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Federal Defendants' Reply to Plaintiffs' Objection to Request to Modify Court's September 21, 1999 Order and Notice of Final Determination to Attempt DNA Analysis

Lois J. Schiffer
Assistant Attorney General

Allison Rumsey
US Department of Justice
Environment & Natural Resources Div.
Office of the Assistant Attorney General
950 Penn. Ave., N.W., Room 2740
Washington, D.C.

Kristine Olson
United States Attorney
Timothy Simmons
Assistant United States Attorney
District of Oregon
1000 SW 3rd Ave., Ste 600
Portland, Oregon 97204-2902
(503) 727-1156
(503) 727-1117


ROBSON BONNICHES, et al., Plaintiffs


UNITED STATES OF AMERICA, et al., Defendants

Federal Defendants' Reply to Plaintiffs' Objection to Request to Modify Court's September 21, 1999 Order and Notice of Final Determination to Attempt DNA Analysis


The U.S. Department of the Interior has made a final determination that it would like to attempt to undertake DNA analysis of these human remains as part of the cultural affiliation determination. Declaration of Dr. Francis P. Mc Manamon, February 17, 2000 (Exhibit 1). Accordingly, the federal defendants' request that the court modify the September 21, 1999 Order to allow an additional six months of time to complete this testing and the administrative process.

1. The Decision To Attempt To Undertake DNA Analysis Could Only Be Made When The Agency Believed That Such A Study Would Further The Administrative Process.

Plaintiffs, in their Opposition to the Motion For A Modification To The September 21, 1999 Order, demonstrate a lack of comprehension of the paramount role of the Native American Graves Protection and Repatriation Act here. The U.S. Department of the Interior and the U.S. Army Corps of Engineers are not undertaking studies, or waiting on replying the request to study, just for the purpose of studying, or not studying, these ancient human remains. To the contrary, the agencies are carrying out an administrative process to determine the appropriate disposition of these human remains, as required by the NAGPRA, 25 U.S.C. B 3001 et seq. What studies to undertake and in what sequence are based upon appropriate archeological methodology and driven by the statutory and regulatory responsibilities of the agency and with consideration to the five American Indian tribes' claims to these human remains.(1)

As a practical matter, this means that although the plaintiffs proposed that they be allowed to undertake DNA analysis on these human remains shortly after bringing this action, the agency must have a reasoned basis for performing such study It cannot perform a study just because one party states that it should or, on the flip side, not perform certain studies just because another side objects. Instead, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." Burlington Truck Lines. Inc. v. United Stares, 371 U.S. 156, 168 (1962). The Department of the Interior has given serious consideration to the comments of both the plaintiffs and me tribes; in the end, however, it is me agency that bears the responsibility for developing a reasonable and appropriate methodology for carrying out its statutory responsibilities. Inland Empire Public Lands Council v. U.S. Forest Service. 88 F.3d 754, 760 (9th Cir. 1996). The Department of the Interior decided that DNA analysis of these human remains was not needed to make the determination of "Native American" but that it might be useful in the cultural affiliation analysis. (2) In order to have a reasoned basis for a decision on DNA analysis, the agency hired Dr. Tuross and Dr. Kolman to evaluate the efficacy of DNA testing on such ancient remains.(3) Based on the DNA report, among other things, the agency made a preliminary determination that DNA analysis, if if could be performed, would assist the agency in making its cultural affiliation determination. See Federal Defendants' Motion for Modification, filed February 1, 2000 at 1-2. That preliminary decision was made final after the February 11, 2000 consultation with the five claimant tribes. Declaration of Dr. Francis P. McManamon, February 17, 2000.

Throughout this administrative process plaintiffs' recurring mantra has been either that the agencies are moving too quickly - during the transfer of the human remains to the Burke Museum and in the taking of the samples for radiocarbon dating - or that they are moving roo slowly. Plaintiffs' Supplemental Report On Transfer of the Skeleton, filed December 12, 1998; Plaintiffs' October 1, 1999 Status Report; Pltfs' Opp. at 5. In reality, the agency is undertaking a careful and considered process and acting upon expert advice. Here, Dr. Tuross and Dr. Kolman estimate that the DNA analysis will take at ]east six months to complete once appropriate experts are hired. Federal Defendants' Motion For Modification at 2. Thus if DNA analysis is to be done, it cannot be completed by the March 24'" deadline. For this reason, the federal defendants are requesting a modification of the Court's September 21, 1999 Order. (4)

2. Once Again Plaintiffs' Request To Study Should Be Denied.

Plaintiffs urge that they be allowed to study the human remains while the agency completes the administrative process, arguing that the federal defendants have not offered any good reason why they may not study the remains and, after all, the "Burke Museum is hardly a hive of activity." Pltfs' Opp. 4t 5 and 7. This request should be denied. (5)

First, to permit additional study for the sake of academic interest, before me agencies have completed the NAGPRA-imposed responsibility to determine whether these remains are "culturally-affiliated" with any particular tribe or tribes, 25 U.S.C § 3002(a), is fundamentally inconsistent with the purpose of NAGPRA. It is hue that some studies may be necessary to complete the administrative process; however, the overall spirit of NAGPRA is to right certain wrongs in the study of American Indian human remains. The purposes of NAGPRA are to respect Native American beliefs and return to a tribe remains that are culturally-affiliated. 25 U.S.C. 83005. Lineal descendants or culturally-affiliated tribes have the right to decide whether additional study is appropriate. Until the United States can determine whether these remains properly should be returned to one of the claimant tribes, additional study unnecessary to carrying out the purpose of the Act should be denied.

Indeed, the stature limits additional study in several places. First, NAGPRA expressly prohibits construing the requirement to "document" human remains and cultural items held by a museum as authorization for "the initiation of new scientific studies ... or other means of acquiring or preserving additional scientific information" from such remains. 25 U.S.C. ~ 3003(a)(2). Indeed, even when a museum has studies on-going, it must cease study and expeditiously return the human remains to a culturally-affiliated tribe "unless such items are indispensable for completion of scientific study, the outcome of which would be of major benefit to the United States." 25 U.S.C. 3003(a)(b); 3005(b).

In light of the limitations on studies for human remains and cultural objects held in museum collections, 25 U.S.C.3003(a)(b), the limitation on scientific study of inadvertently discovered human remains for study's sake is evident. The Department of the interior has undertaken a variety of studies to determine whether the human remains are Native American and has made many of these studies widely available. Additional studies are underway or proposed to address the remaining questions of potential cultural affiliation. Until the agencies have determined whether any or all of the claimant tribes are culturally affiliated with the human remains, consideration of additional study is inappropriate.

Second, there are practical reasons to deny plaintiffs' request to be permitted to study while the agency completes its administrative process. The daily activity level of the Burke Museum aside, any study of the human remains requires the mobilization of many expert scientists. The human remains remain the responsibility of the U.S. Army Corps of Engineers. To ensure the protection of the skeletal remains, any study must be overseen by Dr. Michael K. Trimble and his staff and assisted by Dr. Odegaard, Conservator of the Arizona State Museum and Dr. Cassman, Conservator and Assistant Professor, University of Nevada. Moreover, as part of the U.S. Army Corps of Engineers' agreement with the Burke Museum, certain scientists from the Burke Museum also must be involved. Most importantly, it would draw Dr. Mc Manamon and Dr. Trimble and his staff away from the work that they are undertaking as part of the NAGPRA process and to meet this court's March 24, 2000 deadline. Declaration of Dr. Michael K. Trimble, February 17, 2000 at 2-3 (Exhibit 2).

Finally, plaintiffs' host of concerns about the preservation of the human remains which, they contend, require that they be given immediate access to study, also are baseless. Several of these concerns have been previously raised and rebutted. See Federal Defendants' Ninth Status Report and Federal Defendants' Tenth Status Report at 1-5 (addressing cracking and radiocarbon dating). See also Declaration of Dr. Michael K. Trimble at 3 (collecting plaintiffs' impression about Dr. Cassman's role in sampling). The other alleged problems also are without merit. See Declaration of Dr. Michael K. Trimble at 4-6 (preservation plan), at 6-7 (total number of skeletal pieces has remained the same), at 7 (color descriptions are descriptive information; munsell soil color charts are used for soil not bone) and at 8 (cracks in the skull have not changed).


The federal defendants do not lightly seek this modification to the September 21. 1999 Order. However, a six month extension of time is necessary to complete DN.4 analysis and make a final agency determination that includes the results of that analysis. Once the administrative process is complete, the Plaintiffs' request to study the remains will be decided, precisely as this Court anticipated in ruling upon Plaintiffs' earlier requests for the immediate right to study. (6)

Dated this 18'" day of February, 2000.

Respectfully submitted,

Lois J. Schiffer
Assistant Attorney General

(signed) by ts
Allison Rumsey
Office of the Assistant Attorney General
Env. & Natural Res. Div.
U.S. Depart.of Justice

Kristine Olson
United States Attorney
Timothy Simmons
Assistant United States Attorney
OSB 92461
Of attorneys for Federal Defendants


1 Plaintiffs' contention that the federal defendants are not required to weigh heavily tribal wishes that no studies be performed is completely without merit. Pltffs' Opp. At 7. Without doubt, and as interpreted by the agency, the statute and regulations require consultation with the tribes and serious consideration of tribal viewpoints. See Auer v Robbins, 519 U.S. 452 (1997) (quoting Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc., 467 US 837, 842-843 (1984) (agency interpretation of statute and its regulations entitled to deference). The provisions of NAGPRA and its implementing regulations require Federal agencies to consult with Indian tribes on whose aboriginal lands the remains were inadvertently discovered, or that are or are likely to be culturally-affiliated with the remains. 25 U.S.C. §3002(a), (c), (d); 43 C.F.R. 10.4(d)(iv), 43 C.F.R. 10.5(a)). See also Memorandum For the Heads of Executive Departments and Agencies, From President William J. Clinton, On Government-To-Government Relations With Native American Tribal Governments, May 3, 1994; Executive Order 113084, May 14, 1998, Consultation and Coordination With Indian Tribal Governments (Attachments B and C to Federal Defendants Opposition to Plaintiffs Request For Immediate Response RE: Study Request, filed August 1999.)

2 Plaintiffs' challenge to the Department of the Interior's interpretation of "Native American" is premature. Plntffs' Opp. At 8-9. Action taken by an agency, "even though it implicates constitutional issues, must be final agency action before it is reviewable" by the court. Public Utility Commissioner of Oregon v. Bonneville Power Administration 767 F.2d 622, 630 (9th Cir. 1985). Once the agency has completed its administrative process, the plaintiffs' claims will be ripe for review.

3 While a number of experts had urged that DNA analysis be done, there was no clear answer to the question of what could such a study contribute to cultural affiliation analysis and no analysis of what was involved in undertaking such study.

4 Plaintifis argue that the federal defendants are merely trying to control the studies themselves. Pltffs' Opp. at 15. This is true. The federal defendants are required by IJAGPRA to make certain administrative determinations. In order to do this, the agency has decided to perform specific studies that will advance its administrative process. However, federal defendants also have sought input from plaintiffs about the appropriate experts to carry out certain studies, including Dr Taylor, Dr. Stafford, Dr. Haynes, Dr. Huckleberry, and Dr. Powell. See Federal Defendants' Revised Notice of Non-Destructive Study, filed February 1999; Federal Defendants Ninth Status Report, filed October 1, 1999; Federal Defendants' Tenth Status Report, filed January 3, 2000; Federal Defendants' Notice to Court of Radiocarbon Results And Native American Determination, filed January 12, 2000.

5 Plaintiffs' complaints about the radio carbon dating have been raised and responded to. See Federal Defendants' Ninth Status Report, filed October 1, 1999; Federal Defendants' Tenth Status Report, filed January 3, 2000.

6 See September 21, 1999 Order: June 27, 1997 Order at 33-52.

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