Friends of America's Past

The Kennewick Man Case | Court Documents | Communications with the Court

Motion for Stay Pending Appeal and Memorandum of Points and Authorities in Support

Thomas P. Schiosser, WSBA #06276
Rob Roy Smith, OSB # 00393
Morisset, Schiosser, Homer, Jozwiak & McGaw
1115 Norton Building
801 Second Avenue
Seattle, Washington 98104-1509
Telephone: (206) 386-5200
Facsimile: (206) 386-7322

Attorneys for Defendant/Intervenor/Appellant Co/yule Confederated Tribes










Case No. 02-35970, 02-35994 & 02-35996 (D.C. No. 96-1481JE)


Pursuant to Fed. R. Civ. P. 62, and Fed. R. App. P. 8 (a)(2), Appellants Confederated Tribes of the Colville Reservation, Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, and Confederated Tribes and Bands of the Yakama Nation (collectively "Joint Tribal Claimants") respectfully move this Court to issue a stay pending appeal of the Order of the District Court for the District of Oregon dated August 30, 2002 which (1) set aside the decision of the Department of the Interior awarding the remains of the "Kennewick Man" to the claimant tribes; (2) enjoined the Department of the Interior from transferring the remains to the claimant tribes; and (3) granted the scientists' request to study the ancient native remains.

The Joint Tribal Claimants and the United States have appealed the decision of the Oregon District Court in Ninth Circuit Docket Nos. 02-35994 and 02-35996. The Appellant Tribes' opening brief is due on February 10, 2003.

The Joint Tribal Claimants filed a Motion for Stay with the Oregon District Court on November 15, 2002. The district court denied the motion for stay on January 8, 2003. The grounds stated for the denial of the motion were as follows: (1) the Joint Tribal Claimants "have not shown that the decision granting the plaintiff scientists' request to study will likely be set aside on appeal;" (2) the "balance of harms does not tip in the Tribal Claimants' favor;" and (3) the public interest favors "the studies proceeding without further delay." See Order Denying Stay at 2-4 (Attachment A).

This Motion asks this Court to stay the August 30, 2002 Order of the Oregon District Court pending appeal. The Joint Tribal Claimants ask this Court to expedite its decision on this motion because of the irreparable harm that is immediately threatened in the absence of the protections afforded the remains under the Native American Graves Protection and Repatriation Act. The appellee scientists and the United States are seeking to move forward with the appellees' initial study of the remains as soon as February 2003 and no later than April 2003. See Correspondence Excerpt (Attachment G). This Motion is accompanied by copies of the supporting affidavits submitted below explaining why the requested relief should be granted and relevant portions of the record. The United States had no objection to this motion below. Appellees will likely continue their opposition.


This appeal raises weighty issues of first impression concerning the protection of ancient native human remains from additional invasive scientific study. The district court's decision reaches a conclusion at odds with the plain language of the Native American Graves Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. ¬ 3001 et seq., and the Department of the Interior's ("DOT") interpretation of it, particularly the definition of "Native American" and determination of "cultural affiliation" between the ancient remains and the claimant tribes. Given the strong deference ordinarily afforded an agency interpretation of a statute it administers, this Court may well reach a different conclusion than that embraced by the Oregon District Court.

The irreparable harm that will occur if there is a hiatus in protection for the remains justifies a stay pending appeal. Additional invasive studies, including drilling out samples, physical handling and manipulation of the remains, many of which are redundant to the objectives and the outcomes of the studies already performed on these remains under DOl's supervision, will 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, as demonstrated by the Tribes' joint claim filed with the Army Corps of Engineers on January 25, 2000, and DOl's 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.

Granting a stay pending appeal will maintain the status quo and prevent needless destruction of the remains while this Court reviews the issues presented on appeal. The district court's denial of the Joint Tribal Claimants' Motion for Stay was in error.


This Court considers motions for stays pending appeal under the same standard as motions for a preliminary injunction. 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. 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).

This Court 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, 34 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, 106061 (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, 240 F.3d at 786 (citing Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). Nothing limits the power of this Court to issue "any order appropriate to preserve the status quo" pending a final decision on appeal. Fed. R. Civ. P. 63(g).


A stay is warranted. This appeal raises serious legal issues of first impression on which Appellants have a significant likelihood of success on the merits and the balance of harms tips sharply in favor of issuing a stay.


The Joint Tribal Claimants are appealing the district court's decision on five grounds: (1) that the district court erred in rejecting DOI's definition of "Native American," and substituted its judgment for that of the agency when applying NAGPRA; (2) that the district court erred in applying the standard for agency deference when reviewing DOI's finding of cultural affiliation with the claimant tribes, and substituted its judgment for that of the agency concerning the evidence supporting cultural affiliation; (3) that the district court erred in applying the Administrative Procedures Act ("APA"), 5 U.S.C. ¬ 551 et seq., to NAGPRA's mandate to agencies to consult with tribes when making cultural affiliation determinations; (4) that the district court erred by refusing a joint tribal claim for repatriation of remains under NAGPRA; and (5) that the district court exceeded its authority by failing to remand this matter to the agency. These five issues for appeal present serious legal issues on which there is a significant probability of success.

The district court vacated DOl's determination that the remains are "Native American," and that a "cultural affiliation" exists with the Joint Tribal Claimants by refusing to accord traditional judicial deference to the agency's interpretations of a statute it is charged with administering pursuant to Chevron USA. Inc. v. Natural Resources Defense Council. Inc., 467 U.S. 837 (1984). See Opinion at 26 (Attachment B). The district court was mistaken; its decision conflicts with NAGPRA's implementing regulations, promulgated through notice and comment rulemaking, and Congress' intent in passing NAGPRA.

Congress, in enacting NAGPRA, defined "Native American" as "of or relating to, a tribe, people or culture that is indigenous to the United States." 25 U.S.C. ¬ 3001(9). The key phrase construed by the court - "culture that -is indigenous" - was clarified in DOl's regulatory definition, found at 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 words "that is" puts the focus on "indigenous" and avoids hinting at a link to a presently existing tribe. Crafting the NAGPRA regulations without the terms "that is" effectuates the Congress' intent to ensure the return of native remains to tribes without proof of present day indigenousness, or proof of a relationship between the ancient remains and present-day Indian tribes. Had Congress intended "Native American" remains to have some relationship with modem day tribes, Congress would have used the term "Indian tribe" or "American Indian," rather than "Native American." "Native American" is meant to have a meaning of its own, separate and apart from present day groups. The Secretary dropped the words "that is" during the formal rulemaking process to avoid precisely the mistake made by the lower court.

DOl's regulations properly recognized that something "indigenous" cannot lose its indigenousness. Regardless of the verb used by the agency or Congress, a tribe cannot be indigenous at some point, but then not be at others. While DOl's definition may not have been the one the lower court would have chosen, it was bound to defer to this reasonable interpretation. The court failed to do so, and this Court should find that the district court erred in not providing substantial judicial deference to DOl's regulatory definition of "Native American."

The court's definition of "Native American," greatly narrows NAGPRA's scope by finding that "the term 'Native American' requires, at a minimum, a cultural relationship between the remains.. . and a present-day tribe." Opinion and Order at 30. This renders the statute's pivotal "cultural affiliation" determination (25 U.S.C. ¬ 3002(a)), and provisions regarding unclaimed remains (25 U.S.C. ¬ 3002(b)) and culturally unidentifiable remains (25 U.S.C. ¬ 3006(c)(5)), surplusage by requiring remains to have a relationship to existing tribes to be "Native American." Congress did not intend such a narrow reading of the statute. See 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).

The district court's ruling frustrates Congress' intent in enacting NAGPRA in several additional ways. First, the Court wrongfully applied the APA's prohibition on ex parte communications to prevent informal communications between DOl and the claimant tribes, even though nothing in NAGPRA requires an "adjudication." Opinion at 22. Second, the court narrowly interpreted NAGPRA to prevent joint claims for repatriation even though the Secretary had concluded, based on legislative history, that joint claims for repatriation are permissible under NAGPRA. Id. at 35. Third, the court substituted its judgment for that of the agency by misinterpreting "cultural affiliation" to require a degree of specificity approaching scientific certainty and rebalancing the evidence relied upon by DOl. Id. at 37-57. This flies in the face of Congress' intent to allow use of evidence of oral traditions to establish events that predate written records. Finally, the court abused its discretion by not remanding the decision to the agency and instead granting the scientists' requested substantive relief to study the remains. Id. at 69.

In each of these instances, the district court failed to note the remedial purposes for which NAGPRA was passed to protect the interests of indigenous people and remains buried prior to establishment of European-style cemeteries. The court flatly refused to apply the canons of construction applicable to Indian legislation and substituted its judgment for that of DOl. Accordingly, the Joint Tribal Claimants have a substantial probability of success on the merits of the appeal. The district court's one sentence analysis finding that the Joint Tribal Claimants failed to satisfy this burden was in error. See Order Denying Stay at 2.

Because the Appellants may well prevail on any of difficult and serious questions raised on appeal, this Court should grant a stay to keep the status quo and preserve the integrity and sanctity of the remains until this case is authoritatively resolved.


The balance of harms also tips in favor of granting 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 seven years. The balance of harms clearly favors granting a stay pending appeal to keep NAGPRA's protections in place during the appeal and any remand. A. Irreparable Harm Will Occur Absent a Stay

The appellee scientists' 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. In contrast to the district court's erroneous finding that "the plaintiff scientists do not intend to carry out extensive invasive studies that will substantially alter the physical conditions of the remains," the studies outlined below demonstrate the significant and irreversible damage that will be caused to the remains, potentially rendering the appeal moot, if a stay is not granted. See Order Denying Stay at 3.

A review of the invasive studies reveals that "an array of studies, tests and procedures" will be performed through "inventory, reassembly and testing of the skeleton and associated sedimentary materials;" and "imaging of the collection and study." Plaintiffs' Study Plan at 2 (Attachment C). During the "observations and measurements" portion of the study, a minimum of seventeen scientists will handle these 9,000 year old remains. Id. at 4-16; Jaehnig Aff. & 5 (Attachment D). 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. 17. 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 are not Appellees in the case. Jaehnig Aff. 118. 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 proposed sampling and testing. The scientists' plan calls for "microsampling" which will entail taking two bone samples from twenty bones with a onesixteenth 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. 110. 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 J 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. &11 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. Deci. & 5 (Attachment E). 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. The remains have already undergone extensive and hurtful observation, measurement, and testing by government scientists. The scientists' study plan now calls for duplicative and destructive examination of the remains and will irreparably injure the very interests that have caused the Joint Tribal Claimants to become involved in this case and seek this appeal. Appellees' 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 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. See Declaration of Brent Hicks in Opposition to Plaintiffs' Study Plan (Attachment F) (noting redundancy of proposed studies).

The appellee scientists 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." Yankton Sioux Tribe v. United States army Corps of Engineers, 209 F.Supp.2d 1008, 1023 (D. S.D. 2002) (granting preliminary injunction under NAGPRA). 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 scientists will adversely affect the brittle, fragile remains. Any destruction of the remains cannot be adequately remedied by money damages and will be of permanent duration, i.e., irreparable. Now, the scientists seem poised to begin study as early as next month. See Attachment G.

Proceeding with the study plan at this time would make it impossible for this Court to grant complete relief to the Tribes in the event this Court rules in the Joint Tribal Claimants' favor. 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 the scientists. The remains have survived several thousand years already; one or two additional years in carefully controlled conditions cannot be shown to reduce the scientific value of the remains. Indeed, allowing some additional time to examine the data gathered under the auspices of the DOl during the past seven years will likely result in a more precisely targeted and less duplicative and damaging study proposal in the event Appellees prevail here.

The district court's concerns for the scientists' advancing age and inability to publish their work does not tip the scales of harm in their favor. See Order Denying Stay at 4. NAGPRA is remedial Indian legislation that is "not about the validity of museums or the value of scientific inquiry. Rather, it is about human rights." See Statement of Sen. Inouye, 136 Cong. Rec. S17,174- S17,175 (daily ed. Oct. 26, 1990). 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 Gambeil, 480 U.S. 531, 542 (1987). Here a stay would promote NAGPRA' s remedial 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, 209 F.Supp.2d at 1016 (quoting Troupe & 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 and provide the "dignity and respect our Nation's first citizens deserve.") (citing Statement of Sen. McCain, 36 Cong. Rec. S 17,173). It takes no great leap to conclude that congressional intent is well effectuated by DOl's definition of "Native American" and determination of cultural affiliation.

Since Congress struck a balance in favor of protecting native remains against "scientific" research, 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. The mere fact that the district court believes the remains are of "archaeological interest" should not have provided grounds to deny the Tribes' motion for stay. See Order Denying Stay at 4.

Absent the relief requested herein, should the scientists' 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 study request to go forward belies NAGPRA and short circuits the appeal in this case. Accordingly, a stay is warranted during the appeal and any remand proceedings.


Based on the foregoing, the Joint Tribal Claimants respectfully request that this Court enter a stay of the scientists' study request in an expedited manner to protect the remains from the initial study planned for as early as February 2003 and preserve the subject matter of this litigation pending final resolution of this appeal.

DATED this 15th day of January, 2003.



Thomas Schiosser, WSBA #6276
(206) 386-5200
Attorney for the Confederated Tribes of the Colville Reservation

Rob Roy Smith, OSB #00393
(206) 386-5200
Attorney for the Confederated Tribes of the Colville Reservation

Naomi Stacy', WSBA #29434
(541) 278-5274
Attorney for the Confederated Tribes of the Umatilla Indian Reservation

David J. Cummings, OSB #9229
(208) 843-7355
Attorney for Nez Perce Tribe

Thomas Zeilman, WSBA #28740
(509) 865-5121
Attorney for Yakama Nation

Tim Weaver, WSBA #3364
(509) 575-1500
Attorney for Yakama Nation

Return to Communications with the Court