resolved by location (the United States) and age (pre-Columbian), because anything old discovered in the United States by definition "occupied" it.

When Congress defined "Native American" as "of or relating to a tribe, people or culture that is indigenous to the United States" it gave no indication that "that is indigenous" should be stretched to include "that resided" or "that occupied." DOI 10842, 10843; SER 1283-84. It is too late now for Defendants' sixth set of attorneys to change their minds and recharacterize what Defendants said. Moreover, not only did Defendants say something different during this case, so did Defendants' other attorneys. What Defendants and their attorneys said to the district court merits attention here.

At first, the Corps reacted to the vast age of the remains. In 1996, Lt. Col. Curtis, who made the first transfer decision, said that when he received news of the skeleton's age, he "determined" that the remains were subject to NAGPRA. A contemporaneously filed pleading agreed: "Subsequently it was determined that the remains were of an early American man who lived approximately 9,000 years ago. Based on that it was determined that this incident constituted an 'inadvertent discovery' as provided for under NAGPRA." Opposition to Motion, dkt #20 at 8-9; SER 1298-99.

The McManamon letter followed the 1997 remand.

On July 20, 1999 Interior responded to the Colville, who had asked about the use of biological relationships in the Kennewick research. The response was that any biological relationship "is mainly relevant for its chronological implications." DOI 04283; SER 588.

The Magistrate Judge can hardly be criticized for wanting some clarification from Defendants' attorneys, so he did what good judges do: he asked. On September 14, 1999, the Magistrate Judge heard from the parties on Plaintiffs' motion, dkt #208-217. Tim Simmons, Allison Rumsey, and Carla Maddox appeared as Defendants' counsel. Dr. McManamon was personally present in court. That was the time, if ever there was one, to tell the Magistrate Judge that he was reading the McManamon letter incorrectly; but that never happened. Instead, the following occurred. The court asked Ms. Rumsey about setting a deadline to decide whether NAGPRA applied; she said that the decision would be made when the agencies received the new radiocarbon results. September 14, 1999 Tr. at 41-42, dkt #229; SER 1610-11. The court asked whether that delay was necessary, since "as I understand Dr. McManamon's position" that "if the carbon dating shows that the skeleton is 507 years old or older" Interior's position would be that it was "Native American." Ms. Rumsey interrupted him, but the Magistrate Judge wanted to finish his thought first:

"Because unless the initial radiocarbon dating was off by a factor of almost 20, you know, as you stand there, and as Dr. McManamon sits there, that your position is this is a quote, 'Native American.'" September 14, 1999 Tr. at 42; SER 1611.

Ms. Rumsey then spoke for more than 40 lines of transcript, in Dr. McManamon's presence, and never disagreed. She said that Interior needed only to decide if the remains were "old" and related to a culture that existed before the Europeans arrived." September 14, 1999 Tr. at 46, dkt #229; SER 1612. She agreed the definition would include "Europeans who came, left, died out, whatever." September 14, 1999 Tr. at 47, dkt #229; SER 1613.

On January 13, 2000, the Secretary issued a press release to announce the determination that Kennewick Man was Native American. DOI 06044-45; SER 698-99. It explained that "he was here" more than 8,000 years before the arrival of European explorers. It said the shape of the spear and the sediment adhering to the bones provided "additional evidence consistent with the radiocarbon dates" so that "for these reasons, Kennewick Man is to be considered Native American." It was captioned "Kennewick Man Over 9000 Years Old and Native American According to NAGPRA Law." DOI 06044; SER 698. Those comments echoed the formal determination signed two days earlier; that specified that the scientific evidence merely "support[ed] this chronological placement and determination." DOI 10019; ER 194. This document "explains" the conclusion in its "subsequent sections" by describing the radiocarbon results (age) and nothing more. DOI 10019-21; ER 194-96. It concludes with the summary that the radiocarbon dating provided "the chronological information needed to make the determination that the Kennewick skeletal remains are 'Native American' as defined by NAGPRA." DOI 10022; ER 197.

On October 25, 2000 at a status conference, Amy Bevan and Timothy Simmons appeared for Defendants. The Magistrate Judge lifted the stay and summarized the decisions the Secretary had made. He told counsel "I want to reference that ["Native American"] just in the event there is something I've missed here, that somebody could point it out to me today." He spoke of the 2000 determination and described his understanding of "pre-Columbian" as "Christopher Columbus" and therefore "Native American." October 25, 2000 Tr. at 5-7, dkt #307; SER 1648-50. Neither Ms. Bevan nor Mr. Simmons disagreed.

In 2001, Mr. Shuey admitted that Defendants' position was that 600 year old human remains would be conclusively presumed to be Native American in the absence of evidence to the contrary, and that the remains of an extinct group would be Native American as well. June 19, 2001 Tr. 66-68, dkt #456; SER 1831-32.

For all that the Secretary's new attorneys wish to argue that it is unfair to ask questions in court and then rely on the answers, Br. at 48-49, it is always proper for an advocate to tell a judge "I don't know." It is always proper in a case that spans years to correct any earlier misstatement, particularly when the judge is as patient as the Magistrate Judge. Regardless, Defendants have always taken the position in this case that remains are Native American just because they are old. The chronological test increasingly sharpened as this case progressed, from the general sense that anything 9,000 years old is Native American, to the 1997 written "views" that selected the arrival of European explorers, to the 2000 specification of "pre-Columbian."

Appellate counsel's new insistence that there is no chronological test is in direct conflict with the record.2

f. The McManamon Letter. Dr. McManamon's letter was an interpretation of the law and not entitled to deference. The Magistrate Judge was legitimately concerned about the informal nature of this pronouncement, and how a rule of such substance was made with no apparent input from any source other than the author and the Solicitor.

There is a reason why substantive rules are overwhelmingly made through a formal process which invites the views of affected persons: formality fosters deliberation and the fair consideration of alternatives and diverse views, and all that is appropriate for something destined to have the force of law. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764-66 (1969) (agencies may not circumvent the rulemaking requirements of the APA); Christensen v. Harris County, 529 U.S. 576, 587-88 (2000) (a change in law may not be made by informal letter-writing); Ober v. EPA (Ober I), 84 F.3d 304, 315 (9th Cir. 1996) (opportunity for comment particularly critical where accuracy of information is in question). Congress created a regulatory process that requires agencies to learn from the experience and input of the public and to maintain a flexible and open-minded attitude towards their own rules. Chocolate Manufacturers Association v. Block, 755 F.2d 1098, 1103 (4th Cir. 1985). None of that is apparent here, where at most a few people collaborated on a letter that was intended to assist in litigation.

Gifted scientists like Plaintiffs, who have spent their lives studying and teaching about their scientific disciplines, could have contributed a lot to the discussion about Native American status and what it means to be indigenous as well as "of or related to a tribe, people or culture that is indigenous to the United States." Dr. McManamon never sought their views when he decided that the agency could bypass the analytical task Congress assigned ("of, or relating to" a "tribe, people, or culture" "that is indigenous") and instead apply a categorical rule that age alone determines Native American status. Congress would hardly have provided the express instruction to issue notice-and-comment regulations "to carry out" NAGPRA if it intended that its language could be edited in a letter of this nature. This is "an agency interpretation advanced for the first time in a litigation brief" and is entitled to nothing more than "near indifference." Mead, 533 U.S. at 228. Bowen, 488 U.S. at 212-13.

These events illustrate nicely why litigation briefs merit so little consideration. Dr. McManamon's letter was a new idea for Interior in 1997. Appellate counsel now disavow it in favor of staking out a different position. It was the McManamon letter, however, that Defendants applied in this case, not counsel's post hoc legal arguments, and it is the validity of Defendants' determination that is at issue, not how appellate counsel characterize it now.

Whether Native American should be defined by the voyages of Columbus, whether the term should broadly embrace a mere "occupant" when the statute requires "indigenous," are issues which should have been debated, opened to public comment, and approached thoughtfully outside of the context of litigation assuming, of course, that Congress left it open for the agency to do so. San Diego Air Sports Center, Inc. v. FAA, 887 F.2d 966, 969-70 (9th Cir. 1989) (exception to formal rulemaking to be narrowly construed and reluctantly countenanced.)

When an agency promulgates regulations (other than interpretive or internal rules), prior notice and comment is generally a requirement that cannot be freely ignored. Flagstaff Medical Center, Inc. v. Sullivan, 962 F.2d 879, 885-86 (9th Cir. 1992). Substantive rules are "of general, rather than situational, application." Interpretive rules are "essentially hortatory and instructional" and relate to "particular, narrowly defined, situations" and use for "discretionary fine-tuning" rather than making "general law."

This was substantive, but done informally. An informal agency action can be respected only if appropriate. Any weight to be given depends on "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking the power to control." General Electric Co. v. Gilbert, 429 U.S. 125, 142 (1976) reh. den., 429 U.S. 1079 (1977). See also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Reno v. Koray, 515 U.S. 50, 61 (1995). These factors are, moreover, subject to the rule that the judiciary is the final authority on issues of statutory construction, and is ultimately responsible for considering Congressional intent. Arizona Cattle Growers' Ass'n, 273 F.3d at 1237 (court may not defer unless the agency's interpretation is permissible or reasonable, and consistent with underlying congressional policy).

This chronological occupancy test does not merit any respect. It lacks thorough consideration, is ill-reasoned, shows no consistency with prior pronouncements including the preamble to the formal regulations, ignores Congress' language, adds words that Congress never wrote, and ignores expressions of Congressional intent.

There is no "thoroughness evident" in this rule. The record is bare on what analysis preceded it nor is there any analysis in the letter. League of Wilderness Defenders, 309 F.3d at 1188-89 (rejecting two Forest Service letters as having "very little power to persuade" because they "provide no analysis"). Changes in agency interpretation (and this test is a change from the formal regulation) must be supported by "a reasoned analysis" over and above that required for an interpretation in the first instance, and reversals of prior policy or interpretation merit even less deference than ordinarily extended. Flagstaff Medical Center, Inc., v. Sullivan, 962 F.2d at 886.

It is not persuasive because it is in opposition to Congress' law. "A regulation which operates to create a rule out of harmony with the statute is a mere nullity." Pacific Gas and Elec. Co. v. United States, 664 F.2d 1133, 1136 (9th Cir. 1981). It is "out of harmony" with NAGPRA because it ignores words ("relating to" and "that is indigenous") that impose a relationship test and an analytical imperative. It treats all pre-Columbian remains and objects as Native American regardless of whether they or their makers "were or were not culturally affiliated or biologically related to present-day Indian tribes." ER 399. It leaves no room for the agency to do its factfinding job, which the statute says is to look for relationships, and for indigenous tribes, peoples or cultures. It adds words that Congress never wrote: "resided in" and "occupied." State of California Department of Social Services v. Thompson, 321 F.3d 835, 849 (9th Cir. 2003) (Secretary's reading wrong because it required "addition of absent verbiage" when not needed, suggesting that "the extra phrase is not what Congress intended").

There was no record of consistent application of this interpretation pre-dating this case and the McManamon letter. Defendants said that the McManamon letter "simply sought to inform the Court of its longstanding interpretation of statutory and regulatory terms" (Memorandum at 9, dkt #439). As evidence, Defendants cited references at DOI 10018, 10842; COE 10, 30; SER 8, 18, 1142, 1283; all of these were inapposite because they were either to Dr. McManamon's letter, the determinations in this case, or articles or submissions postdating Dr. McManamon's letter. Appellate counsel do the same thing. They claim this is a consistent view, but cite only to this case, Br. at 7. They also argue, wrongly, that it was the Magistrate Judge's job to look for inconsistency, not their job to provide him with evidence of consistency. It is not the court's burden to sift through a 22,000 page record to find factual evidence in support of a party's position. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996); Huey v. UPS, Inc., 165 F.3d 1084, 1085 (7th Cir. 1999) (not the court's job to "paw over the files without assistance from the parties.").

Moreover, there were glaring inconsistencies to confound the court. When Dr. McManamon wrote his letter, Interior's formal regulation said nothing about a chronological test. The formal regulations were only two years old and had been amended a few months before, yet they do not advert to European explorers or "occupancy." The 1995 preamble to the formal regulations even warned of the law's limited applicability:

"One commenter recommended expanding the definition to include all human remains, not just those of Native Americans. The Act is designed specifically to address the disposition or repatriation of Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony and not to cover all human remains." 60 FR 62134-01.

Ms. Zane, who appeared as the first government attorney, a few months before the letter, did not seem to know there was any "longstanding interpretation." June 2, 1997 Tr. at 12-13, dkt #120; SER 1470-71.

Despite this record, Defendants asked the district court to extend the fullest measure of deference to a most informal action that radically alters an express statutory provision. The court properly declined.

g. Other Statutory Provisions. Even though Defendants are no longer certain about their own position, they are certain that they disagree with the Magistrate Judge, whom they criticize for looking to the rest of the statute to evaluate whether they were reasonable.

Since Defendants ignored Congress' express requirements (i.e. verb tense, "relating to" and the need to find something "that is" indigenous) the criticism of the court's analysis of Congress' other provisions is not surprising but ultimately unavailing. The Magistrate Judge properly took note of Congress' requirement that sacred objects must be needed by present day adherents as evidence that Congress wrote this law to match the past with the present. That is not the wrong inference to make as Defendants argue. When they acknowledge that Congress can write a time requirement into the law when it decides to, they entirely ignore the fact that Congress did precisely that in the Native American definition by using "that is."

Another demonstration of the invalidity of the Secretary's chronological test is Congress' use of a specific date to define "Native Hawaiian"-something it declined to do in defining Native American. 25 U.S.C. §3001(10). Defendants ignore this parallel and argue that it is inconsistent to require proof of a relationship in determining Native American status because cultural affiliation also requires proof of a relationship.3 Doing so is not an impermissible commingling of the two tests which look for different kinds of relationships; that merely reflects Congress' own design. Once NAGPRA applies, as it does when Native American status is identified, remains and other cultural items become subject to a unique disposition scheme that does not otherwise apply. Once something is classified as Native American, it is subject to disposition and may be lost to study. It makes sense to believe that Congress would have chosen different words if it wanted to close parts of prehistory to study by scholars, as Interior's age test would. Consequence of such magnitudes are the sort of "elephant" Congress does not hide "in a mouse hole." Whitman, 531 U.S. at 468 (2001).

Comparison with the companion definition of "Native Hawaiian" also points to Congress' intent to require a relationship to a present day culture. When Congress defined "Native Hawaiian" it made reference to "any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii" (emphasis supplied). Use of the latter phrase demonstrates with clarity that when Congress wanted to impose a chronological test in this law it used a date, and a territorial reference consistent with that date. Native Hawaiian uses 1778 and a reference to the lands as they were then, before statehood. In contrast, when Congress defined "Native American" it did not use that same formula. It did not refer to "the area that now constitutes the United States" but instead required that the tribe, people or culture be "indigenous to the United States," a territorial description that is modern, and consistent with the law's use of the present tense. These words add further support to the Magistrate Judge's reading of the law. Significantly the McManamon letter, which is so much at issue in this case, openly swaps the "Native Hawaiian" formula into "Native American." He says something is Native American if it resided within "the area now encompassed by the United States," further differentiating and distancing his "views" from the law that Congress wrote. Not only does he ignore Congress' requirement of relationship to something that is indigenous, he also ignores the way Congress used the territorial description, and he does so with no analysis. If Congress wanted to refer to "the area now encompassed" by the United States it would have done so.

The "mere promulgation of a regulation, without a concomitant exegesis of the statutory authority for doing so, obviously lacks "power to persuade" as to the existence of such authority." Adamo Wrecking Co. v. U.S., 434 U.S. 275, 289 (1978) (invalidating standard when not accompanied by explanation of validity of reasoning in light of statutory requirements). Dr. McManamon had no statutory or regulatory right to re-define one term by borrowing the definition for another. When Congress includes particular language in one section of a law but omits it in another "it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." State of Hawaii v. FEMA, 294 F.3d 1152, 1160 (9th Cir. 2002). So, "Native American" uses present tense and a modern territorial description. "Native Hawaiian" uses a date and an historical territorial description. Like "sacred objects," these choices reflect an intent to match the past with the present.

This court may easily disregard Defendants' argument that the Magistrate Judge improperly relied upon a dictionary definition of "Native American" instead of the statutory definition; he never said that. Compare, for example, Defendants' footnote 15 (arguing that equating "Native American" with "American Indian" cannot be reconciled with the statute's inclusion of Native Hawaiians, as if the Magistrate Judge neglected that part of the law) with Opinion at 28 commenting that "it is obvious" that "Congress intended to include Alaska Natives and Native Hawaiians within the definition." In further contrast, the Magistrate Judge never attempted to replace the statutory definition with a dictionary definition. He merely compared them, writing, that "the literal statutory definition of Native American, as applied to the continental United States, is also consistent with the common usage of the term [American Indian]."

Similarly, while Congress might not have wanted to burden museums unduly, that too offers no reason to challenge the Magistrate Judge's analysis for it is based on the theory, unsupported in the opinion, that the Magistrate Judge thought a full cultural affiliation analysis had to be performed to determine "Native American" status. The opinion, however, says that the type of relationship required to establish Native American status "is less than that required to meet the definition of 'cultural affiliation.' Opinion at 30. Defendants' citation to a Senate Report merely remarks that museums are not required to make a "conclusive" determination of cultural affiliation. It does not comment on what a museum might be obligated to do to identify whether remains are Native American. Defendants cannot base their argument upon challenges to statements the Magistrate Judge never made.

2. The Magistrate Judge properly set aside the application of the chronological test to the Kennewick Remains.

First there was a statute. Then there was a formal regulation. Then there was the chronological test in the McManamon letter, then the refinement of "pre-Columbian," then the application of the refined test to the Kennewick remains. The Magistrate Judge was properly concerned about the way that the test was applied to the facts in this case, because as he predicted a few months earlier, it was foreordained that Interior would classify the Kennewick remains as Native American by virtue of their age, and nothing more was needed except confirmation of the radiocarbon test results. He was correct.

Post-hoc rationale supplied by counsel are not a proper substitute for the agency's reasoning. NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 715 fn. 1 (2001); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). Defendants' counsel violate this principle by claiming that the Native American determination was based not just chronological age but on multiple scientific studies, i.e., the skeletal evidence, age at date of injury, the healing of minor disabilities, the likelihood that the spear point caused others to care for him for a time, the lack of bone infection, the possibility of intentional burial, the severity of the hip injury, the likely marine diet, and the possible association of Cascade points with deposits of ash. While evidence like this may appear within the larger administrative record, Defendants never relied on any of it to classify the Kennewick remains as Native American. These latest claims differ from the position Defendants' attorneys took before the district court, when they focused on age. Memorandum at 7-8, dkt #439; SER 1737-38. The question here is what the Secretary did and how he justified his determination, not how the attorneys would like to explain it on appeal.

The January 11, 2000 determination, DOI 10018; ER 193 et seq. cites age as the basis for the decision; the September 21, 2000 determination recites that "the Native American determination was based on chronological information supplied by the radiocarbon analysis of bone samples and previously conducted scientific examinations." DOI 10012; ER 187. To the extent there was other information, it was used only to "support this chronological placement and determination." DOI 10019; ER 194. The sediment analysis "suggests a pre-Columbian context," and the lithic artifact "is consistent with an ancient date." DOI 10019; ER 194. The dates for the Kennewick bone samples "indicate strongly that the remains definitely are pre-Columbian, and therefore 'Native American' as defined by NAGPRA." DOI 10021; ER 196. Radiocarbon testing supplied "the chronological information needed to make the determination that the Kennewick skeletal remains are 'Native American.'" DOI 10022; ER 197.

Most of the list of scientific information cited in the appellate brief does not appear in the determination, except to the extent some of it supports the "chronological information." DOI 10022; ER 197. The references to the Powell and Rose report (cited in the brief) is that it "suggests a pre-Columbian context for the remains," and that the bones are of one person. DOI 10019, 10021; ER 194, 196.

If, as is now argued on appeal, the Secretary was merely applying the collected facts to the statutory definition, one would have expected at least some identification of the "tribes, peoples or cultures" that the remains "related to" and some discussion of how those "tribes, peoples or cultures" are indigenous, or at least resided within or occupied the area now encompassed by the United States. The determination, however, does not reference a tribe, a people, a culture. It does not mention the word "indigenous" let alone analyze it. It does, however, provide a detailed explanation of the chronological age of the remains and all the chronological evidence that was gathered. The determination even recites that it is reasonably based upon "such information now on hand" which is "explained in subsequent sections," all of which relate to age. DOI 10019; ER 194.

There is more at fault with this determination, particularly if it is thought to be an application of evidence to the agency's test. This was supposed to be a response to the June 1997 order to 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 predetermined hypothesis." Bonnichsen, 969 F. Supp. at 652 n.26. It was also supposed to be a determination mindful of the obligation to rely only on factors Congress intended, to consider all aspects of a problem, and to articulate and support a decision with evidence and plausible logic. Bonnichsen, 969 F. Supp. at 645; Inland Empire Public Lands Council v. Glickman, 88 F.3d 697, 701 (9th Cir. 1996).

An agency decision cannot be supported if the decisionmakers refuse to consider alternatives, objections and evidence offered by an opposing party. National Wildlife Fed'n v. FERC, 801 F.2d 1505, 1512 (9th Cir. 1996). When contradictory information or evidence exists, the agency must give real, not feigned, consideration to that information. Asarco v. EPA, 616 F.2d 1153, 1162 (9th Cir. 1980). A court "cannot adequately discharge its duty to engage in a substantial inquiry if it is required to take the agency's word that it considered all relevant matters." Asarco, Inc., 616 F.2d at 1160.

It is particularly important that the agency evaluate all contrary evidence, for "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Burlington Truck Lines, 371 U.S. at 168. See also Beno v. Shalala, 30 F.3d 1057, 1074-5 (9th Cir. 1994) ("stating that a factor was considered is not a substitute for considering it."). Because "conclusory administrative determinations may conceal arbitrariness," courts must look for reasoned evaluations." Jordan v. Califano, 582 F.2d 1333, 1335-36 (4th Cir. 1978).

By January 2000, there was ample contradictory evidence in the record. None of it was mentioned in the Native American determination. Plaintiffs had submitted affidavits, articles and letters. COE 9116-9265b; DOI 02142-46, 04405-06, 01580-81, 8038-39, 02173-02219; SER 326-40, 459-60, 469-520, 595-96, 836-37. Interior's own experts had begun their investigations of the issues, and the agency would have had access to the data that would appear in the final reports. All of this information should have been considered. It is undisputed that very little is known about the pre-history of the Pacific Northwest 9,000 years ago. Archeological sites that old are rare, and none is from the immediate area of Kennewick, Washington. DOI 10053, 10056, 10134, 10172; SER 1151, 1154, 1194, 1200. Skeletal remains of this age are rare. DOI 10336-37, 10355; SER 1218-20. Kennewick Man's language and culture are unknown. DOI 08996; SER 885. His language, if there was one, would be unrecognizable today. DOI 08992-93; SER 881-82. His culture would have been unlike anything that existed 9,000 years later. DOI 09002; SER 891.

Human colonization of the Americans involved multiple groups of immigrants who differed from one another biologically and culturally. Jantz, dkt #57; COE 6565-70; SER 226-31, 1377-82. How each group relates, if at all, to modern American Indians is unknown. Id.; Stanford, dkt #63, SER 1422-31. The dissimilarities between Kennewick Man's cranial measurements and characteristics and those of later populations are great enough to indicate appreciable biological and genetic difference. DOI 10691; Steele, dkt #51; SER 1267, 1351-57. It is unlikely that Kennewick Man has any living descendents. DOI 07834; Bonnichsen dkt #219; DOI 08977; COE 5944; SER 196, 833, 866. Extinction of Kennewick Man's group could not be ruled out. DOI 10326; COE 6565-70; Stanford, dkt #63; SER 226-31, 1215, 1422-30. If Kennewick Man or his group do have living descendents, they may not be American Indians, but instead could live elsewhere in the Americas. Chatters, dkt #62; Stanford, dkt #63; DOI 09000; SER 889, 1405-1410, 1422-30. Past human migrations over continental destinations are well documented. DOI 08993; DOI 09000-01; SER 882, 889-90.

If Kennewick Man or his group have any living descendents, their actual biological connection to such descendants would be "infinitesimally small." DOI 03162; SER 543. There is no proof that Kennewick Man even resided in the United States. He could have spent most of his life in Canada since ancient hunter-gatherers were very mobile. Bonnichsen, dkt #219; DOI 09000; DOI 10136; SER 889, 1196.

Determining Native American status by age alone made a critical difference. Had Defendants applied Congress' test instead of their own age test, they could not have reached the conclusion they did. Defendants knew from the start that it would be virtually impossible to show that the Kennewick Man is related to any modern day tribe, people or culture. The preamble to the 1995 formal regulations makes this observation about even much younger remains: "It is highly unlikely that the identity of an individual that lived 1,000 years ago is known, or that it is possible to trace descent directly and without interruption from that known individual to a living individual." 60 FR 62134-01.

These remains are not known to be related to anyone. His language, customs, social relationships, and religious beliefs are all a mystery. DOI 08992, 08996; SER 881, 885. No one knows how he was wounded or where he spent his life. The Secretary refused to consider any of that information, or even attempt to explain why he thought it was unimportant. That violated the bedrock principle that an agency must consider all the evidence and clearly explain how its decision was reached. Illinois Public Telecommunications Ass'n v. F.C.C., 117 F.3d 555, 564 (D.C. Cir. 1997), on reh., 123 F.3d 693 (1997), cert. denied, 523 U.S. 1046 (1998) ("The FCC's ipse dixit conclusion, coupled with its failure to respond to contrary arguments resting on solid data, epitomizes arbitrary and capricious decisionmaking"); Universal Camera Corp., 340 U.S. at 488 (agency "must take into account whatever in the record fairly detracts from its weight"); City of Gillette v. FERC, 737 F.2d 883, 886-87 (10th Cir. 1984) (order failed to explain why agency rejected party's arguments); Louisiana-Pacific Corp., Western Div. v. N.L.R.B., 52 F.3d 255, 260 (9th Cir. 1995) (not court's role "to supply a theory that the Board was unable to articulate.")4

Nothing in the determination of Native American status or Defendants' confirmation if it even hints that this contrary evidence exists. Defendants provided no analysis, nor did they explain how they resolved the apparent and obvious discrepancies. To the Secretary, they were apparently non-existent. In sum, if - as is apparent from the Native American determination - the Secretary relied only on chronological age, that was wrong and contrary to the mandates of Congress. If, as his appellate lawyers now suggest, he reached this decision by applying some of the evidence in the record, it is still wrong because he failed to follow even the most rudimentary requirements of administrative procedure. He did not look at all the evidence and he did not articulate how the evidence related to the conclusions reached.

B. This Court Should Not Interfere with the District Court's Decision Not to Remand.

The Secretary does not appeal the district court's conclusion that Defendants' treatment of Plaintiffs throughout this dispute failed to comply with any standard of fairness. That conclusion contributed directly to the district court's decision not to remand this controversy again to give the agencies a third try. Defendants now ask this Court to skip a step, ignore the district court, overlook the findings of bias, and remand directly to the agencies again.

The court's decision not to remand was relief specifically tailored to this controversy and as such is reviewed for abuse of discretion. Sierra Pacific Indus., 866 F.2d at 1111. Abuse of discretion requires a finding that the decision was based on an error of law or clearly erroneous factual finding. United States v. Washington, 157 F.3d at 642. This remedy was not based on a clearly erroneous fact finding. Indeed, since Defendants do not appeal the underlying findings, they are foreclosed from that argument.

Nor was the decision based on an error of law. The Magistrate Judge was aware that remand is the norm, but no law compels remand where "the agency was consistently biased" and "acted with obvious disregard for even the appearance of neutrality" and where it "predetermined the outcome of critical decisions" and where there was no basis to believe a new remand would result in fair treatment or a fair evaluation. "[I]n an appropriate case, we may order the substantive relief sought, even if doing so supplants the decision of the agency." Guerrero, 970 F.2d at 636. See also Alvarado Community Hosp. v. Shalala, 155 F.3d 1115, 1125 (9th Cir. 1998), amd, 166 F.3d 950 (9th Cir. 1999) (ordering relief in lieu of remand because of duration of controversy and concern to avoid "further recondite litigation"); and see Gete v. INS, 121 F.3d 1285, 1292 (9th Cir. 1997) (courts must "be equally reluctant to license 'free-wheeling' agencies [to mete] out their own brand of justice"). "[W]hen agency delays or violations of procedural requirements are so extreme that the court has no confidence in the agency's ability to decide the matter expeditiously and fairly, it is not obligated to remand." Greene, 943 F. Supp. at 1288.

VIII. Conclusion

Defendants looked at a law they characterized as clear, self explanatory and unambiguous, and they expanded it well beyond Congress' discernable intent. NAGPRA does not apply to these remains unless they are first "Native American." They could not be Native American under Congress' definition because they were not shown to be "of or related to" a "tribe, people or culture" "that is indigenous" to "the United States." Each of those phrases appears in the statute.

More than a year after this litigation began, an Interior employee wrote a letter to the Corps to express "views" to answer a question the Magistrate Judge asked. In those views, he insisted the law was unambiguous and contained everything needed to settle the controversy. In spite of these concessions, he expanded the law with the stroke of a non-Congressional pen by writing that a Native American is anyone who resided in the area now encompassed by the United States prior to the historically documented arrival of European explorers, regardless of any relationship to present-day Indian tribes. And in spite of Congress' inclusion of the words "that is indigenous" in its definition, he wrote those words out of the law, in favor of looking to something that was "resident" in the lands that would eventually become the United States. He thought that "indigenous" should be so broadly inclusive that it would encompass mere occupation. The Secretary agreed.

There is no suggestion this was Congress' intent, and there is every suggestion it was not. This letter opinion in the midst of litigation does not warrant either deference or respect. It expands NAGPRA to cover any discovery of any human habitation, including Vikings, who were known to reside on this continent well before 1492.

The application of the new chronological definition to the Kennewick remains was improper and was not done in accordance with the long-established requirements of administrative decisionmaking. Contrary evidence was not considered and not explained.

The district court properly set aside this unusual and insupportable decisionmaking. As a result of remarkable violations of fundamental notions of fair treatment the Magistrate Judge concluded another remand would not serve the interests of justice. This Court should affirm.

DATED this day of May, 2003.


Paula A. Barran, OSB No. 80397
Telephone: (503) 228-0500


Alan L. Schneider, OSB No. 68147
Telephone: (503) 274-8444

Attorneys for Plaintiffs

1 Despite this wealth of authority from both the Supreme Court and this Court, Defendants cite only to the inapposite case of Costello v. INS, 376 U.S. 120, 125 (1964), in which the tense was not alone dispositive because it did not help construe the phrase "any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * at any time after entry is convicted of two crimes involving moral turpitude" as applied to naturalized citizen who was later denaturalized. back

2 This is not the only time Defendants' statements have proven unreliable. The brief represents that some of the individual Plaintiffs participated on the government's study team, Br. at 17 fn. 10. That is false. They suggest that the discovery site was investigated, without ever mentioning the destruction of the site or how limited the 1997 survey was. The Magistrate Judge was confronted with more of the same. Ms. Zane told him, erroneously, in 1997 that a DNA report was being prepared. October 23, 1996 Tr. at 29, dkt #120; SER 1472, dkt #110; SER 1455-59. The Corps initially insisted that there was a final ICC judgment declaring the site to be aboriginal, but later conceded that was false; subsequently the non-existent final ICC judgment because part of the Secretary's final determination. The Magistrate Judge also criticized counsel at least once for trying to distance themselves from the positions taken by their government clients. ER 45. back

3 This criticism widely misses the mark. The Magistrate Judge properly identified that Congress had written into the "Native American" definition an express obligation to identify a relationship ("by using the phrase of or relating to"). The Secretary ignores those words. back

4 Also see 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). back

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