Joint Tribal Claimants Notice of Appeal and Attachment to Civil Appeals Docketing Statement
Rob Roy Smith, OSB 00393
Thomas P. Schlosser, WSBA No. 06276
FOR THE DISTRICT OF OREGON
ROBSON BONNICHES, et al., Plaintiffs
UNITED STATES OF AMERICA, et al., Defendantsand
Nez Perce Tribe, Confederated Tribes of the Umatilla
Notice is hereby given that the Defendant/Intervenors Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Confedertated Tribes and Bands of the Yakama Nation and Confederated Tribes of the Colville Reservatin (collectively "Joint Tribal Claimants") appeal to the United States Court of Appeals for the Ninth Circuit frm the order of the Unted States District Court for the District of Oregon (1) setting aside the decision to award the remains of the "Kennewick Man" to the claimant tribes; (2) enjoining the federal defendants from transferring the remains to the claimant tribes; and (3) allowing the plaintiffs to study the ancient human remains.
The order being appealed was entered in this action on the 30th day of August, 2002.
Respectfully submitted this 24th day of October, 2002.
/s Rob Roy Smith, OSB # 00393
/s David J. Cummings, OSB # 92269
/s Naomi Stacy, WSBA #29434
/s Melissa Camobasso, WSBA #30602
/s Thomas Zeilman, WSBA #28740
/s Tim Weaver, WSBA #3364
/s Thomas Schlosser, WSBA #6276
(forms accompanying this Notice are not included here)
1. Brief Description of Nature of Action and Result Below:
This action was filed by a group of scientists in 1996 seeking judicial review of a final agency decision that found the remains of the "Kennewick Man" or the "Ancient One" as he is known to the claimant tribes, to be culturally affiliated with a coalition of Indian tribes, awarded those remains to the coalition of tribes, and denied the plaintiffs' request to conduct additional studies of those remains. The district Court granted a portion of the plaintiffs' requested relief and vacated the decision awarding the remains to the claimant tribes, enjoined the transfer of the remains to the coalition of tribes for repatriation, and rather than remanding to the agency, required that the plaintiffs be allowed to study the remains. Plaintifs' other statutory requests for relief were denied.
2. Principal Issues to Be Raised on Appeal:
(1) Whether the District Court erred in applying the standard for agency deference when reviewing the definition of "Native American" used by the Department of the Interior;
(2) Whether the District Court erred in applying a definition of "Native American" which is inconsistent with the Native American Graves Protection and Repatriation Act ("NAGPRA");
(3) Whether the District Court erred in rejecting the finding of cultural affiliation with the claimant tribes;
(4) Whether the District Court exceeded its authority by failing to remand the decisionto the agency;
(5)Whether the District Court erred in applying the Administrative Procedures Act ("APA") to NAGPRA's manate to agencies to consult with tribes when making cultural affiliation determinations;
(6) Whether the District Court erred in failing to apply the applicable Indian canons of construction to NAGPRA; and
(7) Whether the District Court erred in rejecting the ability of tribes to file joint claims for repatriation under NAGPRA.
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