Fallon Paiute-Shoshone v. U.S. Bureau of Land Man., 03:04-CV-0466-LRH(RAM).
|455 F.Supp.2d 1207
|21 September 2006
|FALLON PAIUTE-SHOSHONE TRIBE, a federally recognized Indian tribe, Plaintiff, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.
|United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Brian W. Chestnut, Marc D. Slonim, Ziontz, Chestnut, Varnell Berley, et al.; Seattle, WA, Gordon H. Depaoli, Woodburn and Wedge, Reno, NE, for Plaintiff.
Clementine Berger, Sacramento, CA, Devon L. McCune, Elsie B. Kappler, United States Department of Justice, Washington, DC, Gregory W. Addington, U.S. Attorney's Office, Reno, NV, for Defendant.
Before the court are cross-motions for summary judgment in this matter. The Fallon Paiute-Shoshone Tribe (the "Tribe"), filed the first motion for summary judgment (# 311). This motion was met with an opposition (# 43) and cross-motion for summary judgment (# 44) from the Untied States Bureau, of Land Management ("BLM"). The Tribe filed a joint reply and opposition on the motions (# 51), and BLM subsequently filed a reply to the Tribe's opposition (# 58).
In addition, each side has had amicus curiae briefs filed on their behalf. In support of the Tribe's position, a brief has been filed by the National Congress of American Indians, the Association on American Indian Affairs, the Morning Star Institute, and the Medicine Wheel Coalition on Sacred Sites in North America (# 50). In support of BLM's position, briefs have been filed by the Ethnic Minority Council of America (# 35), the Friends of America's Past (# 37), the Ohio Archaeological Council (# 38), Doctors Harry Glynn Custred, Jr. and Andrei Simic (# 39), and Doctors Ives Goddard and Lyle Campbell (# 40). A notice of nonopposition to these amicus briefs has been filed by the Tribe (# 42).
The heart of this matter concerns the right to possess the remains of an extremely ancient habitant of Northern Nevada. On the one side, BLM seeks possession of the remains to allow for further study by scientists around the world. On the other side, the Fallon Paiute-Shoshone Tribe ("Tribe") seeks possession of the remains to allow for reburial. The Tribe believes that because the remains have been disturbed the spirit of their ancestor is required to wander the world in a state of unrest. The importance of these remains to both sides and the story of their discovery and history is necessary to place this dispute in proper context.
The remains in question were found in 1940 during an excavation near Fallon, Nevada, in a place known as Spirit Cave. Sydney and Georgia Wheeler, working for the Nevada Parks Commission, unearthed multiple burials and several associated artifacts. The most important find in the excavation was the well-preserved, partially mummified body of a man now known as the Spirit Cave Man. The find was removed from the cave and analyzed. Upon initial review, it was believed that the Spirit Cave Man remains were between 1,500 and 2,000 years old. The remains were then placed in storage in the Nevada State Museum ("Museum"), where they have remained to the present.
The Tribe states that the Spirit Cave, where the remains were found, is located on traditional tribal land and that the Tribe has long believed the area to be sacred. In fact, the Tribe states that its members have often avoided the cave out of respect. At the time of the discovery however, and to the present day, BLM controlled the land on which the cave sits. It is, though, just a short distance from Spirit Cave to the Tribe's reservation lands.
In 1990, Congress enacted the Native American Grave Protection and Repatriation Act ("NAGPRA"), 25 U.S.C. §§ 3001, et seq. NAGPRA requires all government agencies possessing Native American remains and cultural items to provide a catalogue or inventory of those items with the purpose of facilitating the return of culturally affiliated remains and cultural items to their related Native American tribes. The enactment of NAGPRA and the efforts to inventory the Spirit Cave Man remains resulted in the current dispute.
As part of the inventory and identification process required by NAGPRA, radiocarbon dating was authorized on the Spirit Cave Man remains. The dating, completed in 1994 or 1995, showed that the initial estimate for the age of the bones, approximately 2000 years old, was significantly flawed. The remains were, in fact, nearly 10,000 years old and, accordingly, were a significant scientific find. The Spirit Cave Man remains were so unique that they received national media coverage including a feature on the program NOVA and articles in such papers as the New York Times and the Washington Post. The scientific community was also intrigued, with several more requests to study the remains being made after the discovery of their age. Around this same time, the Tribe began making inquiries about repatriation of the remains. As early as May 1996, the Tribe requested that BLM temporarily inter the remains and cease all testing. The Tribe believes that it is the caretaker of the Spirit Cave Man remains and that disturbing the burial site of a deceased, such as the Spirit Cave Man, carries negative repercussions.
The Museum completed its NAGPRA required inventory in July 1996 and listed the Spirit Cave remains as unaffiliated. The inventory was provided to BLM, which put out a notice that the inventory had been completed in October 1996. BLM noted, as well, that it agreed with the affiliation determination and implied that notification of the determination would be followed by a brief period for responses before a final determination was made. However, this procedure never occurred and BLM authorized further study of the remains.
Results of these studies began appearing around February 1997, causing the Tribe to become upset that testing of the remains continued despite their religious beliefs. Accordingly, in May 1997, the Tribe requested repatriation of the remains as well as an end to further testing. BLM responded, noting the previous views of the museum that the remains were unaffiliated but stating that BLM would provide the Tribe with an equal opportunity to provide evidence of affiliation. In September 1997, BLM requested information about the Tribe's cultural origins and any other information that would not be available to BLM through its research efforts.
In early 1998, plans for a facial reconstruction project on the Spirit Cave Man remains were made public. The Tribe objected to the project, but the reconstruction occurred despite their concerns. The reconstructed face appeared on the cover of Newsweek and in other forms of national media. As of this time, BLM still held the position that no determination had been made regarding affiliation.
The Tribe turned to the NAGPRA Review Committee for assistance in November 1998 after seeing the results of continuing testing on the Spirit Cave remains while being told that a determination of affiliation had not yet been made. However, the Review Committee was unwilling to discuss the Tribe's substantive arguments. In the Committee's view, there was no need for their involvement at the time because BLM had yet to make a determination on affiliation.
Bringing the matter to the Review Committee, however, resulted in BLM working harder to complete its affiliation decision. Accordingly, in January 1999, BLM stated that it planned to make a final decision on affiliation within 45 days. The Tribe requested, and was granted, an extension until June 1999 to submit additional evidence in support of affiliation. In addition, the Tribe decided to retain experts to present scientific evidence in support of affiliation. In doing so the Tribe sought, and received, a second extension to December 1999 in order to complete their projects and provide their evidence to BLM. BLM continued to maintain that no final decision on affiliation had been made. While seeking their second extension, the Tribe also requested BLM inter the Spirit Cave Man remains in a Fish and Wildlife Service vault used to store other Native American remains that had been previously discovered after a flood. This request was denied by BLM.
The Tribe was able to submit its scientific evidence and a memorandum summarizing its position in December 1999. As a result, BLM stated that it needed further time to review the Tribe's evidence before making a decision and that the Tribe's submissions would be forwarded to the Museum for review. The Museum responded to the submission in January 2000, noting that it believed the remains were Native American but that it still viewed the remains as unaffiliated.
Finally, in August 2000, BLM released a 111 page report determining that the Spirit Cave Man remains were to be classified as unaffiliated. The report considered the relevant factors for determining affiliation expressed in NAGPRA and its implementing regulations. According to the Tribe, however, the report failed to discuss several scientific theories that had been raised by the Tribe's submissions and that it also failed to adequately distinguish the scientific evidence provided by the Tribe that it did consider. The paper also set a deadline of October 2000 for the Tribe to present any claims to the remains or objections to the report.
The Tribe, after reviewing the affiliation decision paper, requested an extension to respond until January 2001. BLM denied this request in October 2000 and issued a final determination that the remains were unaffiliated with any present day Native American tribe. BLM also referred the Tribe to the NAGPRA Review Committee, stating that the Committee might be able to aid the Tribe in its continuing request to have the remains repatriated.
In December 2000, the Tribe requested the Review Committee consider the matter and make findings concerning the affiliation of the remains and their potential repatriation to the Tribe. The Tribe...
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...American cultural items and remains to the tribes with whom those items are affiliated."20 Fallon Paiute–Shoshone Tribe v. U.S. Bureau of Land Mgmt., 455 F.Supp.2d 1207, 1217 (D.Nev.2006) ; see 25 U.S.C. § 3001 et seq. NAGPRA essentially functions as a "dual statute [.]" Fallon Paiute–Shosh......