On April 6, 2016, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Navajo Nation v. U.S. Department of the Interior, a case in which the Navajo Nation seeks to have the National Park Service (NPS) return 303 sets of human remains and associated funerary objects that NPS removed from Canyon de Chelly National Monument during the period from 1931 to 1990. While the case involves issues relating to the Native American Graves Protection and Repatriation Act (NAGPRA), the Circuit Court’s opinion is limited to a holding that the District Court erred in dismissing the Navajo Nation’s claim that NAGPRA does not apply. The Navajo Nation asserts that it is the lawful owner of the remains and funerary objects based on the Nation’s recognized ownership of the land from which the remains and objects were removed. The Circuit Court did not address the merits of this claim. Rather, holding that the threshold decision by NPS to treat the remains and objects as subject to NAGPRA foreclosed the Navajo Nation’s claim and, as such, constituted final agency action for purposes of the Administrative Procedure Act (APA), the Circuit Court remanded the case to the District Court.
Canyon de Chelly is located within the boundaries of the Navajo Reservation established by treaty in 1868. The National Monument was created in 1931 by an act of Congress which expressly states that the legislation shall not be “construed as in any way impairing the right, title, and interest of the Navajo Tribe” in the lands within the Monument. 16 U.S.C. §§ 445, 445a. After 1931, NPS excavated and removed some 297 sets of human remains and funerary objects without consent of the Navajo Nation. At that time, the statutory authority for such excavations was the Antiquities Act of 1906, which did not expressly require tribal consent. With the enactment of the Archaeological Resources Protection Act (ARPA) of 1979, tribal consent for archaeological excavations on tribal land became a legal requirement. Six more sets of human remains were excavated after the enactment of ARPA, from sites threatened by erosion. The Navajo Nation asserts that tribal consent was conditioned on NPS agreeing to immediate reinterment; NPS denies that it agreed to reinterment.
With the enactment of NAGPRA in 1990, NPS became subject to its requirement to conduct an inventory of the Native American human remains and funerary objects in its collections, and to repatriate such remains and items to known lineal descendants and culturally affiliated tribes. 25 U.S.C. §§ 3003, 3005. In the mid-1990s, NPS began an inventory of the remains and objects removed from Canyon de Chelly. In addition to the Navajo Nation, NPS also consulted with the Hopi Tribe and Zuni Pueblo, as ancestors of both tribes had lived in Canyon de Chelly from roughly 750 A.D. until the 1600s.
In 1996, the Navajo Nation asked NPS to stop the inventory process and return the remains and objects. The Nation asserted that the inventory and repatriation provisions of NAGPRA only apply to remains and objects that are lawfully within the possession and control of NPS, and that NPS does not have the legal possession and control because the remains and objects are the property of the Navajo Nation and were illegally removed from Canyon de Chelly. NPS declined the request, relying on advice that NPS had informally received from the Department of the Interior Solicitor’s Office. After many years, by letter dated September 7, 2011, NPS provided a written response denying the Navajo Nation’s demands. The Navajo Nation sued, seeking a court order to return the remains and objects.
The District Court dismissed the claim, ruling that it was precluded by the federal government’s sovereign immunity. The Ninth Circuit panel reversed, ruling that the September 7, 2011, letter constituted final agency action by NPS, and, as such, the waiver of federal sovereign immunity in the APA applies. The court reasoned that the threshold decision by NPS to apply NAGPRA had, in effect, determined the Navajo Nation’s legal rights in the remains and objects.
In a dissenting opinion, Judge Ikuta disagreed with the majority’s finding final agency action in the September 2011 letter. The dissent argued that final agency action will not occur until NPS completes the repatriation process prescribed in the regulations implementing NAGPRA.
The case does not implicate the graves protection provisions of NAGPRA, 25 U.S.C. § 3002, since the excavations occurred prior to 1990. Under those provisions, for Native American human remains and associated funerary objects excavated or discovered on tribal lands, if there are no known lineal descendants, the right of ownership or control is with the tribe “on whose tribal land the objects or remains were discovered.” Under the definition of “tribal land” in NAGPRA, Canyon de Chelly is tribal land of the Navajo Nation.
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