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The Kennewick Man Case | Court Documents | Amici CuriaeNez Perce Tribe's Response to Plaintiffs' Motion for Clarification of March 8 OrderDavid J. Cummings, OSB #922695 Attorney for Amicus Curiae Nez Perce Tribe FOR THE DISTRICT OF OREGON ROBSON BONNICHES, et al., Plaintiffs v. UNITED STATES OF AMERICA, et al., Defendants Civil No. 96-1481 JE Nez Perce Tribe's Response to Plaintiffs' Motion for Clarification of March 8 OrderIntroductionThe plaintiffs, since they initiated this lawsuit, have repeatedly requested this Court to manipulate the substantive outcome of the Corps' administrative process before the Corps completes it and before the Corps makes determinations regarding the disposition of these remains under the Native American Graves Repatriation and Protection Act (NAGPRA). The plaintiffs' latest attempt to do so comes in the form of their motion requesting 'clarification' of the Court's March 8 order establishing a schedule for the Corps to make its NAGPRA determinations. Specifically, the plaintiffs request this Court to adopt a judicial deadline for the Corps to respond to the plaintiffs' hypothetical questions that the Corps has already responded to concerning (1) whether the plaintiffs will be permitted to study the remains if they cannot be culturally affiliated with any of the claimant tribes, and (2) whether the plaintiffs will be permitted to study the remains if there is a determination of the remains are not Native American as defined by NAGPRA. The Nez Perce Tribe urges this Court to deny the Plaintiffs' motion for clarification, as it is inappropriate. DiscussionA request for clarification of an order pursuant to Federal Rule of Civil Procedure 59 or 60 is primarily intended to remove potential confusion from a judicial decree. Here the Court's March 8, 2000 order is clear on its face in directing the federal defendants to complete the necessary NAGPRA determination regarding cultural affiliation, including the necessary consultation with the Tribe and affected tribes by September 24, 2000. The plaintiffs, rather than attempting to clarify confusion that may result from the order, are seeking to re-write the Court's order and establish a judicial deadline for the Corps to respond, again, to the plaintiffs' hypothetical questions. The plaintiffs attempt to justify their bold position by arguing that the "Defendants' responses will be indispensable elements of the full administrative record," and subtly reminding the Court that they are likely to pursue any potential claims they may have under the Administrative Procedure Act. Plaintiffs' Request for Clarification of March 8 Order, at 2 and 3. The plaintiffs' arguments misconstrue fundamental principles of administrative law. It is the Corps, not the plaintiffs or this Court, that must make determinations under NAGPRA regarding the disposition of these remains. The threat that the administrative record may be challenged by the plaintiffs or others does not alter the fact that the Corps is responsible for making the initial determination under NAGPRA. The Corps, having now made its determination that these human remains are Native American and proceeding to make its determination concerning cultural affiliation, must do so consistently with its trust responsibility to the Tribe and other affected tribes. At a minimum the trust responsibility requires the Corps to administer NAGPRA in a matter that is respectful of the affected tribes' interests and the Nation's desire to be respectful of Native American remains by providing for their protection and repatriation. S. Rep. No. 101-473 (1990). The Corps must also meaningfully consult with the Tribes and other affected tribes before making this cultural affiliation determination and certainly before proposing any invasive testing. The Court, in its order, has recognized the Corps' duty to consult with the Tribe and other affected tribes. This duty is not merely a product of the posture of the parties in this case, but is rooted in fundamental principles of the relationship between the United States and the Nez Perce Tribe and other affected tribes. See, e.g. Memorandum on Government-to-Government Relations with Native American Tribal Governments. 59 Fed. Reg. 22,951 (1994). Indeed, NAGPRA itself, specifically recognizes "the unique relationship between the Federal Government and Indian tribes." 25 U.S.C. 3010. ConclusionFor the foregoing reasons, the Nez Perce Tribe respectfully requests this Court to deny the plaintiffs' motion for clarification. Dated this 3rd day of April, 2000.
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