819 F.3d 1084 (9th Cir. 2016), 13-15710, Nation v. U.S. Department of The Interior

Docket Nº:13-15710
Citation:819 F.3d 1084
Opinion Judge:Morgan Christen, Circuit Judge
Party Name:NAVAJO NATION, Plaintiff-Appellant, v. U.S. DEPARTMENT OF THE INTERIOR; KENNETH LEE SALAZAR, in his official capacity as Secretary of the USDOI; NATIONAL PARK SERVICE; JONATHAN B. JARVIS, in his official capacity as Director of the National Park Service; TOM O. CLARK, in his official capacity as Park Superintendent, Canyon de Chelly National Monume
Attorney:Paul Spruhan (argued), Assistant Attorney General; Harrison Tsosie, Attorney General, Navajo Nation Department of Justice, Window Rock, Arizona; Paul E. Frye and William Gregory Kelly, Frye Law Firm, Albuquerque, New Mexico, for Plaintiff-Appellant. Mary Gabrielle Sprague (argued); Robert G. Dehe...
Judge Panel:Before: Mary M. Schroeder, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. IKUTA, Circuit Judge, dissenting:
Case Date:April 06, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

The Navajo Nation filed suit seeking immediate return of human remains and associated funerary objects taken from its reservation. Between 1931 and 1990, the National Park Service removed 303 sets of human remains and associated funerary objects from Canyon de Chelly National Monument, a sacred site on the Navajo Reservation. In the mid-1990s, the Park Service decided to inventory the remains and ... (see full summary)

 
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Page 1084

819 F.3d 1084 (9th Cir. 2016)

NAVAJO NATION, Plaintiff-Appellant,

v.

U.S. DEPARTMENT OF THE INTERIOR; KENNETH LEE SALAZAR, in his official capacity as Secretary of the USDOI; NATIONAL PARK SERVICE; JONATHAN B. JARVIS, in his official capacity as Director of the National Park Service; TOM O. CLARK, in his official capacity as Park Superintendent, Canyon de Chelly National Monument, Defendants-Appellees

No. 13-15710

United States Court of Appeals, Ninth Circuit

April 6, 2016

Argued and Submitted: June 10, 2015, San Francisco, California

Appeal from the United States District Court for the District of Arizona. D.C. No.3:11-cv-08205-PGR. Paul G. Rosenblatt, Senior District Judge, Presiding.

SUMMARY[*]

Native American Graves Protection and Repatriation Act

The panel reversed the district court's dismissal of the Navajo Nation's suit seeking an injunction ending the National Park Service's inventory, pursuant to the Native American Graves Protection and Repatriation Act (" NAGPRA" ), of human remains and funerary objects removed from the Canyon de Chelly National Monument on the Navajo Reservation; and the immediate return of the objects taken from the reservation.

The panel held that the district court had jurisdiction to consider the Navajo Nation's claims because the Park Service's decision to inventory the remains and objects was a final agency action within the meaning of the Administrative Procedure Act. The panel also held that by deciding to undertake NAGPRA's inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, had the present right to " possession and control" of the remains and objects. 25 U.S.C. § 3003(a). The panel remanded for further proceedings.

Judge Ikuta dissented because she would hold that because there was no final agency action reviewable under § 704 of the Administrative Procedure Act, the United States has not waived its sovereign immunity and the court lacks jurisdiction to hear the appeal.

Paul Spruhan (argued), Assistant Attorney General; Harrison Tsosie, Attorney General, Navajo Nation Department of Justice, Window Rock, Arizona; Paul E. Frye and William Gregory Kelly, Frye Law Firm, Albuquerque, New Mexico, for Plaintiff-Appellant.

Mary Gabrielle Sprague (argued); Robert G. Deher, Acting Assistant Attorney General; David C. Shilton; Andrew C. Mergen, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Appellees.

Before: Mary M. Schroeder, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. Opinion by Judge Christen; Dissent by Judge Ikuta.

OPINION

Morgan Christen, Circuit Judge:

The Navajo Nation appeals the district court's dismissal of its suit seeking immediate return of human remains and associated funerary objects taken from its reservation. The Nation describes these remains and objects as " among the most sacred of [its] property" due to its deep spiritual belief that upon death humans should be placed in the earth and left there undisturbed.

Between 1931 and 1990, the National Park Service removed 303 sets of human remains and associated funerary objects from Canyon de Chelly National Monument, a sacred site on the Navajo Reservation. In the mid-1990s, the Park Service decided to inventory the remains and objects pursuant to the Native American Graves Protection and Repatriation Act (NAGPRA) with the ultimate goal of repatriating the remains and objects to culturally-affiliated tribes. The Navajo Nation sued seeking, inter alia, an injunction ending the inventory process and returning the remains and objects. The Navajo Nation argued that the Park Service's decision to inventory the remains and objects instead of returning them violated Navajo tribal treaties, various statutes, and the Fifth Amendment to the United States Constitution. The district court dismissed the suit as barred by sovereign immunity, reasoning that the Park Service had not yet taken any final agency action as to its disposition of the remains and objects.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court's judgment. We hold that the district court had jurisdiction to consider the Navajo Nation's claims because the Park Service's decision to inventory the remains and objects was a final agency action within the meaning of the Administrative Procedure Act. By deciding to undertake NAGPRA's inventory process, the Park Service conclusively decided that it, and not the Navajo Nation, has the present right to " possession and control" of the remains and objects. 25 U.S.C. § 3003(a). We reverse the district court's order and remand for proceedings consistent with this decision.

BACKGROUND

Canyon de Chelly is a spectacularly beautiful geological site consisting of over twenty miles of red sandstone walls rising hundreds of feet above the ground. See S. Rep. No. 71-1395, at 2 (1931); Fig. 1.

Figure 11

Humans have lived in the canyon's caves for thousands of years.2 Hopi and Pueblo Indians were the canyon's primary occupants from roughly 750 A.D. until the 1600s.3 The Navajo began living in the canyon in significant numbers around the late 1600s. Id. Navajo live in the canyon to this day and consider Canyon de Chelly sacred ground.4 Navajo creation stories include events in the canyon, and Navajo lore maintains that key spiritual figures still reside there. See Kelli Carmean, Spider Woman Walks This Land: Traditional Cultural Properties and the Navajo Nation x, xvii--xx (2002).

In 1849, the United States and the Navajo Nation signed a treaty acknowledging that the Navajo Nation was " under the exclusive jurisdiction and protection of the government of the said United States." Treaty Between the United States of America and the Navajo Tribe of Indians, U.S.-Navajo Nation, September 9, 1849, 9 Stat. 974, 974. But in 1864 the federal government forcefully and violently removed the Navajo from their lands, including Canyon de Chelly, and relocated them to Fort Sumner, 300 miles away.5 Navajo villages and food stores were destroyed during the forced move and hundreds of Navajo died as a result of this forced relocation. Kristen A. Carpenter et al., In Defense of Property, 118 Yale L.J. 1022, 1063 (2009). After four years of exile, the federal government allowed the Navajo to return to Canyon de Chelly, id., and in 1868 the United States and the Navajo Nation signed a second treaty ceasing hostilities and establishing, among other things, the boundaries of the Navajo Reservation, which include all of Canyon de Chelly. Treaty Between the United States of America and the Navajo Tribe of Indians, U.S.-Navajo Nation, June 1, 1868, 15 Stat. 667, 668. Under this treaty, the Navajo Reservation was " set apart for the exclusive use and occupation of the Indians." Id. at 671.

In 1906, Congress passed the Antiquities Act, which authorized the President to establish national monuments in order to protect historic and scientifically significant sites. See 54 U.S.C. § § 320101-320303. It also authorized the Secretaries of the Interior, Agriculture, and War to grant permits " for the examination of ruins, the excavation of archaeological sites, and the gathering of objects of antiquity." Id. § 320302. The Department of Interior's regulations implementing the Antiquities Act do not treat tribal trust lands differently than other federal land and do not provide any rights to individual Indians or tribes concerning the collection or disposition of artifacts or human remains. See 43 C.F.R. § § 3.1-3.17. All collections made under the authority of the Antiquities Act must be kept in public museums or national depositories. Id. § 3.17.

In 1931, after receiving consent from the Navajo Tribal Council, the federal government created a national monument at Canyon de Chelly. 16 U.S.C. § 445. The monument encompasses Canyon de Chelly, two neighboring canyons, and lands adjacent to the canyons. Id. The act creating the monument (the Monument Act) specified that the Navajo Nation retained title to the lands within the monument, but it charged the federal government with the " care, maintenance, preservation and restoration of the prehistoric ruins, or other features of scientific or historical interest" in the monument. Id. § § 445a-445b. Canyon de Chelly National Monument is the only national monument located on land not owned by the federal government.6 After the monument's creation, the federal government removed certain human remains and associated cultural objects from the monument without the consent of the Navajo Nation. The National Park Service holds at least 303 sets of these remains and objects in its collection at the Western Archeology Conservation Center in Tucson, Arizona.

In 1979, Congress passed the Archaeological...

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