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The Kennewick Man Case | Court Documents | Communications with the Court

Federal Defendants' Opposition to Intervention

John Cruden
Acting Assistant Attorney General
David F. Shuey
US Department of Justice
Environment & Natural Resources Div.
General Litigation Section
601 Penn. Ave., NW Room 854
Washington, D.C. 20004-0663
(202)305-0467
(202) 305-0506 facsimile

Michael W. Mosman
United States Attorney
Timothy Simmons
Assistant United States Attorney
District of Oregon
1000 SW 3rd Ave., Ste 600
Portland, Oregon 97204-2902
(503) 727-1156
(503) 727-1117
tim.simmons@usdoj.gov
OSB#92461
Attorneys for Federal Defendants

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ROBSON BONNICHES, et al., Plaintiffs

v.

UNITED STATES OF AMERICA, et al., Defendants

Federal Defendants' Opposition to Intervention

On July 8, 2001, almost five years after this case was initiated, and more than a month after all issues had been fully briefed and submitted to the Court, Joseph P. Siofele filed a Motion to Intervene as plaintiff with an attached "Complaint For Intervention, RE: Declaratory Judgment." For a review of the proposed complaint, Mr. Siofele claims a right of possession to the remains of the Kennewick Man and asserts his rights are "superior, first in time and first in right to all other claimants." Mr. Siofele asserts that his rights are based on "traditions, legends and culture." Proposed Complaint at 7-8.(1) Federal defendants oppose Mr. Siofele's intervention.
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(1) If Mr. Siofele claims priority of custody as a lineal descendant pursuant to 43 CFR 10.6 (1), he would have to meet the standards set out in 43 CFR 10.2(b)(1) and 10.14 which require evidence of direct descent from the Kennewick human remains without interruption. If Mr. Siofele is claiming a right of possession based upon cultural affiliation, pursuant to 43 CFR 10.6(2)(ii), he would have to show (1) that he is a member of an Indian Tribe or Native Hawaiian organization and (2) that he is culturally affiliated with the group to which the Kennewick human remains belonged.
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Federal Rule of Civil Procedure 24(a) provides for intervention of parties that can meet four conditions: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the property or transaction that is the subject of the action; (3) the interest may be affected or impaired by the disposition of the action; and (4) the interest is not adequately represented by an existing party to the litigation. (2)
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(2) The Confederated Tribes and Bands of the Yakama Indian Nation of the Yakama Reservation (Yakama Nation), one of the Indian tribes claiming custody of the Kennewick human remains, filed a motion to intervene in this case on May 26, 2000. By order dated August 2, 2000, this Court denied the Yakama Nation's motion, finding their intervention untimely and that their interests were adequately represented by federal defendants.
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Here, Mr. Siofele's intervention is untimely. Mr. Siofele's Motion fails to set forth any reason for his delay in seeking to participate in this action, despite the fact that this case has been highly publicized throughout its five year history. To the extent that Mr. Siofele's proposed Complaint raises a claim based on lineal descent or cultural affiliation, it is one that should have been addressed to the Department of the Interior during its administrative process. Mr. Siofele's proposed Complaint does not allege that he has raised his claim of a right of possession to the remains at any time previously, and there is no evidence that he has done so. There is no evidence that he participated in any way in the administrative process in which i8t was determined that the remains were Native American and culturally affiliated with the claimant tribes. Mr. Siofele's motion provides no explanation for his failure to raise his claim previously and his motion to intervene at this late date is untimely.

To the extent that Mr. Siofele challenges the federal defendants' compliance with NAGPRA and its implementing regulations, his motion fails to show that his interests are not adequately protected by the existing Plaintiffs. Federal Rule of Civil Procedure (FRCP) Rule 24(a)(2) requires that an applicant for intervention must demonstrate that it has an interest in the subject matter of the litigation that is not adequately represented by an existing party. Neusse v Camp, 385 F.2d 694, 699 (D. C. Cir. 1967); 3B J Moore's Federal Practices 24.07[1]. While Mr. Siofele's proposed Complaint characterizes the nature of this action as a conflict of 'science versus religion' (Proposed Complaint at 10), that is not what is before the Court. This case centers on the question of whether federal defendants have complied with the provisions of the Native American Graves Protection and Repatriation Act and its implementing regulations in determining that the remains discovered on federal lands are Native American and are culturally affiliated with the claimant tribes. Mr. Siofele has made no showing, as he must, that he will significantly contribute to the full development of the underlying issues in the suit and to the just and equitable adjudication of the legal questions presented to the Court. See Spanger v. Pasadena City Bd of Ed. 552 F. 2d 1326, 13229 (9th Cir., 1977). Mr. Siofele can not meet the
Tests for intervention under FRCP 924(a).

In determining whether permissive intervention under FRCP 24(b) would be appropriate, this Court must assess whether granting permissive intervention would "unduly delay or prejudice the adjudication of the rights of the original parties." FRCP 24(b)(2). In this case, briefing is complete and the Court has heard the arguments of all the existing parties. It would severely prejudice the interests of the parties if the Court were to withhold its ruling in light of Mr. Siofele's application to intervene.

Conclusion
Mr. Siofele is not entitled to intervention as of right because his claim is untimely, and to the extent that he seeks to invalidate the federal defendants' determination under NAGPRA, his interests are adequately protected by the existing plaintiffs. Allowing Mr. Siofele to intervene would delay the resolution of this case and unduly prejudice the rights of the existing parties.

Dated this 30th day of June 2001.

Respectfully submitted

s/David Shuey, Senior Attorney
Env. & Natural Res. Div.
U.S Dept. of Justice



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