The Kennewick Man Case | Court Documents | Opinions and Orders

Judge's Opinion and Order in the Kennewick Man Lawsuit

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;
U.S. DEPARTMENT OF THE INTERIOR;
NATIONAL PARK SERVICE; FRANCIS P.
McMANAMON; ERNEST J. HARRELL;
WILLIAM E. BULEN, JR.; DONALD R.
CURTIS; LEE TURNER; LOUIS CALDERA;
BRUCE BABBITT; DONALD J. BARRY;
CARL A. STROCK; and JOE N. BALLARD,

Defendants.

Alan L. Schneider
1437 S.W. Columbia Street, Suite 200
Portland, OR 97201-2535

Paula A. Barran
Barran Liebman LLP
601 S.W. 2nd Avenue, Suite 2300
Portland, OR 97204
Attorneys for Plaintiffs

David F. Shuey
U.S. Department of Justice
Environment & Natural Resources Division
General Litigation Section
601 Pennsylvania Avenue, NW, Room 845
Washington, D.C. 20044

Timothy W. Simmons
Assistant U.S. Attorney
U.S. Attorney's Office
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Defendants

OPINION AND ORDER
Civil No. 96-1481-JE

JELDERKS, Magistrate Judge:

Plaintiffs bring this action seeking judicial review of a final agency decision that awarded the remains of the "Kennewick Man" to a coalition of Indian tribes and denied the Plaintiffs' request to study those remains. Plaintiffs assert other claims based upon alleged statutory violations.

Plaintiffs seek to vacate the administrative decision which was made after an earlier decision was remanded to the agency for further proceedings. For the reasons set out below, I set aside the decision awarding the remains to the Tribal Claimants, enjoin transfer of the remains to the Tribal Claimants, and require that Plaintiffs be allowed to study the remains.

Plaintiffs' request for other relief is granted in part and denied in part.

PARTIES

The Plaintiff scientists are highly regarded experts in their fields. Plaintiff Bonnichsen is Director of the Center for the Study of the First Americans at Oregon State University. Plaintiff Brace is Curator of Biological Anthropology at the University of Michigan Museum of Anthropology. Plaintiffs Gill, Haynes, Jantz, and Steele are anthropology professors. Plaintiff Owsley is division head for physical anthropology at the Smithsonian Institution's National Museum of Natural History. Plaintiff Stanford is Director of the Smithsonian's Paleo-Indian Program.

The Defendants are the Army Corps of Engineers, the United States Department of the Interior, the Secretary of the Interior, and other federal officials. Amici curiae have also participated.1

I. BACKGROUND

A. Pre-Litigation Events

In July 1996, a human skull and scattered bones were discovered in shallow water along the Columbia River near Kennewick, Washington.2 The remains were found on federal property under the management of the United States Army Corps of Engineers (Corps), and were removed pursuant to an Archeological Resources Protection Act (ARPA) permit dated July 30, 1996.3 Local anthropologists who examined the find at the request of the county coroner initially believed the remains were of an early European settler or trapper, based upon physical features such as the shape of the skull and facial bones, and certain objects which were found nearby.4

However, the anthropologists then observed a stone projectile point (aka "lithic object") embedded in the ilium (i.e., upper hip bone). The object's design, when viewed with x-rays and CT scans of the hip, resembled a style that was common before the documented arrival of Europeans in this region. Further examination of the remains revealed characteristics inconsistent with those of a European settler, yet also inconsistent with any American Indian5 remains previously documented in the region.

To resolve this ambiguity, a minute quantity of metacarpal bone was radiocarbon dated. The laboratory initially estimated that the sample was between 9265 and 9535 calendar years old, COE 8715, but later adjusted that estimate to between 8340 and 9200 calendar years old after factoring in several corrections. COE 4030, DOI 10023.6

Human skeletons this old are extremely rare in the Western Hemisphere, and most found to date have consisted of very fragmented remains. Here, by contrast, almost 90% of this man's bones were recovered in relatively good condition, making "Kennewick Man"-- as he was dubbed by the news media--"one of the most complete early Holocene7 human skeletons ever recovered in the Western Hemisphere." R.E. Taylor, Amino Acid Composition and Stable Carbon Isotope Values on Kennewick Skeleton Bone.

The discovery also attracted attention because some physical features, such as the shape of the face and skull, appeared to differ from modern American Indians. Many scientists believed the discovery could shed considerable light on questions such as the origins of humanity in the Americas. According to Plaintiff Dr. Douglas Owsley of the Smithsonian Institution, "[w]ell-preserved Paleo-American remains are extremely rare. The Kennewick Man skeleton represents an irreplaceable source of information about early New World populations, and as much data should be obtained from it as possible." DOI 1585.

Arrangements were made to transport the remains to the Smithsonian Institution for scientific study by a team including Plaintiffs Owsley, Jantz and Stanford. COE 7905, COE 9461-62. Local Indian tribes opposed scientific study of the remains on religious grounds:

When a body goes into the ground, it is meant to stay there until the end of time. When remains are disturbed and remain above the ground, their spirits are at unrest . . . . To put these spirits at ease, the remains must be returned to the ground as soon as possible. Joint Tribal Amici Memorandum (1997) at 4-5.

In response to arguments that scientific study could provide new information about the early history of people in the Americas, the Confederated Tribes of the Umatilla asserted, "We already know our history. It is passed on to us through our elders and through our religious practices." DOI 1376. "From our oral histories, we know that our people have been part of this land since the beginning of time. We do not believe that our people migrated here from another continent, as the scientists do." Id.

Five Indian groups (hereafter, the "Tribal Claimants")8 demanded that the remains be turned over to them for immediate burial at a secret location "with as little publicity as possible," and "without further testing of any kind." DOI 1256-57, DOI 1373-76, DOI 1380. The Tribal Claimants based their demand on the Native American Graves Protection and Repatriation Act, 25 USC § 3001 et seq. ("NAGPRA"), enacted in 1990.

Citing NAGPRA, the Corps seized the remains shortly before they could be transported to the Smithsonian for study. The Corps also ordered an immediate halt to DNA testing, which was being done using the remainder of the bone sample that had been submitted earlier for the radiocarbon dating. After minimal investigation, the Corps decided to give the remains to the Tribal Claimants for burial. As required by NAGPRA, the Corps published a "Notice of Intent to Repatriate Human Remains" in a local newspaper.9

Plaintiffs and others, including the Smithsonian Institution, objected to the Corps' decision, asserting that the remains were a rare discovery of national and international significance. They questioned whether NAGPRA was applicable because certain skeletal traits did not resemble those of modern American Indians, and argued that the Tribal Claimants did not meet the statutory requirements to claim the remains. In late September 1996, several of the Plaintiffs asked Major General Ernest J. Herrell, Commander of the Corps' North Pacific Division, to allow qualified scientists to study the remains.

When the Corps failed to respond to these objections and requests, and evidenced its intent to repatriate the remains, Plaintiffs commenced this litigation.10 Plaintiffs have consistently sought two primary objectives: to prevent the transfer of the remains to the Tribal Claimants for burial, and to secure permission for Plaintiffs to study the remains. It is undisputed that if the Tribal Claimants gain custody of the remains, they will prohibit all further scientific study and documentation of the remains, whether by Plaintiffs or by other scientists. See, e.g., DOI 3362, DOI 3386.

B. First Phase of The Litigation

On October 23, 1996, this court held a hearing on Plaintiffs' request for a temporary restraining order. In lieu of a formal injunction, Defendants agreed to give Plaintiffs at least 14 days notice before any disposition of the remains to allow Plaintiffs time to seek relief from this court. Defendants later moved to dismiss this lawsuit. In an Opinion issued February 19, 1997, I denied the motion. Bonnichsen v. United States, 969 F Supp 614 (D Or 1997).

Defendants then moved to dismiss this lawsuit on the grounds that Plaintiffs lacked standing to maintain this action, that the claims were not ripe because the Corps had not made a final decision, and that the claims were moot because the Corps' earlier decision was no longer in effect. In an Opinion issued on June 27, 1997, I rejected each of those contentions. Bonnichsen v. United States, 969 F Supp 628 (D Or 1997). In addition, I found "that the agency's decision-making procedure was flawed" and its decision "premature," that the Corps "clearly failed to consider all of the relevant factors or all aspects of the problem," "did not fully consider or resolve certain difficult legal questions," "assumed facts that proved to be erroneous," and "failed to articulate a satisfactory explanation for its actions." Id. at 645. I also questioned whether "the Corps has entirely abandoned its earlier decision and is now objectively considering the evidence and the law without any preconceived notions concerning the outcome." Id. at 641.

I vacated the Corps' earlier decision regarding disposition of the remains, and remanded the issues to the Corps for further proceedings. The Corps was directed "to fully reopen this matter, to gather additional evidence, to take a fresh look at the legal issues involved," and to reach a decision that was based upon all of the evidence. Id. at 645. Relevant legal standards were to be applied and the Corps was to provide a clear statement of the reasons for its decision. Id. In addition, I provided the Corps with a non-exclusive list of issues to consider on remand, and ordered Defendants to continue storing the remains "in a manner that preserves their potential scientific value" pending a final determination of the Plaintiffs' claims. Id. at 646, 648, 651-54.

In the same decision, I denied, without prejudice, Plaintiffs' motion to study the remains, and directed the Corps to consider, on remand, "whether to grant Plaintiffs' request for permission to study the remains."11 Id. at 632, 651.

C. Events Following Remand

1. Curation

Storage of the remains in a manner that preserves their potential scientific value has been a topic of considerable concern. In September 1996, the femurs apparently disappeared. It was 18 months before the Corps discovered that the femurs were missing, and almost five years before they were recovered.12

Only weeks after the Corps disclosed that the femurs were missing, a box with a small quantity of bones believed to be from the Kennewick skeleton was taken by Tribal representatives from the Corps' "secure" storage facility and secretly buried, under circumstances the Corps has never satisfactorily explained.13

The remaining bones were initially stacked on top of each other in a plywood box--the cover held in place with strips of duct tape--with inadequate padding, environmental controls, or other precautions necessary to fully preserve their potential scientific value. COE 2470-79, COE 2506-07, COE 2521, COE 5332-49, DOI 1867-1889. A few bones were stored in a paper sack. COE 5334.14

The Corps allowed Tribal representatives to visit the remains to conduct religious ceremonies without notifying the court or opposing parties, and allowed the remains to be handled and stored in a manner that failed to protect them from possible contamination by modern DNA. This potentially jeopardized, and certainly complicated, subsequent efforts to identify the ancestry of the Kennewick Man through DNA analysis.15 During ceremonies, the Corps allowed Tribal representatives to place plant materials in the container with the remains, and to burn additional plant material (reportedly cedar or sage) on, or close to, the remains. DOI 2907, COE 2471, COE 5334, COE 7931. After it became apparent that the Corps lacked the expertise, facilities, and perhaps the commitment to properly curate the remains, the court ordered that the remains be transferred to a climate-controlled secure storage room at the Burke Museum in Seattle.

2. Limited Study of the Discovery Site

In December 1997, a team composed of representatives from the Tribal Claimants, the Corps and other federal agencies, and a team from Washington State University led by Dr. Gary Huckleberry,16 performed a very limited investigation of the site where the remains had been found. COE 4895-A to 503617, COE 5815-64. The study focused on determining whether the sediment record was consistent with the radiocarbon date obtained, and whether the remains were buried intentionally or by natural causes such as a flood. Neither question was conclusively resolved, but initial indications were that the sediment record was generally consistent with the radiocarbon date.

The scope of the 1997 study was severely restricted because the Tribal Claimants strongly opposed any study of the site. COE 4509, COE 4547-48, COE 4553-54, COE 4562-63, COE 4924, COE 5672-73, COE 5838-40, COE 5925-26, COE 6713-14, COE 6718a-b. According to Dr. Huckleberry, less than 0.0001% of the easily-testable sediment volume was examined. SUP 7.

Dr. Huckleberry, among others, has strongly recommended additional investigation of the site to confirm the accuracy of the radiocarbon date, to ascertain whether the remains may have been contaminated with "old" or "new" carbon (which could distort the radiocarbon results), and to ascertain whether any artifacts were present that might furnish clues to the cultural affiliation of the Kennewick Man. COE 4273-95, COE 4872-74-B, COE 5837-38, SUP 2-24. See also, COE 4998 (initial test of ground-penetrating radar "shows great promise" for detecting any cultural artifacts that might be present at the site).18 However, the Corps has refused to authorize any further study of the site, and has taken affirmative steps to prevent any future study.

3. Burial of the Discovery Site

In April 1998, the Corps buried the discovery site of the remains under approximately two million pounds of rubble and dirt, topped with 3700 willow, dogwood, and cottonwood plantings. COE 5873-74, DOI 2347-51, DOI 2515. The lengthy administrative record that Defendants filed with this court documents only a portion of the process by which the decision to bury the site was made. Nevertheless, that record strongly suggests that the Corps' primary objective in covering the site was to prevent additional remains or artifacts from being discovered, not to "preserve" the site's archaeological value or to remedy a severe erosion control problem as Defendants have represented to this court.

The proposal to bury the site originated in September 1996, COE 4542, SUP 930-36, not in the Fall of 1997 as the Corps has represented. The Corps told the Tribal Claimants it shared their concern "that continuing erosion may result in more exposures" and that it would proceed with plans to shore up the site "as soon as possible." SUP 930-36. The Tribal Claimants expressed dissatisfaction with the Corps' original proposal for a temporary "soft" erosion control project, warning that other human remains could be uncovered or that pothunters might loot the site in search of artifacts. SUP 907-11, SUP 913, COE 4542, COE 5678-79, COE 5766.

The project to cover the site was initially deferred while this litigation proceeded, but was revived in 1997 after this court vacated the Corps' original decision to turn over the remains to the Tribal Claimants. The Tribal Claimants demanded, and the Corps eventually agreed, that the site be "armored" to provide "permanent protection" against disturbances. SUP 886-93, SUP 907-11, SUP 913, COE 4542, COE 5678-79, COE 5766, COE 5798.

On or about November 6, 1997, the "White House" ordered Lt. Colonel Donald Curtis, Jr., Corps District Engineer, to proceed with the armoring project. SUP 323, SUP 821.19 The project was to be completed by January 1, 1998, and the Corps was given a budget of $200,000 to accomplish the task. SUP 821, COE 5873-74.20

The Corps consulted extensively with the Tribal Claimants, but told Plaintiffs nothing about plans to bury the site. The Plaintiffs heard rumors about this project, and beginning in November 1996, repeatedly asked Defendants about it. See, e.g., COE 5900-02 (letter dated July 29, 1997), 5903 (Dec. 12, 1996), and 5904 (letter of Nov. 6, 1996). Defendants withheld from Plaintiffs all information regarding the project until December 26, 1997, COE 5732, after the final decision had been made.

When the Corps' intentions became known, legislation was introduced to prohibit the Corps from undertaking the project without approval from this court. COE 6004,COE 6316-20, COE 6341. This legislation passed both houses of Congress, and awaited only a conference committee to resolve differences in unrelated provisions of the bills. SUP 329-31. The Corps initially told the local congressional delegation that it would comply with the legislation, but in a decision made at the highest levels of the Corps, the agency reversed its course within 24 hours. COE 4535, COE 4654-57, SUP 279-80, SUP 291, SUP 320-23, SUP 332, SUP 334-36. Taking advantage of a brief congressional recess, the Corps announced it would proceed with the project unless enjoined. COE 5762-63, COE 5771a, COE 5772-76, COE 5791, SUP 273-74, SUP 286-87, SUP 345, SUP 359, SUP 381.21

When Plaintiffs did not immediately move for injunctive relief, the Corps proceeded with the project despite an "almost . . . steady stream of calls" from citizens opposing the project as well as from some members of Congress. SUP 273-74. The Commander of the Corps, General Joe Ballard, predicted that "the din will die out very quickly." SUP 273-74. Burial of the discovery site hindered efforts to verify the age of the Kennewick Man remains, and effectively ended efforts to determine whether other artifacts are present at the site which might shed light on the relationship between the remains and contemporary American Indians. DOI 2648-49, DOI 4019-42, COE 5138. See also, SUP 950-53 (discussion of harm that can result from burial of an archaeological site). Although the Corps has represented that it buried the site to preserve its archaeological value for future study, the Corps has denied all requests to study the site. COE 4084, COE 4160, COE 4163, COE 4167-80, COE 4300-01, COE 5139, COE 5254, COE 5550, COE 5664, COE 5833, SUP 001-26.

4. Interagency Agreement with the Department of Interior

On March 24, 1998, the Corps and the Department of Interior (DOI) entered into an Interagency Agreement that effectively assigned the DOI responsibility for deciding whether the remains are "Native American" under NAGPRA, and for determining their proper disposition. DOI 2676-78. Thereafter, the DOI assumed the role of lead agency on most issues concerning this case.22

5. The Agency's Examination of the Remains

Almost two years after this matter was remanded for reconsideration, Defendants began to examine the remains in detail. The Secretary's experts first attempted to ascertain, through non-destructive23 examination of the remains, approximately when the Kennewick Man had lived, his ancestry, and whether he could be linked to a modern tribe or people. Those experts estimate that he was 5' 9" to 5' 10" tall, was 45 to 50 years of age when he died, DOI 10677, and was 15 to 20 years old when the projectile point became embedded in his hip, DOI 10681.

Red stains were found on several bones, which Defendants initially attributed to ochre that was sometimes used in mortuary rituals. It was later determined that the stains "are unlikely to be of cultural origin" and appeared to be the result of natural post-mortem processes. DOI 9766. The condition of the remains strongly suggests that the body was not left exposed on the surface after death, but Defendants' experts were unable to determine whether the body was buried intentionally or by a catastrophic event such as a flood. DOI 9765, DOI 10664.

One group of experts thought intentional burial was the most probable scenario, but ultimately concluded that "given the currently available evidence, the issue of whether or not this individual was intentionally buried remains unresolved." DOI 9765. A second group of experts, who conducted limited studies on the site before it was covered, concluded that the skeleton most likely was buried by natural processes. DOI 2647, 02651. The Corps' decision to bury the site has prevented further examination of this issue.

Defendants' experts were unable to determine, from non-destructive examination alone, when the Kennewick Man lived. However, analysis of sediment layers where he was found supports the hypothesis that he was buried not less than 7600 years ago, and could have been buried more than 9000 years ago (the date indicated by the initial radiocarbon dating). DOI 2647, DOI 10053. Further study of the sediments was strongly recommended, DOI 2647, but Defendants' decision to bury the site prevented completion of those studies.

Although terms such as "white male" and "caucasian-like" appear in his notes of preliminary impressions when the remains were first discovered, DOI 1227-32, Dr. Chatters then observed some anomalies, such as the projectile point and tooth wear, that led him to recommend radiocarbon dating. After reviewing this additional information, Dr. Chatters revised his assessment. DOI 8186, 8196 ("I did not state, nor did I intend to imply, once the skeleton's age became known, that he was a member of some European group.").

The experts compared the physical characteristics of the remains--e.g., measurements of the skull, teeth, and bones--with corresponding measurements from other skeletons. They concluded that the Kennewick remains are unlike any known present-day population, American Indian or otherwise.24 DOI 10665, DOI 10685-92.

Like other early American skeletons, the Kennewick remains exhibit a number of morphological features that are not found in modern populations. For all craniometric dimensions, the probabilities of membership in modern populations were zero, indicating that Kennewick is unlike any of the reference samples used. Even when the least-conservative inter-individual distances are used to construct typicality probabilities, Kennewick has a low probability of membership in any of the late Holocene reference samples . . . . [These results] are not surprising considering that Kennewick is separated by roughly 8,000 years from most of the reference samples [in the database]. DOI 10691.

The most craniometrically similar samples appeared to be those from the south Pacific and Polynesia as well as the Ainu of Japan, a pattern observed in other studies of early American crania from North and South America . . . . Only the odontometric data suggested a connection between Kennewick and modern American Indians, but the typical probabilities for this analysis were all very low. Clearly the Kennewick individual is unique relative to recent American Indians, and finds its closest association with groups of Polynesia and the Ainu of Japan. Id.

Although the "strongest morphological affinities for the Kennewick remains are with contemporary or historic 'populations in Polynesia and southern Asia, and not with American Indians or with Europeans in the reference samples' . . . even the 'strongest' morphological affinities with modern human populations" are "not particularly robust." DOI 10067-68. "The Kennewick individual can be excluded, on the basis of dental and cranial morphology," not just "from recent American Indians" but "from all late Holocene human groups." DOI 10692 (emphasis in original).

Defendants' experts cautioned, however, that an apparent lack of physical resemblance between the Kennewick Man and present-day Indian people "does not completely rule out the possibility that these ancient remains might be biologically ancestral to modern American Indian populations." a href="/pdf/DOI/DOI10673.pdf">DOI 10684. Moreover, although the Kennewick Man's morphological traits do not closely resemble those of modern American Indian populations, Defendants' experts note that the Kennewick Man's traits are generally consistent with the very small number of human remains from this period that have been found in North America. DOI 10067-68, DOI 10691. They also note potential similarities to certain Archaic populations (between 2,000 and 8,000 years old) from the northern Great Basin and eastern woodlands of North America. DOI 10068, DOI 10688, DOI 10692.

Because they concluded that the non-destructive examination did not furnish a definitive answer to the question whether the Kennewick Man is "Native American" for purposes of NAGPRA, Defendants sent several small bone samples to selected laboratories for additional radiocarbon dating. Whether due to differences in how long a particular bone had been exposed to the elements, technique in selecting the samples, deterioration while in storage, or some other reason, the samples tested in 1999 were in much poorer condition than the sample tested in 1996, and there were considerable variations in the results. DOI 5809-48. The best preserved sample yielded a radiocarbon age of 8410 +/- 40 BP, virtually identical to the results of the 1996 testing. DOI 10020. After adjustments, the age of that sample was estimated at between 9370 and 9560 calendar years, although that date might be "several hundred years" too old if the Kennewick Man had a mostly marine diet. DOI 10027-29.25

The 1996 and 1999 tests, coupled with an analysis of sediments and the lithic object embedded in the ilium, established to the Secretary's satisfaction that the remains are probably between 8500 and 9500 years old. DOI 10015, DOI 10018-22.

Relying simply on the age of the remains, and the fact that they were found inside the United States, Defendants formally pronounced the remains "Native American." DOI 10018-22. In an effort26 to determine whether DNA could establish a link between the remains and any particular Tribal Claimant, and to answer other questions regarding the ancestry of the remains, Defendants authorized DNA testing. The selected laboratories were unable to isolate uncontaminated DNA within the allotted time, though it is not clear why the testing failed. It is also unclear whether, given more time, different samples, or technological advances, it would be possible to isolate uncontaminated DNA from the Kennewick remains.27

6. Other Studies by Defendants' Experts

In addition to examining the remains, Defendants' experts researched and prepared reports on a variety of topics, including archaeological evidence regarding pre-historic human habitation in the southwestern Columbia Plateau, oral histories of the claimant tribes, linguistic studies, and an analysis of the lithic object embedded in the ilium. The experts' conclusions are discussed later in this Opinion.

7. Procedural Issues on Remand

Without disclosure to the public or the Plaintiffs, Defendants furnished the Tribal Claimants with advance copies of the cultural affiliation reports prepared by their experts. DOI 6982 (gave Tribal Claimants copies of draft expert reports no later than February 9, 2000); DOI 8695 (gave Tribal Claimants copies of Secretary's "final" expert reports no later than June 21, 2000, to be used in preparing their own submissions and comments, but requested that they restrict access to the reports because "we are not planning to release these reports to the public until the Department of the Interior has made its decisions and recommendations in this matter").

The Tribal Claimants also received a private letter prepared by Dr. McManamon, a key decision maker for the Defendants, which articulated Defendants' concerns regarding the evidence supporting the claim for the remains. DOI 6982, DOI 8695-96, DOI 8703-05, DOI 8713-19, DOI 9101-02. Defendants urged the Tribal Claimants to supplement the record with expert reports of their own, and to otherwise address the issues that Defendants had identified. The Tribal Claimants responded by furnishing numerous reports to Defendants.28

Despite Plaintiffs' repeated requests for clarification of the issues and access to the administrative record, they were not given a similar opportunity. See, e.g., ER 400-01, DOI 8228-29; June 20 Tr. at 320-21. Plaintiffs were permitted to submit documents, but had to do so without knowing specifically what they were commenting upon.

While preparing their final decision in this case, Defendants met privately with the Tribal Claimants at least once to discuss the merits of the cultural affiliation determination.29 DOI DOI 8695-8705, DOI 9101-02, DOI 9499. Defendants did not invite Plaintiffs to participate, nor did they otherwise disclose the substance of these communications.

Plaintiffs point to other documents which support the inference that Defendants are biased in favor of the Tribal Claimants. See, e.g., COE 7905 ("I told [Armand Minthorn] we will do what the tribes decide to do with the remains"); COE 9311 ("the colonel has made [turning over the remains to the Tribal Claimants] his top priority"); COE 9471a, ER 396 (internal Corps memo stating that "[t]he District needs to make [a] clear, unequivocal demonstration of its commitment to the tribes as being a compassionate and supportive partner in restoring the remains to a condition of proper interment with dignity and respect . . ."); ER 398 ([Dr. Owsley] "and all other members of the scientific community have been denied direct access [to the Kennewick remains] because of the district's commitment to the tribal coalition"); COE 8663-77 (minutes of meeting between tribal representatives and Corps regarding management and construction of dams, fishing rights, and stream management, during which Kennewick Man issues were repeatedly raised). A number of these documents precede this court's Order vacating the Corps' original decision to award the remains to the Tribal Claimants.

D. The Challenged Decisions

On January 13, 2000, the DOI announced its determination that the Kennewick remains are "Native American" as defined by NAGPRA. DOI 5816-21. The decision was premised on only two facts: the age of the remains, and their discovery within the United States. The agency's Opinion stated:

As defined in NAGPRA, "Native American" refers 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, 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.

On September 25, 2000, the DOI announced its final decision to award the Kennewick remains to a coalition of the Tribal Claimants. DOI 10012-17. The decision letter, signed by then-Secretary of the Interior Bruce Babbitt, found by a "preponderance of the evidence that the Kennewick remains are culturally affiliated with the present-day Indian tribe claimants." DOI 10016. The Secretary "further determined that a claim based on aboriginal occupation . . . is also a basis for the disposition of the Kennewick remains to the claimant Indian tribes." Id. Relying upon their determination that the remains were subject to NAGPRA, and that the remains should be awarded to the Tribal Claimants, Defendants again denied Plaintiffs' request to study the remains. DOI 10017, COE 0001-07. Defendants also rejected the contention that the study prohibition violates Plaintiffs' constitutional rights under the First and Fifth Amendments. Id.

Plaintiffs then filed an Amended Complaint challenging these decisions, and asserting additional claims. The parties and the amici curiae fully briefed the issues, and the court heard two days of oral argument.

E. Claims

Plaintiffs bring seven claims for relief. The first claim, brought pursuant to the Administrative Procedure Act (APA), 5 USC §§ 701-706, seeks judicial review of Defendants' decision on remand.

The second claim alleges several specific violations of NAGPRA.

The third claim alleges that Defendants violated the National Historic Preservation Act (NHPA), 16 USC § 470 et seq., by burying the site where the remains of the Kennewick Man were found.

The fourth claim alleges that Defendants violated the Archaeological Resource Protection Act (ARPA), 16 USC § 470aa et seq., by failing to maintain the Kennewick Man remains "for the benefit of the American people," failing to make the remains of the Kennewick Man available for scientific and educational purposes, and failing to properly curate the remains to ensure their long-term preservation as required by an earlier Order of this court.

The fifth claim alleges that Defendants violated the Freedom of Information Act (FOIA), 5 USC § 552, by failing to respond to Plaintiffs' requests for information.

The sixth claim, brought pursuant to the Declaratory Judgment Act, 28 USC § 2201, sets out Plaintiffs' demand for declaratory and injunctive relief based upon violations alleged in other claims.

The seventh claim, brought pursuant to 28 USC § 1361, seeks mandamus relief in the form of an Order compelling Defendants to allow Plaintiffs access to the remains of the Kennewick Man "for purposes of study, publication, teaching and scholarly debate." In their prayer for relief, Plaintiffs request seventeen separate elements of declaratory and injunctive relief, and assert the right to recover the costs, disbursements, and reasonable attorney fees incurred in this action.

II. JUDICIAL REVIEW OF DECISIONS MADE ON REMAND

A. Legal Standards

Under the Administrative Procedure Act, a reviewing court shall "hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 USC § 706(2)(A); Northwest Motorcycle Ass'n v. United States Dept. of Agriculture, 18 F3d 1468, 1471 (9th Cir 1994). The court is not empowered to substitute its judgment for that of the agency, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 US 402, 416 (1971), or to set aside the agency's decision simply because the court, as an original matter, might have reached a different result. See, Arizona Cattle Growers' Ass'n v. United States Fish & Wildlife, 273 F3d 1229, 1236 (9th Cir 2001). However, the court is not relegated to the role of a "rubber stamp." Id.

An agency's decision must be based upon a "reasoned evaluation of the relevant factors." Marsh v. Oregon Natural Resources Council, 490 US 360, 378 (1989). The agency must "articulate[ ] a rational connection between the facts found and the choice made," Arizona Cattle Growers, 273 F3d at 1236, and an "agency's explanation must be sufficient to permit effective judicial review." Northwest Motorcycle, 18 F3d at 1478. See also, In re Sang Su Lee, 277 F3d 1338, 1342 (Fed Cir 2002). Although the court may uphold a decision "of less than ideal clarity if the agency's path may reasonably be determined," the court cannot infer an agency's reasoning from mere silence. See, Beno v. Shalala, 30 F3d 1057, 1073-76 (9th Cir 1994) (setting aside agency decision where there was no indication that the Secretary had considered materials submitted by the plaintiffs).

An agency decision will not be upheld under the arbitrary and capricious standard unless the court finds that the evidence before the agency provided a rational and ample basis for its decision. Northwest Motorcycle, 18 F3d at 1471. An agency's decision may also be set aside if the agency has relied on factors that Congress has not intended the agency to consider, has entirely failed to consider an important aspect of the issue, has offered an explanation for its decision that runs counter to the evidence before the agency, or if the decision is so implausible that it could not be based on a difference in view or be the product of agency expertise. Inland Empire Public Lands Council v. Glickman, 88 F3d 697, 701 (9th Cir 1996). In some circumstances, an agency's failure to gather or to consider relevant evidence is also grounds for setting aside the decision. See, Mt. Diablo Hospital v. Shalala, 3 F3d 1226, 1232 (9th Cir 1993).

When an agency's decision turns upon the construction of a statute or regulation, the court must consider whether the agency correctly interpreted and applied the relevant legal standards.

B. Compliance with Administrative Procedures Act

Plaintiffs contend that agency decision makers had improper ex parte contacts with other agencies, the Tribal Claimants, and Defendants' trial attorneys; foreclosed Plaintiffs' meaningful participation in the decision-making process; furnished the Tribal Claimants with advance copies of key reports and gave the Tribal Claimants an opportunity to rebut the reports and supplement their claims without affording those opportunities to Plaintiffs; failed to act as neutral and fair arbiters of the claim; and predetermined their decisions. Plaintiffs also assert that agency decision makers improperly failed to document all information on which the decision was based, including ex parte communications.

Adjudication of the Tribal Claimants' request for repatriation of the remains of the Kennewick Man presents somewhat unusual issues of administrative procedure. In a typical adjudication, ex parte contacts between agency employees involved in the decision-making process and "interested persons" outside the agency are not allowed. See, 5 USC § 557(d)(1); Portland Audobon Society v. Endangered Species Committee, 984 F2d 1534, 1543 (9th Cir 1993) ("We think it is a mockery of justice to even suggest that . . . decisionmakers may be properly approached on the merits of a case during the pendency of an adjudication."). However, consultation with tribal claimants is specifically mandated under the regulations applicable to NAGPRA. See, 43 CFR §§ 10.4, 10.5 (federal agency to notify tribal organizations likely to be culturally affiliated with human remains; agency must share variety of information pertaining to resolution of cultural affiliation determination).

The parties have cited, and I have found, no reported decisions addressing these particular circumstances. In addition, the parties disagree as to whether a contested NAGPRA claim is an adjudication governed by 5 USC §§ 554 and 557(d)(1), and as to what procedural requirements apply if agency proceedings are not governed by those statutes.

I need not determine precisely what procedures were required, because the agency's decision must be vacated for substantive reasons regardless of the exact procedures that should have been followed. It is sufficient to note that decisions addressing the obligations of agencies under the APA in various contexts appear to uniformly require that, regardless of the particular method used to reach a decision, the decision-making process must be fair to all affected parties. E.g., Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F2d 897, 910 (5th Cir 1983) (critical question in any challenge to the propriety of the method used by agency in reaching decision is whether procedure used is fair).

Based upon a familiarity with this litigation developed over a number of years and a thorough review of the record, I conclude that the final decisions challenged here were not made by neutral and unbiased decision makers in a fair process as is required under the APA. Though I am satisfied that the agency's ex parte contacts with the government's trial attorneys did not violate Plaintiffs' rights, I am concerned by the largely undisputed evidence that agency decision makers:

1. secretly furnished the Tribal Claimants with advance copies of documents such as expert reports, which allowed the Claimants (and only the Claimants) to rebut the reports and submit responsive expert reports of their own before the administrative record closed;30

2. secretly met with the Tribal Claimants at a critical time in the decision-making process to discuss the mental impressions of the decision makers and potential weaknesses in the claims, and gave the Claimants an ex parte opportunity to influence the decision makers and to supplement the record in response to these concerns;31

3. secretly sent letters to the Tribal Claimants regarding the same;32

4. secretly notified the Tribal Claimants that the aboriginal lands issue was under consideration so they could supplement the record before it closed; 33 and

5. refused to allow Plaintiffs to see any of the expert reports or other materials in the record before the administrative record was closed and the final decision was made, and refused to clarify the issues under consideration.34

I am also concerned about the decision to cover the site where the remains of the Kennewick Man were found. Though the Corps cited erosion control as the purpose of the project, it appears that the Tribal Claimants' concern about further site investigation was the principal factor in the decision to cover the site. That action was consistent with Defendants' approach throughout this litigation, which has been marked by an appearance of bias. This course of conduct is especially troubling because the court set aside the original agency decision in this matter after determining that the Corps had prejudged the outcome and had suppressed any doubts about the proper result "in the interests of fostering a climate of cooperation with the tribes." Bonnichsen, 969 F Supp at 642.

Resolution of the present dispute concerning Defendants' decision-making process does not require a full explication of the "consultation" requirements of the relevant regulations. It is sufficient to note that the primary purpose of consultation appears to be to inform those who may be affiliated with cultural items of their discovery and proposed disposition. Nothing in these regulations requires an agency to assume that particular items meet the statutory definitions of "Native American" or "cultural affiliation," or to side with claimants in any dispute or litigation, or prevents an agency from furnishing the same information to tribal claimants and others interested in the agency's determination. Nothing in NAGPRA or related regulations appears to in any way lessen an agency's obligation to make fair and unbiased decisions concerning claims for discovered items to which the Act might apply. Nothing in the provisions for "consultation" appears to allow an agency to collude with a claimant when a third party challenges a proposed disposition.

Under the APA, a court may set aside an agency action which it determines is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observance of procedure required by law." 5 USC § 706(2)(A) & (D); Natural Resources Defense Council v. Houston, 146 F3d 1118, 1125 (9th Cir 1998). A fair reading of the record before the court leads to the conclusion that, since the time the Corps took possession of the remains of the Kennewick Man, Defendants have not acted as the fair and neutral decision makers required by the APA. However, I need not decide whether this unfairness in itself is sufficient to set aside the Secretary's decision. As discussed below, the Secretary's decisions must be set aside on substantive grounds, and it appears that a remand with instructions to fairly reevaluate the issues again would be futile. The Secretary has developed a voluminous record which the court has reviewed, and the parties have vigorously litigated this matter over the course of several years. Under these circumstances, judicial economy and the parties' interest in resolving this litigation favor addressing the substantive issues.

No useful purpose would be served by remanding the decision to the Secretary with instructions to again reevaluate the issues and to again revisit Plaintiffs' request to study in light of the court's analysis set out below. Defendants have had ample opportunity to develop and fairly evaluate the record and to make an unbiased decision, and there is no reason to believe that another remand would yield a different approach or result.

C. Definition of Native American

As the first step in his determination that the Tribal Claimants are entitled to the remains, the Secretary found that the Kennewick Man is "Native American" within the meaning of NAGPRA.

NAGPRA defines "Native American" as "of, or relating to, a tribe, people, or culture that is indigenous to the United States." 25 USC § 3001(9). However, in determining that the Kennewick Man is "Native American," the Secretary defined this term as referring to

human remains and cultural items 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 10018. Defendants have clarified that, according to this definition, "Native American" refers to any remains or other cultural items that existed in the area now covered by the United States before 1492. DOI 6048, 06050. Under this definition, regardless of their origins or history, all remains and other cultural items found in the United States that are now more than 510 years old are deemed "Native American" for the purposes of NAGPRA, even if they have no relationship to a present-day "tribe, people or culture."

In analyzing the Secretary's determination that the remains are "Native American," the threshold question is whether the Secretary's definition is binding on this court. Defendants and the Tribal Claimants cite Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984), in support of their contention that the court should defer to the Secretary's definition. They also contend that the court should defer to the agency's "longstanding" interpretation of the statute.

Defendants' arguments are not persuasive. "Chevron deference" is the deference to which an agency's reasonable statutory interpretation is entitled where Congress has "delegated authority to the agency, generally to make rules carrying the force of law, and . . . the agency interpretation claiming deference was promulgated in exercise of that authority." United States v. Mead Corp., 533 US 218, 226-27 (2001). In most cases where Chevron deference has been applied, the agency's interpretation has been the result of a process of notice and comment rule-making or formal adjudication, which the agency did not undertake here. See, Christensen v. Harris County, 529 US 576, 587 (2000) (interpretations "in opinion letter--like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference"); Martin v. Occupational Safety and Health Review Com'n, 499 US 144, 157 (1991) (interpretive rules are not entitled to Chevron deference); Hall v. United States Environmental Protection Agency, 273 F3d 1146, 1155-56 (9th Cir 2001).

Although the Secretary has rule-making authority, the interpretation at issue here was not enacted by any formal process. Instead, it is a statutory interpretation that was first announced by the Secretary's counsel during the course of this litigation. Accordingly, the interpretation is not the type of decision to which Chevron deference ordinarily applies.

Defendants' contention that the court should defer to the agency's "longstanding" interpretation of the statute that allows for classification of the remains based solely upon age also fails. I find no support for the assertion that the agency has consistently taken the position that age alone suffices to determine "Native American" status. In response to a hypothetical posed during a hearing on June 2, 1997, Defendants indicated that NAGPRA would not govern the disposition of pre-Columbian remains that, for example, were clearly African and not American Indian. COE 7360-61. The Secretary's subsequent decision that all remains and other cultural items predating 1492 are "Native American" cannot be fairly characterized as "longstanding."

The objective of statutory interpretation is to ascertain the intent of Congress. United States v. Daas, 198 F3d 1167, 1174 (9th Cir 1999). The inquiry begins with the plain language of the statute. Id. Courts look to the entire statutory scheme to determine the plain meaning and congressional intent of a particular statutory provision, and give terms that are not defined by statute their ordinary meaning. Id. When interpreting statutes, courts do not assume that Congress intended to create odd or absurd results. United States v. X-Citement Video, Inc., 513 US 64, 69-70 (1994) (citing Public Citizen v. United States Department of Justice, 491 US 440, 453-455 (1989)).

As noted above, NAGPRA defines "Native American" as "of, or relating to, a tribe, people, or culture that is indigenous to the United States." § 3001(9) (emphasis added). Giving the "plain language" of this provision its ordinary meaning, use of the words "is" and "relating" in the present tense requires a relationship to a presently existing tribe, people, or culture. This is consistent with the Act's definition of the term "sacred objects" as meaning "ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents." 25 USC § 3001(3)(C) (emphasis added).

From this consistent use of the present tense, it is reasonable to infer that Congress intended the term "Native American" to require some relationship between remains or other cultural items and an existing tribe, people, or culture that is indigenous. The present-day people who are indigenous to the 48 contiguous states of the United States are, of course, the people who have been known as American Indians for hundreds of years. Interpreting the statute as requiring a "present-day relationship" is consistent with the goals of NAGPRA: Allowing tribes and individuals to protect and claim remains, graves, and cultural objects to which they have some relationship, but not allowing them to take custody of remains and cultural objects of persons and people to whom they are wholly unrelated.

The literal statutory definition of Native American, as applied to the continental United States, is also consistent with the common usage of the term. When the statute was enacted in 1990, the term "Native American" had become synonymous with "American Indian."35 It is obvious from the text of NAGPRA that Congress intended to include Alaska Natives and Native Hawaiians within the definition. However, as to the contiguous 48 states, nothing in the statute indicates that Congress intended to define Native American as including people or objects with no relationship to present-day American Indians.

As noted above, courts do not assume that Congress intends to create odd or absurd results. The potential for such results under the Defendants' definition of "Native American" further supports the conclusion that their definition is incorrect. Under that definition, all pre-Columbian remains and objects would be treated as Native American, "irrespective of when" a group arrived and regardless of whether the individuals are related in any way to present-day American Indians. Application of this definition could yield some odd results. The origin of the earliest Americans is an unresolved question. According to one theory with some support in the record, beginning up to 30,000 to 40,000 years ago, multiple waves of immigrants separated by thousands of years, with different points of origin and modes of travel, came into this hemisphere. See, e.g., DOI 0631, DOI 0956, DOI 1508, DOI 2143-45, DOI 2177-85, DOI 3203, DOI 3425-26, DOI 3930, DOI 3940-64, DOI 4269, DOI 6704-05, DOI 6850-51, DOI 7236, DOI 7861-66, DOI 7888, DOI 8206-09, DOI 9547-48, COE 4747, COE 8036-40. Limited studies conducted on very old remains suggest that the peopling of the Americas was complex. See, e.g., DOI 9548 (very ancient skulls found on this continent "more closely resemble southern Asian and Pacific Rim populations, while modern Native Americans bear close resemblance to northern Asian groups"). Some studies of ancient remains show little apparent affinity between ancient skulls and present-day American Indians (or any other modern group), and often show little affinity among the ancient remains themselves. See, e.g., DOI 1721-22, DOI 2251-52, DOI 3863-67, DOI 3930, DOI 8196, DOI 8944, DOI 9548, DOI 10441-42. There is also evidence in the record that differences in appearance may reflect genetic differences between ancient samples and more recent American Indians and northern Asian populations. DOI 3930-31, DOI 5944-46.

Under the Defendants' interpretation, possibly long-extinct immigrant peoples who may have differed significantly--genetically and culturally--from any surviving groups, would all be uniformly classified as "Native American" based solely upon the age of their remains.36 All pre-Columbian people, no matter what group they belonged to, where they came from, how long they or their group survived, or how greatly they differed from the ancestors of present-day American Indians, would be arbitrarily classified as "Native American," and their remains and artifacts could be placed totally off-limits to scientific study.37 This court cannot presume that Congress intended that a statutory definition of "Native American" requiring a relationship to a "tribe, people, or culture that is indigenous to the United States" yield such far-reaching results.38

The Secretary erred in defining "Native American" to automatically include all remains predating 1492 that are found in the United States. Nevertheless, the Secretary's ultimate determination that the remains of the Kennewick Man are "Native American" under NAGPRA is erroneous only if the administrative record contains insufficient evidence to support the conclusion that the remains are related to a present-day tribe, people, or culture that is indigenous to the United States as required by the statute. NAGPRA recognizes two distinct kinds of relationships: The first is the general relationship to a present-day tribe, people, or culture that establishes that a person or item is "Native American." The second, more narrowly defined relationship establishes that a person or item defined as "Native American" is also "culturally affiliated" with a particular present-day tribe.

The requirements for establishing "Native American" status under NAGPRA are not onerous. They may be satisfied not only by showing a relationship to existing tribes or people, but also by showing a relationship to a present-day "culture" that is indigenous to the United States. The culture that is indigenous to the 48 contiguous states is the American Indian culture, which was here long before the arrival of modern Europeans and continues today.

It is clear from the full text of NAGPRA that the cultural relationship required to meet the definition of "Native American" is less than that required to meet the definition of "cultural affiliation," which is discussed in detail later in this Opinion. For example, American Indian groups that became extinct since 1492 are no doubt culturally related to current American Indians, and are therefore "Native American" under the terms of NAGPRA. It is also clear from the record that a cultural relationship could be established for many people and items from prehistoric times. However, this case involves one particular set of 9,000-year-old remains, and it is the relationship to those remains that must be analyzed here.

The term "Native American" requires, at a minimum, a cultural relationship between remains or other cultural items and a present-day tribe, people, or culture indigenous to the United States. A thorough review of the 22,000-page administrative record does not reveal the existence of evidence from which that relationship may be established in this case.39 The evidence in the record would not support a finding that Kennewick Man is related to any particular identifiable group or culture, and the group and culture to which he belonged may have died out thousands of years ago. Though the cranial measurements and features of Kennewick Man most closely resemble those of Polynesians and southern Asians, these characteristics differ from those of any modern group living in North America or anywhere else. DOI 5879, DOI 5885, DOI 10067-68, DOI 10665, DOI 10685-92. Kennewick Man's culture is unknown and apparently unknowable.

As is perhaps not surprising with remains more than 9,000 years old, there is not evidence that will support the conclusion that the remains are "of, or relating to, a tribe, people, or culture that is indigenous to the United States." The record would not support a finding that the ancestors of the American Indians were the only people here in prehistoric times, or that only one culture existed throughout prehistoric times. Congress did not create a presumption that items of a particular age are "Native American."40 Therefore, the Secretary did not have sufficient evidence to conclude that the Kennewick Man remains are "Native American" under NAGPRA.41

Without such a finding, NAGPRA does not apply to the remains. See, 25 USC § 3002(a) (setting out priority of "ownership or control of Native American cultural items") (emphasis added); DOI 10012 (initial determination that remains were Native American " triggered" application of NAGPRA). Therefore, the disposition of the remains is governed by the application of other Federal law as set forth later in this Opinion.

D. Cultural Affiliation

The Secretary misinterprets the term "Native American" and the record will not support the conclusion that the remains are "Native American" under the terms of NAGPRA. It is therefore arguably unnecessary to review the Secretary's related conclusion that the remains are culturally affiliated to a coalition of tribal claimants. I conclude that review of the Secretary's cultural affiliation analysis is nevertheless appropriate. As noted above, it was necessary to review all the material related to the Secretary's cultural affiliation analysis to determine whether that material included evidence that would support the conclusion that the remains satisfied the definition of "Native American." Because I have thoroughly reviewed this record, judicial economy favors creating a complete record for possible appellate review, and perhaps avoiding more delays in this litigation.

NAGPRA provides that the "ownership or control" of Native American cultural items (including human remains) excavated or discovered on Federal or tribal lands after November 16, 1990, shall be (with priority given in the order listed) --

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--

   1. in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered;

   2. 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

   3. 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).

The parties agree that the lineal descendants of the Kennewick Man, if any, cannot be ascertained, and the remains were not found on tribal land. Consequently, the next question is whether the "cultural affiliation" of the remains can be "reasonably ascertained."

"'Cultural affiliation" is defined as "a relationship of 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).

The Secretary has promulgated regulations describing how cultural affiliation is established. Under these regulations, "cultural affiliation is established when the preponderance of the evidence--based on geographical, kinship, biological, archeological, linguistic, folklore, oral tradition, historical evidence, or other information or expert opinion--reasonably leads to such a conclusion." 43 CFR § 10.2(e). The regulations further provide:

3. Criteria for determining cultural affiliation. Cultural affiliation means 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 identifiable earlier group. All of the following requirements must be met to determine cultural affiliation between a present-day Indian tribe . . . and the human remains, funerary objects, sacred objects, or objects of cultural patrimony of an earlier group:

   1. Existence of an identifiable present-day Indian tribe . . . with standing under these regulations and the Act; and

   2. Evidence of the existence of an identifiable earlier group. Support for this requirement may include, but is not necessarily limited to evidence sufficient to:

      1. Establish the identity and cultural characteristics of the earlier group,

      2. Document distinct patterns of material culture manufacture and distribution methods for the earlier group, or

      3. Establish the existence of the earlier group as a biologically distinct population; and

   3. Evidence of the existence of a shared group identity that can be reasonably traced between the present-day Indian tribe . . . and the earlier group. Evidence to support this requirement must establish that a present-day Indian tribe . . . has been identified from prehistoric or historic times to the present as descending from the earlier group.

4. 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 some gaps in the record.

5. Evidence. Evidence of a kin or cultural affiliation between a present-day individual, Indian tribe . . . and human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by using the following types of evidence: Geographical, kinship, biological, archeological, anthropological, linguistic, folklore, oral tradition, historical, or other relevant information or expert opinion.

6. Standard of proof. Lineal descent of a present-day individual from an earlier individual and cultural affiliation of a present-day Indian tribe . . . to human remains, funerary objects, sacred objects, or objects of cultural patrimony must be established by a preponderance of the evidence. Claimants do not have to establish cultural affiliation with scientific certainty.

The Secretary found a cultural affiliation between the remains and the Tribal Claimants. In his decision awarding the remains to the Tribal Claimants, he stated that there is "a reasonable link between these remains and the present-day Indian tribe claimants." DOI 10015.

1. Coalition as Claimant

To create a full record, before addressing the Secretary's cultural affiliation determination, this court must review the Secretary's conclusion that a coalition of four federally recognized Indian tribes and a band that is not federally recognized (together the Tribal Claimants)42 is a proper claimant for purposes of 25 USC § 3002.43 The Secretary asserted that this coalition is a proper claimant because:

[T]he statute and regulations do not specifically answer whether cultural affiliation with a single identifiable tribe is required, or whether such affiliation may be established with a group of modern-day Indian tribes filing a joint claim. Section 3002(a)(2)(B) speaks of an Indian tribe with the "closest cultural affiliation," which suggests a congressional recognition that more than one, and perhaps many, tribes may have a cultural affiliation with remains discovered on federal land. We believe the statute permits finding cultural affiliation with one or more of multiple tribes where, as here, they submit a joint claim.

The Secretary's analysis contradicts the plain language of the statute, which identifies the appropriate recipient in the singular as "the Indian tribe . . . which has the closest cultural affiliation." 25 USC § 3002(a)(2)(B) (emphasis added). Use of the term "tribe" in the singular in 25 USC § 3002(a)(2)(B) is also consistent with references to a single tribe in other NAGPRA provisions and the Secretary's own regulation addressing cultural affiliation. Cultural affiliation requires proof of a relationship of shared group identity "between a present day Indian tribe . . . and an identifiable earlier group." 25 USC § 3001(2) (emphasis added). See also, 25 USC § 3005(a)(1) (providing for repatriation if "the cultural affiliation of Native American human remains and associated funerary objects with a particular Indian tribe or Native Hawaiian organization is established . . .") (emphasis added); 43 CFR § 10.14(c)(3)(C) ("Evidence . . . must establish that a present-day Indian tribe . . . has been identified from prehistoric or historic times as descending from the earlier group.").44

The Secretary's analysis could render part of the statute meaningless. Carried to the logical end, coalition claims would effectively eliminate the statutory requirement that cultural affiliation be established with a particular modern tribe. The more members in a coalition, the greater the likelihood that the remains or objects are affiliated with some member of the coalition, despite a lack of evidence establishing cultural affiliation with any particular member of the coalition.

The plain language of the statute does not support the conclusion that joint claims by a number of tribes--based on little more than some degree of contact with the general region at some prior time--are generally sufficient to satisfy NAGPRA's cultural affiliation requirement. There may be some circumstances under which joint claims are proper.45 However, a fair reading of the statute and related regulations supports only the conclusion that, under any circumstances, the claims of coalition members must be independently meritorious. Accordingly, the Tribal Claimants' joint claim for the Kennewick Man remains cannot be sustained unless at least one member of the coalition independently satisfies the cultural affiliation standard. The Secretary asserts that separate analysis of the relationship of the remains and each individual Tribal Claimant is not legally required, DOI 10014, and appears to have made no real effort to analyze the claims separately. Instead, the Tribal Claimants were treated as a single entity that collectively comprises the present-day embodiment of the ancient group to which the Kennewick Man assertedly belonged. See, e.g., DOI 10015 (evaluating "the cultural relationship between the two groups," i.e., the ancient group and the Tribal Claimants collectively) (emphasis added).46

Defendants now assert, however, that the Secretary "evaluated each tribe's claim individually." Defendants' Brief at 22. That assertion is contradicted by both the Secretary's written decision and the administrative record.47 The reports from the Secretary's experts make little effort to separately evaluate the relationship of the remains to the individual claimants, and the Secretary's decision awarding the remains does not separately weigh the evidence of cultural affiliation for each claimant tribe. In addition, the claim states that it is asserted collectively, not individually. See, DOI 4109 (claim is filed "jointly" and "supercedes all prior separate individual claims made by [the five claimants]").

Under the terms of NAGPRA and relevant regulations, coalition claims are inappropriate except under exceptional circumstances that are not relevant here. Though the Secretary now asserts that the claims of the coalition members were analyzed individually, it is clear from the record that the Tribal Claimants asserted their claim collectively, and that Defendants did not separately evaluate the relationship of each individual claimant tribe to the remains of the Kennewick Man. Accordingly, I conclude that the Secretary erred in assuming that the coalition was a proper claimant and in failing to separately analyze the relationship of the particular Tribal Claimants to the remains.

2. Cultural Affiliation Determination

a. Introduction

A finding of "cultural affiliation" with human remains requires proof of "a relationship of shared group identity which can reasonably be traced . . . between a present day Indian tribe . . . and an identifiable earlier group" of which the decedent was a member. 25 USC § 3001(2) (emphasis added). See also, S Rep No 101-473 at 8 (claimant must show "a continuity of group identity from the earlier to the present day group").

Linking an individual who died more than 9,000 years ago to an identifiable ancient group presents a difficult challenge. Going beyond that and establishing a shared group identity between that ancient group and a present-day Indian tribe greatly compounds the difficulty.

The Secretary's task was especially difficult here because the only information concerning the Kennewick Man consists of his skeletal remains, the location where the remains were found, the projectile point embedded in his pelvis, and the age of the remains. By prohibiting detailed scientific investigation of the discovery site, and then burying it, the Corps foreclosed the possibility that other cultural artifacts or information associated with this individual might be found that could aid in determining cultural affiliation.

Based on a careful review of the record, I conclude that the Secretary's cultural affiliation determination cannot be sustained. The Secretary: (a) did not adequately determine "an identifiable earlier group" to which the Kennewick Man allegedly belonged, or even establish that he belonged to a particular group, (b) did not adequately address the requirement of a "shared group identity," (c) did not articulate a reasoned basis for the decision in light of the record, and (d) reached a conclusion that is not supported by the reasonable conclusions of the Secretary's experts or the record as a whole.

Based upon the record, the Secretary could have reasonably concluded that ancestors of the Tribal Claimants have resided in this region for a very long time. However, the Kennewick remains are so old, and information as to his era so limited, that it is impossible to say whether the Kennewick Man is related to the present-day Tribal Claimants, or whether there is a shared group identity between his group and any of the Tribal Claimants. The record simply does not establish the requisite link by a preponderance of the evidence. Thus, this record will not support a finding of cultural affiliation.

b. Defining The Identifiable Earlier Group

Although it is essential to the analysis, the Secretary never specified the "identifiable earlier group" to which the Kennewick Man belonged. Instead, the Secretary focused primarily on establishing that some ancestors of the Tribal Claimants probably resided in this general region 9,000 years ago or, at least, that this possibility cannot be ruled out. This hypothesis is plausible because there is reason to believe that ancestors of the Tribal Claimants may have been present in this hemisphere 9,000 years ago. However, even if the Secretary succeeded in establishing that ancestors of the Tribal Claimants resided in this general region 9,000 years ago, that in itself would not establish by a preponderance of the evidence that the Kennewick Man was one of those ancestors, which group he belonged to, or a continuity of group identity during the intervening 9,000 years.

The Secretary's decision refers to "the cultural group that existed in the Columbia Plateau region during the lifetime of the Kennewick Man" as if there were only one group in this large area (which encompasses substantial parts of two states) during that time. DOI 10015. However, the record indicates that as many as 20 different highly mobile groups, each including anywhere from 175 to 500 members, may have resided in the region around this time. DOI 10058, DOI 10136. The Secretary appears to assume, without pointing to any support in the record, that these groups were culturally identical. In another document, the Secretary attempts, in the most general terms, to describe possible characteristics and activities of the "human cultural groups, of which Kennewick Man would have been a member." See, e.g., DOI 10058-60. In other words, the record indicates that an unknown number of groups were in the region, and the Secretary assumes the Kennewick Man was affiliated with one of those groups. However, because the Secretary is unable to determine which group he was affiliated with, the Kennewick Man's group cannot be classified as an identifiable earlier group as required to establish cultural affiliation under NAGPRA.

The Secretary does not explain how it is possible to analyze "continuity between the cultural group represented by the Kennewick human remains and the modern-day claimant Indian tribes," DOI 10015, without first identifying the group that the Kennewick Man belonged to and that group's cultural characteristics. The closest the Secretary comes to designating the "identifiable earlier group" to which he believes the Kennewick Man belonged is to assert that this group would have been part of either the "Windust Phase" or "Early Cascade Phase." DOI 10054. These phases are broad labels used to demarcate eras of several thousand years each, based largely upon the predominant types and styles of projectile points and tools that have been found at various locations in the Pacific Northwest. These locations include parts of Idaho, Oregon, Washington, and British Columbia, but are primarily in the Lower Snake River Canyon (and its tributaries) in eastern Washington and western Idaho. DOI 9073-74. The Secretary indicates that the period from approximately 13,000 years ago until 9,000 years ago has been labeled the Windust Phase, and the period from approximately 9,000 until about 7,000 years ago has been labeled the Early Cascade Phase. DOI 10054. Others have apparently assigned different names and/or dates to these periods, or have applied these terms to different locations in the region. Cf., DOI 9071, DOI 10112-13, DOI 10133-35, DOI 10224-26.

There are several problems with characterizing people from the entire "Windust Phase" and "Early Cascade Phase" as a single identifiable earlier group for purposes of NAGPRA . Even assuming that people associated with a broad "phase" could be characterized as an "identifiable earlier group," the record does not contain sufficient evidence to link the Kennewick Man to that "group." Further, the Secretary does not identify which of the "phases" the Kennewick Man is associated with. Scholars do not agree whether the "Early Cascade Phase" was a continuation of the "Windust Phase" by the same population with minor changes in tools, or whether the two phases represent different origins and populations. Evidence that the Kennewick Man was morphologically distinct from present-day populations in this region lends some support to the theory that more than one population may have been present during that time period. The Secretary acknowledges the difficulties this morphological data poses, but never explains how he resolves that issue in reaching his final decision. DOI 10015.

The Secretary's attempt to equate the Windust and Early Cascade phases to an "identifiable earlier group" assumes that, because ancient tools and projectile points were discovered at sites some distance from where the remains of the Kennewick Man were found,48 a single group or culture fabricated all of those objects, and that the Kennewick Man was part of that group. Such an assumption is not supported either by logic or the administrative record. On this record, it is impossible to say whether the Kennewick Man was a member of a group that fabricated those particular items, whether he spent most of his life near the site where he died, whether any other groups or cultures existed in the region during that time period, or whether similarities in tools or weapons equate to similarities in other respects or to a shared group identity.

There are also problems with the Secretary's assumption that the Kennewick Man's group lived near where the remains were found, with the significance accorded to the projectile point embedded in the Kennewick Man's pelvis, and with the analysis of the significant physical differences between the Kennewick Man and modern American Indians. The Secretary's analysis implicitly presumed, without explanation, that the Kennewick Man's group resided (and continues to reside) near where his remains were discovered. However, as the Secretary acknowledged, there were no villages or permanent settlements in this region 9,000 years ago. DOI 10076. The "more or less sedentary settlement system"--which the Secretary's experts believe was the antecedent of the villages and bands aggregated into the present tribes during the 19th Century--was not established until "between about 3000 and 2000 years ago." DOI 10058. Groups occupying this region 9,000 years ago are thought to have been nomadic, traveling long distances in search of food or raw materials such as obsidian and shells. DOI 10058-61, DOI 10136. The remains of the Kennewick Man were found at a natural crossroads near the confluence of several major river systems. DOI 10274, DOI 10283.

Though Defendants assert that the projectile point embedded in the Kennewick Man's pelvis established that he belonged to the group that made it, evidence regarding the point is inconclusive at best. The record does not tell us whether the wound was inflicted by a member of the Kennewick Man's own group or if it was inflicted by a rival group or culture. As the Yakama Nation observed, in objecting to studies of the point:

Further analyses of the lithic object may provide some few facts about the object itself, but, can say precious little about whether the person in which it is embedded is or is not "Native American."

If this particular point is related to subsequent versions of the projectile style spanning the millenia, it might suggest that the Tribal Claimants are linked to someone who resided in this region 9,000 years ago. But it is impossible to determine whether they are linked in any way to the particular group to which the Kennewick Man belonged. Moreover, as one of the Secretary's experts observed, continuity in weapons technology does not necessarily equate to cultural continuity or the maintenance of a shared group identity.49 DOI 10127.)

The physical features of the Kennewick Man appear to be dissimilar to all modern American Indians, including the Tribal Claimants. DOI 10067-68. That does not preclude the possibility of a relationship between the two. However, absent a satisfactory explanation for those differences, it does make such a relationship less likely, and suggests that the Kennewick Man might have been part of a group that did not survive or whose remaining members were integrated into another group. The Secretary acknowledged the morphological incongruities, DOI 10015, DOI 10067-69, without addressing this critical issue in depth, stating only that it "may indicate a cultural discontinuity . . . or may indicate that the cultural group associated with the Kennewick Man may have subsequently intermixed with other groups migrating into or through the region . . . ." DOI 10015.

NAGPRA was intended to reunite tribes with remains or cultural items whose affiliation was known, or could be reasonably ascertained. At best, we can only speculate as to the possible group affiliation of the Kennewick Man, whether his group even survived for very long after his death, and whether that group is related to any of the Tribal Claimants. From this record, the Secretary could not reasonably have found, by a preponderance of the evidence, that the Kennewick Man was associated with a particular "identifiable earlier group".50

c. Shared Group Identity

As a threshold matter, without proof of a link between Kennewick Man and an "identifiable earlier group," there is no reasoned starting point from which to evaluate whether a shared group identity exists between the present-day Tribal Claimants and a particular earlier group. Perhaps that is why the Secretary focused on showing that ancestors of the Tribal Claimants could have resided in this region 9,000 years ago. This approach gave only cursory consideration to the statutory requirement that "shared group identity" be established, and impermissibly shifted the burden of proof from the Tribal Claimants. Even if the Secretary had properly identified an "identifiable earlier group," the requirement of "shared group identity" must also be met.

1. Definition of Shared Group Identity

Proof of a "relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe . . . and an identifiable earlier group" is an essential element of a cultural affiliation claim under NAGPRA. 25 USC § 3001(2). NAGPRA does not define the phrase "relationship of shared group identity," and the Secretary makes no attempt to define this term in his decision letter.

The Secretary's regulations offer limited guidance, stating only that "[e]vidence to support this requirement must establish that a present-day Indian tribe . . . has been identified from prehistoric or historic times to the present as descending from the earlier group." 43 CFR § 10.14(c)(3). Though the regulations do not explain what is meant by "descending from the earlier group," they clearly infer that the group has remained relatively intact through the years.

The statutory language also implies that the members must perceive themselves as part of a group and function as such. There must be at least some common elements of language, religion, customs, traditions, morals, arts, cuisine, and other cultural features; a common perspective on the world and the group's role within it; and shared experiences that are part of the group's perception of its history. See, e.g., DOI 3021-24, DOI 7512, DOI 8992, DOI 9031-33, DOI 10309. This commonality distinguishes the group and its members from other groups, and legitimizes the present-day group's authority to represent the interests of deceased members. See, S Rep No 101-473 9, DOI 0581, ("The requirement of continuity between present day Indian tribes and material from historic or prehistoric Indian tribes is intended to ensure that the claimant has a reasonable connection with the materials"). Retention of group identity over time also requires transmission of "that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society" along with adaptations to the group's habitat and its means of subsistence to succeeding generations. DOI 10309.

2. The Expert Reports

As part of the process of evaluating the cultural affiliation claims, the Secretary retained four experts to produce reports on specific topics. Their work is summarized below.

a. Bio-Archaeological Data and Mortuary Practices

Dr. Steven Hackenberger51 summarized studies concerning bio-archaeological data and mortuary practices in the region. His report indicates that little is known about either the physical characteristics of the inhabitants, or their mortuary practices, before 5,000 years ago. DOI 10015, DOI 10067, DOI 10336-38.

For the period before 3,000 years ago, no consistent pattern of mortuary practices has been observed. See, e.g., DOI 10067 ("major temporal gaps in Plateau human burial patterns between 7000 and 3000 years ago").52 Some remains were burned and fragmented while others were buried. Dogs were interred in human graves in some locations, and at some sites partly cremated remains were covered by rock cairns. DOI 10336-38, DOI 10498-500.

The Secretary concluded that the evidence regarding historical mortuary patterns is "too limited to draw any conclusions." DOI 10015. However, the wide range of practices observed, even based upon a limited sample, casts doubt upon the Secretary's larger implied assumption that this entire region encompassed a stable, monolithic culture (i.e., a single "identifiable earlier group") for the past 9,000 years.

Though limited, the osteological data likewise suggests considerable variation among populations in the region. The perceived cranial and dentition characteristics of remains thought to be 9,000 to 11,000 years old found in and near the Marmes Rock Shelter appear to differ from the Kennewick Man, but the remains may be too incomplete and in too poor condition to draw many inferences. DOI 10336-38, DOI 10442-50.

Only a small number of other human remains believed to be more than 3,000 years old have been found in this general region, mostly in Idaho and British Columbia. These include the "Buhl woman" (Idaho) and "Gore Creek man" (British Columbia), both of whom were repatriated and reburied,53 though some data was preserved. DOI 10336-37. The Gore Creek remains did not include a skull, so cranial and dental comparisons could not be made. DOI 10428. Carbon isotope studies on that skeleton suggested a diet largely composed of terrestrial plants and animals, whereas a similar test on the Kennewick remains suggested a diet very high in marine resources. DOI 10337. There are conflicting opinions regarding the morphology of the Buhl woman. Cf., DOI 3194, DOI 10354, DOI 10432-33, DOI 10456 (exhibits characteristic mongoloid morphology) and DOI 6179, DOI 10354, DOI 10441 (not mongoloid, and unlike any present-day Indian population).

Hackenberger also reports that a skull--possibly resembling that of the Kennewick Man, and perhaps between 8,000 and 9,000 years old--was found during a recent NAGPRA inventory of remains held by Central Washington University. DOI 10355. Initial reports indicated that the skull was found somewhere in eastern Washington, but details were still scarce when Hackenberger wrote his report. Id.

The bio-archeological data and evidence concerning mortuary practices included in the administrative record do not support the conclusion that cultural affiliation is established by a preponderance of the evidence. As noted above, the wide range of mortuary practices casts doubt on the Secretary's implied assumption that a monolithic, stable culture existed during the relevant period. Osteological data suggests significant variations among populations in the region.

b. Archaeological Record

Dr. Kenneth Ames reviewed and summarized the archaeological54 record, with emphasis on possible continuities and discontinuities over time in the people who inhabited the area where the Kennewick man was found. In his report, which relies primarily on published studies, DOI 10107-12, Dr. Ames concludes that "the empirical gaps in the record preclude establishing cultural continuities or discontinuities, particularly before about 5000 B.C." 100172. Dr. Ames found that "[t]he major changes that occurred after 4000 B.C. also make it exceedingly difficult to trace connections forward in time." Id. Dr. Ames noted that, though there was overwhelming evidence that many aspects of the "Plateau Pattern" were present between 1000 B.C. and A.D. 1, "the empirical record precludes establishing cultural continuities or discontinuities across increasingly remote periods." Id. He added that, if the evidence that was available could not be used to show continuity, it likewise could not be used to demonstrate discontinuity. Id. In other words, the available evidence is insufficient to either prove or disprove cultural or group continuity dating back 9,000 years.

Dr. Ames' report identifies a number of significant gaps or discontinuities in the known archaeological record. Portions of the Columbia Plateau, including the Central Columbia Basin, may have been abandoned for thousands of years, given that "extensive survey has failed to uncover sites dating to this period." DOI 10058-59.55 There is also evidence that major cultural changes occurred in the Columbia Plateau around 6,000 years ago, and again between 3,000 and 3,500 years ago. DOI DOI 10059-60, DOI 10153, DOI 10172, DOI 10242, DOI 10245-46. Though it is insufficient to support any firm conclusions, evidence also suggests a "pause in land use" between 3200 and 2000 BC in central and northeastern Oregon. DOI 10148. There is also evidence that changes, some of which were quite substantial, occurred in settlement, housing, diet, trade, subsistence patterns, technology, projectile point styles, raw materials, and mortuary rituals at various times between the estimated date when the Kennewick man lived and the beginning of the "Plateau Culture" some 2,000 to 3,000 years ago. DOI DOI 10059-67, DOI 10153, DOI 10172.

Leonhardy and Rice, who constructed the most commonly used chronology of the region and named the phases (e.g., Windust, Cascade), "thought that the varied point forms found in the late Cascade represented different cultural traditions." DOI 10062. They also assumed a cultural discontinuity between the Cascade and Tucannon phases, because "compared to both earlier and later phases, the technology of the Tucannon Phase seems crude and impoverished." DOI 9081-82. Cressman also perceived a "cultural discontinuity represented by a clear shift in projectile point technological style." DOI 10062.

Though they bear the burden of establishing their claim to the remains, the Tribal Claimants are not required to prove an unbroken "chain of custody" or kinship in order to establish cultural affiliation with the Kennewick Man, and the existence of some "reasonable gaps" in the record will not automatically bar their claim. See, S Rep No 101-473 at 9 DOI 0581; 43 CFR § 10.14(d). However, the significant unexplained gaps and discontinuities in the archaeological record before the DOI make it impossible to assume continuity of group identity between the present occupants and any group that existed 9,000 years ago. Without evidence satisfactorily explaining the significant gaps in the archeological record, it is simply impossible to find that cultural affiliation has been established by a preponderance of the evidence.

c. Linguistics

Dr. Eugene Hunn prepared a report discussing the linguistic evidence. In Hunn's opinion, the linguistic evidence suggests that the ancestors of the Sahaptin-speaking Tribal Claimants-- who are a subset of the Tribal Claimants56--have resided in this region for at least 2,000 years. DOI 10069, DOI 10309-10, DOI 10315-17, DOI 10326. Hunn acknowledged that the linguistic evidence does not preclude the possibility of a shorter residency period, but considered that scenario unlikely. DOI 10317, DOI 10326.

Hunn theorizes that "proto-Sahaptian or some immediate genetic predecessor was spoken throughout the Columbia Plateau approximately 4,000 years ago." DOI 10310, DOI 10322. Hunn also attempts to establish that an ancient precursor to these Sahaptin dialects, "proto-Penutian," was spoken on the Columbia Plateau at least 8,000-9,000 years ago, and that it "is more than likely that Kennewick Man spoke a proto-Penutian dialect." DOI 10310-11, DOI 10323, DOI 10326. Though he acknowledged it is possible that the Kennewick Man's group spoke another language, and that the ancestors of the Tribal Claimants "either displaced this earlier group or arrived after that group had moved elsewhere or had died out," Hunn saw "no evidence to suggest such an alternative." DOI 10326.

The Secretary accepted Hunn's conclusion that the ancestors of the Sahaptin-speaking peoples have likely resided in this region for at least 2,000 years, and perhaps for much longer. DOI 10015, DOI 10069. However, the Secretary declined to endorse some of Hunn's other conclusions, noting that certain of the techniques underlying those conclusions are "highly controversial" and "not widely accepted, even among linguists," and that attempting to determine what language was spoken on the Columbia Plateau beyond 2,000 to 4,000 years ago "is a difficult and questionable proposition." DOI 10015, DOI 10069-70.57

The Secretary's determination that linguistics could not establish cultural affiliation in this case was appropriate. Given the limited information available regarding the Kennewick Man and his era, linguistics cannot tell us what language the Kennewick Man spoke, what group he was personally affiliated with, who else was in the region, or whether the Tribal Claimants are related to the Kennewick Man's group.

d. Oral Histories and Traditions

Dr. Daniel Boxberger reviewed the oral histories and traditions of the Tribal Claimants. DOI 10265-10299. Though he acknowledged that attempting to use oral traditions to create a time line or establish particular dates "does not meet with much success," Boxberger opined that these traditions supported several conclusions. Without identifying what he meant by the phrase, Boxberger opined that the Tribal Claimants are the "heirs of succession to the area" where the remains of the Kennewick Man were found. DOI 10298. Boxberger noted there was no evidence of "in-migration causing cultural transformation," and concluded that, when used in conjunction with protohistoric, ethnographic, and historic databases, oral traditions "suggest a cultural continuity in the southern Plateau extending into the prehistoric past."58 Id. He stated that, though they could not be dated with precision, oral traditions relating to geological events that occurred in the distant past are "highly suggestive of long-term establishment of the present-day tribes." Id. Boxberger added that ethnographic and historic data placed the Tribal Claimants in the area, and that oral traditions placed them there "since the beginning of time." DOI 10299.

In his review of the evidence concerning cultural affiliation, the Secretary in turn concluded that "collected oral tradition evidence suggests a continuity between the cultural group represented by the Kennewick human remains and the modern-day claimant Indian tribes." DOI 10015. The Secretary added that "oral tradition evidence reveals that the claimant Indian tribes possess similar traditional histories that relate to the Columbia Plateau's past landscape," and that the oral tradition evidence lacked any reference to migration into or out of that area. Id.

Before addressing whether oral traditions support the Secretary's cultural affiliation determination, I must briefly address Plaintiffs' contention that the narratives in question cannot be used as evidence. Plaintiffs assert that, because oral narratives are intertwined with spiritual beliefs, the Secretary's consideration of them violates the Establishment Clause of the First Amendment.

This argument fails. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion . . . ." As a general rule, government conduct does not violate this provision if it (1) has a secular purpose, (2) does not have as its principal or primary effect advancing or inhibiting religion, and (3) does not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 US 602, 612-13 (1971); American Family Ass'n, Inc. v. City and County of San Francisco, 277 F3d 1114, 1121 (9th Cir 2002), petition for cert. filed, 71 USLW 3129 (July 29, 2002). The Establishment Clause might have been violated here if the Secretary had assumed that the narratives were true because they are religious in nature. However, the Secretary did not do so, but instead used the narratives for purely secular purposes.

Narratives can provide information regarding the history of Indian cultures, and Congress clearly intended that, where appropriate, this evidence should be considered in establishing cultural affiliation.59 See, 25 USC § 3005(a)(4). However, reliance upon oral narratives under the circumstances presented here is highly problematic. If the Tribal Claimants' narratives are as old as the claimants contend, they would have been orally conveyed through hundreds of intermediaries over thousands of years. For ancient events, we cannot know who first told a narrative, or the circumstances, or the identity of the intervening links in the chain, or whether the narrative has been altered, intentionally or otherwise, over time. The opportunity for error increases when information is relayed through multiple persons over time. Intervening changes in language may alter meanings, as might the process of translation into other languages.60 Other considerations affecting reliability of the narratives include the expertise of the source of the narrative and the circumstances under which the particular narrative was traditionally transmitted. See, DOI 7658 ("Each legend or 'story' has a specific place or time to be told"); DOI 8989-92 (method of telling story may affect reliability). Some of the narratives cited in the record show signs of having been adapted to reflect recent events or perhaps the experiences of the person transcribing or translating the narrative.61 Other narratives may have been influenced by political considerations or biases.62

The narratives might furnish important insights into the people who originated and conveyed the narratives, and the Secretary could properly consider them for that purpose. However, their adaptability and political utility suggest that narratives are of limited reliability in attempting to determine truly ancient events.

Boxberger reviewed a number of narratives addressing geological events, such as the change in the flow of the Columbia River from the Grand Coulee. He opined that a narrative which states that in the old days the Columbia River flowed down the Grand Coulee instead of its present channel "tells the listener where and how long ago an event occurred. It connects it to an event that occurred over 10,000 years ago when geologists tell us the Columbia River did flow through Grand Coulee." DOI 10292.

This conclusion assumes too much. The origins of the narrative are unknown, and the narrative does not establish a link between the Tribal Claimants and anyone who may have witnessed the Columbia River in the Grand Coulee or a change in the channel. Someone may have simply deduced what happened by observing the physical evidence, or the ancestors of the Tribal Claimants might have arrived on the Columbia Plateau a "mere" 4,000 years ago and learned of the event from people whose ancestors had actually witnessed it, or in turn had heard of it from an even earlier group. No shared group identity between the present-day Tribal Claimants and the people who may have been in the area more than 10,000 years ago can be established through such narratives.

Two of the Secretary's experts also suggest that various narratives about taking refuge on mountain tops when the earth flooded and similar stories may show that the Tribal Claimants' ancestors were here during the enormous floods that periodically devastated this region between about 12,800 and 15,000 years ago. DOI 5817, DOI 7627, DOI 7662-65, DOI 8174, DOI 9431-32, DOI 10056, DOI 10076, DOI 10292, DOI 10324-25. However, it is unclear whether people actually resided in the region at that time, or if they did, whether they survived the massive floods, which are believed to have produced a wall of water up to 1,000 feet high and dramatically altered the landscape of eastern Washington and northwestern Oregon. See, e.g., DOI 9431 (describing floods).

Even if someone did witness and survive such a flood, it does not necessarily follow that the ancestors of the Tribal Claimants were present. In addition, the legend of a great flood is a common theme of global mythology, DOI 7229, DOI 7664, DOI 10325, and the Secretary noted that the area that has been occupied by the Tribal Claimants has been subjected to large floods during the past 5,000 years, and has been regularly subjected to floods more recently. DOI 10074-76. These more recent events could account for stories about a great flood. DOI 10074. Similarly, narratives thought to be based upon an eruption of Mt. Hood could be based upon an eruption that occurred 15,000 years ago, 1,800 years ago, or only 200 years ago. DOI 7665, DOI 10292. Narratives describing a battle between "Warmweather and Coldweather," DOI 10289, could refer, as Boxberger suggests, to the end of the great ice age, or to climate changes that have occurred more recently in the region. See, e.g., DOI 10056-57. There is no way to know.

The significance that the Secretary and Boxberger attribute to the absence of a "migration tradition" among the Tribal Claimants and the oral traditions placing these tribes in their present location since the beginning of time is also misplaced. As the Secretary noted, "[o]rigin stories without migration are not always affirmed by investigations using other independent data." DOI 10074. Even if it is correct, the Secretary's observation that these aspects of the Tribal Claimants' narratives "may suggest that the ancestors of the present-day tribes have lived in the region a very long time" tells us little. In human terms, even two or three thousand years is a very long time: A much longer interval exists between the present and the lifetime of the Kennewick Man.

In sum, though narratives can provide information relevant to a cultural affiliation determination in appropriate circumstances, the narratives cited in the record here do not provide a substantial basis for concluding that the Tribal Claimants have established a cultural affiliation between themselves and an earlier group of which the Kennewick Man was a member. If, as Boxberger opines, the oral traditions help to establish a "cultural continuity . . . extending into the prehistoric past," the narratives do not help to establish how far into the "prehistoric past" such continuity extends. The 9,000 years between the life of the Kennewick Man and the present is an extraordinary length of time to bridge with evidence of oral traditions.

Even if they could be relied upon to establish that the ancestors of the Tribal Claimants have resided in this region for more than 9,000 years, the narratives cited by the Secretary do not establish a relationship of shared group identity between those ancestors and the Kennewick Man's unidentified group.

e. Conclusion

The Secretary did not articulate a cogent rationale that supports his finding of cultural affiliation. The Secretary neither identified the earlier group to which the Kennewick Man belonged, nor explained how he inferred a "shared group identity" over a span of 9,000 years between the Tribal Claimants and this unknown earlier group. The Secretary did not explain how there is the required relationship with the Tribal Claimants, even though the remains appear to be morphologically dissimilar from all modern American Indians, including the Tribal Claimants. Instead, the Secretary offered only this cryptic explanation for his conclusion: While some gaps regarding continuity are present . . . the geographic and oral tradition evidence establishes a reasonable link between these remains and the present-day Indian tribe claimants. DOI 10015.

The Secretary did not explain what he means by the "geographic" evidence, or offer any examples. If the Secretary meant that the Tribal Claimants have strong ties to the Columbia Plateau, and the Kennewick Man lived there 9,000 years ago, that is insufficient to satisfy the statutory requirement. If the Secretary was referring to the topics covered in Dr. Ames' report, that report was inconclusive. As for oral traditions, the Secretary's discussion of this evidence indicated only that the Tribal Claimants "possess similar traditional histories that relate to the Columbia Plateau's past landscape" and that these traditions "lack[] any reference to a migration of people into or out of the Columbia plateau." DOI 10015. The Secretary does not explain how those facts lead to his ultimate conclusion. Similarly, the Secretary's brief states only:

[T]aking 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.

"In order for an agency decision to be upheld under the arbitrary and capricious standard, a court must find that evidence before the agency provided a rational and ample basis for its decision." Bicycle Trails Council of Marin v. Babbitt, 82 F3d 1445, 1462 (9th Cir 1996); Northwest Motorcycle Ass'n, 18 F3d at 1471. "After considering the relevant data, the agency must articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (emphasis added, citations and internal punctuation omitted).

The Secretary's decision does not meet this standard. The present record does not provide a sufficient basis from which the Secretary could identify the "earlier group," or show that the Kennewick Man was likely part of that group, and establish by a preponderance of the evidence a relationship of shared group identity between the present-day Tribal Claimants and that earlier group. The Secretary has not articulated an adequate rationale for such conclusions. Consequently, even if the Secretary's conclusion that the remains are "Native American" had been correct, the decision to award these remains to the Tribal Claimants could not stand.

The Tribal Claimants argue that, under NAGPRA, the remains must be awarded to the claimant with the "closest cultural affiliation"--no matter how attenuated that relationship--if no other tribe has filed a claim or established that it has a closer affiliation. See, e.g., (June 20 Tr. at 226-28, 237-39); Tribal Claimants' Brief at 24-25. A careful reading of the statute does not support this interpretation. Read in context, the reference in § 3002(a)(2)(B) to the tribe that has the "closest cultural affiliation" is implicitly qualified by the requirement that the claimant must first satisfy the cultural affiliation standard. §§ 3002(2), 3005(a). The term "closest" is implicated only if there are multiple claimants, each of which successfully establishes the requisite degree of cultural affiliation. NAGPRA does not mandate that every set of remains be awarded to some tribe, regardless of how attenuated the relationship may be. On the contrary, the Act expressly contemplates instances in which no claimant can establish the requisite degree of cultural affiliation to be entitled to claim the remains. See, §§ 3002(a)(2)(C) and 3002(b). The Tribal Claimants' reading of the statute would eliminate the requirement that a claimant establish, by a preponderance of the evidence, a shared group identity with the identifiable earlier group.

Based on a thorough review of the record, I conclude that the evidence before the Secretary was insufficient to establish cultural affiliation by a preponderance of the evidence. The Secretary's finding that the Tribal Claimants have satisfied the cultural affiliation requirement of 25 USC § 3001(2) is arbitrary and capricious, and must be set aside.

3. Aboriginal Lands

As an alternative basis for the decision awarding the remains to the Tribal Claimants, the Secretary declared that "a claim based on aboriginal occupation, 25 USC [§] 3002(a)(2)(C)(1), was also a basis for the disposition of the Kennewick remains to the claimant Indian tribes in this case." DOI 10016. I disagree with the Secretary's assertion that this section provides a legitimate basis for disposition under the circumstances here.

Under 25 USC § 3002(a)(2)(C), the "ownership or control" of Native American cultural items (including human remains) excavated or discovered on Federal or tribal lands after November 16, 1990, is determined, in relevant part, as follows:

[I]f 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 . . . .

When the Corps decided to give the remains to the Tribal Claimants in September 1996, it cited this section as one basis for that decision. COE 4805-AA, COE 9275. See also, DOI 1417-19. However, on January 24, 1997, the Corps informed Plaintiffs it had determined that the site where the remains were found "was not the subject of a final judgment of the ICC as originally believed." DOI 1598. In a response to Plaintiffs' Request for Admissions dated February 5, 1997, Defendants acknowledged that:

To the best of current knowledge and belief, the lands upon which the human remains were discovered are not on lands that are recognized by a final judgment of the Indian Claims Commission (ICC) or the United States Court of Federal Claims as the aboriginal land of some Indian tribe.

[T]he Department of the Interior ("DOI") has determined that the site of discovery does not fall within any area recognized as the aboriginal land of any Indian Tribe in a final judgment of the Indian Claims Commission or the United States Court of Federal Claims . . . . The determination was made at this time solely to streamline the possible decision-making process and to clarify this issue since it had been raised in the initial federal register notice issued by the Corps shor