Defendants File a Reply to the Court
Final federal court brief for Judge Jelderks
For several centuries Native American human remains and cultural items have been disinterred for collection and study. Often, these human remains and cultural items were held in collections by federal agencies and museums rather than being returned or re-buried. In 1990, Congress, responding to Native American objections to the disrespectful treatment of their ancestors' human remains and cultural items, enacted the Native American Graves Protection and Repatriation Act (NAGPRA), 25 USC § 3001 et seq., to protect Native American burial sites and prevent the removal of human remains and cultural items from federal and tribal lands. H.R. Rep. N 877 (191st Cong) at. 8.
In this case, Plaintiffs challenge the Defendants' determination under NAGPRA that the appropriate disposition of the Native American human remains (sometimes referred to as the "Kennewick Man") rests with a coalition of five Indian tribes. As described below, the Department of the Interior (DOI) (1) carefully carried out the NAGPRA disposition process, conducting extensive studies and evaluating a host of archeological, historical, ethnographic, linguistic, biological, geological, folklore, oral tradition and other types of evidence. After through review of this evidence, the Secretary of the Interior (Secretary) determined that these human remains are Native American and are culturally affiliated with the coalition of claimant Indian tribes. The Secretary's careful consideration in making this determination is demonstrated in the voluminous administrative record and his determination should be upheld.
Plaintiffs offer an array of challenges to the Secretary's NAGPRA determination which resulted in the denial of Plaintiffs' request to study. In particular, the Plaintiffs urge that (1) DOI's interpretation of "Native American" is contrary to the express language of NAGPRA; (2) DOI's determination that these human remains are culturally affiliated with the claimant tribes is arbitrary and capricious; (3) DOI's administrative process was procedurally tainted; (4) DOI's consideration of oral history in determining cultural affiliation violated the Constitution's Establishment Clause; and (5) Plaintiffs have a First Amendment right to study these human remains.
All of these contentions are without merit. First, DOI's interpretation of the statutory provisions of NAGPRA, an Act it is charged with administering, is entirely consistent with both the language and the intent of Congress. Second, DOI's determination that these human remains are culturally affiliated with the coalition of claimant tribes is supported by a preponderance of the evidence and should be affirmed. Third, DOI's decision making process fully complied with NAGPRA and the Administrative Procedure Act. Fourth, the consideration of oral tradition to determine cultural affiliation is appropriate under NAGPRA, and neither promotes nor inhibits the practice of any religion in violation of the Establishment Clause. Fifth, there is no Constitutional right to study these human remains. The Secretary's determination that the human remains are culturally affiliated with the claimant tribes should be upheld and their disposition by the Corps of Engineers (COE) to the claimant tribes should be allowed to proceed.
The United States seeks a ruling upholding DOI's determination under NAGPRA and the COE's denial of Plaintiffs' request to study. COE AR 1. (2) Defendants also seek resolution of the unresolved constitutional issues. In addition, Defendants seek a ruling that the COE has not violated the National Historic Preservation Act (NHPA) or the Freedom of Information Act. (FOIA).
By Order and Opinion dated June 27, 1997, the Court vacated the COE's decision that appropriate disposition of the human remains should be to the claimant tribes and remanded the matter for further consideration. Bonnichsen v. United States, 969 F.Supp.628 (D.Ore. 1997). The Court also set out a series of questions that it considered at issue. Id. at 651-654. The Court directed Plaintiffs to "present to the agency all arguments that plaintiffs intended to assert in this case, and to make any record below that is needed to support those contentions." Id. at 651. On September 21, 1999, the Court ordered Defendants to respond to the Plaintiffs' study request by March 24, 2000, but extended that deadline to allow for DNA testing of the remains. See Court Orders of September 21, 1999 and March 8, 2000. Subsequently, based on consultation with the claimants, input from the Plaintiffs, various scientific testing of the remains, and the cultural affiliation studies, the Secretary issued his decision that the remains are culturally affiliated with the claimant tribes and that the appropriate disposition is to the claimant tribes.(3) The Secretary also took into account the Indian Claims Commission's (ICC) factual finding that the lands where the remains were found were the aboriginal lands of the claimant tribes.(4) DOI AR 904 at 10016. As a result, the COE denied the Plaintiffs' study request and, subject to the resolution of this litigation, will follow the regulatory procedures set forth at 43 CFR § 10.6(c) for disposition of the remains to the claimant tribes.
III. NAGPRA STATUTORY BACKGROUND
Section 3 of NAGPRA establishes a process for the disposition of Native American human remains and cultural items excavated or removed from federal or tribal lands to claimants possessing standing under the Act. NAGPRA provides lineal descendants, Indian tribes, and Native Hawaiian organizations a means to participate in the protection, treatment, and disposition of Native American human remains and cultural items that are located on or excavated and removed from federal and tribal lands.
The enactment of NAGPRA was a sea-change in the handling and disposition of these cultural items. Prior to 1990, the collection and study of Native American human remains was given relatively free rein despite many Native Americans' objections. With the passage of NAGPRA, the emphasis shifted to returning human remains and cultural items to the appropriate lineal descendants, Indian tribes, and Native Hawaiian organizations. Under Section 3, scientific study is permissible only to the extent necessary to determine whether the remains are "Native American" and their appropriate disposition.(5)
In enacting NAGPRA, Congress recognized the special relationship between the federal government and Indian tribes. 25 USC § 3010 ("Act reflects the unique relationship between the Federal Government and Indian Tribes and Native Hawaiian organizations"). Congress' purpose for enacting NAGPRA was "to protect Native American burial sites and the removal of human remains, funerary objects, sacred objects, and objects of cultural patrimony on Federal, Indian, and Native Hawaiian lands." H.R. Rep. 101-877 (1990) at 8. More importantly, NAGPRA was intended to "establish a process that provides the dignity and respect that our Nation's first citizens deserve." 136 Cong. Rec. S17173 (Oct. 26, 1990)(Sen. McCain). Clearly, NAGPRA must be construed as Indian legislation.(6)
As a result, the Indian canons of construction apply to NAGPRA and dictate that any ambiguities in the statute must be resolved liberally in the favor of Indian interests. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985)("The canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians); Choate v. Trapp, 244 U.S. 665, 675 (1912) (The Indian canon of construction has been applied for over one hundred years and requires the resolution of doubtful expressions in favor of Indians); County of Yakima v.Yakama Indian Nation, 502 U.S. 251, 269 (1992) (Canons of construction in favor of Tribe require denial of county's claim to levy an excise tax on sales of tribal land). Indeed, one court has already applied the canons of construction to interpret provisions of NAGPRA in a manner that benefits Indians. Yankton Sioux Tribe v.U.S. Army Corps of Engineers, 83 F. Supp. 2d 1047, 1056 (D.S.D. 2000) (COE's intended regulation of lake's water level found to be "inadvertent discovery of human remains" under NAGPRA). NAGPRA addresses two categories of human remains and cultural items: (1) those held in collections by museums or federal agencies prior to November 16, 1990 (25 USC §3003), and (2) those located on, or excavated and removed from, federal and tribal lands after November 16, 1990 (25 USC § 3002(a)-(d)). Since the human remains at issue here were inadvertently discovered on and removed from lands managed by the COE in 1996, they are subject to Section 3 of the Act. 25 USC §3002(a)-(d).
Where there is an excavation or removal of human remains from federal or tribal lands after November 16, 1990, Section 3 of NAGPRA establishes a tiered process for determining their appropriate disposition. In the first instance, the agency must determine whether the remains are "Native American" as defined by NAGPRA. "Native American" is statutorily defined as "of, or relating to, a tribe, people, or culture that is indigenous to the United States." 25 USC §3001(9). In ten years of implementing the statute, DOI has consistently held that human remains and cultural items are "Native American" if they "belong to a culture that resided within the area now encompassed by the United States prior to the historically documented arrival of European explorers, irrespective of when a particular group may have begun to reside in this area, and irrespective of whether some or all of these groups were or were not culturally affiliated or biologically related to present day Indian tribes." DOI AR 905 at 100018-45, 10842-43; COE AR 1 at 10, 30.(7) In short, DOI has consistently considered inadvertently discovered human remains to be Native American if they relate to a culture predating the historically documented European exploration of North America.
The second tier of the process seeks to determine the appropriate claimant(s) for disposition of the remains. The highest priority claimant is a lineal descendant. If there are no lineal descendants, the human remains or cultural items must be returned to claimant(s) in the following priority: (1) to the Indian tribe or Native Hawaiian organization on whose tribal lands the items were found; (2) to the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains and which states a claim for their custody; or (3) if the cultural affiliation cannot be reasonably ascertained and if the remains were discovered on Federal land that has been recognized by the ICC as being the aboriginal land of a particular tribe, to that tribe. 25 USC § 3002(a).
Human remains are considered culturally affiliated with a present day tribe "if there is a shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe and an identifiable earlier group." 25 USC § 3001(2). To evaluate whether the claimant tribes and the human remains are culturally affiliated, the regulations require the agency to examine a variety of evidence: "geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historic or other relevant information or expert opinion." 43 CFR §10.14(d) and (e). If a preponderance of this evidence suggests that a particular tribe or tribes is/are culturally affiliated, disposition of the human remains must occur to the appropriate claimant(s) with standing. 43 CFR § 10.14(f). Scientific certainty is not required and the existence of gaps in the record does not preclude a finding of cultural affiliation. 43 CFR §§ 10.14(d) and (f).
A. THE KENNEWICK HUMAN REMAINS WERE PROPERLY DETERMINED TO BE NATIVE AMERICAN AND THEREFORE SUBJECT TO NAGPRA
After conducting a series of tests based on archeology, geomorphology, sedimentology, physical anthropology, and radiocarbon dating DOI determined that the human remains belonged to a pre-Columbian or pre-European indigenous culture and were therefore "Native American" as defined by NAGPRA.(8) In making this determination, Defendants tested the geomorphology and soils of the river bank near the discovery site which indicated that the alluvial terrace, where the remains are thought to have originally been buried, contained sediment layers dating back approximately 9,000 years. Defendants' analysis and testing of the remains themselves indicated that the remains pre-dated the arrival of historically documented European explorers in the Columbia Plateau region, and a comparison of the sediments adhering to the remains with sediments from the river bank indicate that they were buried in sediments some 7,000 years old. Defendants' analysis of the lithic artifact lodged in the hip of the skeletal remains was also consistent with an ancient date. Finally, defendants conducted radiocarbon testing which produced dates consistent with the remains being thousands of years old. DOI AR 905 at 100018-45; COE AR 1 at 10, 30-35. See Federal Defendants Notice of Radiocarbon Results and Notice That The Remains are Native American, filed January 12, 2000, DOI AR 582.
Plaintiffs argue that DOI based its determination on a faulty interpretation of the term "Native American" and that DOI's interpretation was adopted without proper procedures. Plaintiffs take the position that ancient human remains can only be "Native American" if they are proven to be related to present day American Indians, and argue that Defendants' have adopted a "substantive rule" in which human remains are considered to be Native American based solely on age. As discussed below, Plaintiffs arguments are incorrect.
1.DOI Has Not Violated The APA By Interpreting The Meaning Of "Native American."
As an initial matter, there is no merit to Plaintiffs' contention that DOI has improperly promulgated a "rule" that controls whether human remains or cultural items are Native American. The only citation that Plaintiffs provide for this alleged "1492 rule" is to documentation generated by Defendants in responding to the questions in the Court's June 1997 Order. See Pls. Br. at 2, DOI AR 135 at 02128. In response to the Court's question of what was meant by the terms "Native American" and "indigenous" in the context of NAGPRA and the facts of this case, Defendants stated:
We consider that the term "Native American" as used in NAGPRA applies to human remains and cultural items relating to tribes, peoples, or cultures that resided within the area now encompassed by the United States prior to the historically documented arrival of European explorers.... We base these views primarily on the statutory definition of the term "Native American" ... and in the NAGPRA implementing regulations ....
Id., DOI AR 941 at 10842. Plaintiffs' assertion that this explanation constitutes a "rule" cannot be taken seriously. Pl. Br. at 3. In preparing the responses to the Court's questions, Defendants did not engage in "rulemaking" but simply sought to inform the Court of its longstanding interpretation of statutory and regulatory terms. Moreover, even if the response were considered to be an "interpretive rule," its adoption would not require notice and comment. 5 USC § 553(b)(A).
2.DOI Properly Interpreted the Meaning of Native American.
Under NAGPRA, human remains are "Native American" if they are of or relating to, a tribe, people or culture that is indigenous to the United States. 25 USC. §3001(9). DOI has interpreted "indigenous" to refer to those cultures that existed in what is now the United States prior to the historically documented European exploration. DOI AR 941 at 10843. As interpreted by DOI, remains that belong to a culture that predates historically documented European exploration - whether or not the remains are related to an existing Indian tribe, are considered Native American.(9)
This interpretation is not only supported by the plain language of NAGPRA but also by its legislative history, which supports the view that NAGPRA applies to prehistoric human remains that may not have living descendants.(10) During the Congressional hearings, Representative Charles Bennett noted that "we should not overlook the fact that there are some of the deceased who don't have modern descendants, and their remains should be kept with care and dignity..." and "...we as a nation should take care of those remains." Protection of Native American Graves and Repatriation of Human Remains and Sacred Objects: Hearing on H.R. 1381, 1646, and 5237 Before the Comm. On Interior and Insular Affairs, 101st Cong 130 (1990)(statement of Rep. Charles Bennett). The Chair of the Society for American Archaeology (SAA) , Keith W. Kintigh stated that "some human remains still will not be identifiable with any modern group because many groups have become extinct, both in historic and prehistoric times." Protection of Native American Graves and the Repatriation of Human Remains and Sacred Objects: Hearings Before the House Committee on Interior and Insular Affairs, 101st Cong. at 148 (1990).
More recently, the SAA- amicus in this case - made it clear that they do not dispute DOI's determination that the remains in this case are Native American. In a paper presented at the "Clovis and Beyond" Conference on October 28, 1999, Dr. Keith Kintigh, President of SAA, stated that "it is SAA's position that under NAGPRA, First Americans [Paleo-Indians] are Native Americans, regardless of how many migrations there were, where they came from, when they came, or whether some groups died out." Id. at DOI AR 491 at 05058. Later that year in a statement to the NAGPRA Review Committee, Dr. Kintigh "explained that SAA agrees with the DOI that Kennewick Man, and other ancient human remains, is Native American." See Minutes, Native American Graves Protection and Repatriation Review Committee, Eighteenth Meeting, November 18-20, 1999 Salt Lake City, Utah.
Despite the support DOI's interpretation has in the language of NAGPRA, its legislative history, and in the archeological community, the Plaintiffs challenge this interpretation and assert that even if the human remains belong to a culture that pre-dates the arrival of Columbus, or presumably any other documented regional European explorer, the remains cannot be deemed Native American unless they are found to be related to existing Indian tribes (Pls. Br. at 2). Plaintiffs' definition of Native American would require a finding not only that the remains (1) belonged to a culture that existed in the United States prior to European exploration, but also that the remains (2) relate to a tribe, people or culture that presently is indigenous to the United States.
Plaintiffs' restrictive type of definition was considered and rejected by Congress.(11) Moreover, it is inconsistent with NAGPRA and would render the "cultural affiliation," "unclaimed Native American human remains," and "culturally unidentified Native American human remains" provisions of NAGPRA irrelevant. 25 USC §3002(a), (b); §3005(a)(4); § 3006(c)(5). Under the tiered process established by Congress, the inquiry begins with the identification of the human remains as "Native American." Once so identified, the federal agency must determine whether there are lineal descendants and, if not, whether the remains are culturally affiliated with a present day tribe(s) or Native Hawaiian organization. 25 USC § 3002(a). If one were to adopt the Plaintiffs' definition - that to be Native American the remains must be related to an existing tribe - there would be no need for the process to determine cultural affiliation. See 25 USC. § 3002(a). Moreover, under a definition of Native American that would require a connection between the human remains and an existing tribe, any remains that were not found to be so connected would fall outside the ambit of NAGPRA.(12) This was clearly not Congress' intent. Rather, in enacting the unclaimed human remains and cultural items provision of NAGPRA, Congress clearly anticipated the disposition of Native American remains that could not be culturally affiliated with a present day tribe. 25 USC §3002 (b). Because a court should not adopt an interpretation of a con gressional enactment which renders superfluous another statutory provision of that same law, Plaintiffs' interpretation must be rejected. See Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998); Hohn v. United States, 524 U.S. 236, 249 (1998).
B. DOI'S CULTURAL AFFILIATION DETERMINATION COMPLIED WITH NAGPRA
DOI's initial determination that the Kennewick remains were Native American confirmed the application of NAGPRA and triggered a second inquiry regarding appropriate disposition. NAGPRA establishes the following priority for remains that are excavated or removed from Federal or tribal lands after November 16, 1990:
(1)in the case of Native American human remains and associated funerary objects, in the lineal descendants of the Native American; or
(2) in any case in which such lineal descendants cannot be ascertained, and in the case of unassociated funerary objects, sacred objects, and objects of cultural patrimony
(A) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered;
(B) in the Indian tribe or Native Hawaiian organization which has the closest cultural affiliation with such remains or objects and which, upon notice, states a claim for such remains or objects; or
C) if the cultural affiliation of the objects cannot be reasonably ascertained and if the objects were discovered on Federal land that is recognized by a final judgment of the Indian Claims Commission or the United States Court of Claims as the aboriginal land of some Indian tribe
(1) in the Indian tribe that is recognized as aboriginally occupying the area in which the objects were discovered, if upon notice, such tribe states a claim for such remains or objects, or
(2) if it can be shown by a preponderance of the evidence that a different tribe has a stronger cultural relationship with the remains or objects than the tribe or organization specified in paragraph (1), in the Indian tribe that has the strongest demonstrated relationship, if upon notice, such tribe states a claim for such remains or objects.
25 USC §3002 (a). If found to fall under one of the hierarchical priorities enumerated at 25 USC §3002 (a) and 43 CFR §10.6 (a), the disposition of Native American human remains and cultural items rests with the appropriate entity that claims their custody. Native American human remains and cultural items that are not claimed under subsection (a) are considered unclaimed. (25 USC §3002 (b)).
1. The Process For Determining Whether The Remains Were Culturally Affiliated With The Claimant Tribes Was Consistent With NAGPRA.
a.The Secretary Properly Considered All Evidence.
Following the order of priority for disposition as set out in NAGPRA, DOI first determined that a claim based on lineal descent (§3002 (a)(1)) could not be validated. In this regard, Plaintiffs submitted information regarding the unlikelihood of living descendants, which was considered by the Secretary in his determination that no present day lineal descendants exist. See 43 CFR §10.2 (b)(1); DOI AR 904 at 10014.
DOI then had to analyze whether a claim could be validated based on cultural affiliation. §3002(a)(2)(B). Cultural affiliation is defined as "a relationship of shared group identity that may be reasonably traced historically or prehistorically between a present-day Indian tribe or Native Hawaiian organization and an identifiably earlier group." 43 CFR 10.14(c). NAGPRA requires cultural affiliation to be determined by a "preponderance of the evidence" and the regulations state that cultural affiliation does not have to be established with scientific certainty. Id at §10.14(f).
The determination of cultural affiliation requires evaluation of evidence from as many credible, reliable, and relevant sources of information as available. In addition to the data generated by the DOI directed examinations and studies, DOI reviewed the existing relevant historical, geographical, biological, archeological, anthropological and linguistic literature, as well as kinship, folklore, oral tradition and other relevant information and expert opinion to make this determination. Id. at §10.14(e). Since the regulations direct that a finding of cultural affiliation must be based upon an overall evaluation of the totality of the circumstances and evidence, and should not be precluded solely because of some gaps in the record (§10.14(d)), all types of evidence were considered important and accorded equal weight. DOI AR 904 at 10014.(13)
In reaching its determination, DOI received reports and other information submitted by the claimants as part of the required consultation, as well as materials submitted by the Plaintiffs, and contracted with various experts to conduct specific investigations relevant to the cultural affiliation inquiry. DOI AR 907 at 10053. Based on the evidence before it, DOI determined that (1) there was an identifiable present day Indian tribal claimant that had standing under NAGPRA to make a claim (43 CFR §10.14(c)(1)); (2) there was evidence of the existence of an identifiable earlier group living in the Columbia Plateau region during the lifetime of the Kennewick remains (43 CFR §10.14(c)(2)(i)-(iii)); and (3) there was evidence of a shared group identity between the earlier group and the present day Indian tribal claimants (43 CFR §10.14 (c)(3)). The report attached to the Secretary's determination summarizes the evidence supporting these findings. Id. at 10050-85.
Plaintiffs do not dispute the evidence that members of the present-day tribal claimants have always lived in the area where the remains were found. Pls. Br. at 11. However, they claim that evidence of "long-term continuity" is not enough to show a "shared group identity." In fact, they claim that it is impossible to determine whether there was a shared group identity between the earlier group and the present day tribal claimants "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.'" Id. Plaintiffs also speculate that the remains could belong to a "stranger" to the area, rather than to one who resided there.
Plaintiffs' argument ignores the appropriate standard for determining cultural affiliation. As the regulations implementing NAGPRA explicitly state, cultural affiliation does not have to be established with scientific certainty. While the types of evidence set out by Plaintiffs can properly be used to support cultural affiliation(14) - NAGPRA does not require that there be evidence on each of these points. Moreover, given the lack of contemporary documentation, it would be impossible to gather the types of evidence Plaintiffs suggest are required in cases involving ancient remains.
To prove cultural affiliation, the standard the claimant must meet and the federal agency must apply is a preponderance of evidence. Here, taking into account the tribal claimants' oral history that they had always inhabited this area, as well as the absence of any migration stories, and all of the other relevant evidence, the Secretary determined that there was a shared group identity between the earlier group and the present day claimants. DOI AR 904 at 10015. The Secretary was aware that the evidence before him did not establish a shared group identity to a scientific certainty - but also realized that NAGPRA does not demand such certainty.(15)
Oral history was only one type of evidence that the Secretary considered. In making the determination, DOI collected and analyzed a range of geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, and other relevant information and expert opinion evidence to determine the cultural affiliation of the remains. See DOI AR 904 at 10012-10017; DOI AR 907 at 10050-85. After synthesizing and reviewing the evidence generated from these subject areas, the DOI's experts concluded that cultural continuities and discontinuities existed between the present day claimant tribes and the cultural group representing the remains. See DOI AR 904 at 10016; DOI AR 907 at 10050-85. For the most part, the cultural discontinuities were determined to stem from a lack of information from the very earliest time periods. See DOI AR 904 at 10015-10016; DOI AR 907 at 10053-85. Nevertheless, the Secretary noted that "none of the cultural discontinuities suggested by the evidence are inconsistent with a cultural group continuously existing in the region [Columbia Plateau], interacting with other groups migrating through the area and adapting to changing climatic conditions." See DOI AR 904 at 10016.
The oral tradition, folklore, traditional history and geographic evidence demonstrated a strong enough nexus between the present day tribal claimants and the cultural group representing the remains to establish a cultural affiliation under the preponderance of evidence standard.(16) The Secretary reasonably considered this evidence in determining whether a shared group identity could reasonably be traced, and determined that the tribal claimants had met the required standard of proof.
Finally, Plaintiffs assert that the Secretary ignored evidence that contradicted his finding of cultural affiliation. Pls. Br. at 12-13. However, in each case, Plaintiffs cite to evidence that was contained in the administrative record and which was considered. As noted above, the determination for cultural affiliation is not based on scientific certainty: it requires a weighing of various types of evidence, any of which might reasonably persuade the decisionmaker that the preponderance standard has been met. Plaintiffs' objection seems to be that the Secretary did not weigh the evidence as they would have; however, given the evidence before him and the standards set out in the statute and regulations, the Secretary's determination was not arbitrary and capricious and should be upheld.
b.The Secretary Properly Considered the Indian Claims Commission's (ICC) Findings of Fact In Making The Cultural Affiliation Determination.
NAGPRA provides that in the absence of a claimant of lineal descent or of cultural affiliation, the ownership of remains or cultural objects discovered on Federal land shall be in the Indian tribe that aboriginally occupied the area in which they were discovered. §3002(a)(2)(c). While in this instance the Secretary determined that the remains were culturally affiliated with the claimant tribes, it was appropriate as part of his analysis to consider the ICC's factual findings that the lands where the remains were found had been the aboriginal lands of the claimant tribes. In Confederated Tribes of the Umatilla Reservation v. United States, 14 Ind. Cl. Comm. 14 (1964), the ICC declined to find that any single tribe had established Indian "title" to the lands based on exclusive possession, but did find that the lands where the remains were found were the aboriginal lands of three of the claimant tribes.(17) The Secretary appropriately considered the ICC's factual findings as additional evidence that the claimant tribes had always occupied those lands. See Memorandum from the Solicitor to the Secretary, DOI AR 908 at 10086.(18)
The land where the remains were discovered was originally ceded to the United States by the Umatilla, Cayuse, and Walla Walla Indian tribes in the Treaty of June 9, 1855. Id. See also Attachment A to Memorandum, DOI AR 909 at 10090-10095; DOI AR 1 at 00001-00002; DOI AR Map 1. This land was the subject of several cases brought before the ICC in the 1950s and 1960s by the Confederated Tribes of the Umatilla Reservation, which were comprised of the Umatilla, Cayuse, and Walla Walla Indian tribes. AR DOI 908 at 10086. One of these cases sought additional compensation for the lands ceded by the Umatilla in the 1855 Treaty, including the site where the remains were discovered. AR DOI 909 at 10090.
Like many of the cases before the ICC, this case evolved over r years. During the proceedings, the ICC made Findings of Fact which established that the three Umatilla tribes, the Wayampam bands, the Nez Perce tribe, the Snake Indians, and other Indians aboriginally occupied the lands where the remains were discovered. Confederated Tribes of the Umatilla Reservation v. United States, 14 Ind. Cl. Comm. 14, 102-103, 171 (1964), DOI AR 909 at 10093-10094. These findings of fact also were used to demarcate the aboriginal lands that the Umatilla, Cayuse, and Walla Walla were held to hold exclusively. See 8 Ind. Cl. Comm. 513, 537-539 (1960), DOI AR 15 at 00185; Ind. Cl. Comm. Final Report, H. Doc. 96-383, at 135 (1980), DOI AR 21 at 00372; Map Area No. 95, 96, and 97, DOI AR Map 5 (1978 Map). While the case ultimately culminated in a final judgment embodying a voluntary settlement agreement of the compensation claims of the Umatilla, Cayuse and Walla Walla, the ICC's prior factual findings were not disturbed. See 16 Ind. Cl. Comm. 484, 484-488 (1966), DOI AR 909 at 00220-00224; Attachment A, DOI AR 20 at 10094- 10095.
As a result, it was reasonable for the Secretary to consider the ICC factual findings in determining whether the remains were culturally affiliated with any of the tribal claimants. Clearly, NAGPRA's direction that in those cases in which cultural affiliation cannot "reasonably be ascertained," the remains should go to the Indian tribe(s) recognized by an ICC final judgment as aboriginally occupying the area where the remains were discovered, indicates that Congress believed that evidence of aboriginal occupancy was relevant to disposition. Where, as here, the ICC made Findings of Fact that the present-day Indian tribes did in fact aboriginally occupy the lands where the remains were discovered, it was appropriate to take that fact into account in making the cultural affiliation determination.(19)
2.NAGPRA Contemplates Disposition to Multiple Claimants.
Plaintiffs assert that the coalition of tribal claimants seeking the return of the remains (1) is an improper claimant since it consists of multiple tribes and not a single tribe (Pls. Br. at 9), and (2) is not a "tribe" under Interior's regulations. Id. at 8. These claims are without merit.
NAGPRA itself contemplates that several tribes may have a "cultural affiliation" with human remains or cultural objects, and requires that disposition be to the tribe with the "closest" cultural affiliation. §3002(a)(2)(B). Although NAGPRA does not explicitly state that a cultural affiliation can be found to exist with multiple tribes, DOI's regulations interpreting NAGPRA (43 CFR §10.14) state that such affiliation may be established with a group of present day Indian tribes filing a joint claim. See also 60 Fed. Reg. 62155 (Dec. 4, 1995). Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), DOI's interpretation of its own regulation is entitled to deference.
Furthermore, NAGPRA defines Indian tribe as including "any tribe, band, nation, or other organized group or community of Indians ... which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." 25 USC 3001(7)(emphasis added). This definition clearly would include a coalition or group of Indian tribes that have filed individual or joint claims and have been found to be culturally affiliated with the human remains.
In many instances of disposition and repatriation, multiple cultural affiliations are necessary due to the migratory patterns and forced resettlement of tribes. Since NAGPRA's enactment in 1990, federal agencies and museums have consistently recognized multiple cultural affiliations. Indeed, based on a review of the Federal Register Notices documenting the finding of cultural affiliation under NAGPRA, 43% of the 353 cases published by federal agencies and museums between 1990 and 1999 were instances of multiple cultural affiliation.(20) In this case, DOI found that each of the five claimant tribes were culturally affiliated with the remains.(21)
Moreover, DOI never considered the coalition as a single tribe but evaluated each tribes' claim individually. See Secretary Babbitt's Letter to Secretary Caldera, at 4 ("Four of the five Indian groups who have submitted a joint claim for the Kennewick remains constitute identifiable present- day Indian tribes with standing under NAGPRA and it implementing regulations.") (DOI AR 904 at 10015). The administrative record shows that DOI consistently treated each tribe as separate sovereign entities. DOI's plans for consultation clearly specify communication with "tribes," not the single Coalition. See, DOI AR 290 at 03575. Numerous letters in the record, written as part of the consultation requirement under NAGPRA, are addressed to each individual tribe, not the Coalition. See, e.g., DOI AR 218-222, 292-296. (separate letters to each tribe).
Finally, Plaintiffs argue that the Coalition is an improper claimant because the Wanapum Band is a non-federally recognized tribe. Pls. Br. at 9. Given that DOI never recognized the Coalition as a claimant, but rather treated each tribe separately, the Wanapum Band's status was not relevant. Four of the five claimants are federally recognized tribes and submitted a joint claim. See Joint Claim, COE 398 at 04222-04226. Because the four federally recognized tribes did not object to the inclusion of the Wanapum Band in their claim, DOI determined that disposition could occur to all the claimants. It was expressly recognized, however, that the Wanapum could not make a claim individually and technical disposition is to the four federally-recognized tribes. See DOI AR 904 at 10017, Babbitt Letter at 6, fn. 1; COE AR 1 at 21. Allowing disposition or repatriation to culturally affiliated non-recognized tribes has occurred previously when an affiliated federally recognized tribe accepts a non-recognized tribe as a joint claimant.(22)
3. Consultation With The Tribal Claimants Is Required under NAGPRA.
Plaintiffs assert that DOI had improper ex parte contacts with the tribal members of the coalition.(23) However, Plaintiffs' argument ignores the specific requirements for consultation with a claimant during the cultural affiliation and disposition determinations. 43 CFR §§ 10.4, 10.5. (24) Accordingly, the contacts that Plaintiffs allege were improper were part of the required consultation process.
4. Plaintiffs' Views Were Fully Considered In The Cultural Affiliation Determination.
Plaintiffs assert that they were denied meaningful participation in DOI's cultural affiliation determination. Pls. Br. at 19-20.(25) The administrative record demonstrates this claim is without merit. From the initiation of the process, Plaintiffs made their views known as to the type and number of tests that they believed should be conducted on the remains. As early as April 1997, Plaintiffs were informed of the process for submitting information to the agency for its review during the NAGPRA process. DOI AR 92 at 01696. In December of 1997, the COE discussed the sequencing and types of tests to be conducted on the remains with three of the plaintiffs: Bonnichsen, Jantz, and Owsley. DOI AR 131 at 02078-02112. In June 1998, Defendants specifically requested Plaintiffs'comments on DOI's draft study approach (DOI AR 205 at 02940), and Plaintiffs submitted comments in August. DOI AR 247 at 03205-03217.
Even before the transfer of the remains to the Burke Museum, Plaintiff Brace wrote to the COE concerning study of the remains. DOI AR 240 at 03161. In October 1998, Plaintiff Owsley, working with the COE curation team, inventoried and examined all of the remains. DOI AR 240 at 03261. Defendants specifically requested that Plaintiff Haynes be a part of the expert research team, but he declined the request. DOI AR 328 at 04177. However, Dr. Joseph Powell, an expert recommended by Plaintiffs, was selected as part of the team for the Phase I investigation and provided a report on the osteological characteristics of the remains. Id.; DOI AR 297 at 03606- 03607; DOI AR 84 at 01571, DOI AR 317 at 04065, DOI AR 758 at 08492, DOI AR 922 at 10673.
In addition, Plaintiffs submitted frequent affidavits to the Court and to DOI detailing their perspective and rationale for the type of testing that should be conducted on the human remains, and these affidavits became part of the administrative record. DOI AR 78 at 015029; AR 372 at 04399; AR 81 at 01551; AR 361 at 04262; AR 82 at 01558; AR 83 at 01565; AR 360 at 04257; AR 80 at 01544; AR 362 at 04268; AR 838 at 08880-08926.(26) When DOI decided to proceed with carbon- 14 testing on the remains, it requested recommendations from Plaintiffs for scientists and/or labs to perform the tests. DOI AR 380 at 04499. Plaintiff Haynes submitted an affidavit on the importance of radiocarbon dating and recommended that Dr. Taylor and Dr. Stafford perform the tests. DOI AR 408 at 04621. DOI selected both of these scientists to perform the C-14 tests. DOI AR 395 at 04554; DOI AR 432 at 04731 (signed agreement with Dr. R.E. Taylor, U.C. Riverside detailing testing protocol); DOI AR 433 at 04735 (signed agreement with Dr. Tom Stafford, AMS Laboratory detailing testing protocol). COE transferred the bone samples to Dr. Stafford to conduct the testing in his lab. However, Dr. Stafford subsequently declined to conduct the tests, and COE was required to retrieve the bone samples which were then transferred to UCR Radiocarbon Laboratory by the COE. Federal Defendants Ninth Quarterly Status Report, dated October 1, 1999. Plaintiffs also submitted affidavits concerning the procedures for DNA analysis of the remains. DOI AR 597 at 06700, DOI AR 606 at 06819. The government requested recommendations from Plaintiffs concerning experts to perform DNA analysis (DOI AR 666 at 07831), and Plaintiffs responded with recommendations and a proposed protocol. DOI AR 671 at 07844. On March 23, 2000, Plaintiff Owsley participated in a conference call with Dr. McManamon concerning the procedures for extracting DNA samples from the remains. DOI AR 676 at 07914; AR 677 at 07915, DOI AR 679 at 07920, DOI AR 684 at 07929, DOI AR 688 at 08073. Plaintiffs continued to submit comments and questions regarding DOI's plan for DNA sampling and analysis. DOI AR 700 at 08124, DOI AR 719 at 08274, DOI AR 725 at 08355, DOI AR 734 at 08387. Plaintiffs recommended Dr. Smith to perform the DNA analysis on the 1996 bone sample and he reported the results from his tests. DOI AR 606 at 06819, DOI AR 918 at 10514, COE AR 31 at 0000333.
Plaintiffs also had meaningful opportunity to submit whatever evidence they thought relevant to the cultural affiliation determination. Defendants submitted Dr. McManamon's Scope of Work, which set out the type of investigations to be conducted to evaluate cultural affiliation, to the Plaintiffs and the Court. See Defendants' Tenth Quarterly Status Report filed January 3, 2000; DOI AR 544, 546, 559, 566. The Plaintiffs could have submitted whatever evidence from the existing literature they believed disputed the claimants' cultural affiliation. In fact, Plaintiffs did submit affidavits from experts concerning the cultural affiliation of the remains (DOI AR 843 at 08972), as well as nine articles authored by themselves. DOI AR 95 at 01713; DOI AR 138 at 02155; DOI AR 141 at 02235; DOI AR 152 at 02607; DOI AR 306 at 03854, DOI AR 554 at 05310; DOI AR 311 at 03892; DOI AR 312 at 03908; DOI AR 555 at 05318.
The documentation in the administrative record belies Plaintiffs' claim that their views were not considered in the cultural affiliation determination process. While DOI was not required to "consult" with the Plaintiffs as it was with the tribal claimants, it did provide the Plaintiffs ample opportunity to present their views. As the record reflects, Plaintiffs' views and recommendations were considered by DOI. Merely because Plaintiffs disagree with the final decision does not mean that their views were not sought and considered.
C. THE NAGPRA PROCESS DOES NOT VIOLATE THE CONSTITUTION
1. The Secretary's Use of Native American Oral Tradition And Folklore As Evidence of Cultural Affiliation Does Not Violate the Establishment Clause.
As discussed above, an agency may use various types of evidence - including oral tradition and folklore to establish cultural affiliation.(27) Plaintiffs claim that the use of such evidence violates the Establishment Clause of the Constitution. See Pls. Br. at 24-27. Specifically, Plaintiffs allege that "Defendants hopelessly confused cultural information with religious beliefs" and that the Defendants' "[d]etermination [of cultural affiliation] placed particular emphasis on oral tradition . . . , but made no attempt to distinguish between the kinds of secular oral histories that are constitutionally acceptable, and the kinds of religious teachings that are not. Id. at 25 Given that Plaintiffs themselves assert that "religious practices and customs" provide relevant evidence in establishing the shared group identity necessary to determine cultural affiliation (See Pls. Br. at 11), their Establishment Clause argument is inconsistent with their own practice. As shown below, the use of oral tradition and folklore neither encourages nor inhibits the practice of any religion and does not violate the Establishment Clause.
The First Amendment of the United States Constitution prescribes that "Congress shall make no law respecting an establishment of religion." NAGPRA and its implementing regulations make no reference to religion, nor do they mandate a preference for one religion over another.(28) See 25 USC §3002; 25 USC §3001 (2); 43 CFR §10,14 (c) and (e). Clearly, there is nothing in the text of the statute or the regulations that would implicate the Establishment Clause.(29)
The same is true in DOI's implementation of the statute and regulations. In this case, DOI undertook four cultural affiliation studies and independently collected information from published sources. See Human Culture in the Southeastern Columbia Plateau, 9500-9000 BP and Cultural Affiliation with Present-day Tribes at 3-4 (Sept. 19, 2000), DOI AR 907 at 10052-10053. The four studies were prepared by independent experts with expertise in history, culture, archaeology and anthropology. See Background and Scope for the Cultural Affiliation Reports at 1, DOI AR 911 at 10103. The studies focused on the Columbia Plateau's history from approximately 10,000 years ago to the 19th century and culminated in the production of the following reports: 1) Review of Archeological Data; 2) Review of Traditional Historical and Ethnographic Information; 3) Review of Linguistic Information; and 4) Review of Bio-Archaeological Data. Id. at 1-4, DOI AR 911 at 10103-10105. DOI also received information from the Plaintiffs and the claimant Indian tribes concerning the cultural affiliation of the remains.
NAGPRA specifically provides that information supplied by or obtained from Native Americans, as expressed through oral tradition and folklore, may be utilized as an evidentiary source to determine the existence of a cultural affiliation between present-day Indian tribes and Native American human remains. See 25 USC §3002 (a)(2)(B); 43 CFR §§10.2 (e) and 10.14 (e). In authorizing the use of such evidence, as long as it is relevant and credible, NAGPRA allows orally or traditionally derived Native American knowledge of the past to be given the same credence as scientific information. See 43 CFR §10.14 (d) and (f). To preclude this type of evidence would severely limit the role of Native Americans in determining the treatment and disposition of Native American human remains and cultural items under NAGPRA. See generally Roger C. Echo-Hawk, Ancient History in the New World: Integrating Oral Traditions and the Archaeological Record in Deep Time, 65 American Antiquity, 267, 269, (2000), DOI AR 704 at 08149.
Moreover, this same type of evidence oral tradition and belief has repeatedly been accepted by courts in determining where tribes were located aboriginally, and in establishing Indian title. See Zuni Tribe v. United States, 12 Cl. Ct. 607, 617 (1987)("given the import attached to the oral transmission of history and religious observation by the Zuni, there is no reason to suspect gross or deliberate distortion. Accordingly, the court is persuaded that, notwithstanding some insufficiency, this recounted history is of evidentiary probity."); Confederated Tribes of the Warm Springs Reservation v. United States, 177 Ct. Cl. 184, 204 (1966); Pueblo De Zia v. United States, 165 Ct. Cl. 501, 504-505 (1964).
Here, Plaintiffs contend that if the oral tradition evidence submitted by the claimant tribes constituted their religious beliefs, DOI's consideration of that evidence is precluded as violative of the Establishment Clause. However, even if this oral tradition evidence did coincide with the religious beliefs of any or all of the Indian tribe claimants, DOI's use of it would not be precluded by the Establishment Clause because DOI's analysis of this evidence was not to evaluate its religious content but to test its credibility and relevancy in determining whether the remains were culturally affiliated with any of the claimant Indian tribes. DOI used science-based methodology and other testable sources of information to gauge the credibility and relevance of the culturally based evidence, as well as accepted humanistic and qualitative methodologies. See Human Culture in the Southeastern Columbia Plateau, 9500-9000 BP and Cultural Affiliation with Present-Day Tribes at 24 (Sep. 19, 2000), DOI AR 907 at 10050. These same measures were integrated into the Scope of Work for the review of traditional historical and ethnographic information from the Columbia Plateau. See DOI AR 544 at 05275-79. Dr. Daniel Boxberger, the expert who synthesized and evaluated the culturally based information from the Columbia Plateau adhered to these measures, relied on published ethnographic sources, and conformed to the contemporary standards for the disciplines of anthropology and ethnohistory. Id., DOI AR 544 at 10266-67. DOI's use of oral tradition and folklore as evidence in determining cultural affiliation did not violate the Establishment Clause.(30)
2. The First Amendment Does Not Encompass a Right to Study Native American Remains In The Custody Of the Government.
In remanding this matter to the COE for further consideration, the Court stated that Plaintiffs' arguments that they had a First Amendment right to study the remains were "not frivolous." Bonnichsen, 969 F.Supp. at 648. The Court stated:
Plaintiffs' contention is that to the trained eye the skeletal remains are analogous to a book that they can read, a history written in bone instead of on paper just as the history of a region may be 'read' by observing layers of rock or ice, or the rings of a tree. Plaintiffs are not asking the government to conduct the tests and publish the results. Plaintiffs simply want the government to step aside and permit them to 'read that book' by conducting their own tests.
Id. at 646. To address the Court's concerns, the COE requested an opinion from the Department of Justice (DOJ). DOJ's response that the First Amendment does not create a right to study human remains in the possession or control of the government is found at COE 1, Attachment 9 at 185- 194. Defendants will not repeat that analysis here.(31) However, two important points need to be made.
First, as the Court has acknowledged, the First Amendment provides no right to the public to inspect, without conditions, all the property in the custody of the United States.
Assuming, arguendo, that there is a First Amendment right for researchers to study materials in the possession or control of the federal government, of necessity there would have be some limits upon its exercise.
Bonnichsen, 969 F.Supp. at 648. The Court stated that "[p]rivacy rights, property rights, and national security would be among the obvious concerns." Id. Under Section 3 of NAGPRA, the remains are not the property of the United States.(32) The remains are in the custody of the United States only until the appropriate disposition is determined. During the custody period, NAGPRA restricts testing of the remains to that necessary to determine cultural affiliation. See 25 USC 3003(b)(2); Na Iwi O Na Kapuna O Makapu v. Dalton, 894 F. Supp. 1397, 1417 (D. Haw. 1995) (NAGPRA's provisions precluding new scientific research did not apply to agency anthropologist examining remains to determine cultural affiliation).(33) Once the claim of cultural affiliation has been validated, the right to control ultimate disposition of the remains belongs to the claimant. To the extent that Plaintiffs claim to have a First Amendment right to inspect and test the remains while in the custody of the United States, the First Amendment provides no right to the public to inspect and test property belonging to others, in this case - the tribal claimants.
Second, the United States has made the data and reports associated with the agency decision regarding the remains available to the Plaintiffs and to the public.(34) Much of this data was generated as a result of the very testing that Plaintiffs themselves proposed. The United States does not dispute that the Plaintiffs should have access to this generated data: what the United States disputes is that the Plaintiffs or any member of the public have the right to conduct their own studies on Native American remains in the custody of the United States. The United States is not required under the First Amendment to "step aside" to provide any special access to the remains simply because Plaintiffs desire to conduct examinations of the remains themselves. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978).
The Court has also stated that there may be "countervailing rights" to any First Amendment right and acknowledged that "Congress has 'extraordinarily broad' authority with respect to legislation pertaining to Indians in general and regarding the fulfillment of federal trust obligations to the Tribes in particular." Id. (citations omitted). NAGPRA clearly embodies a public policy that Native American rights in human remains and cultural items can not be subordinated to scientific inquiry. It was just this practice that Congress sought to end in enacting NAGPRA in 1990. NAGPRA clearly evidences Congressional determination that Native American human remains should no longer be subject to unfettered and unrestricted testing and study: under NAGPRA, these remains are no longer "open" to curious public inquiry. 25 USC 3003(b)(2).(35)
Defendants reiterate that the caselaw does not support an unfettered right to inspect and test all property in the possession or control of the United States.(36) The cases which the Court cited in its June 1997 Opinion deal primarily with the access of the press and the public to particular types of hearings or information: they do not state the existence of a First Amendment right of access to all government-held information and certainly do not stand for the proposition that members of the public have a First Amendment right to inspect and test all Native American remains in the custody or control of the United States.(37)
3. The COE Has Properly Curated The Human Remains.
Plaintiffs argue that Defendants have not properly curated the remains. Pls. Br. at 37-38. Their primary allegation is that there is no long-term preservation plan in place for the remains.(38) Plaintiffs' contention is based on a misunderstanding of the use of the term "long-term preservation plan." In general, preservation is the elemental responsibility to provide adequate facilities for the protection, care, and maintenance of records and artifacts. In this manner, a general preservation plan is currently in place and will continue as long as necessary. The elements of this general plan include high-level security (specialized, alarmed storage room, restricted access, locked cabinetry, constant guardianship of the remains when removed from storage); specialized, custom housing to ensure stability and limited movement while providing maximum visual inspection; 24-hour monitoring of environmental conditions; bi-annual condition assessments (performed by professional conservators) of the remains and museum facilities which document any observational changes in the skeletal remains; support from professional conservators during anticipated events requiring substantive handling of the remains; and the application of standard archival practices to enhance the longevity of all documentation associated with the curation of the remains. As these measures attest, curation of the remains can only be described as exceedingly stringent and professional.
The current preservation plan is, because of the circumstances, a continual and evolving action plan that maintains a high level of inspection, participation, reaction, and response. A finite, long-term preservation plan could not hope to address all the dynamics to which these remains have been subjected. In a museum, a preservation plan might refer to policy and procedures that would impact repeatable events such as loans, access, and handling conditions. However, in the case of the Kennewick remains, there have not been repeatable events; the actions have been unique. It would have been foolhardy to develop a long-term preservation plan while the long-term conditions or status of the collection had not been identified and the events of intense handling were continuing to occur.
D. THE COE COMPLIED WITH NHPA IN ITS SITE PROTECTON
Plaintiffs allege that the COE's efforts to protect the area near the discovery site violated the National Historic Preservation Act, (NHPA), 16 USC. 470 et. seq..(39) Pls. Br. at 33. Specifically, they assert that COE did not consult with them in the NHPA process, that COE did not assess or mitigate adverse effects on the site, and that COE's site protection obstructed the gathering of evidence. Pls. Br. at 33-37. As the administrative record shows,(40) the Plaintiffs' views were considered in the §106 process, the COE assessed the effects of the site protection work and determined that there would be "no adverse effect," and the State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP) concurred in that determination. Plaintiffs can show no violation of the § 106 process and their disagreement with the "no adverse effect" finding, some three years after the site protection work has been completed, is untimely.
The NHPA is essentially a procedural statute, and does not dictate a particular outcome. See Apache Survival Coalition v. United States, 21 F.3d 895, 913 (9th Cir. 1994); Gettysburg Battlefield Preservation Ass'n. v. Gettysbury College, 799 F. Supp. 1571, 1580 (M.D. Pa. 1992), aff'd. 989 F.2d 487 (3rd Cir. 1993). The role of the court in reviewing a challenge under NHPA is to determine whether the agency has followed the procedures for consultation. See Walsh v. U.S. Army Corps of Engineers, 757 F.Supp. 781, 784 (W.D. Tex. 1990). Abenaki Nation v. Hughes, 805 F. Supp. 234, 250 (D. Vt. 1992), affd., 990 F.2d 729 (2nd Cir. 1993).
Section 106 of NHPA requires federal agencies to take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. After identifying potential historic properties, an agency, in further consultation with the SHPO, is to apply criteria of effect to the historic properties that may be affected, giving consideration to the views, if any, of interested persons. 36 CFR 800.5(a). When, as here, the agency determines there will be "no adverse effect," the agency must obtain the SHPO's concurrence with that finding and submit the "no adverse effect" finding and documentation to the ACHP. 36 CFR 800.5(d)(1). If the ACHP does not object to the finding of the agency, or if the ACHP objects but proposes changes that the agency accepts, the agency is not required to take any further steps in the §106 process. 36 CFR 800.5(d)(2).
Plaintiffs contend that they should have been "consulted" during the § 106 process. As the record shows, the COE did advise Plaintiffs of their site protection plans and Plaintiffs submitted their views to the COE, the SHPO and the ACHP. Despite Plaintiffs' objections, the SHPO concurred with the COE's finding of "no adverse effect" as did the ACHP. There is no question that the COE followed the § 106 procedures here.
As an initial matter, the Plaintiffs are not "consulting parties" under the NHPA regulations for the §106 process (36 CFR § 800.1(c)(1)), but only "interested persons." 36 CFR §800.1(c)(2). Interested persons may be invited to be consulting parties in some circumstances "when they so request" but they are not automatically entitled to be consulting parties. §800.5(e)(1). Here, Plaintiffs do not allege, and no record evidence supports, that they ever requested to participate in the § 106 process as "consulting parties."
Nonetheless, the administrative record reflects that Plaintiffs did participate in the § 106 process and made their objections to the site protection project known. The COE provided Plaintiffs' counsel with a copy of the plans and specifications for the bank stabilization project on December 23, 1997. SAR 91, S-614. Plaintiffs' counsel responded with comments on December 29, 1997. SAR 89, S -596-599. Over the next several weeks, Plaintiffs' counsel forwarded letters to the COE from Dr. Thomas Stafford of Stafford Research Laboratories, Inc. setting out his views on the proposed protection work. SAR 87, S-591; SAR 75, S-534. The COE reviewed these letters and later transmitted them to the SHPO in seeking its concurrence that the proposed project would have no adverse effect under § 106.
The COE initiated contact with the SHPO regarding its site protection plans on December 30, 1997, and the SHPO responded on January 14, 1998. SAR 78, S-544. On February 20, 1998, COE advised the SHPO of its determination that the bank stabilization project would have no adverse effect. SAR 68, S- 486. On March 3, 1998, the SHPO's office, aware of the Plaintiffs' objections, concurred with the COE's determination that the site protection work would have "no adverse effect," i.e., that it would not damage or harm any historic properties or cultural resources listed on or eligible for listing on the National Registry of Historic Places. SAR 65, S-474. However, the SHPO encouraged "continued discussions with the concerned tribes and other parties to assure this significant site is protected." On March 6, 1998, the COE forwarded its finding of "no adverse effect" and the SHPO's concurrence to the ACHP. SAR 59, S-450.
On March 9, 1998, the ACHP informed COE that it did not concur with the "no adverse effect" finding and requested additional information. SAR 58, S-448. The COE provided the requested information on March 18, 1998. SAR 51, S-374. On March 19, by conference call, the COE and the ACHP discussed the site protection project and the ACHP's concerns. Based on the additional information and the discussions, the ACHP sent its written concurrence with the COE's "no adverse effect" determination on March 19, 1998, but requested that the COE allow the Plaintiffs to observe the bank stabilization work. The ACHP's concurrence with the "no adverse effect" determination concluded the § 106 process. (41) By letter dated March 20, 1998, the COE forwarded a copy of the ACHP concurrence letter to Plaintiffs' counsel and invited Plaintiffs or their counsel to observe and monitor the bank stabilization work. SAR 46, S-356.
During the same time period, Plaintiffs' counsel was also expressing his clients' views to the SHPO and the ACHP. On February 25, 1998, Plaintiffs' counsel submitted information to the SHPO opposing the site protection plan. SAR 67, S-480.(42) On March 12, 1998, the State Archaeologist in the SHPO's office informed Plaintiffs' counsel that the SHPO's office had reviewed the submitted materials but had determined that "[s]uch bank stabilization approaches [as the COE proposes] are widely employed in current cultural resource management. While such bank covering may increase the cost of the archaeology it does not preclude the possibility of future archaeological research at the site. SAR 55, S-435. The State Archaeologist also invited Plaintiffs' counsel to inform the ACHP of the Plaintiffs' concerns. On March 19, 1998, Plaintiffs' counsel wrote to the ACHP requesting that it intervene to delay work on the site plan. SAR 46, S-351. The ACHP declined to do so.
Although neither NHPA nor its implementing regulations required consultation with Plaintiffs, the record demonstrates that the Plaintiffs' objections were provided to and considered by the COE, the SHPO and the ACHP in determining the site protection work would have "no adverse effect." In addition, the SHPO specifically found that the site protection work would not preclude further archaeological study of the area and so advised Plaintiffs' counsel. SAR 55, S-435.
In addition, Plaintiffs raised their objections to the site protection project in proceedings before this Court. See Plaintiffs' Second Quarterly Status Report dated January 2, 1998. On March 16, 1998, Plaintiffs filed a lengthy Supplemental Status Report setting out their objections to the pending site protection work. SAR 54, S-382. On March 24, 1998, Plaintiffs filed a Second Supplement advising the Court that the ACHP had concurred in the COE's site protection plan and implementation. SAR 46, S-348. Plaintiffs also advised the Court that legislation to prohibit the site protection was pending in the U.S. Congress.
Given the pending legislation, the COE withheld the implementation of the site protection contract until April 6, 1998, in order "to allow the opportunity for the plaintiffs or any other appropriate interested party, to seek judicial relief . . ." and so advised the legislation's supporters. SAR 24, S-321. However, Plaintiffs did not seek a temporary restraining order or a preliminary injunction to prevent the site protection work from going forward during that time period. Given the COE's compliance with the requirements of NHPA, an injunction would not have been warranted. Nonetheless, if Plaintiffs objected to COE's NHPA compliance, it should have raised that objection when the site protection work was undertaken, rather than some three years after the work has been completed. Plaintiffs' NHPA claims are without merit.
E. THE COE COMPLIED WITH THE FREEDOM OF INFORMATION ACT
Plaintiffs assert that the COE has not responded fully to each of their six requests for documents under the Freedom of Information Act (FOIA). Pls. Br. at 38. Plaintiffs' claims must fail.
Between August 13, 1997, and October 24, 2000, Mr. Alan Schneider submitted six separate FOIA request to the COE.(43) For each of those requests, the Freedom of Information Act Administrative Record (FOIA AR) demonstrates that either the agency provided the requested documents or withheld documents under recognized exceptions.(44) The administrative record also demonstrates that in some instances Mr. Schneider failed to comply with FOIA and the COE's regulations, and has also failed to exhaust his administrative remedies for the COE's alleged violations of FOIA(45)
Here, there is no dispute that the COE provided Mr. Schneider with responsive documents, explained its reasoning for not providing exempted documents, and informed him of his right to appeal. 5 USC 552(a)(6)(A)(i). Exhaustion of administrative appeals is a prerequisite for filing suit in federal court. 5 USC 552(a)(4). By his own admission, Mr. Schneider has failed to appeal his fourth, fifth or sixth requests to the agency as required. Pls. Br. at 38-39.
However, it is unnecessary to trace in detail each of Mr. Schneider's six requests because all of the documents he requested - other than those over which Defendants claim a privilege and which would be exempted under FOIA exemption 5 - were provided to him on December 1, 2000 as part of the Administrative Records for the decisions challenged in this case. The caselaw is clear that if, during litigation, all the documents found responsive to the underlying FOIA requests have been released to the requester, the FOIA claim should be dismissed on mootness grounds. Perry v. Block, 684 F. 2d 121, 125 (D.C. Cir. 1982); Parks v. Department of Educ. 2000 WL-62291 (D.Or. Jan. 26, 2000). Based on the more than 22,000 pages of documents that have been provided to Plaintiffs as the Administrative Records in this case, Defendants submit that all non-privileged responsive documents have been provided to Plaintiffs.
Plaintiffs claim that the COE's failure to fully respond to these FOIA requests impeded their participation in the administrative process challenged here. Pls. Br. at 39. However, the only substantive relief Plaintiffs is entitled to under FOIA is the production of the requested documents. 5 USC 552(a)(4)(B). Here, unless Plaintiffs can otherwise specify, all of the documents relevant to the decisions at issue here have been provided. To the extent that Mr. Schneider disputes that the production of the administrative records satisfies his FOIA requests, additional briefing or trial on this issue will be required.
F. PLAINTIFFS ARE NOT ENTITLED TO THE REQUESTED RELIEF
In moving to vacate the Defendants' administrative actions, Plaintiffs request that the Court not remand the matter to the agency but instead grant them the relief sought in their Amended Complaint, i.e. an Order requiring, among other things, that Defendants allow Plaintiffs access to the Kennewick Man remains for purposes of conducting the studies and tests requested by Plaintiffs. Amended Complaint at 23. This relief is not available under the APA. If the agency's decisions cannot be sustained based on the administrative record when subjected to the appropriate standard of review, the court must remand to the agency for further consideration. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549 (1978); Camp v. Pitts, 411 U.S. 138, 143 (1973).
Under the APA, a reviewing court can "decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." A reviewing court can "compel agency action unlawfully withheld or unreasonably delayed"and "hold unlawful and set aside agency action ... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "without observance of procedure required by law." § 706. Nothing in these authorizations suggests that the Court can require Defendants to grant access to property in its custody. If the Court were to find that Defendants violated any of their obligations under NAGPRA, the remedy would be to enjoin the Defendants from proceeding with disposition and remand the matter with instructions.
Likewise, violations of NHPA and FOIA, even if proven, could not result in Plaintiffs' requested relief. Violations of these statutes provide no basis for enjoining the disposition of the remains to the claimant tribes or of granting Plaintiffs access to the remains. NHPA is a procedural statute, and the only relief available is a remand to ensure that all of the necessary procedures are followed. As for FOIA, the only relief available is a direction to Defendants to produce any responsive documents that have not already been provided. Plaintiffs' argument that Defendants' alleged violations warrant the extraordinary relief requested has no basis in law.
For the foregoing reasons, Defendants respectfully request that this Court deny Plaintiffs' Motion to Vacate Second Administrative Action. Defendants respectfully request that the Court enter an Order upholding the Department of Interior and the Corps of Engineers' determinations under NAGPRA. Defendants also request that the Court find that the Corps of Engineers has not violated the NHPA or FOIA.
Respectfully submitted this __ day of May, 2001,
Deputy Assistant Attorney General
MICHAEL W. MOSMAN, OSB 87111
United States Attorney
DAVID F. SHUEY
Env. & Natural Res. Div.
U.S. Dept. of Justice
TIMOTHY W. SIMMONS
Assistant U.S. Attorney
Attorneys for Federal Defendants.
John R. Seeronen
James R. Baker
(1) NAGPRA provides for delegation of this decision to the Department of Interior, the agency with primary responsibility for NAGPRA. 25 USC § 3002. In March 1998, the U.S. Army Corps of Engineers entered into an agreement with DOI to conduct the NAGPRA process. COE AR 1 at 20. back
(2) The COE denial of Plaintiffs' Request to Study is attached as Exhibit 1. back
(3) The scientific studies included osteological assessment, sediment analysis, lithic analysis, radiocarbon analysis, and DNA analysis. The cultural affiliation studies focused on archeology, biology, history, ethnography and linguistics. See Comparison Between Studies, DOI AR 838, 08880-08926. back
(4) The Secretary's Decision Memo dated 9/21/00 (DOI AR 904) is attached as Exhibit 2. back
(5) Plaintiffs assert that provisions of the Archaeological Resources Protection Act, 16 USC §§ 470 aa-mm (1979) (ARPA) allow scientific study here. However, once the remains have been excavated and determined to be Native American, the provisions of NAGPRA, not ARPA, control the treatment and disposition of the remains. 25 USC §3002(c)(1). Indeed, the ARPA implementing regulations mandate adherence to the procedures required by NAGPRA and its regulations for determining the disposition of Native American human remains and cultural items that have been excavated, removed, or discovered on public lands. 43 CFR §7.3 (6), § 7.13 (e) (1999). back
(6) As recently as last year, Senator Inouye, the primary Senate sponsor of NAGPRA, remarked "so let me assure one and all that [NAGPRA] is indeed an Indian law, and the federal courts have so stated." Oversight Hearing on the Implementation of the Native American Graves Protection and Repatriation Act Before the S. Comm. on Indian Affairs, 106th Cong. (July 25, 2000). back
(7) A copy of Dr. Francis McManamon's January 2000 Determination (DOI AR 905) is attached as Exhibit 3 back
(8) DOI considered alternative interpretations. See DOI AR 673 at 07856-07867; DOI AR 707 at 082505-08209; DOI AR 460 at 04906-04913; DOI AR 108 at 01928; DOI AR 915 at 10690-10692; DOI AR 555 at 05337-05341. back
(9) DOI's interpretation certainly does not rely solely on age or a 1492 date. Remains that predated 1492 but were of European origin, such as those of a Viking, would not be deemed Native American under NAGPRA as such remains would not be related to tribes, peoples or cultures that are indigenous to the United States. Even in this case, where the age of the remains would arguably be dispositive on the issue of whether the remains relate to a culture predating European exploration, DOI still looked at other factors, such as the lithic artifact lodged in the hip of the skeletal remains, to determine whether the remains related to a pre-European culture. back
(10)When interpreting a statute, a court must not only examine the express language of the statute, but also its overall purpose. U.S. Nat. Bank of Ore.v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 455 (1993) ("In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy."). Indeed, it is a "central tenet of interpretation" that "a statute is to be considered in all its parts when construing any one of them." Lexecon Inc. v. Milberg Weis Bershad Hynes & Lerach, 523 U.S. 26, 36 (1998). A statute is to be read as a whole since the meaning of statutory language depends on context. Textron Lycoming Reciprocating Engine Div., v. Automobile Workers, 523 U.S. 653, 657 (1998) (quoting Deal v. United States, 508 U.S. 129, 132 (1993)); Regions Hospital v. Shalala, 522 U.S. 448, 460 n.5 (1998). back
(11) Between 1987 and the enactment of NAGPRA in 1990, Congress considered five bills dealing with the protection of Native American graves. Each of the rejected alternatives defined the term "Native American" through explicit reference to American Indians, Native Hawaiians, and Alaskan Natives. H.R. 1381, 101st Cong. §5 (1989) ("Native American Burial Site Preservation Act of 1989"); H.R. 1646, 101st Cong. (1) (1989) ("Native American Grave and Burial Protection Act"); S. 1021, 101st Cong. §3(1) (1989); S. 1980, 101st Cong. §2(1) (1989). However, in enacting NAGPRA (H.R. 5237). Congress rejected the reference to American Indians, Native Hawaiians, and Alaskan Natives in favor of the word "indigenous." When "words used in a prior statute to express a meaning are omitted, it [can] be presumed that a change of meaning was intended." 2A Sutherland Stat. Construction 51.02 (Norman J. Singer ed., 5th ed. 1992) Id. §51.02. See also Chertkoff v. United States, 676 F.2d 984, 988 (4th Cir. 1982). Indeed, "where Congress includes limiting language in an early version of a bill and deletes that language before the enactment, it may be presumed that the limitation was not intended." Russello v. United States, 464 U.S. 16, 23 (1983). In light of the language of the prior bills, Congress clearly knew how to limit the application of the Act, but chose not to do so. back
(12) Under Plaintiffs' interpretation, remains that belonged to a tribe that was eradicated due to disease in the 19th century would not be "Native American" because that tribe no longer exists and would not be protected by NAGPRA. 25 U.S.C. § 3002 (a)-(d) and Section 4 (§ 1170. Illegal Trafficking in Native American Human Remains and Cultural Items) back
(13) With respect to the application of evidence to determine cultural affiliation, the Senate Select Committee on Indian Affairs stated:
Where human remains and funerary objects are concerned, the Committee is aware that it may be extremely difficult, unfair or even impossible in many instances for claimants to show an absolute continuity from present day Indian tribes to older, prehistoric remains without some reasonable gaps in the historic or prehistoric record. In such instances, a finding of cultural affiliation should be based upon an overall evaluation of the totality of the circumstances and evidence pertaining to the connection between the claimant and the material being claimed and should not be precluded solely because of gaps in the record.
See DOI AR 27 at 00581. back
(14) Interestingly, in arguing that consideration of religious practices and customs is essential to determine cultural affiliation, Plaintiffs raise no Establishment Clause objection to the use of such evidence. back
(15) The Cultural Affiliation Report states that "the existence of earlier human groups in the same geographic location as the historic period ancestors of the present-day tribes does not automatically indicate cultural affiliation between the former and the latter, but it can be an important fact in determining whether a shared group identity can be reasonably traced." DOI AR 907 at 10058. back
(16) DOI used the existing evidence in making the following findings supporting the cultural affiliation determination : 1) that the tribal claimants possessed similar traditional histories that related to the presence of their antecedents on the Columbia Plateau's landscape; 2) that the tribal claimants' oral traditions often corresponded to known ancient geological events that occurred in the Plateau region; and 3) that there was no reference in the claimants' oral tradition to a migration of people into or out of the Plateau. DOI AR 904 at 10015; DOI AR 907 at 10072-76; DOI AR 914 at 10265-10299, 10324-10325; DOI AR 844 at 09004-09054; DOI AR 847 at 09100- 09107; DOI AR 609 at 06931-06932; DOI AR 655 at 07624-07627, 07632-07633. back
(17) In Federal Defendant's Fourth Quarterly Status Report, DOI reported that the discovery site was not within an area of Federal land that had been recognized as the aboriginal lands of any Indian tribe by a final Judgment of the ICC. While this statement was correct, further review disclosed that the ICC had made Findings of Fact that the discovery site was included in some of the claimant tribes' aboriginal lands. back
(18) A copy of Solicitor Leshy's Memorandum is attached as Exhibit 4. back
(19) While the Secretary determined that the remains were culturally affiliated with the claimant tribes, he also concluded that the ICC Findings of Fact would allow for disposition under NAGPRA § 3002 (a)(2)(c). While that provision refers to a "final judgment" of the ICC that "recognizes" the land where human remains or other cultural items are recovered "as the aboriginal land of some Indian tribe," the Secretary determined that the ICC's factual findings that the claimant tribes aboriginally occupied the lands where the remains or cultural items were recovered satisfied §3002 (a)(2)(c). DOI's conclusion that the findings of fact satisfied the provision's requirements furthers the purpose of NAGPRA: "to protect Native American burial sites and the removal of human remains, funerary objects, sacred objects, and objects of cultural patrimony on Federal, Indian, and Native Hawaiian lands" See H.R. Rep. 101-877 (1990) at 8. Moreover, the preamble to DOI's regulations implementing NAGPRA acknowledge that final judgments of the ICC may not fully reflect a specific delineation of aboriginal land claims, and states that while the regulation's drafters considered ICC final judgments "a valuable tool for identifying area[s] occupied aboriginally by a present-day Indian tribe, other sources of information regarding aboriginal occupation should also be consulted." 60 Fed. Reg. 62140 (1995). back
(20) Jason C. Roberts, Native American Grave Protection and Repatriation Act Census: Examining the Status and Trends of Culturally Affiliating Native American Human Remains and Associated Funerary Objects Between 1990 and 1999, Topics in Cultural Resource Law 79, 84-85 (2000). Information regarding cultural affiliation determinations is published as a "Notice of Inventory Completion" in the Federal Register by the National Park Service and available at http://www.cast.uark.edu/other/NPS/NAGPRA/NIC.html. back
(21) For example, reports by Boxberger (DOI AR 913 at 10265-10299), Hunn (DOI AR 914 at 10324-10325), Uebelacker (DOI AR 844 at 09004-09054), Moura (DOI AR 847 at 09100-09107), the Colville (DOI AR 609 at 06931-06932) and the Umatilla (DOI AR 655 at 07624-07627, 07632-07633) trace ancient oral tradition individually to each of the five tribal claimants, not to the Coalition as a whole. back
(22) NAGPRA repatriation determinations have been made in favor of non-federally recognized tribes: 57 Fed. Reg. 27269 (June 18, 1992); 57 Fed. Reg. 31529 (July 16, 1992); 57 Fed. Reg 46866 (October 13, 1992); 58 Fed. Reg. 19688 (April 15, 1993); 60 Fed. Reg.8733 (February 15, 1995); 61 Fed. Reg. 24950 (May 17, 1996); 61 Fed. Reg. 50505 (September 26, 1996); 62 Fed. Reg. 5096 (September 29, 1997); 63 /Fed. Reg. 14137 (March 24, 1998); 63 Fed. Reg. 19514 (April 20, 1998); 63 Fed. Reg. 58417 (October 30, 1998); 64 Fed. Reg. 61120 (September 9, 1999). back
(23) Plaintiffs also allege various improper ex parte contacts within the Executive Branch. Pls. Br. at 16-17. Defendants responded to those allegations in their Motion to Strike Extra Record Evidence filed on May 7, 2001, and incorporate the arguments of that pleading by reference. back
(24) As part of the consultation process, the regulations direct that the federal agency (1) shall notify any tribal organizations likely to be culturally affiliated with the human remains (43 CFR §10.5(b)(1)(ii)); (2) must propose a time and place for meetings or consultation to further consider the inadvertent discovery and the proposed disposition of human remains (§10.5(b)(2)); and (3) must share with the claimant tribes a wide variety of information pertaining to the treatment and cultural affiliation determination. § 10.5(c)-(e). back
(25) Under the NAGPRA regulations, the only participants designated for consultation in the process are Indian tribes or Native Hawaiian organizations "likely to be culturally affiliated" with the remains or cultural items. 43 CFR § 10.5(a)(ii). back
(26) As the Court is aware, the Coalition claimants opposed testing of the remains. Defendants conducted fourteen of the seventeen tests recommended by Plaintiffs. DOI AR 838 at 08880 - 08926. back
(27) Under the NAGPRA regulations, cultural affiliation is established by using the following types of evidence: [g]eographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion. See 43 CFR §10.14 (e) back
(28) Courts have consistently interpreted the Establishment Clause as prohibiting the government from enacting laws that prefer one religious group over another religion or a religion over a non-religion. See Edwards v. Aguillard, 482 U.S. 578 (1987); Larson v. Valente, 456 U.S. 228, 244 (1982); Epperson v. Arkansas, 393 U.S. 97 (1968). back
(29)In People v. Van Horn, 267 Cal. Rptr. 804, 819 (Cal. Ct. App. 1990), defendant raised an Establishment Clause objection to a California statute that protected Native American burials, human remains, and grave goods, contending that the statute enhanced the rights of Native Americans to practice their religions. The Court held that the statute did not make a reference to religion and thus did not violate the Establishment Clause. Id. back
(30) If the Court were to believe that DOI's use of oral tradition evidence did implicate the Establishment Clause, that would not be the end of the inquiry. Under Morton v. Mancari, 417 U.S. 535 (1979), governmental preferences shown to Indians are subject to a lesser standard of Constitutional review than other preferences. In Morton, the Supreme Court stated that "[a]s long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." Id. at 555. NAGPRA explicitly states that it reflects the unique relationship between the Federal Government and Indian Tribes, 25 USC §3010. As a result, even if DOI's acceptance of oral tradition evidence were to constitute"special treatment," such treatment would not necessarily violate the Establishment Clause. See also: Rupert v. Director, U.S. Fish and Wildlife Service, 957 F.2d 32 (1st Cir. 1992) (per curiam), Alaska Chapter v. Pierce, 694 F.2d 1162, 1167 (9th Cir. 1982); Peyote Way Church of God, Inc. v. Thornburgh, 992 F.2d 1210 (5th Cir. 1991); Washington v. Yakima Indian Nation, 439 U.S. 463, 500-501 (1979). back
(31) A copy of the DOJ legal analysis is attached as Exhibit 5. back
(32) NAGPRA expressly recognizes that Indian tribes have standing to assert property and possessory rights in their heritage resources. Here, the remains are subject to "disposition" to the claimant tribes pursuant to the "Ownership" section of the Act. 25 USC 3002. A determination of ownership for the disposition of the remains presumes that these items have not been acquired or possessed as government property. Instead, ownership is determined in the first instance, as part of the NAGPRA process. In this regard, NAGPRA significantly differs from the Antiquities Act of 1906 and the Archaeological Resources Protection Act (ARPA) of 1979, both of which treated Native American human remains discovered on federal land as federal property It is this change from the prior statutory scheme that Plaintiffs resist so strongly. back
(33) NAGPRA does have a limited study provision for the completion of previously commenced studies related to remains or cultural objects contained in federal collections prior to 1990. Section 7(b) states: "If the lineal descendant, Indian tribe, or Native Hawaiian organization requests the return of culturally affiliated Native American cultural items, the Federal agency or museum shall expeditiously return such items unless such items are indispensable for completion of a specific scientific study, the outcome of which would be of major benefit to the United States" (emphasis added). Plaintiffs erroneously suggest that this provision "merely regulates timing." Pls. Br. at 32. However, it is clear that this provision is a specific and narrow exception to the overall policy embodied in NAGPRA that Native American human remains and cultural objects will be returned to their rightful owners. Notably, there is no study reservation provision in the NAGPRA section applicable to inadvertent discoveries on federal lands after 1990 which is at issue here. AR 10017. back
(34) Plaintiffs assert that by making these materials public and allowing "staff and study team members to participate in public discussions about the skeleton" (Pls. Br. at 40-41) , the United States has "fostered debate" and cannot now bar Plaintiffs from access to the data that they need to fully participate in the debate. Plaintiffs rely on a line of cases dealing with the prohibition of content-based governmental regulation in the context of a "limited public forum." Plaintiffs are mistaken. The United States neither fostered debate nor created a limited pubic forum, but simply responded to the public's demand for information on the remains by releasing relevant non-confidential information during DOI's decisionmaking process. There is no prohibition against the United States regulating its own content when the United States is the speaker. Rosenberger v. Rector of University of Virginia, 515 U.S. 819, 833 (1995). In instances where Defendants participated in forums sponsored by other organizations, no restrictions were imposed on the content of the presentations of any of the other participants. back
(35) Congress defines the extent of the public's access to property and information in the possession of the government. For example, Congress has mandated that certain, but not all, information in the control of the government be made available to the public. See e.g. Freedom of Information Act, 5 USC § 552, the Federal Advisory Committee Act, 5 USC App. §§ 1-14, and the Government in the Sunshine Act, 5 USC § 552b (opening federal agency deliberations to the public). Plaintiffs' argument of a First Amendment right of access to the remains in custody of the United States runs counter to the direction of NAGPRA and "invites the Court to involve itself in what is clearly a legislative task which the Constitution has left to the political processes." Houchins v. KQED, 438 U.S. 1, 21 (1978). back
(36) The First Amendment prevents the government from interfering with a person's attempt to speak or publish, Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976), protects the right to hear or read information being communicated, Pell v. Procunier, 417 U.S. 817, 832 (1974), and prohibits the government from closing certain governmental proceedings historically open to the public, Press Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984). The First Amendment does not, however, impose an affirmative duty on the government to disclose all information or sources of information within its possession to the public, and no first amendment right to study government property has ever been established. back
(37) Griswold v. Connecticut, 381 U.S. 479, 482 (1965) did not address the question of whether the government could limit access to government-held information or property, but whether a State could "contract the spectrum of available knowledge" when that knowledge was already publicly available. While Supreme Court has found a First Amendment right for the press and the public to have access to criminal related proceedings, (see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and related cases: Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II), Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), the cases do not establish a general First Amendment right to access government-held information. This line of cases simply recognizes the long tradition of public access to criminal trials and the significant role that access plays in the functioning of the judicial process and does not "carry any implications outside the context of criminal trials." Globe, 457 U.S. at 611. In fact, in the twenty years following the decision in Richmond Newspapers, the Supreme Court has not applied the analysis used in Richmond Newspapers to areas other than criminal proceedings. back
(38) Plaintiffs also allege that there have been unacceptable variations in the relative humidity and temperature in the remains' storage. Defendants responded to these extra-record allegations in the Declaration of Dr. Trimble filed with Defendants May 2001 Status Report. Defendants incorporate Dr. Trimble's Declaration by reference. Defendants also cite to Dr. Trimble's testimony at 10/25/00 hearing at pp. 36-44. back
(39) The implementing regulations for the NHPA are found at 36 CFR 800. As the regulations have been revised since 1998, references in this brief are to the regulations in existence at the time of the shoreline protection, 36 CFR Ch. VIII (7-1-90 Edition). back
(40) The NHPA process is documented in the COE's Supplemental Administrative Record (SAR). back
(41) Dr. Paul R. Nickens, a consulting archaeologist, reviewed the correspondence between the COE, the SHPO, the ACHP and Plaintiffs' counsel relating to the bank stabilization provisions of the site protection plan. Dr. Nickens agreed with the COE's finding of "no adverse effect" and so stated in declarations filed with the Court. back
(42) The correspondence suggests the Plaintiffs had applied for an ARPA permit for on-site work. However, on the ARPA application for on-site work, only Dr. Huckleberry's name is shown. See SAR 118, S-855; S-856, item 7.a & b; S-860, E (i) & (iii); S-862, Exhibit C. Plaintiffs Bonnichsen and Haynes are to perform "laboratory analyses." S-860. back
(43) As a preliminary matter, it should be noted that all six FOIA requests were made by Mr. Schneider himself, and not by any of the named Plaintiffs. While Mr. Schneider may have been making the requests on behalf of his clients, five of the requests do not so state. The caselaw indicates that Mr. Schneider's attorney client relationship with the Plaintiffs does not provide them standing to sue under FOIA for his requests. Unigard Ins. Co. v. Dept. of the Treasury, 997 F.Supp. 1339, 1342 (S.D. CA. 1997); Smith v. IRS, WL 357935, 83 AFTR 2d 99 -2445. (D.Ut. 1999); McDonnell v. U.S. 4 F. 3d 1227 (3rd Cir. 1993). back
(44) COE withheld some documents responsive to Mr. Schneider's second, third and fourth requests as pre- decisional under FOIA Exemption 5 . See National Wildlife Fed'n. v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir., 1988). FOIA AR 30 at 75; AR 29 at 373. Mr. Schneider's appeal of his second and third requests was based on the COE's assertion of deliberative process privilege. FOIA AR 16 at 310. Documents responsive to the fourth request were provided to Mr. Schneider on March 31, 1999, after a final decision on the selection of experts had been made. FOIA AR 2 at 2-69. back
(45) On July 10, 1998, after receiving Mr. Schneider's second (4/98) and
third (6/98) FOIA requests, the COE requested that Mr. Schneider pay $250.00
for the work performed to that point. Mr. Schneider declined to do so. FOIA
AR 17 at 328-29. Until Mr. Schneider paid that charge, COE was not obligated
to comply with his pending requests. See 5 USC 552(a)(4)(A)(i); 32 CFR 518.59.
Mr. Schneider subsequently submitted a fourth (11/98), a fifth (3/99), and
a sixth (10/00) FOIA request. COE again advised Mr. Schneider that it would
not process these requests until the prior fee was paid. FOIA AR 5 at 73.
Mr. Schneider subsequently paid the required $250.00 by letter dated December
12, 2000. At that point, Mr. Schneider had already been provided with the
Administrative records for the decisions at issue in this case. Nonetheless,
on December 22, 2000, and on March 12, 2001, the COE provided additional
responsive documents, but withheld others based on Exemption 5. back
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