Friends of America's Past

The Kennewick Man Case | Court Documents | Briefs

September 10, 2003 Oral Arguments

As a service, we offer this unofficial transcript of the audio tape we received from the Circuit Court of Appeals for the Ninth Circuit of the oral arguments in Portland, Oregon. A three-judge panel heard arguments from attorneys representing the Department of Justice, the Joint Tribal Coalition, and Scientists. To obtain an audio tape of the hearing, write to this address.

Judge Graber's introductory remarks were not included on the tape. The tape begins with the DOJ attorney, Ms. Durkee, introducing herself to the court:

DOJ Ms. Durkee: ... from the United States Department of Justice. I represent the Federal defendants. Counsel for the tribes and I plan to equally divide 16 minutes of appellants' time and attempt to save 4 minutes for rebuttal. I will address the interpretation of Native America of the Native American Graves Protection and Repatriation Act. And the tribes' counsel will focus on other issues raised by the tribal claimants...

Judge Gould: Well, do I understand it that the United States appeals the holding about what is a Native American or who is a Native American, what are Native American remains, but the United States does not appeal the cultural affiliation meaning?

DOJ Ms. Durkee: That is correct. We appealed on the issue and not...

Judge Gould: So, does the United States takes no position on that? As I understood your brief you were saying you didn't appeal that part but you had us to say these are Native American remains and therefore section 3(b) would be applicable in some committee process with the Secretary of the Interior to later determine what to do. But, did I misread that?

DOJ Ms. Durkee: What - what we're saying, if the court finds they are Native American, but not culturally affiliated - then that would be the process that you would look at -

Judge Gould: I understand, but what I am trying to understand is does the United States of America take a position on whether the evidence in this record shows sufficient cultural affiliation to give custody of the remains to the affiliated tribes.

DOJ Ms. Durkee: It's essentially, I think, we take no position on that. We were willing to acquiesce in the district court's decision taking into account the kind of factors we've taken into account in whether to appeal particular issues. At the same time, if this court concludes that and upholds that part of the Secretary's decision and therefore agrees with the tribes in this case we will certainly acquiesce in this court's decision.

Judge Gould: Okay.

DOJ Ms. Durkee: The focal point of this case is what federal law governs the handling and disposition of the approximately 9,000 year-old human skeletal remains that eroded out of an embankment and then were found widely scattered in submerged federal land. The lower court set aside the Secretary of the Interior's determination that the remains are Native American within the meaning of NAGPRA. In so holding the Magistrate Judge misconstrued the statute. Read in context of the statute as a whole, the definition of Native American does not, as the Magistrate Judge held, require a demonstrable evidence that the remains have a cultural relationship to presently existing Indians in order to be treated as a Native American under the statute.

Judge Graber: Counsel how far does your argument go - and I want to give you a hypothetical - it will help me understand where you draw the line. Let's assume that remains were found on what is now the United States that are the oldest possible remains, like the kind that have been found in Africa. And, it's clear that these remains really are Adam and Eve essentially, that they are the source of all of us, they are so old. Would those remains count as Native American under the definition promulgated by the Secretary and if not, where is the line drawn in your view?

DOJ Ms. Durkee: Okay, taking a stab at your hypothetical that we could determine conclusively these are, you know, the origin of all humanity, then yes they would be Native American, because certainly they would be indigenous to the United States. I think that they -

Judge Aldisert: And what is the answer to Judge Graber's question?

DOJ Ms. Durkee: Yes, I'm sorry. The answer is yes they would be considered Native American.

Judge Gould: Okay, if we have remains that were 150,000 years old, if the earliest Homo sapiens goes back that far, and if they are found any where in the continental United States then the United States' position is those are Native American remains. Is that correct?

DOJ Ms. Durkee: (pause)..I'd....(pause)... I..

Judge Gould: Yes or no. Is that correct?

DOJ Ms. Durkee: It would depend on the contextual - all the contextual information - and you've only given me the information as to the age. And I would like to clarify that what Interior's approach to this is and what was done in this case. Interior's appro - the Magistrate Judge and the appellees.....

Judge Aldisert: Before you proceed with that, I understand you answered yes to Judge Graber's question and no to Judge Gould's question. And all that was different was that one was from the beginning of time and one was for 150,000 years. I didn't follow you.

DOJ Ms. Durkee: I thought that the distinction being made here was that in Judge Graber's hypothetical if it's the origin of all people, then you don't have a question of migration or visitation, which is what I thought one of the concerns the Magistrate Judge was that in terms of his focus on indigenous that sometimes - you know - are we going to count early migration of people as indigenous to the United States - and Interior's position is yes. In Judge Gould's example, I guess I wasn't seeing - it wasn't clear to me just from the age alone whether there was any question about the context that suggests that perhaps this was no.

Judge Graber: Excuse me one second. There's a rather distracting noise and I don't know what it is, but if it can be made quieter voluntarily that would be helpful. I won't count this against your time. Is it the recording device that's doing that?

Clerk: (inaudible reply)

Judge Graber: I'm sorry, it's just hard for me to process all the different sounds at the same time.

Judge Gould: I guess my question - I'm not assuming that one could look at human remains anywhere in the world and say they are Adam and Eve or the original progenitor of the species. That's more a metaphysical question that's outside my pay scale. But assuming that, and this may not be a correct assumption, but assuming that our species didn't simultaneously spring up in every continent in the world then there's probably some migration at some point had hominids or Homo sapiens that get to a place. My question was aimed at is there any limit on time or any limit on time in relationship to current tribes that the government recognizes that relates to what's Native American. I realize that the definition from the Secretary said if you go back to something before European, before documented visits by Europeans to the continent, the people who lived here are Native American. And my question is, is there any limit to that. Would that go back 150,000 years, if people lived here 150,000 years ago.

DOJ Ms. Durkee: Yes, it would cover that.

Judge Gould: Presumably you wouldn't have any other information -

DOJ Ms. Durkee: right

Judge Gould: - that would be discernible about migration.

DOJ Ms. Durkee: I guess I would also like to make another distinction between the hypotheticals as I understood them and in the Adam and Eve hypothetical I understood that we were all biologically then related to this origin, and that might be a factor but let me return to what...I just want to...

Judge Gould: In my hypothetical there might be no biological relationship and probably isn't any discernible biological relationship.

DOJ Ms. Durkee: I'd like to just clarify what Interior approach is, because I think it's relevant to what we are talking about here. What Interior does, it primarily relies on chronological age. However, it looks at all the information that it can in the context and makes a reasoned determination based on all the information available to it. It is reasonable to presume that when remains are found buried in the United States, relate to an indigenous culture if they precede European exploration. But in this case and, you know, in the context in which you are talking about, it's not the only thing Interior looked at and it's not the only thing they are suggesting that be looked at. You look at the entire context. And here, with these remains the contextual clues were fairly limited because the remains were disassociated from where they had been buried, and there were no artifacts to go with them that there sometimes are to give you clues.

Judge Gould: Isn't that partly a problem caused by the Federal Government, the Army Corps of Engineers or whatever, sweeping rocks into the discovery site so there couldn't be other review?

DOJ Ms. Durkee: Oh no, your honor. What happened here is that these remains were in an embankment and the reason that it, when it eroded away, and then they were scattered in the Columbia River. So when they were found by the initial spectator they were not where they had initially been buried. They were and you know as they collected them in this widely dispersed area they found most of the total skeleton. But the place where they were found is not, would not say the burial was, not where they believe it was actually buried, that area is eroded away. And in terms of what the Corps did here, what they were trying to do - was there's an eroded area that swept into the river there and then there's a terrace that goes up from the bank and there's an undisturbed terrace area. What they were trying to do was to armor that so that erosion didn't continue inward from that. And so they were actually trying to protect the area.

Judge Gould: I understand they had reasons for what they were doing. But the result of what they did may make it for good reason difficult to get all potential information available that might bare on the remains.

DOJ Ms. Durkee: Again to the contrary, your honor, I think a great deal of examination was done at the area of that area before any kind of armoring was done and these artifacts or whatever were not found. And given the erosion it was in the view - it isn't really part of the case, but in terms of that particular legal issue I think it's important to say

Judge Gould: okay

DOJ Ms. Durkee: ...that the State Historic Preservation Act Officer had signed off on it, the Advisory...

Judge Gould: I understand

DOJ Ms. Durkee: ... Council had signed off on it...

Judge Gould: I guess I'm still interested in the government's precise position on the Interior's regulation and what it means. Because, literally, it would seem that no time limit that is, which might be a correct position or not, that's one of the things I'm trying to assess. But, am I correct that under the Interior's regulation if some early Homo sapiens lived in North America any distance in time from the present, that you would view those as Native American remains. They're not like a traveller from Europe who's visiting on a vacation, but they lived for hundreds of years somewhere in North America but they are not necessarily biologically related and certainly not culturally related to anything under a thousand years later. Is it the government's position that Congress intended those types of remains, which might be like what Judge Graber's referring to in Africa that have been found - for those types of remains to be viewed as Native American remains and therefore subject to section 3(b) procedure I guess, if there is no cultural affiliation.

DOJ Ms. Durkee: To answer your question, there is no time cut-off that Interior has in terms of how far back we could go to be Native American.

Judge Gould: Do you think Congress had..when Congress passed the statute to protect Native American graves and to repatriate things taken from them, do you think Congress would have had any limit at all in mind in time?

DOJ Ms. Durkee: I do not think Congress had any limit in time in mind. And I think that going back to the statute -

Judge Aldisert: Why - you're answering Judge Gould's question. I would like - you are giving a conclusion. I would like you to give the major premise and then the minor premise on how the government reaches such a conclusion.

DOJ Ms. Durkee: Okay. I've been trying to get to that.

Judge Aldisert: Okay.

DOJ Ms. Durkee: The major premise is this: the statute sets up a two-fold process, a two step process. The first one is the threshold determination of whether the remains are Native American or Native American objects subject to the act. From that determination, certain procedures and responsibilities flow. A second and independent determination follows that goes to the issues of cultural relationship and biological relationship and so on, and that goes to whether there is a qualified claimant for disposition or repatriation. And the Magistrate Judge is trying to somehow cut off going back in time -

Judge Aldisert: But, my problem with your argument right there is that your major premise assumes a conclusion that all remains are Native American and I think that that's an assumption. That's putting the bunny in the hat.

DOJ Ms. Durkee: It does not assume that - maybe I - it does not assume that all remains are Native American.

Judge Aldisert: Okay.

DOJ Ms. Durkee: What we're foc - I mean, certainly what we've been focused on in this case are remains that predate European exploration. Obviously remains that are from Europeans, the non-indigenous people are not covered by the act. So there is not - this is not an argument that every human remains found on federal land is Native American.

Judge Gould: You would say any human remains, I don't mean you personally I mean Interior, says that any human remains found that predate European arrival to North America, say anything before the 16th century, is going to be viewed as Native American.

DOJ Ms. Durkee: I think the presumption is that it is - and if I can tell you what Interior does - if they can - if I can tell you quickly so I can get it in - if they can find some context, something that would preclude that finding that of your example of a European explorer, an example of an explorer then it might be a different case. But in this case all the evidence other than age was consistent with finding that the Kennewick Man was part of a hunter-gatherer population that is known to have been populating the United States at that time. In that sense, that is enough to find it Native American. It is not necessary to make the additional step that the Magistrate Judge required, which is to show a cultural relationship to presently existing (inaudible).

Judge Gould: Cultural affiliation comes in if its under NAGPRA to determine who gets to take custody.

DOJ Ms. Durkee: Exactly. That's what -

Judge Gould: I understand that. But that doesn't really answer the question on whether the definition of Native American as everything pre-European is what Congress intended when they passed the statute. Is there anything in the legislative history that would suggest that Congress intended us to consider as Native American remains that were 100,000 years old, let's say, if such were found.

DOJ Ms. Durkee: Well I think there's - let me point to three things from the legislative history - two from the legislative history and one other thing. One of the most - Congress was advised at the hearings and was fully aware that indeed many, if not the majority of remains would be unaffiliated and according to the dialog panel whose recommendations were heavily relied upon, they called the materials that are not culturally identified with any present-day tribal group - so they, Congress, had provisions in the act that prompted the culturally unidentifiable remains. So I would first point to provisions in the legislative history to say that Congress was fully aware that it was bringing into the act things that could not be tied to present day Indians. Secondly, in the legislative history, the initial drafting of this bill defined Native American as simply as (quote) "an Indian, Alaska native, or native Hawaiian." In other words would be defined by present-day concept, the modern concept of Indian. And Congress discarded that definition and substituted the broader definition that ultimately was enacted. And, I submit that the Magistrate Judge's interpretation effectively revived that. And finally, I would point to -

Judge Gould: Oh really - it is not exactly - it's arguable, perhaps. But what the Magistrate Judge seemed to do was to focus on the language saying that a tribe or group that is indigenous and he gave a literal reading to the word is. Whether that is right or wrong, we have to grapple with that.

Judge Aldisert: The government's position depends on what is is? (laughter)

DOJ Ms. Durkee: I think I've heard that before (laughter)

Judge Gould: Isn't that - Isn't that really what the Magistrate Judge did? He said he was going to read the is language literally as present tense and he had some other statutory language that supports that. And there are some other arguments that oppose that. But it -

DOJ Ms. Durkee: Well, that's his textual basis for his decision and - as - but - I think as we set out in the brief, I don't think the word that is can support that kind of plain language determination, because the word 'is' particularly used in describing a quality like indigenous doesn't really have these differentiated meanings, temporal meanings in this context. And then I think if you look at the rest of the statute and it simply doesn't make sense. And that's part of plain-language analysis is to look at the statute as a whole and the structure.

Judge Graber: Counsel, you have a third point - if you'd make that and then we'll give your..

DOJ Ms. Durkee: Right - at this point -

Judge Graber: - co-counsel some time

DOJ Ms. Durkee: It's in the 1997 letter that Interior pointed out that in legislation that involved the native Hawaiian language of this act, that Congress used the word indigenous and non-indigenous exactly as we are here. Indigenous means pre-European exploration and non-indigenous means post-European exploration. So, that's indicative, I think, that Congress was using it as it is generally used both in, you know, sort of an international policy (inaudible). That indigenous people are those who have preceded the colonization time period and that populated areas. I apologize to my co-counsel for taking -

Judge Graber: We'll give him five minutes

Judge Gould: We'll give him some extra time

DOJ Ms. Durkee: I would be happy to answer more questions but I don't want to use more of his time.

Tribes - Mr. Smith: May it please the court, Rob Roy Smith representing the Colville Tribe and speaking on behalf of the Tribal Appellates. I thank the court for the extra time to present our arguments. Just briefly, I want to say that Tribes do agree with the Federal Appellants' interpretation of Native American. And we, too, believe that the district court erred by ignoring NAGPRA's plain language and Congress's intent in passing this statute. But what I want to talk about today is the district court's interpretation of cultural affiliation. I - and - there are really three errors that the district court made, but I just the limited time that I have -

Judge Gould: On that issue, as I understand it, the government - the US at least - is leaving you on your own. As I read their brief, they are not appealing on that issue and they are not - they are saying they would not dispute if we so found, but it seems like this is going to rest entirely on your argument.

Tribes - Mr. Smith: It does your honor.

Judge Gould: Okay.

Tribes - Mr. Smith: Ah, the -

Judge Aldisert: And just so that I understand, if we conclude that the remains are not Native American, we do not meet your issue, is that right?

Tribes - Mr. Smith: That is correct, your honor.

Judge Aldisert: Very well.

Judge Gould: And are you sure you don't want to address that issue at all?

Tribes - Mr. Smith: Well, your honor, I saw that there was quite lively questioning -

Judge Aldisert: There was -

Judge Gould: You know, there are a lot of issues - so, it's up to you.

Tribes - Mr. Smith: Well your honor, perhaps I will take you up on your generous offer and will respond to one of your questions - the question you asked about the indigenous issue. I think it is important to remember that what Congress was trying to do with the definition of Native American was using the term Native American as a term of art. They weren't trying to be politically correct. And they weren't trying to associate that with present day tribes. Congress specifically rejected earlier drafts of the statute that used American Indian or Indian tribes in that definition of Native American. So, they chose something different. And why they did that, is they were looking to really right a wrong that existed at the time that NAGPRA was passed. Back in 1990, at ER 51, the Senate report notes that there were between 100,000 and 200,000 Indian remains interred in museums across the country. And Congress sought to reign in this practice, but it wanted to give NAGPRA broad strokes, and it wanted to make sure that more remains than not fell under the Native American definition.

Judge Gould: But they were focused I think, at least as I understand the legislative history, putting aside where they ended up - they were focused on more proximate remains - more proximate in time than 9,000 years old. So, let me ask you the tribe's position: the tribes position - the tribes position that any remains found in North America - any Homo sapien remains found in North America that are from a time before Europeans came here are Native American remains. That is - in other words there is no requirement of a biological or a cultural connection to determine what's a Native American.

Tribes - Mr. Smith: Your honor, not to determine Native American.

Judge Gould: Okay.

Tribes - Mr. Smith: It is our position that if remains are found in the United States, or what is now the United States, that those are to be considered indigenous because the DOI's interpretation of the statute is correct as they looked at both age and physical context. Now in this case we have 9000 year old remains and although there is certainly scientific disagreement about this, it is generally accepted that the predecessors of American Indians were the first inhabitants of the United States or the first inhabitants of North America.

Judge Gould: But it is not generally accepted that tribes that currently exist go back more than say 2000 - 3000 years. There may be religious views that they go back to the beginning of time, but it's not generally accepted in science that these these tribes have some identity going back 3,000 years.

Tribes - Mr. Smith: That may be correct - that may be correct, your honor, but that's why - what Congress wanted to do was just set forth a broad standard that got remains treated under NAGPRA. So, for example, perhaps in your definition or if we were to take a hypothetical with a Viking -

Judge Gould: I'm really not giving a definition I'm just asking a question.

Tribes - Mr. Smith: Well, you know, if - if there is some question about whether the remains are Native American that will get sorted out in the cultural affiliation determination.

Judge Aldisert: I'll answer your question. There is a serious question whether these remains are considered Native American in the context of American Indians. I think that is the real issue in this appeal.

Tribes - Mr. Smith: Well, your honor, I believe based on the evidence before the Department of the Interior these remains are indigenous and they are Native American based on the fact that they are 9,000 years old and where they were found. They were found at river mile 330 near Kennewick Washington, so while it is certainly plausible that the Ancient One could have migrated to the United States, and somehow had to cross the Cascades and rowed up the Columbia that far -

Judge Aldisert: I know your red light's on [indicating time had expired], but I'd like to ask you this question. Going back to the statute, was there anything in the legislative history that indicated that Congress indicated that they were considering anything other than the American Indian, using that expression American Indian, as distinguished from the generic Native American, as we understood it from written and oral history.

Tribes - Mr. Smith: Your honor, I'm sorry. I don't quite understand your question. Could you repeat it for me, please?

Judge Aldisert: All right. The question is that, when Congress passed the statute in question, is there any indication that they considered under the definition Native American anything other than what we consider the American Indian by written or oral history.

Tribes - Mr. Smith: No your honor, there is not.

Judge Aldisert: Okay.

Tribes - Mr. Smith: I see my time is up. If there are no further questions, I yield -

Judge Gould: Could we give them another -

Judge Graber: Sure, yes

Judge Gould: Maybe you could give me another perspective on this on behalf of the tribes. When I look at section 3(b) which talks about if it is a Native American remains how - what priority do you dispense it in. Is it given - To whom is it given and in what priority? And first would be lineal descendent. And then second would be some tribe with a cultural affiliation. Or if there are a group of tribes, the ones with the closest. And then you get to the level of if there is no cultural affiliation - can't be determined, there's a more complicated committee process. What bothers me about that provision from the point of view of the tribes' argument is - it seems to imply that what the human remains that we are talking about - the Native American remains are presumed to have some relationship to tribes that are making claims. If they can show they are lineal descendants, that's the best claim. If they can't show that, show some cultural affinity - and obviously Congress was not going to require precise affinity tribe to tribe. But at some point, if you take Judge Graber's hypothetical of going back to something like the fossils found in Africa, at some point there would be human remains that are Homo sapien and might be found in North American but they have no proximate connection - no reasonable connection to anything living today. At least it would seem that way. And so is Congress's language in section 3(b) supportive of your position or against it is my question. Because it seems to me language for how you parse out where the remains go, supports some limitation on beyond that some persons that lived in North America and weren't visitors.

Tribes - Mr. Smith: Congress wanted to facilitate the return of Native American remains to the tribes. And, as a result of that sliding scale of priority in 3002 from lineal descendants to closest cultural affiliation -

Judge Gould: right

Tribes - Mr. Smith: There's a third step in there that your honor skipped and that's the aboriginal lands provision. That's really important to this case in the sense that it shows just the type of coverage that Congress was looking for. Since the aboriginal lands provision applies even where cultural affiliation cannot be proven by the lineal descendancy -

Judge Graber: In that provision are you talking about c(1) - subsection c(1) - talks about the land - the repatriation is in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered. But then if you go back to the definition of Indian tribe, it appears to refer only to current Indian tribes. So would c(1) even apply if there is not an existing Indian tribe that is recognized as having aboriginally occupied the area.

Tribes - Mr. Smith: Well, your honor, there would have to be a present day Indian tribe for the cultural affiliation section to apply at all. And certainly, for the most part, only tribes that are currently existing have brought claims to the ICC.

Judge Gould: Yes but you were suggesting that that section demonstrated a fallacy in Judge Gould's quest to understand the meaning of this section. And I guess I don't see why c(1) is inconsistent with a reading of 3002 as being - carrying with it an assumption that there would be some even minimal relationship with current day Indians.

Tribes - Mr. Smith: Well, I don't think it's inconsistent, your honor. I think it's just a broader - it encompasses more. Because it says that - it just looks to see whether or not those remains are found on the aboriginal lands of a present-day tribe. So in that sense, you are still looking for a present-day connection and are not necessarily looking for evidence of a cultural affiliation. You are just looking purely at location and where those remains are found. And this is one of the major problems actually with the district court's opinion - is that he changed the appropriate language for using the aboriginal lands provision. Instead of looking at recognized aboriginal occupancy, the district court (?SERQ 03 - inaudible) set a requirement to look for aboriginal title. Now aboriginal title is a much stronger standard of proof than what Congress was intending in NAGPRA. And under the facts of this case the claiming tribes did not exclusively use the area. But the ICC in its findings of fact did find that all the claiming tribes did jointly use the area. Which is why it was reasonable for the DOI to rely on the ICC findings of fact to take advantage of the aboriginal lands provision.

Judge Gould: Well it might be that if the remains were 2000 years old, or 1500 years old, or a thousand years old and they're on lands that were occupied in that period - that were aboriginal lands that to apply that provision would show some relationship that was biological if not present day cultural - but it just seems hard to see if Congress - did they really intend that to apply to something 9,000 years old. I am curious, as I think Judge Aldisert raised the question if there is anything in the legislative history that would address this question specifically. We know Congress does not want to permit people to rob graves of native people and to take away remains or artifacts. And that Congress thought there should be assistance to get back in the hands of Native American tribes remains that were perhaps wrongfully held by museums or artifacts, but particularly human remains. But, when you go back 9,000 years it raises a question in my mind whether Congress was really aiming at that. And, I'm wondering if there's anything in the legislative history that sheds any light on that.

Tribes - Mr. Smith: Well, your honor, the closest thing we have to an exact answer your question in the legislative history (ER 41) where Congress said that it wanted NAGPRA to apply to prehistoric remains - which in my mind seems to indicate they were going past just one to two thousand years - they wanted to reach back in time. And this is also supported by other statements in the legislative history in that same citation page - how they would talk about gaps in the record and not requiring scientific certainty. They recognized that when you get further back in time, honestly the harder it is to draw an exact link between those older remains and present day tribes. Congress provided for that.

Judge Gould: If the science - Let me ask a procedural question, that I haven't figured out. Maybe others have figured it out and you have it thought through, I hope. Probably you wouldn't have addressed this because you are on the other side of this first issue. But if the court were to determine the current record did not support the conclusion that the remains found at Kennewick are Native American, and were to affirm the order that scientists could study the remains. What if the further study then did show a biological connection through more extensive DNA testing. I know there was some DNA testing that was inconclusive. What if there were more extensive tests and they then showed a strong relationship to Native American tradition people in current tribes in some genetic sense - this is really beyond my expertise, but I'm sure it might be possible. What would happen procedurally then? Would the tribes be able to go in and move to reopen this, or what would occur?

Tribes - Mr. Smith: Well your honor, I believe that would be up to the Department of the Interior. As once those remains, if there were to be additional studies, and if those additional studies were to show that the remains were indeed Native American and culturally affiliated, then I would hope that the Department of Interior would step back in and then seek any further investigation and then begin this process anew to repatriate the remains to the tribes. The problem is - there would be two problems there, in the sense that one: if you provide these additional studies, to prove that the remains are Native American, you are kind of swallowing the purposes of the statute with the new studies. The idea was to foreclose uncontested study of remains -

Judge Gould: Right - which I think has to be honored in a case there's no - where it's clear that they are Native American remains, no one's got a right to study them. But, if that's the very question at issue, does that argue for permitting more study.

Tribes - Mr. Smith: Well, NAGPRA doesn't provide for additional study in section 3002. The only study provision is in section 3005 which deals with repatriations of remains that are currently in museum custody. Be aware that when the district court went too far with its remedy, this is addressed at the end of our brief, is that it went ahead and virtually granted an ARPA permit to respondants. The appellees here had never requested an ARPA permit. And, ARPA permits under the language of the statute, which is 16USC470CC (?), ARPA permits are permissive, they are not mandatory. And so it is up to the Department of the Interior to decide what additional studies can be done if NAGPRA doesn't apply. And district court subjected itself into the province of the executive by allowing study to go forward, when that decision has never been made by the Department of the Interior. So what district court should have done, and arguably this court could find these remains are not Native American, it should still vacate the remedy that district court granted and remand the decision to the agency to determine what further studies could be warranted.

Judge Graber: Thank you counsel. I think we need to hear from plaintiffs for a little bit. Thank you.

Scientists - Ms. Barran: Good morning. May it please the court. My name is Paula Barran and I, with my co-counsel Mr. Schneider. represent the eight scientists who commenced this litigation many years ago back in 1996, shortly after the Kennewick remains were discovered. The remains for a short period of time had a preliminary study, and that generated the controversy - because the preliminary study suggested that they were, as they turned out to be, unlike anything that had been seen before, except in a very very small handful of skeletons. We come here today to oppose the two appeals and to request that this court affirm the decision of the United States District Court and Magistrate Judge Jelderks.

I wanted to start immediately with a reference to some legislative history because there had been some questions about whether or not Congress was truly focused on the issue of prehistoric remains or very ancient remains when it passed the Native American graves statute. Judge Jelderks made comment about the legislative history at the first court proceedings that happened in this case in approximately October of 1996, and commented on the record that he had read the legislative history and was somewhat troubled or puzzled by how sparse it was and how it appeared to him that there was no reference to these very ancient prehistoric remains. We have also in the answering brief on the tribes' appeal cited some comments that appear in the legislative record and that is at page 31 of our brief. A couple of comments and again a very sparse legislative history that Representative Bennett in debate commented that we as a nation should take care of remains for which there are no modern descendants. And Senator Akaka commented that consideration should be given to the government's role as the caretaker of peoples who are extinct. So in that regard, even though it does not use the precise statutory language, that is very reminiscent of the other law that the scientists believe actually applies in this case. And that is a fairly recent statute, 1979, the Archaeological Resources Protection Act or ARPA. That's the statute that Mr. Smith referenced when he was discussing the ARPA permit -

Judge Graber: Counsel, it seems to me that by starting with the legislative history, you're skipping over a step that is essential and that is where we start, which is with the words of the statute. And to the extent that there is any ambiguity in the statute that takes us not only to legislative history, but it takes us potentially to Chevron deference - to the interpretation given by the Secretary of the Interior. And, I think my primary difficulty with your argument is that the statute to me does not seem to be crystal clear. And, I know your position is, that it is. And, and you don't get past that. Would you help me by parsing the statute and explaining why we don't get to Chevron deference, why we don't get to legislative history?

Scientists - Ms. Barran: Yes, of course. And, you are correct that once we look at the statute and don't find an ambiguity, then we should not care what the legislative comments are. I did want to bring that up because they had been raised in questions. The statute defines Native American - and to use Chevron terms, that means that Congress has spoken. In this particular case, Native American has a definition that says of or relating to a tribe, people, or culture that is indigenous to the United States. Now there are a number of components to that definition, but they certainly require something to be related or to emanate from - of or related to. Once Congress has penned a definition like that we don't automatically move to something called Chevron deference because this court has recognized that the Supreme Court rulings on deference are very complicated, and that in effect there is a sliding scale of deference accorded to administrative interpretations of the statute where it is the agency that is required to interpret and enforce that statute.

Judge Graber: What does indigenous mean, in particular, as you go through your explanation of -

Scientists - Ms. Barran: I don't believe Congress defined indigenous. But, nor did Interior in this particular case. And, when I move into Dr. McManamon's letter which is the Interior definition, you'll note that Interior's position, in this case, was that Native American is not, in any way, limited by the context of - the concept of indigenous. The government has proposed a definition of indigenous in its briefing which comes from a dictionary, which is probably as good as any, but it would mean something that is naturally found here, which is not imported from someplace else. In other words, not an immigrant. And one of the problems with the government's position in this case throughout has been Dr. McManamon, and the Secretary eventually, ignored that word entirely, as though it had no meaning whatsoever, and as though it were surplus in the statute. But indigenous is not something that is defined and we are left with a statutory definition of what Congress intended Native American to be. Now one of the things that should-

Judge Gould: Doesn't the statute say a tribe, culture, or group that is indigenous to the geographic area the US now has?

Scientists - Ms. Barran: What it says in the statute "of or relating to a tribe, people, or culture that is indigenous to the United States". The concept of "the area now encompassed by" was added by Dr. McManamon, but not by the formal regulation. Interior was given the authority to promulgate regulations to carry out the statute. Congress had already defined Native American and we submit that the first thing that should give the court pause in considering what Interior did here is the nature of this law. I think everybody agrees, all of the parties in this court room agree that when NAGPRA was passed there was enormous debate. There were committee reports, there was testimony, there was a lot of passion, and there was a lot of compromise because there was concern from the part of the Native American community, there was concern from the part of the scientific community, and the museum community, and that resulted in what can only be viewed as a compromise piece of legislation. When something like that happens, and the Supreme Court has cautioned us repeatedly that we have to take - pay some attention to the thought that Congress may not expect an administrative agency to tinker with a policy decision so lightly. And, we would want to parse the statute and look for some sort of indication in the statute that suggests that Congress was passing that authority on to the Department of the Interior.

Judge Graber: Well, they certainly could have. I mean, I think the only argument that you have is that Congress didn't, because certainly even if your clients view this definition as going overboard, Congress had the authority to do that as a remedy for overboard exploitation on the other side. So -

Scientists - Ms. Barran: That is correct, Judge Graber, because - but when Congress does that, it uses very different language from what we see here. For example, there is a provision in the Federal Age Discrimination and Employment Act which authorizes the Equal Opportunity Employment Commission to make a policy decision about whether to exempt a category of people from the protection of the statute. Now, that agency has used that rarely. It happens that they are using that provision right now. In the Securities Act, there is very broad language that authorizes the Securities and Exchange Commission to make policy decisions. So Congress truly has that authority, but it did not, we submit, exercise that authority in this statute where they used the bald statement "to carry out this statute".

Judge Gould: Well, we have a pretty exclusive statutory provision and the question of what it means, at least in my view and whether the regulation is consistent with it. And it says - lets' say a tribe or a person who relates to a group that's indigenous to the United States.

Scientists - Ms. Barran: Yes

Judge Gould: Now if Kennewick Man was living in the United States and wasn't on a tour from Europe or Asia or(inaudible) Polynesia, but let's say he lived here and had ancestors who lived for a number of generations in the United States. Does that mean that he's Native American because he's indigenous? Is there any time limit? And I - the Magistrate Judge thought there had to be a relation to a tribe that is existing today, right?

Scientists - Ms. Barran: There are two issues that come up from that, yes sir. And I think the way that the statute commands that to be viewed is as follows. The first thing that has to happen is, we need to find this relationship. So, in the example that you posed, which is that Kennewick Man had been here, had been living in the United States for some generations back, and we have evidence of that. Then, if we conclude that that is what indigenous means - and it may very well be what we would -

Judge Gould: I'm not even sure you would need evidence of that. You might presume that.

Scientists - Ms. Barran: Well, I don't know that we can presume that with -

Judge Gould: Well, if he was found in Kennewick, on the Columbia River, it probably wasn't so easy to travel 9000 years ago.

Scientists - Ms. Barran: Actually the evidence in the record was that at that period of time - during that phase - there were some twenty maximal bands that had groups of from 75 to 150 people, and they travelled enormous distances because they were hunter gatherers -

Judge Gould: But they were pretty much in a range though, weren't they like in North America?

Scientists - Ms. Barran: Well they -

Judge Gould: They weren't bopping over from Hong Kong or something.

Scientists - Ms. Barran: Well, they were coming from a number of places - or could have come from a number of places - one of them being Canada which is a border that is only about 300 miles -

Judge Gould: Ok so Native American wouldn't apply to North America outside of the United States.

Scientists - Ms. Barran: Well, the statute says indigenous to the United States. And even Interior's definition talks about the land that comprises the United States now. So once you cross that international border which is only some 300 miles away you have something which, by definition, cannot be Native American. The second thing that the definition uses is "is indigenous to the United States" and the Magistrate Judge spent quite some time in his opinion focusing on Congress's choice of the present tense, the use of the word 'is'. Now under statutory construction in the cases that look at verb tense we at least draw the principle that the tense of the verb used by Congress is a choice, a conscious choice that Congress makes. In a very, very few cases which reject outright that looking at the verb tense -

Judge Gould: Let me examine that. I have a little trouble with the government's position and the tribes' position because of the remote antiquity of the remains. But I have a little trouble with the Magistrate Judge's position on the present tense of 'is' as well. So, I want to test the limits of it. If a tribe currently existing dissolved itself for some reason, I assume that can happen, right? A tribe can cease to be a tribe if - for some reason?

Scientists - Ms. Barran: I believe the legal standard would be if the Secretary of the Interior removed them from the list -

Judge Gould: Okay -

Scientists - Ms. Barran: - there's a list that's published annually.

Judge Gould: All right. Let's say then, they had burial sites. But they're no longer a recognized tribe. Their remains in their sites would still be under NAGPRA wouldn't they? Even though it says a group that is indigenous? Or would it not be.

Scientists - Ms. Barran: Well -

Judge Gould: So that a tribe -a people who are here now, is not here ten years from now. Are their grave sites fair game under the Magistrate Judge's ruling?

Scientists - Ms. Barran: I don't believe they would be given the scope of the definition. And I think Congress wrote words - whether or not they were thinking about that particular problem, but their words certainly can be extended to that because the definition is a tribe, people, or culture that is indigenous. So if you were to have an indigenous culture, then you can have something from that be a Native American even if the tribe is disbanded or delisted.

Judge Graber: So those remains would still be repatriated in your view.

Scientists - Ms. Barran: I don't believe they could be repatriated as culturally affiliated because as you commented earlier -

Judge Graber: Unless they are lineal descendants

Scientists - Ms. Barran: Right. Because cultural affiliation requires a present day tribe -

Judge Gould: Would this be under the section 3(b) procedure?

Scientists - Ms. Barran: Well, it could be under that - it could be unclaimed remains, it could be lineal.

Judge Gould: What about the Arizona cliff-dwelling Indians that I guess are not there now.

Scientists - Ms. Barran: Ah - an extinct tribe.

Judge Gould: Right. A tribe that maybe was in North America in 400 AD or 1000 AD but just isn't around now.

Scientists - Ms. Barran: We have two things that help us analyze that issue. The first is Congress's comment, at least in the debate, about caring for the peoples who are extinct. And, second, if they are extinct, we suggest that the Magistrate Judge was correct in saying that given the way Congress wrote this definition we have difficulty believing that that can be Native American as NAGPRA applies. Now it doesn't mean that it's not covered by a protective statute. It would certainly be covered by either the Antiquities Act or the Archaeological Resources Protection Act. Both of those could and would cover that kind of situation. But for something that was here but is now extinct, the text and the context of the Native American definition suggests that that is not Native American as this narrower statute conceives of - of that particular situation and of what is a Native American under that statute. And that would be so, because of Congress's use of the word 'is indigenous' but also for a couple of other reasons. You'll note that in Native American, Congress used the phrase 'indigenous to the United States'. Now the United States is a political creature that did not exist until the 18th century. In contrast, if we look back at the Native Hawaiian definition, Native Hawaiian is an 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. Congress uses two things in that definition that are absent in Native American. They use a calendar date, which they elected not to use in defining Native American. And they used the 'area that now constitutes the state of Hawaii' - that's what Interior borrowed later on when they changed the definition. They didn't do that in Native American, which strongly suggests that the Magistrate Judge was reading this correctly. Indigenous to the United States means that 'is indigenous to the United States' has a temporal quality to it. And that temporal quality is the present.

Judge Gould: Could you, at some point in your argument, address the remedy issue. If we decide that the remains are not Native American and we are going to affirm in that respect, still was the Magistrate Judge right to order testing rather than remand?

Scientists - Ms. Barran: I think the order -

Judge Gould: And in answering that explain how in your view of the case the problem would be dealt with if scientists did more testing -

Scientists - Ms. Barran: Yes. okay.

Judge Gould: And the testing did show a biological relationship to an existing tribe.

Scientists - Ms. Barran: A couple of things. One, I think that it is a mis-statement on the part of both the tribes' briefing and the government's briefing to state that the judge ordered study and testing. What he said was - this skeleton is not covered by NAGPRA. Therefore this skeleton is covered by ARPA. He also found based on evidence in the record that under the normal course of affairs the plaintiffs, eminent scholars, would have been given some level of permission. And he therefore ordered the plaintiffs to be treated as would have otherwise been treated under ARPA and be given access to study subject to the terms and restrictions that would otherwise apply. Now, basically what that was saying to the Department of the Interior was you were wrong in putting it under this statute. You must give them the access that they would normally have under ARPA - the Archaeological Resources Protection Act. And that statute commands that remains of this nature, of this scientific value, are to be taken care of for the education and the understanding and the scholarship of the people of the United States as a whole. In many cases that mandates study and in this case that inevitably would mandate some level of study. But, Interior remains the curator of the remains and can impose certain restrictions on those. I would foresee that inevitably there will be endless argument about what studies would be appropriate, but I would also suggest most of - that in many of the studies, perhaps most of them posed by the plaintiffs not involve any damage or any consumption of the remains. Many are measurements and review and photographing which don't harm them. And that is consistent in this record with what would normally be accorded to the plaintiffs. So that is the first question. The second question is how would it be handled procedurally.

Judge Gould: Let me just clarify something. The problem that I am concerned about wouldn't arise if we adopted the view of the Magistrate Judge that the remains have to be tied to an existing tribe. That is in the literal sense. But if we rejected that, and said that they could be a past tribe, an extinct tribe, or some other tribe that wasn't currently existing, but still these remains are too ancient, there hasn't been enough of a biological or any kind of relationship shown with present peoples. Let's say we said on that basis the repatriation was not right. Interior erred. But then the scientists do more testing, and the testing reveals a relationship that isn't now known. What's the procedural approaches that would be then available?

Scientists - Ms. Barran: I believe that the procedural approach - and that is actually not at all a far-fetched example, as this record contains that precise issue that happened in Jamestown when Dr. Owsley evaluated some remains and found they were not Indian but were the first African-American slaves to reach this shore.

Judge Gould: Probably about 1619.

Scientists - Ms. Barran: Actually predated that a little bit. So, a very important piece of history. That could happen. We don't believe that it will in this case, given what we know about this skeleton, but assuming that it would happen, then I would suggest that the procedure that would follow would be that once there was evidence suggesting that these remains were in fact Native American as defined by the statute, we'd return then to NAGPRA. There becomes an invitation - there is an invitation then for claimants to appear and make a further claim for the remains now that we know that they are Native American. And we resume the process. And the process would look once again for whether there was sufficient evidence for cultural affiliation. Or, the alternative would be, failing that, then they would be disposed of as unclaimed remains - remains that could not be repatriated.

Judge Gould: So the process, if that's true, have to proceed under the Department of the Interior's authority?

Scientists - Ms. Barran: I believe it would because that is the responsible agency for the skeleton if that were to happen. So that if the study were to establish that we have a Native American skeleton, despite what everybody thinks now, perhaps they would go in and do those DNA studies that failed rather miserably the first time around and perhaps they'd find sufficient evidence of a DNA relationship which does show that it's Native American. So there would be an additional process of claiming, and an additional process of gathering evidence in making a determination. NAGPRA does not have a sense of finality in the government's decision. In this particular case it did because of the way they decided it. But, there is also in the scientific community an understanding that new methods of evaluation may give us new information going forward. As I said, once again, we do not believe that under any circumstances that will occur, given what is known about this skeleton from the government's reports. This is an outlier that has no relationship to anything that exists on earth today except for the handful of skeletons that have been found like it. I would believe and suggest that that would be the way that would be handled in the eventuality such as that.

Judge Graber: Thank you counsel. I am going to, because of the importance of the issues, give about three minutes for rebuttal even though you've exceeded your time earlier.

DOJ Ms. Durkee: Thank you, your honor. I'd like to make several quick points. First of all, in the sort of the scheme of what could Congress have been thinking here in terms of ancient remains. I think it's important again to go back to the way the act is structured. Congress - the threshold determination simply gives [inaudible word - into?] procedural protections for the tribes. Congress was trying to give in order to facilitate tribes' repatriation of related remains for which they have affinity providing the procedural protections which really aren't there under ARPA. In the simplest way I can say it, they were trying to get the tribes a seat at the table. And if you cut them off at the outside, they don't even get into the room. In terms of saying Congress didn't intend to confine Interior policy decisions, I think it's pretty obvious Interior administers the statute, it gives them rule-making authority, and I'd really point to section 3(b) because that's where Congress put the policy decision about these kinds of remains right in the hands of Interior. Because, and that Congress didn't try to resolve all these, you know, very serious concerns from all parties by legislating it. It said, okay, Interior you consult with all these groups and you figure out what kind of studies should go on for these remains that we cannot identify culturally. Finally in terms of - Congress was also aware of the inherent proof problems when you get into the old remains - you know -the historic - and pre- prehistoric remains. And Congress was not trying to erect barriers to the governing of the statute by putting scientific certainty of having to prove a relationship back to these ancient remains. Another way I might express it, Congress was trying to help Indian tribes in the statute. And Congress may not - I should say this court or appellees may not believe that the tribes have been in the Kennewick Man area for, you know, nine or ten thousand years, but the tribes believe that. And so you're trying to start -

Judge Gould: Is that in the record, by the way?

DOJ Ms. Durkee: Excuse me?

Judge Gould: Is that in the record, that all the tribes believe that? I read in the record some statements by, you know, some persons that they believe that - ah - that their ancestors had lived on these lands since the beginning of time. But, I didn't read anything indicating that that was like a formal position of all the tribes.

DOJ Ms. Durkee: I think I extrapolated from the fact that they - ah - ah - still assert, and they have reason to - that they are culturally affiliated and therefore the population that were certainly there at that time are related to them. That's where I made that extrapolation. I didn't - I'm not trying to suggest there's a place in the record that they said exactly how I did. [pause] And I think in going back to ambiguity, I mean I - one of the problems with the Magistrate Judge here - if there's ambiguity in the statute, he accorded absolutely no deference, and there may be a sliding scale here, but it's really an extreme position to say no deference to Interior in this case. And he also said there is no deference under the Indian Cannons of Construction because he didn't regard this as there being any ambiguity. And again, both of those, in this particular case, you don't have to choose between Chevron and the Cannons because they both lead to the same place.

Judge Graber: Thank you counsel. The case just argued is submitted, and I'd to thank - [tape ends].

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