Opening Appeals Briefs and Observations
On March 14, 2003 the Joint Tribal Coaltion and the Department of Justice filed their opening briefs:
On March 18, 2003 three parties filed an amicus curiae briefs. To date, we are unaware of a link to .pdf versions of these documents. We suggest you contact the parties directly for their briefs. Or, we can mail you paper copy of these documents for $25.00 each.
--The Haudenosaunee Standing Committee on Burial Rules and Regulations with representatives from five Indian nations from New York state
--The Association of American Indian Affairs and the Morning Star Institute
--Sherry Hutt on her own behalf (a member of Arizona State Bar)
The plaintiffs' replies to these briefs are due April 17, 2003. Amici briefs supporting their position are due April 24, 2003.
The Department of Justice has appealed one issue, the District Court's ruling on the definition of Native American. The DOJ brief is largely silent on the other issues. The legal implications of this limited appeal are unclear. The DOJ offers no new arguments to support their position. Their representation of facts and history of the case reflects the lack of continuity of attorneys over the past six years.
The Tribal Coalition is appealing six issues. Their arguments have not changed from those made as amici to the District Court. They offer no new substantive issues, evidence, or legal arguments. They argue that the plaintiffs lack standing to prosecute the action, and that the Court has erred on every issue.
The briefs contain mis-statements of fact. For example, they state that plaintiffs participated in the government studies. The DOI study team consisted of Fagan, Huckleberry, Rose, McManamon, Powell, Stein, and later, Larsen, Walker, Smith, and Taylor. None of these individuals are plaintiffs. (The 8 plaintiffs are Bonnichsen, Brace, Gill, Haynes, Jantz, Owsley, Stanford, Steele). They also seem to be arguing points that were not at issue in the case. For example, the focus in the tribal brief shifts to the definition of "indigenous," away from the definition of "Native American."
The amici briefs also seem to argue points that are not at issue and at times reflect a lack of familiarity of with the facts of the case. For example, Hutt's brief suggests the "nine" plaintiffs should have filed an ARPA permit although the remains had been removed from the discovery site. The Army Corps of Engineers had exercised its jurisdiction to curate the remains as federal collection. ARPA permits are filed for access to archeology sites, not to study federal collections. When the Department of Justice tried this tactic in District Court, the scientists filed affidavits stating that ARPA permits had never been required (or even suggested) in their extensive careers of studying human remains in federal collections. To require one in this situation would have been unprecedented.
The defendants and amici argue NAGPRA requires agency consultation with
the tribes. No one disagrees. At issue was that the agency
bureaucrats and attorneys who were advising and consulting with the
tribes to establish their claim were the same individuals ordered by
District Court to gather facts so the Secretary of the Interior could
render a decision. Further,these same attorneys were charged with
representing the DOI/Army Corps in the litigation. The court found this
"collusion" inappropriate and that it resulted in a process that was biased.
Return to News & Comment