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The Kennewick Man Case | Court Documents | Communications with the CourtJoint Tribal Claimants' Memorandum in Support of Motion for Stay Pending Appeal and in Opposition to Plaintiffs' Study Plan
Rob Roy Smith, OSB 00393
Thomas P. Schlosser, WSBA 06276 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ROBSON BONNICHSEN, C. LORING BRACE, GEORGE W. GILL, C. VANCE HAYNES, JR., RICHARD L. JANTZ, DOUGLAS W. OWSLEY, DENNIS J. STANFORD and D. GENTRY STEELE, Plaintiffs, v. UNITED STATES OF AMERICA DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, BARTHOLOMEW B. BOHN II, DONALD R CURTIS and LEE TURNER, Defendants Civil No. 96-1481 JE JOINT TRIBAL CLAIMANTS' MEMORANDUM IN SUPPORT OF MOTION FOR STAY PENDING APPEAL AND IN OPPOSITION TO PLAINTIFFS' STUDY PLAN Pursuant to Fed. R. Civ. P. 62 EXPEDITED HEARING REQUESTED INTRODUCTIONPursuant to Fed. R. Civ. P. 62(c) and (d), Defendant/ Intervenors Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes and Bands of the Yakama Nation and Confederated Tribes of the Colville Reservation (collectively' Joint Tribal Claimants' ) respectfully request this Court to issue a stay pending appeal of its Order dated August 30, 2002 which (1) sets aside the decision to award the remains of the' Kennewick Man' to the claimant tribes; (2) enjoins the federal defendants from transferring the remains to the claimant tribes; and (3) allows the plaintiffs to study the ancient human remains. The Joint Tribal Claimants have been granted intervention for purposes of appeal and have lodged a Notice of Appeal with this Court. See Notice of Appeal (filed Oct. 24, 2002). This motion requests this Court to stay its Order pending appeal to preserve the status quo and prevent further study and potential destruction of the human remains at issue during the appeal and any remand proceedings. This memorandum also responds in opposition to Plaintiffs' proposed plan for study, a copy of which is attached hereto as Attachment A.1 1 Because the damages proposed by Plaintiffs in their study plan are most appropriately discussed in connection with the state of the balance between these harms and the injury that granting a stay would inflict upon Plaintiffs, the Joint Tribal Claimants have set forth their response to Plaintiffs' proposed study plan in that section of this memorandum of points and authorities. See infra at 11. The Joint Tribal Claimants ask this Court to expedite its decision on this motion because of the irreparable harm that is threatened in the absence of the protections afforded the remains under the Native American Graves Protection and Repatriation Act (' NAGPRA' ). This appeal raises weighty issues of first impression concerning the protection of ancient native human remains from additional invasive scientific study. This Court's decision reaches a conclusion at odds with NAGPRA and the Department of the Interior's (DOI) well-reasoned and long-standing definition of' Native American' and thoroughly considered determination of cultural affiliation between the ancient remains and the claimant tribes. Given the strong deference ordinarily afforded an agency interpretation of the statute it administers, the Ninth Circuit may well reach a different conclusion than that embraced by this Court. Granting a stay pending appeal will maintain the status quo and prevent needless destruction of the remains while the Court of Appeals reviews this issue. The irreparable harm that will occur if there is a hiatus in protection for the remains justifies a stay pending appeal. Additional invasive studies, which include physical handling and manipulation of the remains, may result in the destruction of the remains, in both the physical and spiritual senses. This will irreparably harm the Tribes' ownership and property interest in the remains that the Federal agencies recognized in their decision awarding the remains to the Tribes. Moreover, any study prior to a final resolution of this case offends the very purpose for which NAGPRA was passed by Congress. This Court has already recognized the importance of maintaining the status quo throughout this case and acknowledged in its Order that an appeal was likely. Plaintiffs' study plan repeatedly acknowledges that the studies are redundant to the objectives and the outcomes of the studies already preformed on these remains under the supervision of the DOI. It thus fails to show which activities' may yield additional information and serve as a check on the validity of earlier results.' Opinion and Order at 74 (Aug. 30, 2002) (' Opinion' ). At no time in this proceeding is the need for a stay of study more imperative than it is now. Such relief is further appropriate because the remains warrant protection under NAGPRA. The likely outcome of an appeal and remand under this Court's ruling is a finding that the remains are' Native American' for purposes of NAGPRA and are culturally affiliated with the claimant tribes. A stay pending appeal would simply keep the NAGPRA protections for the remains in place during the appeal and any remand proceedings. BACKGROUND AND NATURE OF CASEThe Plaintiffs' amended complaint in this case seeks judicial review of the final determination made by DOI, adopted by the U.S. Corps of Engineers (USCOE) and supported by a 22,000 page administrative record compiled over the course of three years, that determined the remains at issue in this case are' Native American' under NAGPRA and that the appropriate disposition and ownership of the human remains rests with the Joint Tribal Claimants. The decision to return the remains to the claimant tribes was made pursuant to a remand from this Court that vacated the USCOE's earlier decision regarding the disposition of the remains to ensure that the United States fully and carefully considered all views and all information in its final determination, including responding to the seventeen specific issues posed by this Court. Bonnichsen v. United States, 969 F. Supp. 628, 651-54 (D. Or. 1997). In the same decision, this Court denied the plaintiffs' motion to study the remains to preserve the status quo and protect the remains pending the final resolution of this case. Id. at 632, 651. In the Opinion issued August 30, 2002, this Court set aside the decision to award the remains to the claimant tribes, refusing to apply traditional judicial deference to DOI's definition of' Native American' and cultural affiliation determination. Opinion at 73. The Court further found that' no useful purpose would be served by remanding the decision to the Secretary' and granted the plaintiffs' study request rather than remanding the matter back to the agency. Id. at 25, 69. Subsequently, the Joint Tribal Claimants moved to intervene as a party defendant for purposes of appeal and were granted intervenor status. See Civil Minute Order Granting Intervention (filed Oct. 21, 2002). Both the Tribes and the Federal defendants have filed timely notices of appeal. On October 10, 2002, Plaintiffs submitted their study plan for the Ancient One's remains as directed by this Court's Opinion of August 30, 2002. The Court's Opinion acknowledges the likelihood of an appeal, noting' judicial economy favors creating a complete record for possible appellate review.' Opinion at 32. A stay is a natural extension of this appellate review, recognizing, as this Court has previously by denying the plaintiffs' study requests during the pendency of the district court case, the need to preserve the status quo until the final resolution of this case. Otherwise, the Joint Tribal Claimants appeal could be moot as there would be no remains left to repatriate. STANDARD OF REVIEWThis Court considers motions for stays pending appeal under the same standard as motions for a preliminary injunction. See Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir. 1977); Andreiu v. Ashcroft, 253 F.3d 477, 480 (9th Cir. 2001) (en banc). In deciding a motion for a stay or injunction pending appeal, the court must consider: (1) the moving party's likelihood of success on the merits; (2) whether the moving party will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the interests of the others; and (4) whether the public interest favors issuance of the stay. Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988); see also Textile Unlimited, Inc. v. A. BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001) (citing Los Angeles Mem'l Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980)). The Ninth Circuit has established a continuum allowing a moving party to' meet its burden by demonstrating a combination of probable success on the merits and a possibility of irreparable injury.' Id.' At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor.' Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983) (citations omitted); see also Rucker v. Davis, 237 F.3d 1113, 1117 (9th Cir. 2001) (en banc) (citing Roe v. Anderson, 134 F.3d 1400 (9th Cir. 1998), aff'd sub nom, Saenz v. Roe, 526 U.S. 489 (1999)); Gentala v. City of Tuscon, 213 F.3d 1055, 1060-61 (9th Cir. 2000) (same). A [stay] is not a preliminary adjudication on the merits, but a device for preserving the status quo and preventing the irreparable loss of rights before judgment.' Textile Unlimited, Inc., 240 F.3d at 786 (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). The district court is vested with reasonable discretion when determining whether to grant a preliminary injunction. See A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001) (citing Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en banc)). As described below, the Joint Tribal Claimants show serious questions going to the merits and that the balance of hardship involved in issuing a stay tips sharply in favor of the Joint Tribal Claimants. ARGUMENTUnder the Ninth Circuit test, a stay is warranted. This appeal raises serious legal issues of first impression on which intervenors have a significant likelihood of success and the balance of harms favors issuance of a stay. I. INTERVENORS' LIKELIHOOD OF SUCCESS ON THE MERITS.The Joint Tribal Claimants are appealing this Court's decision on seven grounds: (1) that the Court erred in applying the standard for agency deference when reviewing the definition of 'Native American' used by the DOI; (2) that the Court erred in applying a definition of' Native American' which is inconsistent with NAGPRA; (3) that the Court erred in rejecting the finding of cultural affiliation with the claimant tribes; (4) that the Court exceeded its authority by failing to remand the decision to the agency; (5) that the Court erred in applying the Administrative Procedures Act (APA) to NAGPRA's mandate to agencies to consult with tribes when making cultural affiliation determinations; (6) that the Court erred in failing to apply the applicable Indian canons of construction to NAGPRA; and (7) that the Court erred in rejecting the ability of tribes to file joint claims for repatriation under NAGPRA. These seven questions present serious legal issues on which there is a significant probability of success. This Court's Opinion rejected the determinations of the Secretary of the Interior that the remains are' Native American,' and that a' cultural affiliation' exists with the Joint Tribal Claimants. The Court found unpersuasive the Defendants' arguments that deference should be accorded to the agency's interpretations pursuant to Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Court noted that in' most cases where Chevron deference has been applied, the agency's interpretation has been the result of a process of notice and comment rulemaking,' and found that the interpretations at issue here were not the result of any such formal process. Opinion at 26. The Court, however, was mistaken. Because the Court's decision conflicts with the Secretary's regulations, the Joint Tribal Claimants have a substantial probability of success on the merits. The key phrase construed by the Court'' culture that is indigenous'' was shortened and clarified in the Secretary's regulatory definition, found in 43 C.F.R. § 10.2(d). The regulation states:' The term Native American means of, or relating to, a tribe, people, or culture indigenous to the United States, including Alaska and Hawaii.' (emphasis added). The regulation's omission of the word' is' puts the focus on indigenousness and avoids hinting at a link to a presently existing tribe. The regulations leave to the definition of' cultural affiliation' the showing of a relationship to a presently existing tribe, as applicable, instead of importing that requirement into the definition of Native American. The Secretary dropped the words' that is' to avoid precisely the mistake made by the Court. Thus the interpretation at issue was previously considered by the agency in the regulatory process. By focusing on the word' is' and ignoring the word' indigenous,' the Court renders NAGPRA inapplicable absent a proven relationship between a present day tribe, people or culture, and the human remains. But, a tribe is no less indigenous after extinction than it was before. The proof problems attendant to showing a relationship to a modern tribe will make the ownership, repatriation, and penalty provisions of NAGPRA practically unenforceable for all except the most recent burials and will divert scarce resources into expensive radiocarbon dating and DNA studies before cultural items can be protected. Congress did not intend such a narrow application for the statute. Instead, the statute's focus on' indigenous' is easily applied to remains predating Columbus' (or other adventurers')' discovery' of America, and that was the agencies' approach here. Indeed, putting the focus on the word' indigenous' instead of on the continued existence of the related tribe protects against the possibility that grave robbers would profit from genocide earlier in this continent' s history. In addition, under the Court's interpretation, NAGPRA's provisions regarding unclaimed remains, 25 U.S.C. § 3002(b), and culturally unidentifiable remains, 25 U.S.C. § 3006(c)(5), would be largely surplusage. By the Court's definition, remains can be' Native American' only if shown to have a cultural relationship to an existing tribe, and therefore there will be no culturally unidentifiable Native American items. The Court's requirement that remains are' Native American' only when a relationship to a presently existing tribe is shown, also conflicts with the Secretary's regulations concerning custody of human remains, 43 C.F.R. § 10.6(a)(2)(iii). The regulations provide that when the cultural affiliation of any human remains cannot be ascertained, they will go to the tribe on whose aboriginal land the remains were discovered, as recognized in a judgment of the Indian Claims Commission, subject to certain exceptions. Even if the Court's further determination that 'judgment' is used in a technical sense is correct, neither NAGPRA nor the regulation requires that cultural affiliation or any other kind of relationship be established for remains on such lands. The Court's ruling frustrates Congress' intent in enacting NAGPRA in several additional ways as follows: NAGPRA requires federal agencies to consult with tribal governments concerning cultural items, see 43 C.F.R. § 10.5, but the Court believed the agencies violated the APA by taking steps fundamental to informed and fair decision making with the affected tribes. Opinion at 22. In each of these instances, the Court failed to note the remedial purposes for which NAGPRA was passed and refused to apply the canons of construction applicable to statutes concerning American Indians. Accordingly, the Joint Tribal Claimants have a substantial probability of success on the merits of the appeal. Without the availability of NAGPRA's protections, the ancient human remains at the heart of this case are subject to invasive and potentially destructive studies at the hands of the plaintiff scientists. Because the Defendant/ Intervenors may well prevail on any of the seven difficult and serious questions raised on appeal, this Court should grant a stay to keep the status quo and preserve the sanctity of the remains until this case is finally resolved. II. THE BALANCE OF HARMS FAVORS GRANTING A STAY PENDING APPEAL.Apart from the Joint Tribal Claimants' likelihood of success on the merits, this Court must consider the balance of harms in deciding whether to grant a stay. The Joint Tribal Claimants have a proprietary and deeply personal stake in the protection and preservation of the remains of the Ancient One, and for that reason have opposed the invasive and destructive testing and examination that has occurred during the past six years. Here, the balance of harms clearly favors granting a stay pending appeal to keep NAGPRA's protections in place during both the appeal and any remand. A. Irreparable Harm Will Occur Absent a Stay. The plaintiffs' study request poses a direct and immediate harm to both the subject matter of this litigation and to the considerable proprietary, cultural and spiritual interests of the Joint Tribal Claimants in seeing the remains repatriated without destructive studies being performed. The studies outlined below will likely result in significant and irreversible damage to the remains. A review of the invasive studies requested by the plaintiffs reveals that' an array of studies, tests and procedures' will be performed through' inventory, reassembly and reconstruction of the skeleton' ;' observations and measurements of the skeleton' ;' sampling and testing of the skeleton and associated sedimentary materials' ; and' imaging of the collection and study.' Plaintiffs' Study Plan at 2 (Oct. 10, 2002). During the' observations and measurements' portion of the study, a minimum of seventeen scientists will handle the remains. See id. at 4-16; Jaehnig Aff. ¶ 5. The handling will include ten examinations and measurements of the entire skeleton, two cranial examinations, two postcranial examinations and two other examinations, one each of the hand and fist bones and one of the pelvis with the projectile point in it. See id. at 4-16; Jaehnig Aff. ¶ 7. In all, this portion of the study plan calls for twelve total examinations and two partial examination by seventeen scientists and their assistants, and probably several dozen individuals (24 are listed in the plan at 36-38), which inevitably will damage these precious human remains and in large part will simply duplicate the invasive and destructive work already done. Most of these individuals, of course, are not Plaintiffs in the case. Highly abrasive metal tools such as dental picks and other devices will also be used. Id. at 14; Jaehnig Aff. ¶ 8. Considering the fragile nature of the remains, this kind of handling and movement will result in erosion of the remains. Jaehnig Aff. ¶¶ 6, 17. Additional damage will be caused by the sampling and testing that is proposed. The plaintiffs' plan calls for' microsampling' which will entail taking two bone samples from twenty bones with a one-sixteenth drill bit, leaving forty 1.6 mm diameter holes in the remains. Study Plan at 17. To make matters worse, the drilling will be done with an electric hand drill, which could result in wider holes than what is anticipated. Id.; Jaehnig Aff. ¶10. In addition, the studies call for the investigation of at least twenty calcium carbonate deposits with the use of low speed drill. Id. at 21; Jaehnig Aff. ¶ 11. Samples of sediment will also be taken in the same manner from up to thirty bones. Id. at 22. Both studies fail to reveal just how many holes will be needed and what size drill will be used. Finally, additional direct handling of the remains will be required for the' scientific photography' which also has the potential for additional erosion of the remains. Id. at 23; Jaehnig Aff. ¶¶ 13-14. As set forth in the declaration of Matthew Dick, Jr., prepared on February 13, 2000 and filed on January 25, 2001 (Docket No. 391), the cultural traditions of the claimant tribes include the practices and beliefs of tribal religion and spirituality. Religion and spiritual belief are not separated from other parts of tribal members' lives. Dick, Jr. Decl. ¶ 5. Religious activity is not limited to a set time and place, but permeates all facets of life. Id. Explanation of spirituality to non-Indians involves difficult issues of translation of concepts and words. However, a tenet of tribal beliefs is: [T]he sanctity of the spirit of the deceased. Those who have passed on are not to be disturbed and are entitled to a deference in which there should be no disruption of their resting place and their remains. . . . The Creator created each one of us in the manner in which we are born and in which we grow throughout life. The only way in which we can come to the Creator at the time of our passing and at times of support and guidance is to come to him in the form in which we are created, and to come to him'whole.'Id. ¶¶ 9, 12. As authorized earlier in this proceeding, extensive observation, measurement, and testing has already been performed on the remains of the Ancient One. However, Plaintiffs' recent study plan plainly calls for duplicative and destructive examination of the remains and will irreparably injure the interests which have caused the Joint Tribal Claimants to participate in this proceeding. Plaintiffs' study plan is a laundry list of the kinds of studies one might do on human remains. Little attempt has been made to explain why these studies are critical to study of this particular set of human remains at this time. While the overriding objective of Plaintiffs' study should be to provide interpretive information regarding this set of human remains beyond that already presented, no attempt has been made to so limit the studies. As set forth in detail in the accompanying Declaration of Brent Hicks in Opposition to Plaintiffs' Proposed Study Plans (filed herewith), these studies go far beyond alleged errors or shortcomings in the Interior Department's studies. Further, there has been no attempt to reduce redundant data gathering among the proposals contained in Plaintiffs' plans. Rather, several different people appear poised to conduct largely the same examinations and measurements. Under NAGPRA, preliminary injunctions to preserve the status quo have been granted for much less than what the Joint Tribal Claimants are seeking here. In Yankton Sioux, the district court granted a preliminary injunction where there was a' significant threat of irreparable harms to the [tribes because of] further exposure of human remains or loss of human remains' due to construction activities at the discovery site. Yankton Sioux Tribe v. United States Army Corps of Engineers, 209 F.Supp.2d 1008, 1022 (D. S.D. 2002). Here, the plaintiffs will be directly and adversely impacting the remains through a series of invasive and potentially destructive studies. As a result,' [t]he harm to the [tribes] is high given the sensitive nature of the subject of this action.' Id. at 1023. Because' NAGPRA was enacted to provide relief to Indian peoples for just the type of harm these [tribes] are suffering,' a stay is proper here. Id. No matter what precautions are taken, the excessive handling and clearly invasive study requests made by the plaintiffs will adversely affect the brittle, fragile remains. Considering the Defendant/ Intervenors' significant property right in the remains, the threat of irreparable harm remains too high, regardless of the precautions taken. Any destruction of the remains cannot be adequately remedied by money damages and will be of permanent duration, i.e., irreparable. The actions of the plaintiffs and their assistants will also cause immediate psychological harm to the clamant tribes who have a proprietary, religious and cultural affiliation with the human remains. Thus, proceeding with Plaintiffs' study plan at this time would make it impossible for the court of appeals to grant complete relief to Tribal Claimants in the event that Court agrees with the Tribes' legal analysis. By contrast, the continued storage and protection of these remains in the Burke Museum in Seattle, Washington, during the pendency of the appeal will cause no injury to Plaintiffs. The remains have survived several thousand years already; one or two additional years in carefully controlled conditions cannot be shown to reduce the value of the remains to the interests Plaintiffs seek to protect. Indeed, allowing some additional time for Plaintiffs to examine the data gathered under the auspices of the DOI during the past six years will likely result in a more precisely targeted and less duplicative and damaging study proposal in the event Plaintiffs prevail upon appeal. For all of these reasons, the balance of hardship tips sharply in favor of granting the Joint Tribal Claimants' motion for a stay pending appeal. B. The Public Interest Favors a Stay. A key factor in determining whether an action should be stayed during remand and appeal proceedings is the purpose of the substantive statute underlying the agency action. See Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). Here a stay would promote NAGPRA's purposes and preserve the res of this case. 'NAGPRA represents the culmination of'decades of struggle by Native American tribal governments and people to protect against grave desecration to [effect the repatriation of] thousands of dead relatives or ancestors, and to retrieve stolen or inappropriately acquired cultural property.' Yankton Sioux Tribe, 209 F.Supp.2d at 1016 (quoting Jack F. Troupe & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History 24 Ariz.St.L.J. 35, 36 (1992)). To this end, NAGPRA's legislative history is replete with references to the purposes behind the statute. See Kickapoo Traditional Tribe of Texas v. Chacon, 46 F. Supp. 2d 644, 649 (W.D. Tex. 1999) (discussing purpose to return items to tribes or protect burial sites); see also DOI AR 601. During debate on the legislation, Senator Inouye stated:' [T]he bill before us is not about the validity of museums or the value of scientific inquiry. . . . NAGPRA is, first and foremost, human rights legislation.' 136 Cong. Rec. S17174-17175. These sentiments were echoed by Senator McCain who stated that NAGPRA aims to provide the' dignity and respect our Nation's first citizens deserve.' Id. at S17173. Throughout the legislative history of the Act, report language makes continuous reference to the purpose behind NAGPRA'' human remains must at all times be accorded dignity and respect.' S. Rep. No. 101-473 at 2 (DOI AR 574) (statement from Report of Panel for a National Dialogue on Museum/Native American Relations). Indeed, the'purpose' of NAGPRA was to' protect Native American burial sites and the removal of human remains.' H. Rep. No. 101-877 at 8 (DOI AR 601). As such,' it takes no great leap to conclude that congressional intent is well effectuated' by DOI's definition of Native American and determination of cultural affiliation. Warder v. Shalala, 149 F.3d 73, 84 (1st Cir. 1998). Since the plain meaning of NAGPRA evidences Congress' intent for the statute to be primarily about human dignity and to protect' native' remains, granting a stay of study in this case pending appeal furthers both the purposes of the statute and the public interest in continuing to see the ancient remains at issue protected by this remedial legislation. At the least,' [g]iven the [tribes'] beliefs about their ancestors . . . it is clearly within the public interest to require compliance with NAGPRA and its implementing regulations.' Yankton Sioux, 209 F.Supp.2d at 1024. Otherwise, should the plaintiffs' study request be allowed to go forward, and the Joint Tribal Claimants prevail on appeal, the victory will be a hollow one as the studies the Tribes had sought to prevent since entering the litigation would have already occurred. Moreover, it is likely that additional study requests will be made by these or other scientists not currently a party to this litigation, subjecting the remains to additional unwarranted study. See Study Plan at 35 (suggesting additional study requests may be made later). Especially on issues of first impression of this magnitude, allowing the plaintiffs' study request to go forward belies NAGPRA and short circuits the fundamental issues in this case. In light of the significant harms and the protections NAGPRA provides preventing further study of these remains, a stay is warranted during the appeal and any remand proceedings. CONCLUSION For the foregoing reasons, the Defendant/ Intervenors respectfully request this Court to stay its Order of August 30, 2002 to keep the protections afforded by NAGPRA in place for the ancient human remains as issue in this case during the appeal and any remand proceedings. Dated this'__ day of November, 2002. RESPECTFULLY SUBMITTED,
/s/ Rob Roy Smith by DC
/s/ David J. Cummings
/s/ Naomi Stacy by DC
/s/ Thomas Schlosser by DC
/s/ Thomas Zeilman by DC
/s/ Melissa Campobasso by DC
/s/ Tim Weaver Return to Communications with the Court |
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