Plaintiffs' Opening Brief (Part 1)
Paula A. Barran
Alan L. Schneider
Attorneys for Plaintiffs
FOR THE DISTRICT OF OREGON
ROBSON BONNICHSEN, C. LORING BRACE; GEORGE W. GILL, C. VANCE HAYNES, JR., RICHARD L. JANTZ, DOUGLAS W. OWSLEY, DENNIS J. STANFORD and D. GENTRY STEELE,
UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, U.S. DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, FRANCIS P. McMANAMON, ERNEST J. HARRELL, WILLIAM E. BULEN, JR., DONALD R. CURTIS, LEE TURNER, LOUIS CALDERA, BRUCE BABBIT, DONALD J. BARRY, CARL A. STROCK,
MEMORANDUM IN SUPPORT OF MOTION TO VACATE SECOND ADMINISTRATIVE ACTION
In June 1997, the Court remanded this case to defendants with instructions they disregarded. Contrary to law, defendants concluded that the skeleton is Native American solely because of its age, and that affiliation to a Coalition is proper under NAGPRA. They also improperly relied upon a non-precedential ICC settlement, failed to consider contrary evidence, and failed to articulate a rational basis for their decisions.
Defendants' decisionmakers had improper ex parte contacts with the Coalition, the White House, and government trial counsel. Defendants withheld the substance of many of these contacts from the record, and withheld evidence from plaintiffs. They coached the Coalition on how to present its claims and applied an improper presumption in favor of the Coalition. The decisionmakers were biased.
Defendants improperly used religious beliefs as proof of prehistoric events, and as a basis for denying plaintiffs access to the skeleton, the discovery site and government-held information. Defendants failed to give serious consideration to plaintiffs' First Amendment and statutory claims to study the skeleton, as ordered by the Court.
Defendants buried the skeleton's discovery site without first consulting plaintiffs and without conducting appropriate investigations and evaluations as required by law. They have not been candid about the skeleton's curation, and they improperly used FOIA to withhold information from plaintiffs.
It would be futile and unfair to plaintiffs to remand for a third round of administrative proceedings. The Court should grant plaintiffs' requests for noninvasive studies and fashion other appropriate relief.
I. DEFENDANTS' 1492 RULE IS CONTRARY TO LAW.
Kennewick Man's legal journey starts with the threshold step of whether he is "Native American" for purposes of NAGPRA solely because of his age. Congress defined "Native American" as meaning "of, or relating to, a tribe, people, or culture that is indigenous to the United States." NAGPRA § 3001(9). Unlike the term "Native Hawaiian" (§ 3001(10)), Congress did not define "Native American" by a calendar year but instead used the phrases "relating to" and "that is indigenous" that require proof of a relationship to present day Native peoples.
Had defendants applied Congress' relationship test instead of their own age test, their Determination would have been different. Kennewick Man is not known to be related to anyone. He may have died without descendants, or if he has descendants they could live anywhere. ER 92, 93, 130; DOI 04405, 04406, 08977. His cranial measurements and features are unlike those of any modern living group, though closest to Polynesians and southern Asians. ER 105-107; DOI 05581, 05879, 05885. His language, customs, social relationships, and religious beliefs are all a mystery. ER 145, 149; DOI 08992, 08996. No one knows how he was wounded. But defendants rejected Congress' definition and adopted one drafted by Dr. McManamon who said that "Native American" includes all human remains and cultural items found in the United States that predate "the historically documented arrival of European explorers." ER 71; DOI 02128. Dr. McManamon initially did not explain which European explorers he meant, but defendants later settled on Christopher Columbus. ER 110, 112; DOI 06048, 06050 (Barry 1/11/00). Anything that is now more than 509 years old is therefore "Native American" for purposes of NAGPRA, regardless of all other considerations. This 1492 Rule is unlawful.
A. The 1492 Rule Was Improperly Adopted.
The record is bare on how the 1492 Rule was adopted or why. It does not appear in NAGPRA, the regulations, or in the official comments to the regulations. Other than Dr. McManamon's letter, there is no trace in the record of its origin or development.
Its sweeping terms show that it is more than a mere interpretive pronouncement. It is a substantive rule (1), but it was not adopted through the necessary rulemaking process. Parties affected by an agency's rules must have an opportunity to participate in such rulemaking at an early stage when the agency is more likely to give real consideration to alternative ideas. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764-65, 89 S. Ct. 1426, 22 L.Ed.2d 709 (1969); U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979), on reh., 598 F.2d 915 (5th Cir. 1979); 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). A change in law may not be made by informal letter-writing. Christensen v. Harris County, 529 U.S. 576, 587-88, 120 S. Ct. 1655, 146 L.Ed.2d 621 (2000).
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). Agencies may not circumvent the rulemaking requirements of the APA. Wyman-Gordon, 394 U.S. at 764-66; Anaheim, et al. v. FERC, 723 F.2d 656, 659 (9th Cir. 1984). Defendants ignored those requirements and adopted the 1492 Rule without notice or opportunity to comment.
Nor may defendants now recharacterize the 1492 Rule as a mere interpretative pronouncement for use in this case only. Its sweeping language precludes such an argument. Moreover, such pronouncements are entitled only to "some weight," but not deference. Martin v. Occupational Safety and Health Review Com'n, 499 U.S. 144, 157, 111 S. Ct. 1171, 113 L.Ed.2d 117 (1991). 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, 141-142, 97 S. Ct. 401, 50 L.Ed.2d 343 (1976) reh. den. 429 U.S. 1079 (1977). See also Reno v. Koray, 515 U.S. 50, 61, 115 S. Ct. 2021, 132 L.Ed.2d 46 (1995).
B. The 1492 Rule Ignores Congress' Language And Intent.
An agency cannot ignore Congress' words. "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). The 1492 Rule is "out of harmony" with NAGPRA because it ignores words ("relating to" and "that is indigenous") that impose a relationship test. Defendants' Rule 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 71; DOI 02128. That is unlawful, for "it 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, 121 S. Ct. 675, 683, 148 L.Ed.2d 576 (2001) (invalidating rule). See also, Circuit City Stores, Inc. v. Adams, 532 U.S. ___, ___ 121 S. Ct. ___, ___ L.Ed.2d ___, 2001 WL 273205 (2001) (interpretation of Arbitration 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. den., 529 U.S. 1017 (2000) ("This court generally refuses to interpret a statute in a way that renders a provision superfluous.")
Although "a legislature says in a statute what it means
and means in a statute what it says there," In re Transcon
Lines, 58 F.3d 1432, 1437 (9th Cir. 1995), cert. den. 516 U.S.
1146 (1996), defendants ignored how Congress defined "Native
American" in favor of their own scheme. The consequences
of this change are no small matter: Congress passed a law with
limited application, but defendants wrote a broadly inclusive
rule that would transfer ownership of much of American prehistory
to a small part of society (2). They
do not have that authority. Agencies may not "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), or construe a statute in a way
that "nullifies textually applicable provisions meant to
limit its discretion." Whitman v. American Trucking Assns.,
Inc., 531 U.S.___, 121 S. Ct. 903, 918-19, ___L.Ed.2d.___ (2001).
It does not matter that defendants claim to be acting to benefit
or at the behest of Indian tribes. See Williams v. Babbitt, 115
F.3d 657, 661 (9th Cir. 1997), cert. den., 523 U.S. 1117 (1998),
rejecting Interior regulations prohibiting reindeer herding by
non-natives, because "the total and perpetual exclusion
of a majority of the population of Alaska" is something
that "we would normally expect Congress to spell out if
that were its intent." Congress will not be presumed to
"hide elephants in mouseholes." Whitman, 121 U.S. at
It is not an agency's right to broaden the coverage of a limited law. See Sutton v. United Air Lines, 527 U.S. 471, 483-84, 119 S. Ct. 2139, 144 L.Ed.2d 450 (1999) (invalidating disability guidelines that ignored statutory phrase "substantially limited" which limited coverage of law); Lechmere Inc. v. NLRB, 502 U.S. 527, 532, 112 S. Ct. 841, 117 L.Ed. 2d 79 (1992) (invalidating extension of employee rights to non-employees). "[S]uch administrative hubris [should] be reigned in, and * * * the task of improving the basic provisions of statutes 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., 2001 WL 273205 at 31. Agencies may not adopt a calendar date to limit a benefit granted by law. Guerrero v. Stone, 970 F.2d 626, 636 (9th Cir. 1992) (invalidating calendar date restriction to limit military benefits).
C. The 1492 Rule Is Arbitrary And Unreasonable.
Defendants' choice of 1492 ignores the fact that there is no special significance to Columbus for these purposes. He never visited the "area now encompassed by the United States" (to use Dr. McManamon's words). He landed in Cuba, the Bahamas and other places to the south. There is a lot of land and ocean between the Bahamas and Kennewick. Columbus' voyages had no immediate impact on human developments in the Northwest and do not rationally relate to how those populations are treated for purposes of NAGPRA.(3)
The 1492 Rule would indiscriminately and unreasonably sweep into NAGPRA's ambit remains and objects that have no logical relationship to the purposes of the statute. Vikings explored widely in the New World centuries before Columbus, and Japanese fishermen probably had pre-1492 contacts with the Americas.(4) Despite having no relationship to present-day Indians, defendants would classify Viking and Japanese remains as Native American for purposes of NAGPRA, a result that cannot be reconciled with the words of NAGPRA.
It is implausible that Congress intended to leave such a significant policy issue to be decided by a letter from one National Park Service employee. A reviewing court "must be guided to a degree by common sense as to the manner in which Congress is likely to delegate" policy decisions of economic and political magnitude to agencies. F.D.A. v. Brown & Williamson Tobacco Corporation, 529 U.S. 120, 133, 120 S. Ct. 1291, 146 L.Ed.2d 121 (2000). See also American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S. Ct. 955, 13 L.Ed.2d 855 (1965) ("judicial inertia" should not allow agencies to make policy decisions properly belonging to Congress); Whitman, 121 S. Ct. at 910 (implausible that Congress would give agencies broad policymaking powers through "modest words").
Congress chose a single date to define "Native Hawaiian" which is sensible because the Hawaiian Islands are confined spaces. The vastness of the continental United States is a much different matter. Defendants' 1492 Rule ignores those differences, and ignores whether those differences might be why Congress picked a date for defining "Native Hawaiian" but not "Native American." Congress' choice has a legal significance that defendants ignored. When Congress includes language in one section of a statute but omits it in another section, it is generally presumed it acts "intentionally and purposely." Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L.Ed.2d 17 (1983).
II. THE CULTURAL AFFILIATION DETERMINATION MUST BE VACATED.
Defendants' Determination of cultural affiliation must be set aside. Almost four years ago, this Court told defendants:
The Determination misinterprets and misapplies the law, is not supported in the record, fails to evaluate all relevant evidence, and rests on faulty reasoning and analysis.
A. A Coalition Formed To Make A NAGPRA Claim Is Not A "Tribe."
The Secretary began his discussion with NAGPRA § 3002
("ownership"). He should have started with § 3001(2)
which defines cultural affiliation as "a relationship of
shared group identity which can be reasonably traced historically
or prehistorically between a present day Indian tribe or Native
Hawaiian organization and an identifiable earlier group."
Since this definition speaks of a present day Indian tribe, it
makes sense to consider the question of whether the Coalition
is a "tribe" for purposes of NAGPRA.
The Coalition that claims the skeleton was formed for this controversy only. In Dr. McManamon's words they are "Native Americans of diverse backgrounds who voluntarily associate together." Some of them assert individual claims to the skeleton.(5) 25 U.S.C. § 479a-1 requires Interior (through BIA) to publish a list of Indian tribes, annually on or before January 30. The 2000 list, published March 13, 2000 (65 FR 13298), does not include the Coalition as a "tribe." Since it is not a tribe under the statute or Interior's own regulations and publications, it may not be considered to be one for a NAGPRA determination. See San Xavier Development Authority v. Charles, 237 F.3d 1149, 1153 (9th Cir. 2001) (Indian-chartered corporation does not qualify as a tribe to sue under Nonintercourse Act). Courts should not accept agency constructions which, like this, are contrary to the words used by Congress. 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, 2 S. Ct. 391, 27 L.Ed. 431 (1883). See also South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 510, 106 S. Ct. 2039, 90 L.Ed.2d 490 (1986) (duty to give effect to every word of statute); Chevron USA, Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984), reh. den., 468 U.S. 1227 (1984).
B. The Coalition Is An Improper Claimant For Other Reasons As Well.
To accept the Coalition as a proper claimant under NAGPRA works other mischief to Congress' scheme. The Secretary concedes that one member, the Wanapum band, is unrecognized and has no standing under NAGPRA. ER 164; DOI 10017, n.1. Nonetheless, he concluded that since the other members of the Coalition do not object, the Wanapum are proper claimants. It is not the Secretary's prerogative to change Congress' qualification standards. See National Credit Union Administration v. First National Bank and Trust, et. al., 522 U.S. 479, 500, 118 S. Ct. 927, 140 L.Ed.2d l (1998) (invalidating NCUA's expansion of membership where statute requires "common bond").
The Secretary also ignores the statute's requirement that he determine which tribe "has the closest cultural affiliation" with the skeleton. § 3002(a)(2)(B). Congress spoke in the singular, requiring that cultural affiliation be established with a specific, identified tribe. Accepting a Coalition as a claimant evades this statutory requirement.
Finally, the Secretary fails to explain how five separate tribes and bands can have the same "shared group identity" with Kennewick Man's group as required by NAGPRA when they do not share a group identity among themselves. § 3001(2). Each is a distinct group with its own unique history, traditions and constituent members.(6)
C. An ICC Settlement Is Not A Final Judgment As Required By NAGPRA.
The Secretary wrongly relied on the Umatilla's 1966 Indian Claims Commission case, ER 163; DOI 10016; ER 332; 16 Ind. Cl. Comm. 484, repeating the Army Corps' earlier mistake when it did the same thing in 1996.(7) The aboriginal occupation clause of NAGPRA requires a "final judgment." § 3002 (a)(2)(C). Settlement of a case for a cash payment without admission of liability is not the same thing.(8) A consent decree like this is a settlement, not a decision on the merits, U.S. v. Oregon, 913 F.2d 576, 580 (9th Cir. 1990), cert. den., 501 U.S. 1250 (1991); Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). This one even said that it "shall not be construed as an admission of either party as to any issue for purposes of precedent in any other case or otherwise." ER 333; 16 Ind. Cl. Comm. 484 at 487.
A stipulation does not bind non-parties. Kneeland v. Luce, 141 U.S. 437, 440-441, 12 S. Ct. 39, 35 L.Ed 808 (1891). As was said in a different context, this was a "restricted railroad ticket, good for this day and train only." Washington County v. Gunther, 452 U.S. 161,183, 101 S. Ct. 2242, 68 L.Ed.2d 751 (1981).(9)
D. Long-Term Continuity Is Not A "Shared Group Identity."
Defendants' determination asserts that evidence of long-term continuity in human occupation of the Columbia Plateau (supposedly demonstrated by geography and oral tradition) is sufficient to establish cultural affiliation. ER 162; DOI 10015. This conclusion cannot be supported.
Even if one accepts the Coalition's claims that its members
have always lived in the region, it does not follow that Kennewick
Man was an ancestor. See 969 F. Supp. at 652 n.24. The Columbia
Plateau was inhabited by a number of bands during the early Holocene.(10) There is no evidence showing which
of these bands (if any) Kennewick Man belonged to and which of
them (if any) was ancestral to the present-day Coalition. Nor
does the fact that Kennewick Man's remains were found in the
Kennewick area prove that he resided there. He may have been
a stranger.(11) Moreover, the Secretary's
assumption that Kennewick Man's unidentified group was ancestral
to the present-day Coalition does not establish the "shared
group identity" required by NAGPRA. Without evidence of
the language Kennewick Man and his group spoke, their religious
practices and customs, how they interacted with other groups,
or any of the other factors that contribute to "group identity,"
it is impossible to determine if there was a shared group identity
with Coalition members.(12)
In 1997, the Court admonished defendants to "critically
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 pre-determined hypothesis." 969 F. Supp. at 652 n.26.
The Secretary ignored those instructions, as well as his obligation
to rely only on factors Congress intended, to consider all aspects
of the problem, and to support his decision with evidence and
plausible logic. Inland Empire Public Lands Council v. Glickman,
88 F.3d 697,701 (9th Cir. 1996). Here:
(1) See Barahona-Gomez v. Reno, 167 F.3d 1228, 1235 (9th Cir. 1999) (amount of discretion determines whether substantive); 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).
(3) Defendants themselves seem uncertain about their Rule. Dr. McKeown favored using European colonization as the defining moment. ER 83; DOI 03497. He concedes that plaintiffs' use of "Native American" was consistent with its "common meaning" but he thought that meaning engenders racial and racist commentary. Dr. McManamon admonished his advisers to use "American Indian" to avoid confusion with "our legal use of the term 'Native American.'" ER 101; DOI 05576.
(4) Smithsonian National Museum of Natural History, Anthronotes, Vol. 22, No. 1, at 3-4 (Fall 2000) (Viking objects in Maine) ER 389-90; N. Davis, The Zuni Enigma, W.W. Norton & Company, 2000 at 99-101 (Japanese shipwrecks in North America) ER 392-93.
(5) See Memorandum (ER 500; dkt. #276) ("The Yakama Nation believes that the human remains at issue are the remains of an ancestor of its people."); ER 514-518 dkt. #302-303 (Motion and Memorandum of Colville); Umatilla letter to Colonel Bohn, ER 55; COE 8872 ("the CTUIR claims that it is entitled to the human remains.").
(6) See U.S. v. Oregon, 29 F.3d 481 amd. 43 F.3d 1284 (9th Cir. 1994), cert. den., 515 U.S. 1102 (1995) and Confederated Tribes of the Umatilla Indian Reservation v. U.S., 14 Ind. Ct. Comm. 14, 110, Opinion of the Commission (1964) ER 331a-k, for some of the historical complexities of the Coalition members. The Colville report themselves as a sovereign nation with a federally approved Constitution and Bylaws (http://www.colvilletribes.com). The 1855 treaty with the Yakama confirmed the separation of that group from the Nez Perce and Umatilla. The Walla Walla, Cayuse and Umatilla signed a separate treaty. The Umatilla's separate constitution and bylaws establish its distinct membership requirements (http://www.umatilla.nsn.us/constitu.html).
(7) The court noted then "In addition some of the "facts" upon which the Corps relied have proven to be erroneous, e.g., that the site at which the remains were discovered is recognized as the aboriginal land of an Indian tribe." 969 F. Supp. at 641.
(8) DOI's Solicitor conceded that: "NAGPRA's text refers to a 'final judgment' of the ICC" and that here "there is no such final judgment." ER 172; DOI 10087. See also the Army Corps' 1997 Rescission Notice: "there are no ICC final judgments establishing the lands as aboriginal lands of any particular tribe." ER 41; COE 7661.
(9) It should also be noted that since aboriginal occupation claims are valid only where cultural affiliation "cannot be reasonably ascertained," § 3002(a)(2)(C), both types of claims cannot be asserted simultaneously.
(10) Defendants' own expert stated that the region was inhabited by at least two and possibly as many as 20 maximal bands during this period, ranging in size from 175 to 500 people. See ER 176; DOI 10136 (Ames report).
(12) Such a shared group identity is very unlikely. Kennewick Man's language would be unintelligible today, and his way of living was vastly different from that of Coalition members 900 centuries later. See ER 150, 155; DOI 08997, 09002 (Taylor Aff.). See also the cultural changes described in the Ames Report (ER 173-75, 178-79, 180-82; DOI 10113-10115, 10156-10157, 10161-10163).
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