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The Kennewick Man Case | Court Documents | Briefs

Plaintiffs' Reply Memorandum filed June 4, 2001

Paula A. Barran
601 S.W. Second Avenue, Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212
OSB No. 80397

Alan L. Schneider
1437 SW Columbia Street, Suite 200
Portland, Oregon 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445
OSB No. 68147

Attorneys for Plaintiffs






Civil Case No. 96-1481-JE



Plaintiffs began with the issue of whether Kennewick Man is "Native American" because defendants argue that once remains have been determined to be Native American, other laws fall away and only NAGPRA applies. Defendants' Memorandum at 4, n.5. With one exception (cited only parenthetically), defendants have ignored all of plaintiffs' cited decisions demonstrating fatal flaws in the 1492 Rule. They do not address the improper adoption of the Rule, or that agencies must give effect to the words of Congress. They make no response to the impropriety of agency over-inclusiveness or the controlling decisions that define that issue. They ignore the fact that Columbus never reached the shores of America so that a pre-Columbian distinction is unreasonable. They reverse their previous position on whether their Rule applies to old but obviously European remains. They argue positions that are not supported by the record. There is no indication that Congress approved of making such weighty decisions on the basis of chronological age alone. "Agencies may play the sorcerer's apprentice but not the sorcerer himself." Alexander v. Sandoval, 121 S. Ct. 1511, 1522 (April 24, 2001).

A. The 1492 Rule Is Not A "Long-Standing Interpretation."

Defendants argue that the 1492 Rule is not really a rule, but only an interpretive pronouncement that was prepared simply to inform the Court of their "long-standing interpretation of statutory and regulatory terms." Defendants' Memorandum at 9. Administrative practices that are contrary to the law may be overturned no matter how long-standing. Connecticut Light and Power Co. v. Federal Energy Regulatory Commission, 627 F.2d 467, 473 (D.C. Cir. 1980) ("it would 'make a mockery of the judicial function' to rule 'that administrative agencies are entitled to violate the law if they do it often enough'"). See also Baltimore & Ohio R. Co. v. Jackson, 353 U.S. 325, 330-331, 77 S. Ct. 842, 1 L.Ed.2d 862 (1957) (overruling administrative practice of 60 years' duration); United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 590, 77 S. Ct. 872, 1 L.Ed.2d 1057 (1957) (overruling administrative practice of 40 years' duration).

Moreover, despite what defendants now say, the 1492 Rule is not long-standing. Interior conducted formal rulemaking to adopt regulations for NAGPRA in late 1995. The 1492 Rule does not appear in the regulations, or in the official comments; they define "Native American" by almost verbatim use of Congress' language.(1) The first reference plaintiffs could find to the 1492 Rule in defendants' administrative record was Dr. McManamon's December 1997 opinion letter to the Army Corps (not the Court).(2) Defendants have not identified anything earlier.(3)

B. No Deference Is Due An Improperly Adopted Rule.

The APA permits agencies to act either by adjudication or rulemaking. Adoption of the 1492 Rule was not done by adjudication. Nor was it adopted as a formal rule; defendants concede they did not allow for notice and comment.

Only rules adopted in accordance with "the rigors of the Administrative Procedure Act including public notice and comment" are entitled to Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 146 L.Ed.2d 621 (2000), referring to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). According to defendants, public notice and comment were not required here because Dr. McManamon's opinion letter was an "interpretative rule." Defendants' Memorandum at 9. The label that an agency applies to a rule does not define whether it is interpretive or legislative, nor govern the procedures that must be followed in adopting it. Mount Diablo Hospital District v. Bowen, 860 F.2d 951, 956 (9th Cir. 1988). Whether a rule is interpretive or legislative is a question of law for the court, which must independently examine the effect of the directive to determine if the proper procedures were followed. Chief Probation Officers of California v. Shalala, 118 F.3d 1327, 1330 (9th Cir. 1997); Mount Diablo Hospital District, 860 F.2d at 956.

Legislative rules must be adopted through notice and comment procedures. Those formalities are required whenever a rule modifies or effects a change in existing rights, law or policy, or is adopted pursuant to a statutory directive or under statutory authority. Multnomah Legal Services Workers Union v. Legal Services Corp., 936 F.2d 1547, 1554 (9th Cir. 1991). Procedural invalidity is fatal even for rules that would otherwise be substantively appropriate. Mt. Diablo Hospital District, 860 F.2d at 955. A directive is legislative if it carves out a per se exception or establishes a binding norm that narrowly limits administrative discretion. Mt. Diablo Hospital District, 860 F.2d at 959 (per se exception to timing of Medicare reimbursement); Linoz v. Heckler, 800 F.2d 871, 877 (9th Cir. 1986) (exception to ambulance reimbursement regulation); United States v. Picciotto, 875 F.2d 345, 346-47 (D.C. Cir. 1989) (permit restrictions). Compare Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir. 1987) (directive was interpretive because director was "free to consider" facts and "evaluate the sympathetic appeal" of applicant for deferral).

Dr. McManamon's letter leaves decisionmakers with no discretion in determining what is Native American. It stresses his authority (Congress directed Interior to promulgate regulations, and Interior "has delegated responsibility for programmatic implementation of the statute to this office"). SER 20, DOI 10841. It stresses the Solicitor's concurrence ("He shares the views expressed in this letter"). SER 20, DOI 10841. It stresses that there were no other permissible alternatives (to find otherwise would be "implausible," this "conclusion" has a "clear basis"). SER 21-22, DOI 10842-43. The chain of authority, the weight of the Solicitor, and the rejection of other alternatives combine to make clear that the 1492 Rule is an obligatory directive with no permissible deviations.(4)

Even if the 1492 Rule were interpretative, that would not end the inquiry. Interpretive rules are entitled to weight only if they are reasonable and persuasive. General Electric Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S. Ct. 401, 50 L.Ed.2d 343 (1976), reh. den., 429 U.S. 1079 (1977). Plaintiffs have discussed how the 1492 Rule does mischief to Congress' intent because of its over-inclusiveness (Plaintiffs' Memorandum at 4-5) and how it is unreasonable in application (Id. at 5-6). Defendants ignore these issues except to revise their position to exclude Viking and other European remains, a last minute revision that does not resolve the other defects inherent in the Rule's use of an arbitrary age test. Other remains not related to present-day Native Americans still will be brought within the ambit of the Rule. Nor have defendants addressed the question of why a skeleton that is 510 years old (pre 1492) should be treated differently from one that is 500 years old (post 1492).(5) See, NLRB v. Kentucky River Community Care, Inc., 2001 WL 567713 (May 29, 2001) (NLRB determination that exercise of professional judgment by nurses disqualifies them as supervisors invalid because it inserts "a startling categorical exclusion" not envisioned by the statutory text).

Defendants argue the Court should defer to their constructions, but an agency's formal regulations are entitled to deference only if the statute is ambiguous, and an agency's interpretation of its regulations is entitled to deference only when the regulation is ambiguous. Christensen, 529 U.S. at 586-87, 589. Defendants do not identify any ambiguity in the statute or regulations, or how the 1492 Rule might resolve it, and Dr. McManamon said there was none. In his 1997 letter, he cited the statute and regulations and wrote "we consider this definition clear and self-explanatory." SER 21, DOI 10842.

C. The Rule Cannot Be Saved By Post Hoc Rationalizations And Revisions.

1. Defendants used only chronological age.

Defendants' attorneys argue that the 1492 Rule is not really an age-dependent rule, and that the agencies relied on other factors to determine that the skeleton is Native American. Defendants' Memorandum at 10, n.9. They did not. Other information was used only to "support this chronological placement and determination." ER 110, DOI 06048. The sediment analysis "suggests a pre-Columbian context," and the lithic artifact "is consistent with an ancient date." ER 110, DOI 06048. The Determination stated that radiocarbon dates show that the remains are "pre-Columbian, and therefore 'Native American'" (ER 112, DOI 06050) and that it was based on "the chronological information needed to make the determination." ER 114, DOI 06052. Defendants' counsel are not free to rewrite these words. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S. Ct. 239, 9 L.Ed.2d 207 (1962); Appalachian Power v. EPA, 447 F.2d 495 (4th Cir. 1973). See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S. Ct. 814, 28 L.Ed.2d 136 (1971) (litigation affidavits inadequate basis for review); NLRB v. Kentucky River Community Care, Inc., 2001 WL 567713 (counsel's post hoc rationale cannot be substituted for reasoning supplied by the agency).

2. Defendants may not change their view on old European remains to avoid plaintiffs' motion.

In response to plaintiffs' arguments about the unreasonable scope of the 1492 Rule, defendants' attorneys state that remains "of European origin," such as Vikings, would not be considered Native American.(6) Defendants' Memorandum at 10, n.9. This is the opposite of what defendants (accompanied by Dr. McManamon) said when the Court observed that under their interpretation the remains of Europeans from 12,000 years ago "who came, left, died out, whatever" would be "Native American." SER 136, Tr. of proceedings Sept. 14, 1999 at 47. Defendants agreed then. Defendants' attorneys may have changed their minds about the advisability of that position, but their views are not controlling or relevant. Kentucky River, 2001 WL 567713 at n.1. There is no evidence that the agencies have changed their minds, or if they have, why and what they have done.(7)

3. Defendants mischaracterize the purpose of their rule.

Defendants create the impression that the 1492 Rule is an interpretation of the word "indigenous." Defendants' Memorandum at 9. That is not what Dr. McManamon said he was doing when he announced the Rule. He offered it not as an interpretation of the word indigenous but as an interpretation of the term "Native American." SER 21, DOI 10842. It is one thing to interpret the meaning of a word used by Congress. It is another thing to throw out a complete definition crafted by Congress and substitute a new definition.(8)

4. Defendants' extinct tribe example misses the point.

Defendants quibble with Congress' use of the words "that is indigenous" and claim that such wording is unworkable because it would exclude remains from a tribe that died out long ago. It is not defendants' right "to improve legislation" that Congress has written.(9) Brungart v. Bell South Communications, 231 F.3d 791, 797 (11th Cir. 2000), cert. den., 2001 WL 242544 (2001).

D. Defendants' Excursions into Legislative History And Canons Of Construction Do Not Save The Rule.

Defendants concede NAGPRA's language is "clear" and "plain." SER 21, DOI 10842; Defendants' Memorandum at 10. If that is so, no legislative history or canons of construction may be consulted. Where the language of a statute is plain, "judicial inquiry is complete." Garcia v. United States, 469 U.S. 70, 75, 105 S. Ct. 479, 83 L.Ed.2d 472 (1984), reh. den., 469 U.S. 1230 (1985). Notwithstanding that:

1. Defendants argue that Dr. Keith Kintigh from the Society for American Archaeology supports application of NAGPRA to all ancient remains, whether they have living descendants or not.(10) The views of a private citizen (or his interest group) are irrelevant. "We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal." Circuit City Stores Inc. v. Adams, 121 S. Ct. 1302, 1311 (2001). Witnesses' statements at committee hearings "cannot be considered as a guide to what Congress intended, since Congress has not delegated to organizations or individuals appearing before its committees the authority to construe a statute." United States v. Fairfield Gloves, 558 F.2d 1023, 1027 (Cust. & Pat. App. 1977).

2. Defendants argue that Congress ultimately settled on the word "indigenous" even though some bills proposed before 1990 referred to "American Indians."(11) Defendants' Memorandum at 12, n.11. Plaintiffs make no argument that NAGPRA is limited to "American Indians." In any event, "failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute." Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S. Ct. 675, 681, 148 L.Ed.2d. 576 (2001). See also Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 241, 90 S. Ct. 1583, 26 L.Ed.2d 199 (1970) (treacherous to find rule in congressional silence); Bryant v. Yellen, 447 U.S. 352, 376, 100 S. Ct. 2232, 65 L.Ed.2d 184 (1980), reh. den., 448 U.S. 911 (1980) ("statements by the opponents of a bill and failure to enact suggested amendments, although they have some weight, are not the most reliable indications of congressional intention").

3. Defendants cite recent remarks by Senator Inouye. Defendants' Memorandum at 5, n.6. "The interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute." Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 185, 114 S. Ct. 1439, 128 L.Ed.2d 119 (1980) (citing authorities); Multnomah Legal Services Workers Union, 936 F.2d at 1555.(12)

4. Defendants also cite Representative Bennett. Defendants' Memorandum at 10. However, the authoritative source for legislative intent lies in the Committee Reports on the bill. Garcia, 469 U.S. at 76. In contrast, isolated statements are accorded little weight. Multnomah Legal Services Workers Union, 936 F.2d at 1555. See also Schwegmann Bros v. Calvert Distillers Corp., 341 U.S. 384, 396, 71 S. Ct. 745, 95 L.Ed.2d 1035 (1951), reh. den., 341 U.S. 956 (1951); United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 318, 17 S. Ct. 540, 41 L.Ed.1007 (1897). Statements made during floor debates deserve less respect than committee reports. United States v. International Union (UAW-CIO), 352 U.S. 567, 585-86, 77 S. Ct. 529, 1 L.Ed.2d 563 (1957), reh. den., 353 U.S. 943 (1957).

5. Defendants cite a treatise on statutory construction that when Congress amends a law to delete words, it can be presumed that a change of meaning was intended. Defendants' Memorandum at 12, n.11. There was no prior statute before NAGPRA.

6. Defendants insist NAGPRA must be construed as Indian legislation. Given their position that the language of NAGPRA is plain, any such aid for facilitating the construction of ambiguities is not relevant. Andrus v. Glover, 446 U.S. 608, 619, 100 S. Ct. 1905, 64 L.Ed.2d 548 (1980) (a canon of construction "is not a license to disregard clear expressions of congressional intent"). The canon of construction resolving ambiguities in favor of Indians "does not permit reliance on ambiguities that do not exist" nor permit "disregard of the clearly expressed intent of Congress." Government of Guam v. United States, 179 F.3d 630, 638 (9th Cir. 1999), cert. den., 524 U.S. 1017 (2000). The legal context of a statute matters "only to the extent it clarifies text." Alexander v. Sandoval, 121 S. Ct. at 1520. Moreover, it is not at all certain that NAGPRA is entitled to construction as Indian legislation. See Williams v. Babbitt, 115 F.3d 657, 664-65 (9th Cir. 1997), cert. den., 523 U.S. 1117 (1998) (statute not to be construed as granting Alaska tribes a monopoly over reindeer ownership in the absence of an express choice by Congress).


Defendants argue the narrowness of judicial review of administrative decisions, but ignore the exacting requirements that are a quid pro quo for such narrow review.

A. Defendants Failed To Consider Plaintiffs' Evidentiary Submissions.

Defendants assure the Court that the Secretary really did consider plaintiffs' submissions and gave all evidence equal weight. Defendants' Memorandum at 14, 15. But they do not cite any facts to support this statement. 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. v. USEPA, 616 F.2d 1153, 1160 (9th Cir. 1980). The agency must make findings that support its decision, and those finding must be supported by substantial evidence. Burlington Truck Lines, 371 U.S. at 168. The agency must also articulate a "rational connection between the facts found and the choice made." Id. A failure to address "an important aspect of the problem" is by definition arbitrary and capricious. Motor Vehicles Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 77 L.Ed.2d 443 (1983). 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, 71 S. Ct. 456, 95 L.Ed.2d 456 (1951).

To support their claim that all relevant information was considered, defendants cite DOI 10014 (i.e., page 3 of the Secretary's Determination letter). This merely says that "all lines of evidence were deemed equally important and all were accorded equivalent weight." SER 31, DOI 10014. Such a conclusory statement is not sufficient. See Beno v. Shalala, 30 F.3d 1057, 1075 (9th Cir. 1994) ("stating that a factor was considered is not a substitute for considering it"). "Conclusory administrative determinations may conceal arbitrariness," so courts must look for reasoned evaluations rather than "bald conclusion[s], unsupported by reasoning or evidence." Jordan v. Califano, 582 F.2d 1333, 1335-36 (4th Cir. 1978).(13)

Since the Secretary did not describe what evidence he considered, defendants' attorneys try to remedy the deficiency by pointing to the summary memorandum entitled "Human Culture in the Southeastern Plateau." SER 35-70, DOI 10050-85. They argue that it "summarizes the evidence supporting" the Secretary's "findings." Defendants' Memorandum at 15. This is incorrect. The Secretary never adopted this document or made it part of his decision.(14) Since he did not, it cannot be used to fill the evidentiary gaps in the Determination. Sears Sav. Bank v. Federal Sav. and Loan Ins. Corp., 775 F.2d 1028, 1030 (9th Cir. 1985) (staff memorandum not mentioned or adopted by Board is not evidence of the views of the Board); City Federal Sav. & Loan Ass'n v. Federal Home Loan Bank Bd., 600 F.2d 681, 693 (7th Cir. 1979) (court will not assume that staff memorandum reflects views of agency).

"Human Culture" does not demonstrate that the evidence submitted by plaintiffs was actually considered. Its one passing reference to plaintiffs' evidence ("some information submitted by the Bonnichsen plaintiffs" was received and "considered") is insufficient. None of plaintiffs' evidence was actually discussed in the summary, most was not even cited, and the summary concedes that only "some" of plaintiffs' evidence was considered. Appendix C is a partial list of materials that plaintiffs submitted to defendants. Not a single one of these submissions is cited in "Human Culture." Some are not even included in DOI's administrative record.

B. The Secretary Failed To Consider Other Relevant Evidence.

Plaintiffs have already mentioned some of the other evidence that the Secretary ignored. Plaintiffs' Memorandum at 12-13. Defendants' sole response is that this evidence "was contained in the administrative record and which was considered." Defendants' Memorandum at 18. Such a conclusionary statement is insufficient as a matter of law to demonstrate that the evidence was actually considered. Beno, 30 F.3d at 1075.

C. Defendants' Memorandum Is At Odds With The Determination.

The Secretary based his cultural affiliation Determination on only two kinds of evidence: geography and oral tradition. SER 32, DOI 10015. Defendants' attorneys now assert that it was based on much more. They cite kinship, biological, archaeological, anthropological, linguistic, folklore, historical and "other relevant information." Defendants' Memorandum at 17. Secretary Babbitt, however, expressly stated that some of these lines of evidence (burial patterns, linguistics and morphological characteristics) were "too limited to draw any conclusions." SER 32, DOI 10015. Other lines of evidence were subject to "discontinuities." SER 33, DOI 10016. The rationale for an agency's decision must come from the agency, not from counsel. Beno, 30 F.3d at 1074, n.42.

D. Defendants Apply An Erroneous Standard In Discussing The Evidence.

Defendants criticize plaintiffs for pointing to some of the evidentiary inconsistencies in the Secretary's Determination. They say it would be impossible to gather the kinds of evidence mentioned by plaintiffs, and suggest that plaintiffs merely wish to weigh the evidence differently from than the Secretary. Defendants' Memorandum at 16, 18. Their arguments misstate plaintiffs' position. Plaintiffs do not argue that the decision is wrong merely because they would have made it differently. It is wrong because it was improperly made. Defendants 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. den., 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"). See also Universal Camera Corp., 340 U.S. at 488; City of Gillette v. FERC, 737 F.2d 883, 886-87 (10th Cir. 1984) (order failed to explain why agency rejected party's arguments).(15)

To these cases there should be added the Court's order on remand to "critically examine all of the evidence in the record as a whole, and make specific findings that are supported by reliable evidence." Bonnichsen v. U.S., 969 F. Supp. at 652, n.26. Defendants did not comply with that order.

E. Defendants Erred In Considering A Non-Precedential ICC Decision.

Defendants have again shifted their position on what to make of the Umatilla's prior Indian Claims Commission case. They argue that the "factual findings" in that case could be used as additional evidence of cultural affiliation. Defendants' Memorandum at 18, 19, 20. That is not what the Secretary did. He used the ICC case only to find that there was a valid aboriginal occupation claim under § 3002(a)(2)(C)(1) of the statute. SER 33, DOI 10016. This was an alternative basis for awarding possession of the skeleton to the Coalition, and had nothing to do with the cultural affiliation claim.

Defendants argue that use of the ICC case was proper because doing so "furthers the purpose of NAGPRA." Defendants' Memorandum at 20, n.19. But Congress spoke of a "final judgment."(16) Defendants also disregard the express stipulations of the compromise settlement which said that it was not to be considered as precedent in any matter. ER 334. Moreover, defendants imply that conclusive findings of fact were entered in the ICC case. Defendants' Memorandum at 20. The stipulation for entry of final judgment in that case says: "such dismissal of said appeal shall not be intended by either party as an affirmance of the findings or decisions of the Indian Claims Commission." ER 333. The Order Dismissing Appeal says the same thing. ER 336. Defendants' insistence that the Court overlook these essential components of the settlement calls to mind the words of another court:

"In disregard of all the foregoing, DFM continues before this court its disingenuous effort to pretend that a stipulation that validity and infringement are 'not contested,' entered 'solely for the purpose of simplifying the litigation in this action,' expressly stating BOEHL's intention not to be bound by it in other litigation, and expressing BOEHL's understanding that the patents are invalid, must have the same effect as a judgment. In its initial and reply briefs, DFM attempts to make a silk purse of a stipulated sow's ear by simply ignoring the record and referring to 'stipulated findings on infringement and validity.' DFM apparently harbors, here and elsewhere in its briefs, a forlorn hope that this court cannot or will not read anything but its briefs." Devices for Medicine, Inc. v. Boehl, 822 F.2d 1062, 1065 (Fed. Cir. 1987).

F. A 5500 Year Gap Is Not Reasonable.

Defendants cite the Senate Report on NAGPRA for the proposition that a finding of cultural affiliation should not be precluded solely because there are "gaps in the record." Defendants' Memorandum at 15, n.13. The Report referred to "reasonable gaps." (17) The gap here is not trivial or inconsequential. Defendants' own "Human Culture" summary points out that linguistics do not support the presence of Sahaptin speaking peoples in the Columbia Plateau beyond 4000 years ago, if even that far back. SER 55, DOI 10070. That summary also reports that references to past geologic events in Coalition oral traditions could be relatively recent events. SER 59, 61, DOI 10074, 76. A gap of 5500 years (or more) cannot be called reasonable. It is longer than the period separating the modern world from the creation of the Egyptian pyramids and leaves ample time for biological connections to have been severed, or for cultural processes to have changed group identities so much they are no longer "shared." See the BLM decision rejecting cultural affiliation for the Spirit Cave remains and noting that the natural evolution of cultures over 9,000 years diminishes the likelihood that any set of remains is, or can be, affiliated. See


(1) See 43 CFR § 10.2(d) ("of, or relating to, a tribe, people, or culture indigenous to the United States"). Neither the regulations nor the official comments indicates that anything significant was intended by the omission of Congress' term "that is."

(2) As evidence of DOI's "consistent" position on this issue defendants cite DOI 10018-45, 10842-43 and COE 10, 30. See Defendants' Memorandum at 6. These references are to nothing more than Dr. McManamon's 1997 letter articulating the Rule, and the 2000 Determination that applies the Rule, not to any "consistent" or "long-standing" holdings. The assertion that they considered alternative interpretations to using 1492 (Defendants' Memorandum at 8, n.8) is even more questionable. Each reference in that footnote is to an article or submission that postdates Dr. McManamon's 1997 letter. Some even postdate the January 2000 Determination that Kennewick Man is Native American. DOI 07856-67 is dated March 12, 2000. DOI 8205-8209 is dated April 2000. DOI 10690, one of the study team reports, was not prepared until after the Spring 1999 government study. DOI 4906 shows a 1999 copyright. DOI 5337 is undated but cites 1998 publications.

(3) In June 1997, they argued to the contrary (i.e., that age was not the only indicator for classifying remains as Native American). SER 130-31, Tr., June 2, 1997 at 12-13.

(4) That the Rule permits no other interpretation is also apparent from defendants' actions here. They merely plugged in the results from the age data (older than 1492) and ended the inquiry: "A series of radiocarbon dates now available from the Kennewick skeletal remains indicate a clearly pre-Columbian date for the remains * * *. It is reasonable to conclude that the human remains from Columbia Park in Kennewick, WA are 'Native American' as defined by the Native American Graves Protection and Repatriation Act." ER 110, DOI 06048. The Secretary subsequently confirmed that the Native American determination was based upon chronological information. SER 29, DOI 10012.

(5) Defendants also ignore the imprecision inherent in the dating of prehistoric remains and objects. For example, Kennewick Man's radiocarbon age was expressed in terms of a "plus or minus" range of 40 years. Defendants do not explain how their Rule would apply to a skeleton that is radiocarbon dated to 1480 (or 1450, 1460, 1470) plus or minus 40 years, and thus is just as likely to be post-Columbian as pre-Columbian.

(6) The reason defendants give is that such remains "would not be related to tribes, peoples or cultures that are indigenous to the United States" (emphasis added). They fail to explain, however, why they would apply Congress' relationship test in those situations but not in the case of Kennewick Man.

(7) In Scribner v. Worldcom, Inc., 2001 WL 476879 (9th Cir. 2001), the Ninth Circuit recently quoted from Through the Looking Glass to characterize a similar attempt to dispute the plain meaning of words (and disagreed with Humpty Dumpty's view that words are infinitely elastic): "When I use a word,"Humpty Dumpty said in a rather scornful tone, "it means just what I choose it to mean--neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things."

(8) If the 1492 Rule were only an interpretation of the word indigenous, it would explain what kind of tribes, peoples or cultures are indigenous for purposes of Congress' definition, but would not avoid the need to show that the tribe, people or culture still exists, or that a given skeleton relates to such an existing tribe, people or culture.

(9) Defendants concede that the law was written to address complaints about "disrespectful treatment of their ancestors' human remains" (referring to modern Native Americans). Defendants' Memorandum at 1. An extinct tribe has no descendants and, therefore, is not ancestral to anyone living today.

(10) The is no evidence that Dr. Kintigh speaks for anyone other than himself, and in any event the level of his support in the archeological community (most of whom do not study human skeletal remains) is irrelevant. Judicial disputes are not decided by opinion polls.

(11) NAGPRA was intended to apply to Native Alaskans and Native Hawaiians as well as American Indians. See SER 146 (Senate Report).

(12) See also Sullivan v. Finkelstein, 496 U.S. 617, 631-32, 110 S. Ct. 2658, 110 L.Ed.2d 563 (1990) (Scalia) (criticizing any attempt to "smuggle into judicial consideration legislators' expressions not of what a bill currently under consideration means" but of what current legislators thought their predecessors intended; "[A]rguments based on subsequent legislative history, like arguments based on antecedent futurity, should not be taken seriously, not even in a footnote." Id. See Slaven v. BP America, 973 F.2d 1468, 1475 (9th Cir. 1992) (after the fact legislative observations are not part of the legislative history).

(13) See also Getty v. Federal Savs. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986) (statements that an agency "has given full and due consideration" and "adhered to the standards" of a statute are conclusory and insufficient). Courts "must recognize the danger that an agency, having reached a particular result, may become so committed to that result as to resist engaging in any genuine reconsideration of the issues. The agency's action on remand must be more than a barren exercise of supplying reasons to support a pre-ordained result." Food Marketing Institute v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 1978).

(14) It is not surprising the Secretary did not adopt "Human Culture" as his evidentiary base since it is at odds with his Determination. This summary states that Kennewick Man came from "a unique and clouded set of circumstances," SER 36, DOI 10051; that the evidence shows "a pattern of hunting and gathering food resources over a wide geographical range," SER 43, DOI 10058; that the scope of Kennewick Man's lifetime movements are not known, SER 44, DOI 10059; that the people of his time followed "a way of life quite different from the much more sedentary residential pattern associated with the historic tribes, SER 45, DOI 10060; that varied projectile points represent "different cultural traditions," SER 47, DOI 10062; that "the strongest morphological affinities" for the Kennewick skeleton are not with American Indians, SER 52, DOI 10067; that extending a chain of language usage more than 4000 years "is a difficult and questionable proposition," SER 55, DOI 10070; that environmental reconstruction "indicates a series of fluctuations" in the Columbia Plateau over time, SER 56, DOI 10071; that Sahaptin speaking peoples and their antecedents did not necessarily possess a long-term association with the Plateau environment, SER 56, DOI 10071; that "traditions may or may not remain stable over long periods of time," SER 57, DOI 10072; that oral traditions are difficult "if not impossible" to place in chronological time, SER 58, DOI 10073; that one origin story refers to people who were living before the Indians were created, SER 60, DOI 10075. In sum, "Human Culture" summarizes that the overall evidence is against cultural affiliation.

(15) See Also 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).

(16) To argue that the Coalition had a valid aboriginal occupation claim to the skeleton also overlooks the fact that only one tribe, the Umatilla, was a party to the ICC case.

(17) The Senate Report also stated there should be a "reasonable connection" between the claiming tribe and the item being claimed, and that cultural affiliation should "be reasonably established through an offer of evidence which shows a continuity of group identity from the earlier to the present day group." SER 147-48.

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