The Spirit Cave Man Lawsuit

Text of the "Conclusion" of the Court's Order (9/21/06)

From the information before the court, it is clear that NAGPRA can be a surprisingly difficult statute to implement properly. BLM, charged with making a final determination of affiliation, was faced with a mountain of scientific and cultural evidence on both sides of the issue. It is therefore no surprise that it chose to act cautiously and methodically to reach a final decision on affiliation. However, this process was muddled by the Tribe's request for repatriation. While BLM should have simply made its determination, then moved to considering the Tribe's evidence for repatriation, the two issues blurred.

BLM received the cultural evidence it was supposed to gather in the inventory stage. However, it also received a good deal of scientific evidence which was more appropriately considered at the repatriation request stage. BLM then proceeded to issue its determination report, taking into account some of the scientific evidence while apparently ignoring the rest. The Tribe's repatriation request then became ripe, but BLM felt it had considered the evidence presented by the Tribe. Thus, rather than review its findings based on the Tribe's evidence and request for repatriation, BLM referred the matter to the Review Committee.

Despite this referral, however, BLM adopted the position that the Review Committee's findings were merely advisory and failed to act upon their release. With a repatriation request pending, scientific evidence presented on behalf of the Tribe and specific findings from the Review Committee opposed to BLM's initial determination, some explanation why BLM's initial determination was correct was required. Instead, the issue was passed up the chain of command and lost. The final decision, that no further course of action was available, wholly failed to meet the requirements placed on BLM by NAGPRA's authorization of a repatriation request by the Tribe and the APA's standards for determining whether an agency decision was arbitrary and capricious.

The court finds that BLM made a final agency determination f affiliation in this matter. There is not error, however, in the procedures employed by the BLM in making its initial determination of non-affiliation. Instead, the error arose when BLM dismissed the evidence provided by the Tribe in support of its repatriation request, including the evidence which arose through the Review Committee proceedings, without fully explaining the reasons behind its actions. NAGPRA requires BLM to fully and fairly consider this evidence and to uphold or reverse its determination of non-affiliation based on a reasoned and coherent discussion of the evidence and BLM's reasons for believing or disbelieving it. This discussion never occurred, necessitating a finding that BLM's determination was arbitrary and capricious.

The court notes, however, that this order does not determine that BLM' initial determination of non-affiliation is wrong and should not be read to mandate a finding of affiliation by BLM. The issues surrounding the age of the remains and the competing theories of population migration in the area make BLM's determination difficult to reach at best. Further, the Bonnichsen cases and their impact on defining historical remains as Native American make BLM's job that much more difficult. The order merely states that BLM was presented with a valid repatriation request and a significant amount of scientific and cultural evidence, as well as specific findings by the Review Committee, that required BLM to do more than simply state that the evidence had been reviewed and no further action was available at this time. BLM needs to compare its findings with the evidence and explain why its determination is, or is not, still the most correct finding available.

It is therefore ORDERED that the Tribes Motion for Summary Judgment (#31) is GRANTED in part as set forth herein'

It is further ORDERED that BLM's Cross-Motion for Summary Judgment (#44) is DENIED;

The amicus briefs filed in this matter (#35, 37, 38, 39, 40, & 50) have been considered by the count in reaching its decision.

The matter is remanded to BLM for further proceedings condistent with this ORDER.

Dated this 21st day of September, 2006.

Larry R. Hicks

United States District Judge